Following the reaction to Waukesha and 14,000 uncounted votes

Published 2011-04-07

Waukesha County in Wisconsin on Thursday become the center of Tuesday's state supreme court election, as county clerk Kathy Nickolaus discovered she failed to report more than 11,000 votes cast by residents of the city of Brookfield.

Nickolaus disclosed the error two days after the voters cast ballots int he race between incumbent supreme court justice David Prosser and assistant attorney general JoAnne Kloppenburg.

Prior to the disclosure, Kloppenburg held a lead of just 204 votes. The missing votes from Waukesha County gave Prosser a lead of more than 7,500 votes.

A now-outdated visualization of how Wisconsin voted in Tuesday's Supreme Court election can be found here. Once canvassing is done, I'll update the numbers for history's sake.

There is too much happening today, and I think I would rather grab links and learn.

The newest information I have found is at the top. Scroll down for more background and links.

UPDATED 6:05 P.M. FRIDAY: Government Accountability Board Executive Director Kevin told JSOnline there was a statewide recount in the governor's race in 1858, and it ultimately was decided by the state Supreme Court.

According to several sites, Alexander Randall was elected governor -- Wisconsin's sixth -- in 1957 and took office in 1958.

Randall, who practiced law in -- wait for it, Waukesha -- served two terms, the second coming at the beginning of the Civil War. He helped organize Union Army troops, and is the Randall in Camp Randall.

But no mention of a contested election involving Randall in 1958 seems to exist.

However, a website called shows the 1855 election between Democrat William Barstow and Republican Coles Bashford was contested after Barstow originally was declared the winner.

Via Wikipedia, which I don't offer as fact at this point, but as some background on an intriguing story. I will work to confirm its authenticity:

When Barstow ran for reelection in 1855, he was initially declared the winner against his Republican opponent, Coles Bashford, by a mere 157 votes.

However, Bashford claimed the result was fraudulent, and it was soon substantiated that Barstow's win was due to forged election returns from nonexistent precincts in the sparsely populated northern part of the state, in addition to other irregularities such as two separate canvassing boards claiming legitimacy in Waupaca County and attempting to submit conflicting certifications.

As rival militia units converged on the state capital in Madison, threatening to start a civil war within the state, Barstow was inaugurated in a full, public ceremony on January 7, 1856.

On the same day, Bashford was also sworn in quietly as governor in the chambers of the Wisconsin Supreme Court by Chief Justice Whiton. The Wisconsin attorney general filed quo warranto proceedings in the Wisconsin Supreme Court to remove Barstow, who threatened that he would not "give up his office alive."

After challenging the court's jurisdiction without success and noting that the tide of public opinion had turned against him, Barstow declined to contest the fraud allegations and sent his resignation to the legislature on March 21, 1856, leaving the lieutenant governor, Arthur MacArthur, as acting governor. On March 24, the court unanimously awarded the governorship to Bashford by a count of 1,009 votes.


JS Online offers a primer on how a recount would work, and the canvassing process:

Once official numbers are in, either candidate - but no one else - can request a recount once the votes officially have been canvassed. If the margin between the candidates is less than 0.5 percent the state charges nothing to conduct the recount. If the margin is between 0.5 percent and 2 percent, the candidate asking for the recount must pay $5 per ward.

Prior to some 14,000 votes turning up in Waukesha County, Tuesday's margin fell well within the margin for an automatic recount at no cost to the candidates

An automatic recount would cost the state more than $1 million, and Government Accountability Board Executive Director Kevin told JSOnline much of that would be paid by counties that have to recount ballots.

As of now, incumbent justice David Prosser has about a 7,500-vote lead over Assistant Attorney General JoAnne Kloppenburg, which could mean the challenger would have to pay for a recount on her own dime.

According to Kennedy to JSOnline, there are no records of statewide recounts for races involving candidates since before 1913.

There was a statewide recount in the governor's race in 1858, Kennedy said, but he said he did not know if there were any recounts between 1858 and 1913.

Kennedy told The Wisconsin State Journal that the 1858 recount was in a governor's race and had to be resolved by the state Supreme Court.


Justices on the Wisconsin Supreme Court serve 10-year terms, and the winner of this election is scheduled to be sworn-in on Aug. 1.

Incumbents for seats on the state's high court don't lose often. JS Online reports only five sitting justices running for re-election have lost since the court was created in 1852.

The last came in 2008, when Louis Butler was defeated by Michael Gableman.

Prior to that, you have to go back 41 years -- to 1967 -- to George Currie, who was then chief justice of the state's high court.

Turns out Currie had been on the side of a majority decision by the Wisconsin Supreme Court that found the Milwaukee Braves' move to Atlanta in 1965 did not violate the state's antitrust laws.

Currie's opponent was Milwaukee Circuit Court Judge Robert Hansen -- likely a Braves fan -- who blamed the chief justice for losing Hank Aaron and the Braves.

Currie remains the only sitting Wisconsin Supreme Court chief justice to lose an election.

As an aside, it was 38 years ago today (April 8) that Hank Aaron hit his 715th home run, which broke Babe Ruth's record. It happened in Atlanta.

UPDATED 4:23 P.M. FRIDAY: State officials area headed to Waukesha County to review the procedures and practices in place used to count results from Tuesday's election.

Via The Wisconsin State Journal:

"Because of the attention on vote totals from Brookfield, I am dispatching GAB staff to Waukesha County today to review the business processes and verify the reported results in the election for Supreme Court justice," said Kevin Kennedy, GAB director and general counsel.

"I have been in close contact with Waukesha County Clerk Kathy Nickolaus since her news conference on Thursday, and have directed her to make the official returns from the polling places available for public inspection. These documents are public records. I believe she is now taking steps to ensure transparency and public confidence in the official results."

UPDATED 12:45 P.M. FRIDAY: Nate Silver at The New York Times says the vote counting error in Waukesha County is more about incompetence than conspiracy.

Silver writes:

There are, of course, suggestions in some liberal-leaning blogs that Ms. Nickolaus (who has worked for Republicans in the past) is attempting to steal the election. But a look at the turnout estimates in Waukesha County, before and after the problem was corrected, suggest that her mistake was probably an honest one. The original turnout figure was somewhat lower than what might have been expected statistically, and the revised one is more in line with reasonable expectations.

The county also had above-average turnout in the primary in February, in which Mr. Prosser, the incumbent, and Ms. Kloppenburg won the two spots on the general-election ballot in a four-candidate contest: the county’s turnout in the primary was 14 percent, compared with the state average of 12 percent. The same holds true for the presidential race of 2008, when 89 percent of the county’s registered voters cast ballots, compared with 86 percent for Wisconsin as a whole.

By contrast, when Waukesha County’s results in the judicial election were first announced results on Tuesday night, the turnout appeared to have been 42.3 percent, slightly below the statewide average of 42.7 percent. Now, with the Brookfield ballots included, the county’s total is now 47.8 percent, more consistent with its past pattern of slightly exceeding the statewide figure.

Silver's analysis of the data makes the article worth reading, especially for those who think something is afoot.

In case you missed it, here is Waukesha County Clerk Kathy Nickolaus' news conference on Thursday.


JoAnne Kloppenburg's campaign has enlisted attorney Marc Elias for help in any recount. The Capital Times reports that Elias is the same attorney who represented Democratic challenger Al Franken in his eight-month epic recount battle with incumbent Republican Norm Coleman. David Prosser has hired Ben Ginsberg, a Washington-D.C. attorney who played a prominent role in the 2000 Bush-Gore presidential recount effort in Florida. He was also part of the team that represented Coleman in his recount effort in Minnesota.

JSOnline's Craig Gilbert asks if the newly-found votes in Waukesha County look fishy.

JSOnline's Jason Stein reports campaign managers for Kloppenburg and Prosser were notified about 5 p.m. Thursday by Waukesha County Clerk Kathy Nickolaus of the vote count error.

And one blogger has decided that a grand jury may be necessary to ensure "electoral integrity" while another wants Nickoulaus' resignation.

UPDATED 10:27 P.M. THURSDAY: Via Mother Jones writer Andrew Kroll and Wisconsin State Journal reporter Mary Spicuzza on Twitter, Citizen Action of Wisconsin has called for a federal investigation into the situation in Waukesha County, calling the discovery of 14,315 votes "stunning and likely unprecedented development."

And via the Wisconsin Democracy Campaign:

Assembly Republican Caucus computer expert Kathy Nickolaus was one of 23 people to receive immunity in the Capitol caucus investigation.


A statement from the JoAnne Kloppenburg campaign can be found here, saying they will be filing open records requests.

Nickolaus worked for Assembly Republican Caucus when David Prosser was Assembly Speaker.

The Brookfield Patch website reports that Brookfield City Clerk Kristine Schmidt said she had not been notified by the county of any vote reporting problems, and found out during Nickolaus' news conference.

UPDATED 9:23 P.M. THURSDAY: Thinking I will now hold off on updating the numbers on the Wisconsin Supreme Court election map until canvassing is completed. Scroll down and you will find it. The colors are still solid, but obviously the numbers in each county are now off.

So in the meantime, what else is being talked about? Oh, computers and spreadsheets and IT departments.

From JSOnline back in August 2010, regarding the practice of keeping election results off a county network and on a "stand-alone" computer:

Nonetheless, Director of Administration Norman A. Cummings said because (Kathy) Nickolaus has kept them out of the loop, the county's information technology specialists have not been able to verify Nickolaus' claim that the system is secure from failure.

"How does anybody else in the county know, except for her verbal word, that there are backups, and that the software she has out there is performing as it should?" he said. "There's no way I can assure that the election system is going to be fine for the next presidential election."

And from JSOnline in January of this year:

Waukesha County Clerk Kathy Nickolaus' response to audit recommendations aimed at improving election security in her office was not a hit with the County Board leaders Monday.

Nickolaus had said she would take the recommendations "into consideration" - sparking concern from members of the Executive Committee and, at one point, a scolding from County Board Chairman Jim Dwyer over what he later categorized as "smirks" during the discussion.

"This is the only audit in my 17 years where there's no compliance before (the audit reaches) the Executive Committee," he said at the start of Monday's audit review.

And what were the recommendations? Oh things like not allowing three employees to use the same ID and password. Waukesha County policy requires each employe have an ID "so that an audit trail of each employee's work exists."

Nickolaus' response to that suggestion, according to the Journal-Sentinel:

That it took long for an employee to sign off so another could sign on."

Via Dane 101 from a September 2006 report in JSOnline:

Computer glitches, inoperable equipment and other problems troubled Tuesday's balloting in Waukesha County, resulting in one candidate mistakenly being posted as winner of a race only to be declared the loser.

Finally, the Wisconsin State Journal reports:

In 2001, Nickolaus was granted immunity to testify about her role as a computer analyst for the Assembly Republican Caucus, then under investigation — along with the Senate Republican Caucus and the Democratic caucuses for both houses — for using state resources to secretly run campaigns.

If you're looking for a recap of the Capitol Caucus scandals, here's a great resource.

UPDATED 8:09 P.M. THURSDAY: Things took another turn on Thursday as Waukesha County Clerk Kathy Nickolaus said due to an inputting error she had undercounted -- by 14,000 votes.

Via The Wisconsin State Journal:

The new totals showed Prosser with 92,263 votes in Waukesha County, while Kloppenburg had 32,758. Waukesha County Clerk Kathy Nickolaus said the votes weren’t reported to The Associated Press on Tuesday due to “human error.”