Incompetence or Fraud?

Is Waukesha County Clerk Kathy Nickolaus incompetent or part of a vast right-wing conspiracy to secure state Supreme Court Justice David Prosser's re-election?

The official story is that Nickolaus caught a reporting error made on election night, corrected the mistake during the official vote canvass, then broke the news with an apology at a press conference on Thursday, two days after the mistake was made.

Nickolaus blamed the mix-up on "human error," her failure to save the city of Brookfield's vote tallies in her Microsoft Access database. Nickolaus then released the Waukesha County numbers to the press—minus Brookfield's—which were then reported as the unofficial April 5 vote tally.

That sounds entirely plausible.

But others are still having a hard time believing Nickolaus' version of events. Democratic Congresswoman Tammy Baldwin (D-Madison) and Citizen Action of Wisconsin have asked for U.S. Attorney General Eric Holder to launch a federal investigation into potential election fraud. Waukesha County Democratic Party Chair Victor Weers has asked Nickolaus to resign. The state Government Accountability Board (GAB) is investigating Nickolaus' election-night actions. One Wisconsin Now has eagerly noted her partisan background. Even the lone Democrat on the county's canvassing board, Ramona Kitzinger, who said at the Thursday night press conference that the numbers "jibed," is now saying that she's confused about what actually happened as the Waukesha County votes were certified.

Nickolaus did not respond to the Shepherd's request for comment on last week's vote tally.

So what really happened in Waukesha?

The Count

The city of Brookfield clerk said she sent over its vote totals to Nickolaus on Tuesday night showing that 14,315 votes had been cast. Of those, Prosser had won 10,859 while his challenger, Assistant Attorney General JoAnne Kloppenburg, won 3,456 votes. The clerk also reported those numbers to a local blog, which posted them on Tuesday night.

Nickolaus stated on Thursday that she had entered those numbers into her Microsoft Access database but failed to save them after they were entered. She said she unknowingly released the Brookfield-less Waukesha results to the Associated Press.

Nickolaus said she realized her mistake during the post-election canvass, added in the Brookfield vote tallies, certified the numbers, then called the press conference.

But that version of events is being challenged.

On Monday, Government Accountability Board (GAB) spokesman Reid Magney said state investigators will return to Waukesha this week to continue looking into the error. Magney said the investigation has two parts. First, the GAB will ensure that the county's numbers match the numbers that were reported by the individual polling places on election night, as well as protect the ballots in the event of a recount. The second part of the investigation will review Nickolaus' election-night practices. Magney said that most county clerks have a process in place—for example, using a blackboard or bulletin board or computer program—to show which municipalities within the county have reported their results.

But Nickolaus only releases the countywide totals for each of the races on the April 5 ballot.

"Had she reported for each municipality, people would have noticed that Brookfield was not in there," Magney said.

He said that there is nothing in the law that requires her to report separate results, but that the GAB would review her election-night practices and make some recommendations.

State Department of Justice spokesman William Cosh said that the department would only get involved if the GAB found evidence of criminal wrongdoing.

The Canvass

Nickolaus stated in her press conference that the error was detected during the post-election vote canvass and corrected. Backing her up was Democrat Ramona Kitzinger, who's served on the county's canvassing board since 2004.

But on Monday, Kitzinger released a statement clarifying her remark that the numbers "jibed."

In her statement, Kitzinger said that the canvass began at 9 a.m. on Wednesday and "proceeded as normal, with no glaring irregularities or mention of a possible 15,000-vote error in Brookfield city." On Thursday, "the issue of minor vote corrections in New Berlin and Lisbon came up, but again nothing of a historic nature or reflecting glaring irregularities."

She said that Brookfield's results were mentioned on Thursday, but "in retrospect it seems both shocking and somewhat appalling there was no mention of discovery of this 15,000 vote 'human error' that ultimately had the potential to tip the balance of an entire statewide election."

Kitzinger said she wasn't told of the error until after the canvass was complete, the results were certified and Nickolaus had called a press conference. She said Nickolaus had showed her and the Republican observer "tapes where [the] numbers seemed to add up, though I have no idea where the numbers were coming from. I was not told of the magnitude of this error, just that she had made one."

While Kitzinger may not have known about the 14,000-vote error on Thursday afternoon, conservative bloggers had that information before the press conference. For example, Wisconsin Policy Research Institute's Christian Schneider, blogging at the National Review Online, posted the news before the press conference began, with the revised numbers of the total vote.

Nickolaus' critics have also charged that she has run sloppy, error-riddled elections in the past; was uncooperative with Waukesha County officials who wanted to ensure that her computers were secure and functioning properly; was granted immunity to testify about her role as a computer analyst for the Wisconsin Assembly Republican caucus during the partisan caucus scandals, when Prosser was the Republican Assembly majority leader; and that Microsoft Access automatically saves data after it has been entered.

"It doesn't necessarily add up to a conspiracy," said Citizen Action of Wisconsin's executive director, Robert Kraig. "It adds up to a lot of suspicious circumstances that definitely require a full independent investigation. Whether you were for Prosser or Kloppenburg or for no one, this tarnishes Wisconsin's reputation."

The Fallout

The revised numbers in Waukesha County gave Prosser an unofficial lead of roughly 7,000 votes over Kloppenburg. The GAB's Magney said the agency would not certify the election results until all official results are in and the investigation of Waukesha's results is complete.

One of the candidates may ask for a recount after the official numbers are reported. If the margin is above 0.5%, the candidate must pay for the recount.

Jay Weiner, author of This Is Not Florida: How Al Franken Won the Minnesota Senate Recount, said that a recount is highly unlikely to swing more than 7,000 votes and give the election to Kloppenburg. Weiner said no recount in recent decades has swung more than 500-600 votes in either candidate's favor. For example, in Minnesota's 2008 U.S. Senate race, Norm Coleman unofficially led by 215 votes out of 2.9 million. After a hand recount and an eight-month legal battle, Al Franken won by 312 votes. Other recounted races in Washington and New York fell within that vote margin as well.

Weiner said that if Prosser's 7,000-vote advantage holds up through the canvass process, Kloppenburg would have to ask herself if she wanted to go through with a recount that is likely unwinnable and very expensive. Coleman and Franken spent $20 million on their recount alone.

However, he said, a recount in Waukesha County may be advisable to show that the results are valid.

"I think it would be a fine idea because it would show that the election was fair," Weiner said.

Kloppenburg's campaign did not respond to the Shepherd'srequests for comment. It has submitted open records requests for material related to the Waukesha County tally.