County Clerk Kathy Nickolaus, a GOP activists, previously criticized and audited for storing election results only on a personal computer in her office
UPDATED: New numbers now put state-sponsored recount just out of reach for Kloppenburg...
By Brad Friedman on 4/7/2011, 4:04pm PT  

[Updated 4/8/11, 12:22am PT at bottom of article.]

As word was floating around this afternoon about a possible "book keeping error" discovered during canvassing of Tuesday's incredibly close Wisconsin Supreme Court election, an error that might give thousands of votes to Justice David Prosser in a race which he trailed by just 204 votes based on unofficial Election Night numbers, we idly wondered if the county in question might turn out to be the very controversial Kathy Nickolaus' Waukesha County.

And, whaddaya know...

BREAKING: Computer Error Could Give Prosser 7,381 More Votes, Victory
April 7, 2011 5:29 P.M. By Christian Schneider

After Tuesday night's Wisconsin Supreme Court election, a computer error in heavily Republican Waukesha County failed to send election results for the entire City of Brookfield to the Associated Press. The error, revealed today, would give incumbent Supreme Court Justice David Prosser a net 7,381 votes against his challenger, attorney Joanne Kloppenburg. On Wednesday, Kloppenburg declared victory after the AP reported she finished the election with a 204-vote lead, out of nearly 1.5 million votes cast.

On election night, AP results showed a turnout of 110,000 voters in Waukesha County - well short of the 180,000 voters that turned out last November, and 42 percent of the county's total turnout. By comparison, nearly 90 percent of Dane County voters who cast a ballot in November turned out to vote for Kloppenburg.

Prior to the election, Waukesha County Clerk Kathy Nickolaus was heavily criticized for her decision to keep the county results on an antiquated personal computer, rather than upgrade to a new data system being utilized statewide. Nickolaus cited security concerns for keeping the data herself - yet when she reported the data, it did not include the City of Brookfield, whose residents cast nearly 14,000 votes.

Throughout the day Thursday, official canvass numbers flipped the lead back and forth between Prosser and Kloppenburg. While many believed a recount was inevitable, the addition of the Brookfield votes for Prosser could push the justice's lead beyond the legal threshold that would trigger an automatic recount. Under state law, Kloppenburg could still ask for a recount up to three days after the official canvass, but would have to pay for it herself.

The above comes from the Rightwing National Review Online and is similarly reported at this hour at the similarly Rightwing Weekly Standard where Stephen F. Hayes adds that Nickolaus is also "a Republican activist":

[T]he discovery of the extra votes is sure to stoke the embers of the heated battles that have taken place across the state over the past two months, particularly because Nickolaus, the woman at the center of the controversy, is a Republican activist. A posting on the website of the Republican Women of Waukesha County indicates that Kathy Nickolaus recently served as president of that group.

As Schneider notes in the NRO piece, Waukesha's County Clerk Kathy Nickolaus had indeed come under scrutiny for her election procedures in the past. As The BRAD BLOG flagged back in August of 2010, it was discovered that Nickolaus keeps election results on her personal PC in her office, and only on her personal PC.

At a press conference moments ago, Nickolaus is said to have attributed the confusion in numbers to "save error" in Microsoft Access on her computer.

As we noted, quoting the Milwaukee Journal Sentinel last year in regard to questions about Nickolaus', um, unusual election procedures:

Waukesha County Clerk Kathy Nickolaus' decision to go it alone in how she collects and maintains election results has some county officials raising a red flag about the integrity of the system.

Nickolaus said she decided to take the election data collection and storage system off the county's computer network - and keep it on stand-alone personal computers accessible only in her office - for security reasons.

"What it gave me was good security of the elections from start to finish, without the ability of someone unauthorized to be involved," she said.

An audit of Nickolaus' election procedures was subsequently performed by the county and a number of recommendations to improve the security and accuracy of her system were made by the auditors. Among them, the recommendation that she stop using the same ID and password for three different employees in her office. Nickolaus claimed, in opposing that recommendation, that it would take too much time for one employee to log off before another one logged on with a different user ID.

When presented with the results of the audit at a County Board meeting in January after Nickolaus had refused to implement the recommendations, saying only that she would take them "into consideration," she was taken to task for what the Chairman of the Executive Committee described as her "smirks" during the discussion. Here is how the Journal Sentinel reported that meeting in January of this year...

Several committee members said they were uncomfortable with Nickolaus' refusal to adopt the recommendations.

During one part of the discussion, [Chairman Jim] Dwyer erupted in exasperation at Nickolaus' facial expressions.

"There really is nothing funny about this, Kathy," he said, raising his voice. "Don't sit there and grin when I'm explaining what this is about.

"Don't sit there and say I will take it into consideration," he said, asking her pointedly whether she would change the passwords.

"I have not made my decision," she answered. After supervisors continued to press the issue, Nickolaus indicated she would create three different passwords.

"This isn't that big of a deal. It isn't worth an argument," she said. "This is ridiculous."

Nickolaus also said she would make her own assessment of when to back up computer programming for election ballots - and store the more frequent backup in another building, as the auditor recommended.

We explained, in our August 2010 report, how insane it is to allow such a situation to exist where one insider official has that much control over results with no oversight whatsoever by the public...

Hopefully, the citizens and county administrators in Waukesha County, Wisconsin (adjacent to Milwaukee), will realize how completely insane it is to allow one person, County Clerk Kathy Nickolaus (R), to have complete, unfettered, un-observable, un-overseeable control of such public information, and are willing to do something about it.

For the record, for just one tiny reason why election officials are not to simply be "trusted" (as the very best ones will tell you), here's the story of former Monterey County (CA) Clerk Tony Anchundo. And, if that's not enough, feel free to peruse the story of Clay County (KY) Clerk Freddy Thompson. Just let us know if you need more.

What part of 'public official' and 'public elections' to these sorts of folks not get???

The Supreme Court election in Wisconsin, as we reported when covering results and explaining how votes are cast and counted in the Badger State yesterday (and the concerns related the optical-scan and touch-screen systems used in the state as made by companies such as Diebold, ES&S, and Sequoia), has become a proxy battle between supporters of Republican Gov. Scott Walker and his opponents in the public who have protested for weeks against the GOP state legislature's attempt to strip unions of many of their collective bargaining rights.

A victory by Assistant Attorney General JoAnne Kloppenberg would change the balance of the state's high court, where Republicans currently have a 4 to 3 majority with Prosser as a close ally of Walker's.

We will, as you might imagine, be discussing this this evening on the nationally syndicated Mike Malloy Show which I am again guest hosting all this week from 9p-Midnight ET (6p-9p PT).

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UPDATE 4/8/11, 12:22am PT: The audio archives from tonight's Mike Malloy Show, including my interview with longtime WI election integrity champion (and self-described "Ron Paul Republican" who voted for Prosser) John Washburn are now here.

During our discussion, Washburn offered a great deal of insight into the matter and says he has a number of concerns about Nickolaus' explanation of what happened. Washburn has, as we also learned, spoken on Nickolaus' behalf at a County Board meeting last year when she was facing the audit by the County's Executive Committee. She asked him to speak in her place, as she was unable to be at the meeting.

One other point that Washburn made which is worth noting here. The threshold for the state to pay the costs of a "recount" is a 0.5% margin. That margin would be approximately 7,500 votes in an election with some 1.5 million ballots. The new numbers out of Waukesha, as detailed below, give Prosser an additional 7,582 votes over Kloppenburg. That means, if the numbers across the state stay similar to what they are following the Nickolaus adjustment in Waukesha, the cost of a "recount" would most likely need to be borne by Kloppenburg.

So, now that we're off the air, this is from the Journal Sentinel's report following Nickolaus' press conference this afternoon (video of that conference is now posted below), as updated by the paper late tonight...

In one explosive stroke Thursday, the clerk in a Republican stronghold tilted the tight Supreme Court race in favor of Justice David Prosser by recovering thousands of untallied votes for the incumbent.

Waukesha County Clerk Kathy Nickolaus said Thursday that she failed to save on her computer and then report 14,315 votes in the city of Brookfield, omitting them entirely in an unofficial total she released after Tuesday's election. With other smaller errors in Waukesha County, Prosser gained 7,582 votes over his challenger, JoAnne Kloppenburg, leaving the sitting justice significantly ahead for now amid ongoing official counting.

"I'm thankful that this error was caught early in the process. This is not a case of extra ballots being found. This is human error which I apologize for," Nickolaus said, her voice wavering as she spoke to reporters.

The figures are still far from final in a race that had previously seemed almost certain to see a statewide recount. Around the state, elections officials Thursday were tweaking unofficial results from the day before that had put Kloppenburg, an assistant attorney general, ahead of Prosser by a razor-thin 204 votes.

But nothing compared to Brookfield, where the new totals give 10,859 more votes to Prosser and 3,456 more to Kloppenburg.

"I'm encouraged by the various reports from the county canvasses," Prosser said in a statement. "We've always maintained faith in the voters and trust the election officials involved in the canvassing will reaffirm the lead we've taken."

But Kloppenburg supporters reacted with alarm, pointing out that Nickolaus had worked in the Assembly Republican caucus during the time that Prosser, a former Republican lawmaker, served as the Assembly speaker and that Nickolaus also had faced questions about her handling of elections as clerk.

The Journal Sentinel report by Jason Stein, Laurel Walker and Bill Glauber offers a great deal of very good detail and should be read in full. It also includes the following...

Nickolaus has had a long career in Republican politics.

For 13 years, she worked as a staffer for the Assembly Republican caucus, one of four GOP and Democratic legislative groups that were shut down following a criminal investigation into state staffers doing campaign work on state time.

Prosser led Assembly Republicans as minority leader in that House from 1989 to 1994 and than as speaker in 1995 and 1996, giving him oversight of the GOP caucus in that House.
The caucus investigation eventually led to the resignations and criminal convictions of leaders in the Senate and Assembly for directing caucus and staff employees to engage in illegal political activity during their state employment.

Nickolaus, who earned $54,000 a year as a data analyst and computer specialist for Assembly Republicans, was granted immunity in 2001 by authorities conducting the investigation.

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The video of Kathy Nickolaus' press conference 4/7/11, announcing the new totals for Waukesha County, follows below...

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BRAD BLOG's 4/6/11 coverage of the WI Supreme Court election results, including details on (and concerns about) the type of ballots cast and the computer counting systems used to tally them across the state.

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