By Brad Friedman on 4/8/2011, 4:28pm PT  

Here is an update, along with some important thoughts on the WI Supreme Court election debacle which exploded out of Waukesha County yesterday, plunging that important election into utter disarray --- an election seen by many as a referendum on Gov. Scott Walker and the state GOP's legislating away many of the rights of state citizens to collectively bargain.

I am writing quickly as I scramble, once again to get to the studio on time to finish up my week tonight as guest host of the nationally syndicated Mike Malloy Show. I will, of course, speak again about these matters in greater detail on air this evening. So please forgive any typos or lack of clarity in the following for now.

First, some of the latest related news of note, and then some quick thoughts on this entire fine mess.

The campaign of Asst. Attorney General JoAnne Kloppenburg, now said to be trailing incumbent Justice David Prosser by some 7,500 votes, announced their intention last night to file an open records request "for all relevant documentation related to the reporting of election results in Waukesha County, as well as to the discovery and reporting of the errors announced by the County."

That's good. In addition, they ought to apply for an immediate court order for the quarantine, sequestration, and confiscation of all ballots, electronic voting systems (optical-scanners, Direct Recording Electronic machines, tabulators, etc), memory cards, and the computer systems of County Clerk Kathy Nickolaus as well, in hopes of assuring a complete, independent, transparent forensic investigation of the entire election by an independent party.

At the same time, the State Government Accountability Board (GAB) has announced today they are "dispatching officials to the Waukesha County Clerk's Office Friday afternoon to review procedures used in tallying results of Tuesday's Supreme Court election."

That's good too, and if they have the authority to confiscate the election materials as described above, they should exercise it immediately as well. Nickolaus should no longer be allowed anywhere near this election (or, frankly, any other, given her years of reckless behavior in her role as County Clerk.)

Others, including Citizen Action of Wisconsin, have called for a full federal investigation into "irregularities" in Waukesha County's vote-counting system. That would be both welcome and appropriate as well in this case.

With all of that said, and with full recognition of the absolutely shameful way the Right would have behaved had 14,000+ votes suddenly "appeared" in a Democratic stronghold, as they did in the heavily Republican Waukesha enclave (and as they had already begun to do prior to yesterday's stunning announcement, as can be seen in the Fox "News" appearance yesterday of the always shamefully irresponsible liar John Fund), there are reasons to regard the "new" numbers announced yesterday as "legitimate." Or, at least as "legitimate" as any of the other results announced based on ballots counted only by oft-failed, easily-manipulated computer systems in the state. (See our detailed explanation about those systems, and the very serious concerns about them, as we published on Wednesday, when the unofficial results had the race at a 204 vote margin.)

Here's why I feel that way. (Though, mind you, how I feel has nothing to do with what should or shouldn't be done here to restore integrity and appropriate oversight to the woeful election system in place in Waukesha. To be sure, there are many remaining questions that demand answers at this time in both Waukesha and elsewhere in the state.)...

On Tuesday night (just after midnight Wednesday morning), Lisa Sink of the Brookfield Patch posted the unofficial results from city of Brookfield. The results reported that night from Brookfield --- 10,859 for Prosser, 3456 for Kloppenburg --- are identical to the "new" numbers revealed by the county's Nickolaus at her remarkable press conference last night.

That "evidence" would seem to be as good as any that the "new" numbers Nickolaus offered yesterday were not simply pulled out of thin air --- at least any more than any of the other unverified-by-human results across the state are at this hour.

I contacted Sink to confirm that, in fact, that article, dated April 6 (though not time-stamped), had been published prior to yesterday's announcement. She wrote back to confirm that indeed they had. As she wrote, in part:

I got these results on election night at City Hall from the City clerk's office, typed it up at City Hall and posted this story at 12:24 a.m. That's why it says April 6. I didn't get any results from the county or AP because I only needed Brookfield city votes.

What was or was not included in the countywide total Nickolaus gave to AP on election night, I have no idea. Only Nickolaus and maybe AP have info on that.

But these numbers have indeed always been Brookfield's vote tally since shortly after the polls closed Tuesday night.

Sink also noted the problems that both the county and the media have had with Nickolaus' refusal to include municipal-level results on the county's web site, making it nearly impossible to oversee the accuracy of election night numbers.

"She only puts countywide totals," Sink told me. "There are I believe 36 or 37 municipalities in Waukesha County."

Does that mean the numbers are accurate? Absolutely not. They have, to this point, only been tallied by machines and not by human beings. That the numbers haven't changed by even one vote since election night is as troubling as anything else, frankly. It means they haven't been examined for accuracy by human beings. Indeed WI's election laws require a court order before a hand-count may be performed.

Adding further, albeit circumstantial, evidence that Nickolaus' "new" Brookfield numbers aren't entirely made from whole cloth, however, is Nate Silver's statistical analysis at the New York Times today, finding the updated totals put Waukesha more in line with their expected turn-out for Tuesday's election. His analysis suggests "incompetence" was more likely the culprit in this affair, rather than a nefarious conspiracy.

He may, of course, be right. Or wrong. There is no way for the public to know for certain, since they have been largely shut out of the entire tallying process in Waukesha (and across most of the state for the matter --- but the problem is, obviously, particularly acute in Waukesha under Nickolaus' ridiculously authoritarian and non-transparent rule). And that uncertainty is precisely the problem.

With citizens cut out of the system, we continue to run "faith-based" elections in this country. And that continues to be no way to run a democracy in what was once regarded as the planet's greatest.

Nickolaus' procedures are an abomination and an embarrassment not only to Waukesha County and Wisconsin, but to the U.S. as a whole. Unfortunately, while she's among the worst of the election officials in this country, she is not alone in the horrendous way in which she runs elections, or in the small regard she has for citizen oversight and self-governance in a (theoretically free and transparent) democracy.

Our report yesterday detailed just a small sampling of how bad her procedures are, and how bad her behavior has been, as we have been tracking Nickolaus' insulting administration as County Clerk here at The BRAD BLOG for more than a year.

Her processes are so bad, in fact, that even Wisconsin election integrity champion John Washburn, a self-professed "Ron Paul Republican," a David Prosser voter, and someone whom Nickolaus has asked to speak on her behalf at a County Board meeting in the recent past, had to admit that things "do not smell right" after hearing her explanation of the newly "discovered" 14,000+ votes yesterday.

(I interviewed Washburn, a long-time colleague, and an occasional BRAD BLOG guest blogger, at length last night on the nationally syndicated Mike Malloy Show which I've been guest hosting again all week. You can listen to that interview Washburn, detailing his concerns about Nickolaus' procedures and her newly announced results right here.)

It'll be great news (if not necessarily to critics of Gov. Scott Walker and the WI GOP) if the ballots from Waukesha County's municipality of Brookfield are transparently and independently reviewed, along with chain of custody documentation and computer records, to determine that the results announced Thursday evening by Nickolaus, and her explanation of events, are all 100%, confirmably accurate.

Thankfully --- as The BRAD BLOG described in some detail on Wednesday, when the pre-canvass, unofficial, (oft-failed, easily-manipulated) computer-tallied results reported the race at a razor-thin 204 vote margin --- most of the ballots cast on Tuesday in Wisconsin, and in Waukesha, were on hand-marked paper and are, therefore, verifiable at this point (presuming chain of custody issues prove to be up to snuff).

That is no replacement, unfortunately, for Democracy's Gold Standard: hand-marked paper ballots, hand-counted in public at the polls on election night, with all parties and the public (and their video cameras) overseeing the entire process, with decentralized results posted publicly at the precinct before ballots are ever moved anywhere.

Until 100% transparent processes such as the one described above are in place in these United States (as they are in many towns in New Hampshire by the way, where results are routinely turned in even before results are in from the computer-counted towns, and where there is rarely, if ever, a discrepancy found later in the canvass) these absurd questions about election results will continue to haunt and threaten and derail what is left of our democracy.

True self-governance and overseeable democracy are not based on trust in any individual. Our system is built on oversight and checks and balances. It is not a matter of trust. There is no reason to trust any election official, no matter if they may share your party affiliation or not. The greatest election officials in the nation will tell you as much.

Back in October of 2005, just prior to the Monterey County, California, November election with their then new Sequoia touch-screen voting systems, I had the occasion to interview the county's Registrar of Voters Tony Anchundo on the Peter B. Collins Show.

I asked Anchundo how he had planned to handle discrepancies, if any, between machine-reported results on the county's new systems and their planned audit of the so-called "paper trails" from those unreliable (and since decertified) electronic voting systems.

The 13-year election official responding by telling me: "There is obviously going to have to be some trust and faith in the elections official, or in this case, it's me."

(Audio of full interview here, text transcript here, Court TV's Catherine Crier picked up on our reporting of this in a video editorial here.)

A few short months after the interview, in July of 2006, Tony "Trust Me" Anchundo was charged with 43 criminal counts, including charges of forgery, misapplication of funds, embezzlement, falsification of accounts, and grand theft of nearly $80,000 of County money.

And then in December of 2006 Anchundo pleaded "no contest" to all 43 criminal charges.

The Anchundo story, unfortunately, is not an isolated incident. The greatest threat to the security of elections --- as computer security and election experts have advised again and again --- comes from election insiders, like Anchundo, or Nickolaus.

There should be no need to trust Anchundo or Nickolaus or any other election official. We, the people, ought to be able to confirm everything from top to bottom for ourselves, without relying on partisan (or non-partisan) officials.

That's why a transparent system, which can be overseen by we, the people, is the key to democracy. Without being allowed to oversee the counting of our own elections, it's impossible to have a democracy that can stand the test of time.

It does not matter, in the end, whether Nickolaus' numbers are legitimate or not. What matters is that we, the people, know that they are. Given the system as it is now, it's nearly impossible for anybody to know that for certain.

It's been said that the mark of a "successful election" is when the loser's supporters feel that the election was fair and the results were believed to be on the up-and-up. That is an essential element of democracy. Sadly, we seem to be getting further and further away from that, as the public is moved further and further out of the system, as results are counted in secret, by vote-counting computers that frequently fail, have been proven time and again to be easily manipulated, and in such a way as to be virtually, if not completely, undetectable.

The citizens are shut out of the entire process, left to scramble for shreds of oversight via public records requests (when allowed), formal investigations (when carried out) and court cases (when candidates are able to afford them), just as is now the case with Waukesha County's horrendous election night reporting system and Kathy Nickolaus' entirely unacceptable set of un-overseeable procedures.

No matter which political party you may feel a part of, if any, we all deserve much better than this.

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Related stories (among many) at The BRAD BLOG...

4/7/11: BREAKING: Prosser Up by 7500+ in WI Supreme Court Race After 'Database Error' Discovered by Controversial Clerk in Republican Waukesha County

4/6/11: WI Supreme Court Election Virtually Deadlocked, According to the Machines Anyway

8/16/10: WI's Waukesha County Clerk to Keep Elections Results on Her Personal Computer

9/16/09: Democracy's Gold Standard: Hand-Marked, Hand-Counted Paper Ballots, Publicly Tabulated at Every Polling Place in America...

4/3/07: Why Nobody Should Ever Have to Trust an Elections Official: Tony Anchundo Reports to Jail

More stories on Monterey County, CA's now-former Registrar Tony Anchundo

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