Chain of custody violations continue to emerge, particularly in Waukesha, during state Supreme Court election 'recount'
ALSO: $25,000 reward offered for evidence of WI election tampering...
By Brad Friedman on 5/5/2011, 7:44pm PT  

Five out of six bags of ballots from first batch to be counted out of the City of Brookfield in Waukesha County, WI, today were discovered "almost wide open" during Day 9 of the statewide Supreme Court election "recount." The bags were open and unsealed, according to both photographic evidence and an eye-witnesses account from the counting room. (Many more exclusive photos posted below.)

"When the ballot bags were taken out and placed upon the counting table, we were literally stunned," one of the citizen observers, Mary Magnuson, a Kloppenburg volunteer, told The BRAD BLOG this morning. "5 out of the 6 ballot bags were almost literally wide open, and ballots could be clearly seen."

The ballots in those bags were among the 14,000 said to have been cast in the April 5th election, but left off of Waukesha County's tally as reported to the media on Election Night.

Earlier this week we offered a detailed report on the status of the statewide "recount," highlighting a host of disturbing and outright violations of the chain of custody of ballots, including unnumbered and renumbered ballots bags (many of them from Waukesha County); ballots discovered unsecured and/or left out of the original count all together; and exceedingly sloppy record-keeping and reporting of "recount" results by the state's chief election agency, the Wisconsin Government Accountability Board (G.A.B.). In sum, we described the state of the "recount" of the contested election between Republican incumbent Justice David Prosser and his independent challenger Asst. AG JoAnne Kloppenburg, as "a mess."

Today, after the newest revelations from the Waukesha County counting room, it got a lot messier.

"We are finding significant anomalies, including chain of custody and missing ballots, that we need to shine light on," Kloppenburg campaign manager Melissa Mulliken told The BRAD BLOG earlier this week, while we were working on our previous story. The anomalies she was referring to, given where today's unsecured ballots are said to come from, have gotten much more "significant" in the past few hours...

'Widest gap seen so far'

Magnuson quoted retired Circuit Court Judge Robert Mawdsley --- appointed by the G.A.B. to oversee Waukesha's count in place of controversial County Clerk Kathy Nickolaus, who recused herself in light of several ongoing investigations into her handling of election results --- as saying that the opening in one of the ballot bags from the City of Brookfield was "the widest gap we have seen in ANY of the bags so far."

Moreover, in addition to the open ballots bags, one of them had its serial number crossed out and then replaced by another number to match the one seen on the plastic zip-cord "seal" still attached to the bag --- another chain of custody violation. Also, yesterday, ballot bags with six-inch openings in the top, large enough to pull ballots in and out of, were also discovered from Waukesha's Village of Elm Grove. (See more photos of all below.)

The new anomalies come on top of similarly disturbing chain of custody violations previously discovered in at least eight other "counting units," mostly in Waukesha, but elsewhere in the state as well.

According to the eye-witness Magnuson today, when the unsecured Brookfield ballots were discovered, legal counsel for Kloppenburg "objected to the ballots even being counted and/or included, due to the extremely evident lack of security insofar as the ballots were concerned." Nonetheless the Kloppenburg volunteer observer told The BRAD BLOG, "Prosser's counsel argued in favor of counting the ballots and Judge Mawdsley ruled in favor of counting them."

Kloppenburg excercised her right to this "recount" after the unverified results of the post-election canvass by all 72 counties in the Badger State found her to be just 7,316 votes shy of Prosser out of some 1.5 million ballots cast in the hotly-contested April 5th election. The 0.488% unofficial margin entitled her to a state-sponsored count, which she requested after learning that some 14,000 votes from the City of Brookfield were allegedly left out of Waukesha County's originally reported Election Night tally.

It is those votes which were scheduled to be "recounted" today in Waukesha and discovered to have been left wide open in unsecured bags, as documented in photographs taken by Magnuson, who has been observing the count for several days over the past week since counting began last Wednesday.

The 'Recount': Verifying questionable results for the first time

The majority of votes cast in Wisconsin are on hand-marked paper ballots, but are then scanned by oft-failed and easily-manipulated electronic tabulating optical-scan computers made by companies like Diebold, ES&S, and Sequoia without being checked for accuracy by human beings. Thus, our use of quotes around the word "recount,"
since almost all of the ballots cast in the crucial statewide election have never, until now, been examined for accuracy by any human being.

The stunning announcement of those 14,000 votes from the City of Brookfield, two days after the April 5th election, reversed what had originally been reported as an exceedingly slim (and unverified) "win" for Kloppenburg on Election Night. The Supreme Court race had become a referendum on Republican Gov. Scott Walker's controversial move to strip rights from citizens to collectively bargain with the state. Supporters of both candidates spent millions on outside advertising in the closing days of the contest.

Brookfield's game-changing votes were revealed to have been missed during a remarkable press conference on the night of April 7th, held by Prosser's former colleague and long-time GOP activist, Waukesha County Clerk Kathy Nickolaus. She is now under investigation for past election irregularities as well, including the recent discovery of some 20,000 more votes reported than the number said to have been cast in the county's 2006 general election.

Nickolaus waited nearly two days before notifying state officials or her own Board of Canvassers to her discovery of what she described as "human error" in failing to report the Brookfield totals on Election Night. The Kloppenburg campaign has asked for a special independent investigation into the matter.

The unsecured ballots from the City of Brookfield

Below are a number of photographs taken this afternoon in the Waukesha County, WI, counting room, of ballot bags from Wards 1, 2, and 3 in the City of Brookfield.

The plastic orange zip-cord tie attached to each bag is supposed to be a tamper-evident "seal." Each one has a serial number that is also supposed to match the one written on the bag's label, which is signed by two witnesses. The numbers are also supposed to match the one on the "Inspector's Report" filed on Election Night. (In our report earlier this week we detailed bags from the Town of Delafield, also in Waukesha County, which were missing serial numbers altogether or had their serial numbers scratched out and replaced by others.)

As Magnuson explained via email today...

"This morning, at the Waukesha County recount, things began, as usual. We were waiting to count the City of Brookfield, Wards 1, 2 and 3, when a representative from the County Clerk's office wheeled in the bin of information which included the inventory sheet, various envelopes, and, of course, the ballot bags.

"When the ballot bags were taken out and placed upon the counting table, we were literally stunned. 5 out of the 6 ballot bags were almost literally wide open, and ballots could be clearly seen. This, despite the fact that seals were around the top; still, the sides remained very clearly open with three different colors of ballots within"...

"Also made on the record was that the identifying number (or serial number) on bag 4, had been crossed out and replaced with another (serial, or identifying) number on the bag itself.

"Counsel for JoAnne Kloppenburg made that a part of the record, as well"...

[Update: "Giles Goat Boy" at Daily Kos has a link to the video and a partial transcript of the snap "hearing" that went on in the counting room to determine why the Brookfield ballot bags were open, and what explanation was offered by Brookfield's City Clerk Kristine Schmidt.]

Late this evening, Magnuson told us, "In the afternoon, six other ballot bags were pulled out when we opened the second bin for City of Brookfield, Wards 4, 5 & 6. Four of those bags had numbers scratched off of little white labels affixed to the bag."

"When the Kloppenburg representative asked the Brookfield City Clerk Kristine Schmidt for an explanation," of those labels and scratch-outs, says Magnuson, "she said, 'I don't know.'"

Here's one of those bags...

Elm Grove ballot bags: 'You could have stuck your entire hand in the damned things, your arm, maybe'...

Three bags from the Village of Elm Grove in Waukesha County, counted yesterday, were also discovered to have been unsecured. Each had "a 6 inch opening on each side" of the impenetrable plastic zip-line "seal" at the top-center of each bag.

Magnuson described those ballot bags to us yesterday as follows...

"This morning, Wednesday, May 4, at the Waukesha County recount, we began, as usual, with the introduction of a bin containing records, ballots, etc; today's count came from the Village of Elm Grove. The particular ward(s) included in the first count, were wards 5, 6, 7 and 8.

"Kelly, from the County Clerk's office brought the bin into the room and began to remove the various records, envelopes and ballot bags from the bin for identification purposes.

"At the time the ballot bags were removed from the bin and placed upon the tabulators' table, it was immediately noted by Judge Mawdsley that each of the three ballot bags, (bag 1 of 3, bag 2 of 3 and bag 3 of 3) were all sealed improperly. Specifically, despite the fact that an official seal had been placed on each bag, the tops of the ballot bags had not been properly folded over and/or tucked in, leaving an approximate six (6) inch gap on each side of the official red seal. Counsel for JoAnne Kloppenburg immediately requested that the condition of the bags be made part of the record; that request was accommodated.

"At one point, Judge Mawdsley referred to the condition of the tops of the bags as 'wing-like'. Another observer mentioned that she believed someone would have been able to 'fit their whole arm in there'. Regardless, after these observations, the bags were opened - each at the bottom, with a scissors - and the recount commenced in the normal fashion"...

When we asked the Kloppenburg campaign for comment on the Elm Grove bags last night, campaign manger Mulliken said she did not yet have them on her list of reported incidents.

Earlier in the week, when we'd asked her about the several incidents of broken chain of custody discovered in ballots bags in other Waukesha municipalities discovered previously in the count, Mulliken expressed frustration with what was being found, but confidence in her "team of folks on the ground":

"In Waukesha," she told us, "the recount is moving slowly, partly because there have been questions and issues about almost every bag of ballots they've opened to recount. We have a great team of folks on the ground and have had an attorney there every day raising objections and making sure the record reflects what is happening and our objections."

When we queried the G.A.B. about incidents of ballot bags with missing or scratched out numbers from Waukesha's Town of Delafield, in violation of chain of custody procedures, a spokesperson told The BRAD BLOG they would not be offering a response on such issues until after the "recount" was completed in the county.

"I haven't been briefed on that situation and so I can't comment on it at this point," the G.A.B.'s Reid Magney told us on Tuesday.

"Generally we don't have information about these things until we get minutes from the county. We don't get the minutes until the entire county has completed their count," he explained

A few other late 'recount' related items...

Machine counting in Waukesha?

Yesterday, while we were watching the live webstream of the counting room in Waukesha, we noticed ballots being tallied by machine, rather than by hand. Wisconsin "recount" procedures [PDF] specify that paper ballots are to be "recounted" by the same machines which tabulated them in the first place on Election Night, unless a court order is obtained to count them by hand.

Before the counting began, we reported that the Kloppenburg and Prosser campaigns had agreed to count paper ballots by hand in parts of some 31 of the state's 72 counties, after it had been learned that memory cartridges from theOptech Eagle optical-scan systems (sold by both ES&S and Sequoia), as used for the April 5th election in those counties, would have to be erased to accommodate the "recount." The memory cartridges, as the G.A.B.'s legal filings revealed, are no longer manufactured and are in short supply. We reported at the time that while ballots in parts of those 31 counties would therefore be counted by hand, "all" of Waukesha's ballots would be manually counted by agreement of the two campaigns.

So we were curious when we saw the machine counting going on. We queried the Kloppenburg campaign for an explanation last night, and Mulliken told us that the agreement was to count by hand only where the Optech Eagle system was used, and not in the entirety of Waukesha County as we had previously understood. In fact, there are a couple of municipalities in Waukesha which use the Sequoia-based op-scan system and others which use the ES&S op-scan system, but all of those op-scan systems are Optech Eagle according to's database, as updated on 1/13/08.

We will, of course, report any additional details on this as we are able to learn them.

[Update/Correction: We originally reported that two municipalities in Waukesha did not use the Optech Eagle. In fact,'s database says they all use the Optech Eagle, at least as of 2008, though in some municipalities they use the ones put out by ES&S and, in others, the ones put out by Sequoia, since both companies used to sell those systems. We've corrected the above to reflect that additional information, but remain confused as to why the county seemed to be counting some ballots by machine on Wednesday. We're still seeking further information and will try to report back if we are able to get any.]

Prosser campaign 'lies' about 'targeting the nuns'

A story fed to the media by Prosser's camp yesterday, and published uncritically by Charlie Sykes of Milwaukee's am620 WTMJ under the headline "TARGETING THE NUNS," charged that a number of absentee ballots from cloistered nuns in Sauk County were missing their witness signatures and were tossed after "the Kloppenburg team argued that the ballots should be thrown out."

"The canvas board, after a long and somewhat contentious conversation voted to reject the ballots --- at the insistence of the Kloppenburg attorney," according to the published email "from the Prosser folks." (Sykes failed to identify the name of the "Prosser folk" it came from when he ran it in full on the WTMJ website.)

"This is why Kloppenburg’s goons justify a million dollar (plus) recount…to make sure the votes of nuns are [sic] counted," the email concludes.

We asked Mulliken about the incident and she was uncharacteristically blunt in quickly describing the Prosser story as "a lie."

"We did not object, that is a lie," she said. "It is just untrue. It is inaccurate. It is misinformation. We did not object."

Mulliken went on to explain that the canvass board and other officials in Sauk County decided not to count them because "that's the law."

"Ballots with missing witness signatures have been discovered in the normal course around the state," Mulliken continued, "and that makes them deficient. That's the law and that's the rule and that's what happened here. Everyone's vote is equal, whatever your occupation is. If your absentee ballot isn't witnessed properly it doesn't count."

In a statement sent to media in response to the charges yesterday, the campaign said:

The Prosser campaign has the facts wrong. To spread misinformation in order to disparage the recount process, disrespects Wisconsin voters who are entitled to have confidence that elections are fair. Justice Prosser should know that every vote is equal and every vote should be treated in accordance with the law.

A more responsible version of the nun story was published last night by the Milwaukee Journal Sentinel, explaining...

Because canvassers were unable to match the actual ballots to the voter, they took all 24 absentee ballots from the Town of Sumpter and randomly drew 18, which were then set aside and not counted. Of those ballots, Prosser had 14 while Kloppenburg had four.

The Prosser campaign made two appeals to have the ballots counted, including early Wednesday, but they were turned down by the board of canvassers, [counsel for Sauk County Alene] Bolin, said.

$25,000 reward posted for evidence of fraud in WI's Supreme Court Election

Finally (or almost), election integrity and government watchdog organization' Protect Our Elections campaign posted a $25,000 reward notice, for "information leading to the arrest and conviction of any person or persons for election tampering, resulting in reversal of the current outcome of the April 5, 2011 Wisconsin Supreme Court election."

[FULL DISCLOSURE: The BRAD BLOG is a co-founder of]

A printable version of the reward notice is posted here [PDF].

Dems charge GOP 'fraud' in state Senate recall petition drive...

One more...As we reported earlier today, state Democrats are alleging that Republicans have fraudulently submitted thousands of signatures on petitions for recalls of Democratic state Senators. Currently, signed petitions have been filed with the G.A.B. for recall elections of 6 Republicans and 3 Democratic Senators in the wake of the passage of Walker's union-stripping legislation. See our earlier report for more details...

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