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Investigator says Waukesha County clerk erred, but not criminally

By   /   September 28, 2011  /   1 Comment

By Kirsten Adshead | Wisconsin Reporter

MADISON — It was a "human error."

That's what Waukesha County Clerk Kathy Nickolaus  has contended since April 7, when she announced that thousands of votes hadn't been counted in Wisconsin's hotly contested state Supreme Court election.

An independent investigator agrees with Nickolaus' contention, prompting the state's Government Accountability Board, or GAB, to conclude in a report that the clerk will not face criminal charges for misreporting the results of the April 5 election.

The report doesn't fully leave Nickolaus off the legal hook, however.

The GAB, which oversees Wisconsin’s elections, announced that while Nickolaus did break a state law requiring that county clerks post all election results on election night, the error was unintentional and, therefore, she will not be prosecuted, based on an independent investigation by former Dane County prosecutor Timothy Verhoff.

"It is my opinion that if the government decided to issue a criminal charge against Ms. Nickolaus, it would be highly unlikely all members of a 12-person jury would be convinced beyond a reasonable doubt that Ms. Nickolaus’ actions involved willful neglect of a duty or the refusal to perform a duty,” Verhoff concluded.

Challenger JoAnne Kloppenburg initially celebrated a 204-vote lead over incumbent conservative state Supreme Court Justice David Prosser, but two days after the election, Nickolaus announced that 14,000 votes from the City of Brookfield were not included in the first tally. The votes gave Prosser the win — and brought immediate demands for an investigation.

County clerks are elected, and the GAB cannot remove them from office.

But the GAB can order a county clerk to comply with state law and, in this case, is requiring Nickolaus to change her reporting practices, including releasing detailed voting data on election night, instead of just countywide totals.

Nickolaus in a statement issued Wednesday said she will comply and looks forward “to rebuilding the trust of Waukesha County residents in the election process, as it is the foundation of our democracy.”

Political pundits, however, said the investigation’s results will do little to affect Wisconsinites’ opinions, one way or the other, on the accuracy and security of the state’s voting system.

“It doesn’t feel like a decision that’s going to cause any kind of healing, does it?” asked University of Wisconsin-Madison political scientist Katherine Cramer Walsh.

Charlie Jacobs, a political scientist at St. Norbert College in De Pere, said the GAB came to the right conclusion.

But Jacobs also said the GAB’s report sends a message to all county clerks, who are charged with overseeing their county’s elections.

“There is a baseline of competence that you have to do this job,” and the GAB will hold clerks accountable, he said.

Kloppenburg’s campaign spokeswoman Melissa Mulliken called the report a "damning indictment" of Nickolaus.

The report "says what we asserted, Kathy Nickolaus broke the law," Mulliken said.

The clerk has been the center of political controversy in a partisan contest that pumped in an unprecedented amount of campaign cash, historically high voter turnout for a spring election, and an elongated and expensive recount.

Nickolaus sprang to the spotlight again this summer during the 8th Senate District recall election, when Graeme Zielinski, spokesman for the Democratic Party of Wisconsin, accused her of tampering with votes.

"She’s sitting on votes. We believe that right now, there are severe irregularities in Waukesha County once again. We believe the very fate of the Wisconsin Senate hangs in the balance and is in the hands of a woman who has already shown extreme incompetence,” Zielinski told the Milwaukee Journal Sentinel the night of the April 9 election.

“We believe there’s dirty tricks afoot,” he said, asserting the Democrats would seek an investigation.

The party later retracted the demand.

Brian Nemoir, Prosser's campaign spokesman, told Wisconsin Reporter that the justice is satisfied with the results of the investigation. 

“Hopefully, this provides the necessary closure," Nemoir said.

Key findings of the investigation are:

  • Nickolaus could not have deliberately swayed the voting tally in favor of Prosser because the City of Brookfield independently reported the correct vote totals to various news media.
  • Nickolaus most likely loaded a blank template into the reporting database, instead of a template with the actual vote totals.
  • Because Nickolaus was solely responsible for uploading the voting data, there was no system in place to check for errors.
  • Nickolaus’ own behavior compounded the problem — she didn’t immediately report the error to the GAB and made confusing statements at the news conference she held, which fueled speculation of fraud.
  • There was no evidence of criminal wrongdoing or fraud regarding ballot bags and security seals in Waukesha County, concerns that had been raised in the wake of the election and the statewide recount that followed.


  • Louise Billings

    My liberal Democrat friends will never believe that fraud was how Prosser got elected. I’m sending them this article but ones a retired Madison fireman, the other a retired public service employee. They think fraud and will continue to mantain that there was fraud in the election. I really feel sorry for them, and they are not stupid people.