Waukesha County Clerk Kathy Nickolaus announces at a news conference 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. Credit: Michael Sears

By of the

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.

"Wisconsin voters as well as the Kloppenburg (campaign) deserve a full explanation of how and why these 14,000 votes from an entire city were missed. To that end, we will be filing open records requests 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," Kloppenburg campaign manager Melissa Mulliken said in a statement.

Assembly Minority Leader Peter Barca (D-Kenosha) raised the possibility of an independent investigation over the recovery of the votes.

"This is a serious breach of election procedure," he said. "We're going to look further. She waited 24 hours to work this. And she waited until after she verified the results, making it that much more difficult to challenge and verify the results."

'We went over everything'

But at the news conference with Nickolaus, Ramona Kitzinger, the Democrat on the Waukesha County Board of Canvassers, said: "We went over everything and made sure all the numbers jibed up and they did. Those numbers jibed up, and we're satisfied they're correct."

As a Democrat, she said, "I'm not going to stand here and tell you something that's not true."

Waukesha County Executive Dan Vrakas, who sat in on Nickolaus' news conference, said voters can be confident in the results because "all the votes are in that office. If anyone wants to look at them and verify, they can."

Kristine Schmidt, the clerk in the city of Brookfield, said in a separate interview that she shared the results with the news media on election night.

She said she also sent the results twice to the county. After the first results were sent she said the county requested a second set of data because they wanted results tabulated in a certain format with fewer columns.

"We sent it to the county and called the county to make sure they got it," Schmidt said.

Nickolaus explained that when she got Brookfield's results the second time in the correct format, she failed to save it. So when she totaled the results for the unofficial final report Tuesday, Brookfield's total was not included and she didn't realize it.

She discovered the error Wednesday when she transferred her data to a state computer program for the canvassers' review. Brookfield's results showed a zero. The Board of Canvassers started its work at noon Wednesday, but Nickolaus said she didn't report the major blunder because everything had to be verified first.

Nickolaus said the problem had nothing to do with her election system, which has been criticized as outdated. Her election operation was the subject of a county audit last year after complaints were leveled that she was not cooperative with information technology specialists who wanted to check the system's integrity and backup.

The audit concluded that while the clerk's system generally complies with state and federal guidelines and accuracy of election totals was not at issue, Nickolaus should improve security and backup procedures.

Although it was not among the audit recommendations, Nickolaus' decision to no longer report municipal election results separately on election night, as many other county clerks do, has raised questions. Nor does she show in the running totals throughout election night what proportion of the voting units are included in the tallies.

Could the error have been spotted sooner had municipal results also been on her website? Nickolaus would not make herself available after the news conference to answer questions.

Schmidt, the Brookfield clerk, said she watched the news conference. Does she buy Nickolaus' explanation?

"Yeah, I do. I understand those kinds of things can happen," she said, adding, "I was disappointed I was not informed. I should not have been informed through the news agencies, kind as you people all are."

She said her lack of information left her and the city open to unwarranted criticism.

She said if the municipal results had been individually shown on the county clerk's website, the error may have been spotted.

The state's top elections administrator said he was surprised that such a large mistake had been made but also said it was not entirely unprecedented.

"This emphasizes the need when counties are releasing information to the press on election night that they double check their data," said Kevin Kennedy, director of the state Government Accountability Board.

Kennedy said the state would review Nickolaus's figures but that no ballots from the county would be examined unless and until there is a recount.

"We will go back and check her numbers and all of the numbers she made in our system," he said.

He recalled an incident in 1982 when state elections officials had also made a huge error in adding vote totals, but said that mistake was also caught before official figures were compiled.

Recount rules

Once the final official numbers are in, either candidate - but no one else - can request a recount. If the margin between the candidates is less than 0.5%, the state charges nothing to conduct the recount.

But the added votes from Waukesha County could push the total far enough toward Prosser that a free recount would no longer be available to Kloppenburg, who on Wednesday had an unofficial 204-vote lead out of nearly 1.5 million votes cast.

If the final margin of victory is between 0.5% and 2% of the vote, the candidate asking for the recount must pay $5 per ward.

Mike Maistelman, an election attorney who often does work for Democrats, said he expected a recount would still happen despite Prosser's large vote gain.

"Nobody knows what's up or what's down," he said. "One day we win and the next day we lost by 10,000 votes? How do we know they did it right this time?"

Nickolaus has had a long career in Republican politics.

In the 1990s, 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.

"To my knowledge (Prosser) has not had any contact with Kathy since she left the caucus," Prosser campaign manager Brian Nemoir said.

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.

In a criminal complaint issued in 2002 against then-Assembly Speaker Scott Jensen and others, prosecutors claimed Nickolaus developed a computer software program that was used by state officials to track donations. According to a Journal Sentinel report, Nickolaus said she developed the software on her own time because she wanted to sell it to the state elections agency for use in automating state-required campaign reports. She left the caucus around that time.

As county clerk, she is elected as a Republican and holds a four-year term. She was first elected in 2002.

Vote changes elsewhere

The Brookfield bombshell was the biggest - but hardly the only - change as counties across the state checked their election results Tuesday. Here's a sample:

• In Winnebago County, officials now say Prosser received 20,701 votes to Kloppenburg's 18,887. On Wednesday, The Associated Press - which gathers the votes for most of the media in Wisconsin - had 19,991 for Prosser to Kloppenburg's 18,421.

• In Kenosha, Prosser picked up 33 votes in the Town of Randall and 27 votes in the Town of Bristol, and the canvass is still going on.

• In Waukesha County, Prosser also picked up 200 votes in New Berlin after a clerical error was discovered.

• In Grant County, Prosser lost 116 votes when officials completed their canvass Thursday. The count was off in part because the Town of Smelser incorrectly reported the count for paper ballots that voters cast after the regular ballots ran out, County Clerk Linda Gebhardt said. The town reported 294 votes for Prosser, but later corrected the figure to 194.

The list of changes rolled on in county after county, and reflected the important distinction in such a close election between the preliminary set of numbers and the final set. In most elections, the margin of error is such that it doesn't really matter - there's a clear winner, and that doesn't change days later when the final numbers come in and the state certifies the results.

In this case, the preliminary numbers were so close that the margin of error clearly matters.Any possible recount could be sought as soon as next week in the race, in which on Wednesday Kloppenburg had her unofficial 204-vote lead. But only after the county canvassers provide an official tally - and an official winner - can a recount begin.

In all of the state's 72 counties except Milwaukee, the county clerk or a surrogate serves on the board of canvassers along with two other people appointed by the clerk, according to the Government Accountability Board's procedures. County clerks in Wisconsin are elected as Republicans or Democrats, but the clerk must appoint at least one person to the board of canvassers who is from a different political party from the clerk.

To check the totals, the boards do tasks such as looking at how many votes were cast in a given location and then checking those totals against the figures on how many voters there were given a number and a ballot by poll workers, Kennedy said.

The canvassers also check election results by looking at printouts from polling place machines such as optical scanners for reading ballots. They check provisional ballots, tally sheets prepared for hand-counted ballots and certifications from election officials that voting machines haven't been tampered with.

The boards have to reconcile and correct any errors or discrepancies. Any returns that are too flawed for the canvass board to interpret are sent back to the municipality that sent them in for clarification. Once the information is checked, the canvass boards sign off on the results and send them to the state.

In the city of Milwaukee, officials are reviewing ballots in a warehouse on the city's north side, a process that will last into Friday, city election commission Executive Director Susan Edman said.

The high turnout Tuesday for a typically sleepy spring election will create extra difficulties in the counting.

Sue Strands, the city clerk in Fond du Lac, said there was 40% voter turnout there, far above a normal spring election.

Sharif Durhams and Larry Sandler of the Journal Sentinel staff contributed to this report.