Kloppenburg filing for special investigator alleges Prosser met privately with Walker on night after election, Nickolaus may have committed felonies

Both camps agree to hand counts in parts of 31 counties...

Brad Friedman Byon 4/22/2011, 2:47am PT

On Wednesday, Wisconsin's Asst. Attorney General JoAnne Kloppenburg announced that she will be exercising her right to file for a statewide "recount" following the April 5th election for state Supreme Court against the incumbent Justice David Prosser. She also said that she intended to ask for a special investigator to be named to look into a number of still-unanswered questions about election results that were misreported by Waukesha County's Clerk Kathy Nickolaus, a former employee of Prosser's when both served in the state's Assembly Republican Caucus.

Kloppenburg's complaints have now been filed, and The BRAD BLOG has been reviewing both them, and several additional points of note since yesterday's dramatic presser, in advance of the count which is scheduled to begin next Wednesday, April 27, according to the WI Government Accountability Board (G.A.B.), the state's top election agency.

Details included in Kloppenburg's request for a special investigator in Waukesha --- including the curious point that Prosser "was observed entering the Governor's Office late in the evening and attending a private, one-on-one meeting with Governor Scott Walker" on the night following the election, on the very same day in which the controversial new GOP Governor publicly stated that there might be "ballots somewhere, somehow found out of the blue that weren't counted before." --- are certainly compelling.

Moreover, information and questions about the "recount" process itself have naturally emerged --- including a noteworthy, video-taped exchange between a citizen activist and the head of the G.A.B. on Wednesday, as well as concerns about which districts will hold court-ordered hand-counts, and which will simply run ballots through oft-failed, easily-manipulated optical-scan computers again (or worse, simply push a button to produce the same printed reported by the same 100% unverifiable touch-screen voting machines)...

WAUKESHA INVESTIGATION: The Call for a Special Investigator

The Kloppenburg campaign's request to the G.A.B. that a special investigator be appointed to look into whatever malfeasance or misfeasance may have happened in Waukesha County is a compelling one. As you likely know by now, on Election Night, Kloppenburg was reported to be ahead of Prosser by a razor-thin 204 vote margin out of some 1.5 million cast. The election itself had become a referendum for Republican Gov. Scott Walker's controversial legislation removing a great number of rights for state employees to collectively bargain with their employer.

Two days later, on April 7th, in a 5:30pm press conference, Clerk Nickolaus announced that she had left some 14,000 votes from the city of Brookfield out of her Election Night tallies as given to the media. With the additional votes from Brookfield, Prosser gained the unofficial lead by some 7,500 votes. After the post-election canvass was completed in each of WI's 72 counties late last week, Prosser's lead was 7,316 votes --- or 0.488% --- over Kloppenburg, entitling her to a state-sponsored "recount" since the margin was less than one-half-of-one-percent.

Though The BRAD BLOG was among the first to note that those 14,000 Brookfield votes seemed to be legitimate (not necessarily the unverified results themselves, but the existence of the votes), as they were independently reported by a local media outlet in Brookfield on Election Night, many questions persist in regard to what happened, why they were not reported by Nickolaus initially, and why it took her a full two days to notify anybody --- and only via a press conference --- about what she described as "simple human error".

We've also detailed (see here and here) a fair amount, though not all, of Nickolaus' checkered history as an election official, as we've been following her various failures --- such as keeping election results only on a personal computer in her office where they cannot be overseen --- for the better part of the last year.

The Kloppenburg request for a special investigator to be appointed by the G.A.B. is based, upon other things, on evidence that the board has a conflict of interest in investigating County Clerks since they, "by necessity, have frequent interactions with all of the county clerks relating to elections."

"It is natural that these frequent professional interactions develop into friendship and a mutual trust between GAB staff and the county clerks," the Kloppenburg complaint states. "The GAB staff have a legitimate business need to maintain their close working relationship with all of the county clerks. This need conflicts directly with the need for a thorough, objective investigation into a county clerk's possible misconduct, abuse of discretion, and violations of state law that could result in civil or criminal sanctions."

The complaint highlights a number of friendly emails to Nickolaus from both other County Clerks across the state, as well as from members of the G.A.B. following her admission of "human error" in the original tallies.

The relationship between the G.A.B. and the clerks, as explained by Kloppenburg's campaign attorney, "undermines the Government Accountability Board staff's effectiveness and credibility in conducting an investigation into Ms. Nickolaus' actions relating to the spring election."

As to their specific reasons for requesting a special investigation in Waukesha, the request for a special investigator, filed on behalf of the Kloppenburg camp by campaign manager Melissa Mulliken, is a great read. Here are the facts it lays out "Relating to Nickolaus' Performance of Election Duties for the Spring Election Held on April 5, 2011", in regard to her stunning April 7th press conference announcement giving Prosser a 7,500 vote lead...

Most importantly, why did Nickolaus take so long to notify the Board of Canvassers or the G.A.B. following her discovery of the previously unreported votes?

As to the fact that word of the previously-unreported votes from Brookfield were reported, somehow, by "Conservative media outlets" before Nickolaus' presser and, apparently, before either the Canvassing Board or the state's G.A.B. were notified, that is also a question very much worth investigating. Indeed, we also heard about the news in advance of Nickolaus' April 7th evening presser from a rightwing blog site.

And then, what to make of that private meeting between Prosser (who, during the campaign, promised to "act as a common sense complement to both the new administration and [GOP] Legislature.") and Walker on the night after the election --- on the same day Walker, Prosser's old Republican colleague from the Assembly, felt confident enough to announce that there might be "ballots somewhere, somehow found out of the blue that weren't counted before"?

Was the meeting proper? A sitting Governor can meet with a sitting Supreme Court justice, I guess. But if Barack Obama had a private meeting with Justice Sotomayor (and no other justices) and failed to explain the reasons publicly, would the public have the right to, at the very least, know what the meeting was about? Of course. And an explanation for the Prosser/Walker meeting, if it occurred as described in the Kloppenburg complaint, should be ascertained by whoever investigates this matter on behalf of the G.A.B.

[Update 4/22/11, 1:32pm PT: Prosser vehemently denies a private meeting with Walker, according to Milwaukee's Journal Sentinel.]

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And on Nickolaus' storied history of problems as both an election official in Waukesha and, prior to that, as a Republican staffer working for the state Assembly, the Kloppenburg complaint summarizes her remarkable string of known failures this way...

Quite a record.

For the summary of the specific felony violations the Kloppenburg campaign is alleging Nickolaus may have committed in the wake of the April 5 election, see their full complaint...

THE 'RECOUNT': Preserving the Evidence

A bit of late good news here, in what might have otherwise been a disturbing start to next week's statewide recount. On Thursday, the G.A.B. filed for a declaratory judgment from the circuit court [PDF] requesting permission to erase ballot programming and election results from memory cartridges used with the ES&S Optech Eagle optical-scanner system in 31 counties where those systems are used to scan paper ballots, so that they can be reprogrammed for use in the "recount".

In Wisconsin, unless an order for a hand-count is obtained from the court, the "recount" process involves scanning the same paper ballots (where they exist) through the same optical scanners used to tally them originally on Election Day/Night.

The G.A.B.'s request to the court explains they have "been advised that the memory cartridges no longer are manufactured, insufficient memory cartridges are available from the manufacturer or other sources, and the counties that will use the Optech Eagle for the recount have insufficient reserve memory cartridges in addition to the ones which were used in the April 2011 spring election, which contain the record of the votes cast."

Under state law, those cartridges may not be cleared for 21 days following the election. In truth, those cartridges should be kept for at least as long as paper ballots and other materials are securely maintained. (In federal elections, ballots and others materials are supposed to be retained for 22 months following the election though, incredibly, memory cards are routinely scrubbed in short order after elections are certified, despite years of our imploring otherwise here.)

So, since memory cartridges will be needed for scanners where ever machine "recounts" will be performed, and since extras are not available as the cartridges are no longer manufactured, the G.A.B. must receive permission to wipe them clean so, as per WI's recount procedures [PDF], the cartridges and machines can be reprogrammed to tally just the one race being contested during the "recount".

This, of course, underscores yet another absurdity in using these types of computer systems in our elections. If the contest --- via machine re-tally or hand count --- demonstrates that the optical scan systems tallied ballots incorrectly on Election Day, the forensic evidence necessary to determine whether the mistally was due to either malfeasance, misprogramming or malfunction will likely have been destroyed in the process of clearing the memory cartridges for use in the post-election contest.

The good news is that late on Thursday, according to WisPolitics (and then confirmed by The BRAD BLOG with the Kloppenburg campaign directly), both the Kloppenburg and Prosser camps have "agreed to a hand recount in parts of 31 counties to avoid having to erase data on the original Election Day returns now stored on voting machines. ... The deal includes 34 municipalities in Waukesha County."

And now the not so good news: "For the rest of the state, a machine recount will be used." In those areas, the ballots will simply be fed back through the op-scanners. However, state recount procedures allow that campaigns may examine each ballot before it's fed through the machine which could amount to a "virtual hand count" of sorts --- at least where paper ballots exist.

Meanwhile, across the state, 100% unverifiable Direct Recording Electronic (DRE, usually touch-screen) voting systems are also used, mostly for optional use for disabled voters, but also in the case where paper ballots may have run out on Election Day, as they did in a number of districts across the state on April 5, due to higher than expected turnout.

While so-called "Voter-Verifiable Paper Audit Trails" (VVPATs) are printed along with the votes cast on those systems in Wisconsin, the fact is, those VVPATs are usually not verified for accuracy by voters before the electronic ballots are invisibly cast and, in any case, the VVPATs can also be gamed. (See this video from UC Santa Barbara's Computer Security Group showing just one way to do so, in a video created for the state of California's "Top-to-Bottom Review" of electronic voting systems in the state). Thus, even with the so-called "paper trail", votes cast on those systems are 100% unverifiable.

But to make matters worse, WI's state code allows that "recounts" on DREs do not include an examination/count of the printed VVPATs. Rather, the results from DREs are simply "re-tabulated " by the same electronic system. The button is pressed again, the same report is printed. Garbage in, garbage out.

We have advised the Kloppenburg camp, while we were confirming the hand-counts in those 31 counties, that the preferred --- albeit highly imperfect, for reasons mentioned above --- procedure to deal with "recounting" those DREs, would be to count the VVPATs by hand. They'll likely have to receive a court order to do it, however. Another printout from the same machines is largely meaningless and illustrative of absolutely nothing.

Either way, in the end, if the margin of votes separating winner and loser, after the contest is complete, is lower than the number of votes cast on the touch-screen systems, we'll never know who actually won or lost with certainty. That's just one reason such systems are antithetical to democracy, and should never be used in any election.

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Lastly (or almost) for now. Wisconsin activist Katy Reeder caught up with Kevin Kennedy, Director and General Counsel of the G.A.B., on the streets of Madison on Wednesday and had a very interesting conversation with him, as caught on video tape by Jeremy Ryan of Defending Wisconsin PAC (Hat-tip to Jeannie Dean in BRAD BLOG comments for flagging it)...

Two points of note in response to the video above.

1) Reeder's questions about reconciling the number of printed ballots --- all of them --- is spot on. Public records requests should be made for invoices from the vendors who printed ballots in the state. Those invoices should detail how many ballots were printed. At the same time, records requests should be made for the paper trail detailing the number of ballots sent to each city and/or ward, and the campaigns should do an accounting of all ballots during the recount procedure to reconcile the number of voted, unvoted and spoiled ballots. All blank, unvoted ballots should be fully accounted for during reconciliation of the election.

2) The point made in the video about trusting the G.A.B. or anybody else. As we have pointed out over and over, for years on this blog, elections are not about trust. They are about oversight by the citizenry. If the citizenry can't see it for themselves, there is no reason to trust it. Kennedy seems like quite a decent fellow, as witnessed by his willingness to chat on the street about these matters with a citizen. But nothing here is about trust. It's about checks, balances, and oversight, as we recently emphasized with some passion in this video on the Wisconsin mess.

Kudos to Reeder and Ryan for their good citizen watchdogging and video taping! We could use a million more like 'em on the ground in WI and in every other state!

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Finally, Kloppenburg beautifully expressed the point of such a count during her press conference yesterday when she said: "A recount may change the outcome of this election or it may confirm it, but when it is done, a recount will have shed necessary and appropriate light on an election that, right now, seems to so many people to be suspect."

We agree.

But it looks like Fox "News" doesn't, and have apparently already decided the outcome, as reported on their website in their usual "fair and balanced" manner...

P.S. Kloppenburg is not a Democrat. She's an independent. Not that facts 'n' stuff matter that much over at Fox "News", of course.

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