Kathy Nickolaus, the Waukesha (Wisconsin) County Clerk whose human error flipped the reported results in the April, 2011 state Supreme Court race between incumbent David Prosser and challenger JoAnne Kloppenburg, will most likely not face any charges related to her botched handling of election returns. Kloppenburg declared victory on election night based on media reports, but Nickolaus reported two days later that she had "forgotten to save" 14,000 votes from Brookfield. The additional votes gave the victory to Prosser.
Nickolaus was the target of an independent investigation ordered by Wisconsin’s Government Accountability Board (GAB) after Kloppenburg's campaign filed a complaint. The report from the investigation done by Dane County prosecutor Timothy Verhoff, along with other supporting documents, was released today. It found that Kathy Nickolaus violated the state law that requires her to post all returns on election night but that her actions do not likely rise to the level of criminal, willful misconduct.
It's fascinating reading, if you enjoy tales of gross incompetence committed by a person too proud and stupid to admit she doesn't know how to use Microsoft Access.
The GAB press release announcing the publication of the reports stresses the fact that the investigator found no evidence of criminal activity, not surprising since the director of the GAB stated many months ago when a separate investigation by GAB staff began that "We have confidence in Wisconsin's county and municipal clerks, and do not believe any of them would do anything illegal to jeopardize their own reputation, or Wisconsin's reputation for clean, fair and transparent elections."
Despite the lack of grounds for criminal prosecution, the GAB has given Nickolaus a list of orders to comply with before the GAB’s December, 2011 meeting. The orders are for her to produce a number of written procedures which the GAB says will help “…ensure accountability and transparency in future elections.” It’s too early to know whether the GAB will send representatives to Waukesha on election nights to “ensure” that Nickolaus follows the written procedures she will write for herself.
The investigator’s report acknowledges complaints about torn, unsealed, and mislabeled ballot bags discovered during an election recount requested by the Kloppenburg campaign, but the report dismisses allegations of ballot theft or fraud by stating "…given the number of individuals in addition to Ms. Nickolaus who would have to be involved in a conspiracy to engage in the type of fraudulent election practices described above, it appears highly unlikely to have occurred.”
In the report, the special investigator says that the absence of votes from the city of Brookfield in Nickolaus’s election night totals is not evidence of fabricated or “found” votes. The report finds that the votes from Brookfield were reported independently by the Brookfield municipal clerk, published on a local news web site on election night, and verified during a recount, but that Nickolaus most likely used a blank template in error when attempting to upload what she thought were Brookfield vote totals:
They are the same results for the City of Brookfield that were certified through Waukesha Board of Canvass on April 7,2011. They are the same results for the City of Brookfield that were certified during the statewide recount, which included the hand counting of ballots, in May 2011. This information directly contradicts and undercuts speculation of a grand conspiracy.
Nevertheless, the report’s conclusions were highly critical of Nickolaus in many respects:
Ms. Nickolaus was the sole person responsible for uploading the spreadsheet/templates into the Access 2007 dalabase on election night. There was not a system in place to check for potential errors in this process.
Ms. Nickolaus also was responsible for posting the results to the website. By her own account, she failed to go back and double check the numbers before posting the final results. The Waukesha County Clerk's Office failed to have adequate systems and procedures in place to receive and verify vote totals before posting the results to the public. The simple step of requiring a second person to verify all results imported into the database and all results published to the website very likely would have resulted in the immediate detection of the omitted City of Brookfield results on election night.
Similarly, if Ms. Nickolaus adopted the interpretation of $ 7.60 taken by the G.A.B. and published the results independently by ward, rather than a countywide total, she would have detected the error on election night. lnstead, Ms. Nickolaus simply relied on the overall report generated through the database without confirming it.
Compounding the problem was the way in which the matter was handled after Ms.
Nickolaus discovered the error. There appears to have been a general lack of communication and transparency about the situation. Ms. Nickolaus shared information about the potential problem regarding the Brookfield votes with a very limited number of people. She informed her deputy clerk on the morning after election. But she did not inform members of the Board of Canvass, nor Brookfield Clerk Kris Schmidt prior to the canvass. She told Ms. Nowak about the problems, but it appears Ms. Nickolaus did so only because she suspected the canvass would confirm the results posted on election night were incorrect, and she needed Ms. Nowak's assistance in arranging a press conference.
Based on the statements Ms. Nickolaus made when interviewed, it is clear she believes
she was attempting to contact the G.A.B. as soon as she discovered the error. Records confirm she did contact the G.A.B. multiple times on the morning of April 6. But the statements from Mr. Hirscher and Mr. Harvell show that Ms. Nickolaus failed to adequately convey the specific nature and scope of the problem to them.
Ms. Nickolaus also acknowledged she conveyed the problems in more general terms, simply saying she needed help with the Access database. She clearly did not convey the urgency of the situation to the G.A.B. Ms. Nickolaus'failure to immediately inform G.A.B. Director and General Counsel Kevin Kennedy or G.A.B. Elections Division Administrator Nat Robinson about the scope of potential problem with the Brookfield vote totals also shows a lapse in judgment. Had she simply delayed the start of the canvass until she was able to confer with them, it is possible the G.A.B. could have provided immediate assistance and expertise and may have been able to help her in addressing the issue at the press conference. lnstead, after having limited contact with Mr. Hirscher and Mr. Harvell on the morning of April 6, she did not contact anyone from the G.A.B. until immediately before the press conference on the evening of April 7. She never spoke directly to either Mr. Kennedy or Mr. Robinson.
The manner in which Ms. Nickolaus decided to hold the press conference also
exacerbated this situation. ln an already politically charged election, the release of information that resulted in a shift from what appeared to be a close victory for Ms. Kloppenburg to a victory for Mr. Prosser brought with it high drama. Through the Board of Canvass, Ms. Nickolaus had confirmed the results she posted on election night were inaccurate. But at the time she held the press conference, sh¡e clearly did not know exactly how the error occurred.
During the press conference, for example, Ms. Nickolaus repeatedly stated the error was the result of failing to properly save the results in the Access 2Q07 database. This explanation only fueled suspicion of fraud because members of the public familiar with the program were aware the program does not require a user to save data after it is uploaded and were aware the explanation did not make sense.
Once again, Links to press release and reports:
http://gab.wi.gov/...