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Independent investigation concludes Election Day error was honest mistake

But G.A.B. warns county clerk to conform to state standards

Sept. 29, 2011

An independent investigation found no willful criminal misconduct in election-night practices that led Waukesha County Clerk Kathy Nickolaus to omit 14,315 votes cast in the city of Brookfield in spring elections last April.

However, a report on the independent investigation conducted by former Dane County prosecutor Timothy Verhoff found that Nickolaus violated state law requiring county clerks to post all returns on election night.

The Government Accountability Board released the report Wednesday, more than five months after Brookfield's 14,315 belated ballots gave incumbent Supreme Court Justice David Prosser a 7,316 vote statewide lead over challenger JoAnne Kloppenberg in what had been a razor-thin race.

Change called for

The G.A.B. does not have constitutional power to remove a county clerk from office; however, it has issued an order requiring Nickolaus to conform her election reporting practices to state law and take steps to ensure accountability and transparency prior to the February 2012 spring primary.

Those steps include releasing detailed results on election night, rather than only countywide figures.

"Clerk Nickolaus' errors on Election Night caused many Wisconsin voters much concern about the integrity of Wisconsin's elections," said Kevin Kennedy, director and general counsel of the G.A.B. "County and municipal clerks are our partners in administering Wisconsin's elections, but the G.A.B. must hold them to certain standards to ensure public confidence in our electoral system. One of the most important standards is transparency."

In a statement released Wednesday, Nickolaus stated that she is "pleased that the investigation confirmed the reporting error in the April 5 spring election was an honest mistake."

"I will honor all Government Accountability Board recommendations by working with their staff on writing procedural documentation and look forward to rebuilding the trust of Waukesha County residents in the election process, as it is the foundation of our democracy," she continued.

Verhoff concluded in his report that Nickolaus could not have manipulated Brookfield's vote total to sway the election in favor of Prosser because the city correctly reported correct vote totals to news outlets on election night.

"Ms. Nickolaus simply inadvertently uploaded a blank template into the database that did not contain the vote totals for Brookfield and posted inaccurate results on election night. While this error may be fairly characterized as human error, the problem appears to stem from potentially larger issues," Verhoff stated.

The investigation also reviewed potential problems with ballot bags and security seals used in Waukesha County, but found no evidence of criminal wrongdoing.

Press conference a mistake

Nickolaus' decision to not immediately inform the G.A.B. of the reporting error, and to rather hold a press conference two days later, was a "lapse in judgment" that led to confusion and misinformation, the investigation concluded.

"During the press conference, for example, Ms. Nickolaus repeatedly stated the error was the result of failing to properly save the results of the Access 2007 database," Verhoff stated. "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."

Verhoff stated that Nickolaus also told reporters she had saved the results on a personal computer when, in fact, it was a county computer.

The G.A.B. launched a review and dispatched staff to Waukesha County when it learned of the issue.

Then, on April 20, Kloppenberg's campaign manager filed a formal complaint against Nickolaus, alleging violations of state law and requesting an independent investigation.

"The official canvass process, the G.A.B. review and the statewide recount confirmed the official vote totals are correct and that the unofficial vote totals published election night were in error," Verhoff said.

Verhoff also reviewed Nickolaus' handling of the Aug. 9 recall election and found that she promptly reported unofficial results transmitted from the village of Menomonee Falls.

Learn more

The complete report of former Dane County prosecutor Timothy Verhoff's investigation into Waukesha County Kathy Nickolaus' election-night practices can be found at http://gab.wi.gov.

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