ISTHMUS: GAB Director Kevin Kennedy receives criticisms from all over of the political spectrum

November 1, 2012
Mary Ellen Bell
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When Kevin Kennedy celebrated his 60th birthday a few months ago, his staff at the Government Accountability Board presented him with framed copies of two political cartoons. They ran in the Wisconsin State Journal while recall petitions were being verified last spring.

In one panel, a young protester offers to give the GAB a hand with the checking. In the other, a group of older people with tea party signs makes the same offer.

Art imitates life. This actually happened: Both sides did try to horn in on the verification process.

"We refused them both," Kennedy says with a laugh, explaining that only people who had not signed a recall petition, participated in the months of protests, or put a sign in their yards were considered for the dozens of temporary jobs verifying signatures.

The cartoons illustrate the kind of tightrope the Government Accountability Board has been walking ever since it was created out of a merger of the former State Elections and State Ethics boards in 2007. The board, composed of six retired judges, is charged with being nonpartisan. So as passions flamed higher during the protests and recalls, Kennedy, the director, and his agency pleased neither side. Liberals grew suspicious that the GAB was not doing enough to ensure the integrity of the recall elections. Conservatives were similarly suspicious, questioning as well the legitimacy of the entire recall process. And both sides kept Kennedy and the agency in the hot seat for more than a year.

Kennedy is no stranger to controversy. He was under the gun when he headed the State Elections Board and entered into a contract with a private, out-of-state company to build a statewide voter registration system in 2004. But the firestorm during the recalls was on a whole new scale.

"I did not expect this perfect storm," Kennedy says. "Given what we do, we are always going to have some level of controversy. We have had recalls before, but never nine at the same time. We've had recounts, but never a statewide recount. Campaign finance is always in the crosshairs. But now, the political environment has changed, and it's much more challenging."

And a perfect storm it has been. Charges of voter fraud from Republicans. Charges of election fraud, ballot-bag tampering and voting-machine inaccuracy from Democrats. The off-and-on implementation of the voter ID law. Recounts. Lawsuits. One mess after another. And Kennedy and the GAB were under scrutiny on every count by partisans on both sides.

Dealing with the criticism of the agency's performance was one challenge. Keeping staff morale up was yet another.

"The staff, in addition to having a massive workload thrust on them, was at the focus," Kennedy says. "They are state employees, and their benefits were being taken away. In addition to having to do their jobs and with a growing workload, they were a part of what was driving all this."

Yet, through it all, Kennedy appears to have remained calm and good humored — laser-focused on doing his job regardless of political pressures.

"Our job is to implement the election laws that have been passed by the Legislature," he says. "If someone has a problem with what we are doing, they really have a problem with the law."

Trial by fire

Kevin Kennedy's first trial by fire was in 2004, when, as head of the old Elections Board, he hired the global conglomerate Accenture to develop the state's first voter registration list. This was one of the requirements of the 2002 federal Help America Vote legislation, passed to address voter registration problems after the 2000 presidential election.

The Wisconsin Democracy Campaign brought a lawsuit, claiming that Kennedy lacked the authority to enter into the contract, that the Elections Board withheld information about the status and details of the contract, and that it may have violated Wisconsin's Open Meetings Law. The plaintiffs also contended the job could have been done for far less money if it had been done by state employees. The judge eventually ruled that Kennedy did not have the authority to enter into the contract, but that the issue was moot since his board subsequently approved the contract.

"We believed that outsourcing the registration system was a very bad idea," says Mike McCabe, the Democracy Campaign's executive director. "And Accenture's track record was not good. They had failed in other states."

Kennedy contends he did exactly what he was supposed to do when he signed up Accenture. Using state workers for the job was, in his view, not feasible.

"It would have meant bringing in an army of new workers for two years," he says. To solve the problem, he used the state procurement system and put the job up for bids. Accenture won the contract.

Kennedy figures much of the criticism directed at Accenture stems from its former affiliation with Arthur Andersen, of the Enron scandal, and its support of Republican candidates. But Kennedy contends that "Accenture won the contract based on a scoring system that is supposed to take the politics out of the bidding process."

After missed deadlines by Accenture, the Elections Board moved to sever its contract with the company. Kennedy says the agency won rights to use Accenture's original source code so the system could be completed and maintained by GAB employees. The state also refused to pay 20% of the $9.3 million contract for work not completed, and got Accenture to repay an additional $4 million.

"We got $6 million back, and we now have a registration system that works," Kennedy says.

Mickey Mouse for governor

As the Government Accountability Board geared up in December to run the unprecedented set of recall elections — including one between Gov. Scott Walker and challenger Tom Barrett — Kennedy made a memorable remark that fired up the conservative crowd. He said, in what was probably an unguarded moment, that it was not the job of petition verifiers to strike phony signatures like "Mickey Mouse." That was the responsibility of those up for recall.

Supporters of Gov. Scott Walker and the state senators facing recall elections jumped on that statement, contending that their opponents would have free rein to fill petitions with fictitious names and that the GAB would do nothing to stop them. This resulted in a demand from partisan groups to be allowed to examine signatures, forcing the GAB to post the petitions and a searchable database of petition signers on a website. As the members of conservative groups scrutinized the petitions, looking for "Mickey Mouse" and "Adolf Hitler," they found names of prominent people in sensitive positions who had signed, and promptly outed them.

State Rep. Terese Berceau (D-Madison) says Kennedy's remark was politically naive.

"I don't think he anticipated how the things he said could be used against him and the entire recall process," Berceau says. "It took him a long time to figure out that everything he did was being watched through a political lens."

But Berceau likes Kennedy and thinks he has done an excellent job of managing the elections system and the recall process. She believes the creation of the Government Accountability Board was a wise move.

"The GAB has become a national model for how elections should be managed. But I worry that the political opposition to the recalls could put it in jeopardy," she says, adding that some Republicans have talked publicly about eliminating the agency.

Assembly Speaker Jeff Fitzgerald was the most vocal among those calling for an overhaul of the Government Accountability Board. In December 2011, he told the Associated Press that the public had lost faith in the agency and that he would support returning to the previous structure — a nonpartisan Ethics Board and an Elections Board with partisan appointees.

Bad idea, says former Circuit Court Judge Gordon Myse, who served in Outagamie, Shawano, Langlade and Menominee counties before being appointed to the Elections Board. He refused a second term because it was, as he says, "the most frustrating experience of my life."

"The board was composed of good and honorable people, but it was very partisan, and we were always in stalemate. No productive action seemed to be possible," he says. Former Gov. Jim Doyle later appointed Myse to the Government Accountability Board for a three-year term, which ended last December.

"The GAB is definitely an improvement," Myse says, adding that partisanship has never been an issue with this board.

"The criticism of the GAB is nonsense, and it's untrue," he says. "There are people in the Legislature who don't like the GAB and don't want it to have jurisdiction over their conduct, but we need complete compliance with the ethics rules and election rules, and when there is an issue the board is required by its charge to investigate."

Myse met Kennedy in 1982, when the judge ran for state Supreme Court and Kennedy was the director of the Elections Board.

He says Kennedy was responsive and knowledgeable and is known nationally for his expertise. Myse also says Kennedy's management style suits the post.

"Herding judges makes herding cats look like child's play," Myse says. "You cannot out-yell a judge. Judges have strong personalities, and they are not the easiest group to control. Kevin's leadership style is a soft glove. If the discussion goes off track, he brings everyone back to the basics, to the statutory requirements."

Like Myse, Andrea Kaminski, executive director of the Wisconsin League of Women Voters, is concerned about efforts to discredit the Government Accountability Board. The League named the agency in a lawsuit contesting the constitutionality of Wisconsin's voter ID law, but Kaminski says that it's nothing personal and that she and Kennedy are "friendly opponents" in court.

"Our lawyers told us that we needed to sue the GAB as well as Gov. Walker because we had to name the agency that would implement the law in our lawsuit," she says.

The League's lawsuit has resulted in an injunction against implementing the photo ID requirements in the law, and the case is now before an appellate court.

Kaminski says Kennedy has been helpful and encouraging of the League's mission to advocate for voters.

"He really cares that the League has the information we need to assist voters, and I think very highly of him and the other judges on the board. They have critics on both sides, and it's a tough job."

Checking the ballots

One remnant of the historic recall period is the continuing work of citizen groups to recount ballots county by county to determine if the paper ballots match up with the tallies from the voting machines.

The largest group, Hand Count Votes Now! has several hundred volunteers attempting to do a comprehensive count of the entire state. A smaller group, the Audit Team, is spot-checking ballots in about 10 counties.

Both groups are concerned about the verifiability of results from electronic voting machines.

When requests for a hand-count of ballots started coming in, Kennedy says he had to figure out how it could be done without jeopardizing the security of the paper ballots and without overburdening county and municipal clerks. He sent a memo to the clerks informing them that state law bars anyone except election officials from handling ballots after they have been cast and telling them they could charge for retrieving and showing the ballots.

The groups who wanted to check the ballots were enraged.

"[Kennedy's] reasoning was difficult to understand," says Mary Magnuson, a Brookfield resident and a member of the Audit Team. "Just because there were so many requests doesn't mean you have the right to charge citizens to look at the ballots. And it's my understanding that he does not have the statutory authority to require us to pay."

Magnuson says individual clerks have allowed volunteers to touch the ballots under supervision. And all but one, Marinette County, where Magnuson grew up, agreed to waive any charges. The Marinette County clerk said the cost to review the ballots would be $26 an hour.

Magnuson filed suit against the county and County Clerk Kathy Brant, claiming the county was in violation of the state open records law. At the end of August, attorneys for both sides settled the case in Magnuson's favor. Volunteers could touch the ballots, and there would be no fee.

Kennedy says he never objected to the effort to perform a hand count of the ballots. He says he advised clerks that they could charge for their time, but also suggested they consult with their corporate attorneys to make sure they were not in violation of the open records law.

"I think the hand count is a good thing," he says. "But when volunteers do it, you need the same level of accountability. We are not going to walk out of the room while they are doing it. We have to be sure the [hand count] is done in a way that protects the integrity of the process."

As for concerns that the voting machines are vulnerable to tampering, Kennedy says he has confidence in the process and citizens should as well.

"That's why we designed the system we have, with the paper trail as a safeguard so we can validate the results," he says.

Starved for resources

Kennedy thinks there might be more the GAB could do to improve the elections systems in Wisconsin — more training for county and municipal clerks, audits of procedures for programming voting machines and audits of election results, for example. But he says the board simply does not have the staff or resources to do all those things, so it has focused on enhanced training for clerks.

McCabe, once one of Kennedy's harshest critics, agrees that the Government Accountability Board has been starved for resources.

"I'm sympathetic when it comes to all that was loaded on them. The Legislature did not provide more resources when their workload increased, and, on top of their normal responsibilities, they had to oversee the recalls and deal with the voter ID law," McCabe says. "They were expected to just suck it up and figure out how to do it."

McCabe would like to see more and better poll-worker training so that operations are consistent at the municipal level, but he understands that the board lacks resources.

Overall, McCabe gives Kennedy and the GAB credit for standing their ground and resisting partisan pressure.

"I was very critical of the Elections Board, but it was a partisan board, and Kevin was doing what the board expected him to do," he says. "The GAB is a big improvement, and Kevin has been freed to do his job in a different way."

Keeping his cool

Kennedy was born and raised in Madison. He worked his way through UW-Madison and its law school, getting his law degree in 1976. Before joining the state Elections Board in 1979, he worked briefly as an assistant district attorney in Washington County and in private practice in Madison.

His career in elections administration began almost by chance.

"I basically took a state test for state attorneys, and this was the first opening I was interviewed for. They offered me the job," he says.

At the end of the day, Kennedy says he unwinds by taking time for a private life. The father of two adult daughters, one of whom lives with him in his near-west-side home, he enjoys hiking and is pursuing a goal of walking the entire length of the Ice Age Trail. He is a fan of American Players Theatre and musical theater. His musical tastes run to jazz and blues, and his reading is eclectic — everything from The Hunger Games to Stephen Ambrose's Undaunted Courage.

Kennedy, who supervises roughly 43 employees and manages a $6.3 million budget (a combination of state and federal funds), says he has kept his cool as criticism raged by focusing on doing the job he was hired to do, keeping his head down in the face of controversy, and remembering that what he does is important. He says he regularly reminds his staff to focus on their first priority — insuring that elections are run fairly and efficiently and without political considerations.

"I constantly tell the staff how much I appreciate their hard work," he says. "People who want to work here care about the electoral system. If you're interested in the political process, this is a great place to see it, as long as you realize you're not going to be taking sides. If you always wanted to do something where you have an impact, here you are with a job that goes to the fundamental basis of government — how we choose our leaders. It's really interesting work."