WSJ: Waukesha County clerk 'likely broke state law' during April Supreme Court race

December 13, 2011
Scott Bauer

Waukesha County Clerk Kathy Nickolaus said Tuesday she believes she has been exonerated even though her office is undertaking numerous changes in how it handles ballots following the non-reporting of 14,000 votes in the spring Supreme Court election.

State investigators in September determined that Nickolaus likely broke the law by not reporting the votes in the hotly contested race between Justice David Prosser and challenger JoAnne Kloppenburg, but her conduct was unintentional and not criminal.

Initially it appeared that Kloppenburg upset Prosser by about 200 votes in the April 5 election. But two days later, Nickolaus held a news conference to announce that she failed to report votes from the city of Brookfield, which flipped the race for Prosser. A statewide recount confirmed his victory.

The Government Accountability Board on Tuesday approved numerous changes designed to improve the procedures used by Nickolaus's office on election night. Both before the meeting and during a break, Nickolaus told reporters that the investigative report vindicated her handling of the votes.

"I've been exonerated," she said.

Government Accountability Board director Kevin Kennedy disagreed.

"I would not characterize it that way," Kennedy said. The September report, led by former Dane County prosecutor Timothy Verhoff, found that Nickolaus likely broke state law requiring the posting of all returns on election night.

Investigators said Nickolaus couldn't explain how she failed to report the votes, but they concluded she probably loaded a blank template into a reporting database rather than a template that contained the vote totals. The flub was unintentional and not an attempt to conceal the votes, the report said.

Kennedy said Tuesday the public will feel more comfortable with new safeguards enacted by her office in conjunction with the GAB. Kennedy said Nickolaus was cooperative and helpful in implementing the changes designed to ensure transparency and provide security, documentation, and checks and balances related to counting and reporting vote totals.

But he also said that Nickolaus, who is up for election in November 2012, will have to earn back voters' trust one election at a time next year. She was first elected in 2002 and has won re-election three times.

Nickolaus said she "didn't really know if there was a lesson to be learned" from what happened in the April election. But she said voters should feel comfortable with the new procedures put in place, which include reporting detailed results on election night rather than county-wide figures, making errors easier to spot.