BRADBLOG.COM: WI's Supreme Court Election 'Recount' is a Mess

May 3, 2011
Brad Friedman

Wisconsin is no Minnesota.

Where Minnesota's post-election hand count of the 2008 U.S. Senate election between then Sen. Norm Coleman and now Sen. Al Franken was, as we wrote at the UK's Guardian at the time, "one of the longest and most transparent election hand-counts in the history of the US," Wisconsin has made it extremely difficult (putting it nicely) to know what the hell is actually going on in their statewide "recount" of the April 5th, 2011 state Supreme Court election between Justice David Prosser and Asst. Attorney General JoAnne Kloppenburg.

Where Minnesota's chief election official, Sec. of State Mark Ritchie, oversaw a process to ensure that updated and accurate numbers were easily tracked and transparently shared with the media on a daily basis, Wisconsin's chief election authority, their Government Accountability Board (G.A.B.), has posted (and even sometimes removed) confusing, misleading, and unclear updates, often with inaccurate information, on various schedules, and frequently with little or no explanation for wholesale changes and deletion of data.

Where Minnesota counted every vote by hand with full public scrutiny, including photographs and video cameras, Wisconsin is tabulating ballots, often by the same oft-failed, easily-manipulated computer systems that counted them in the first place, behind barriers that preclude broad public oversight, under an agreement between both campaigns which disallows the use of video cameras by observers.

The count, which began last Wednesday, often feels as if it's happening in virtual darkness, at least to those of us trying to observe from afar, but the same sentiment has been shared with us by many we've spoken to who are there on the ground. There is an alarming lack of transparency to help the citizenry oversee the process in order to ensure accountability and an accurate count. To make matters worse, if that's possible, chain of custody issues for the ballots appear questionable in a number of reported cases, after ballots have been kept in the same darkness by election officials --- sometimes securely, sometimes not --- for the three weeks following the election and prior to the "recount".

One person we've spoken to who has also been trying desperately, as we have, to closely follow along with the progress, described the situation over the weekend by saying: "Let's call it 'fascinatingly unacceptable'. There are other 'f' words I could use, but we'll leave it at that."

Another Election Integrity veteran was forced to reach for a "bright side" by saying: "It may be worse than Minnesota, but, hey, at least it's no Florida!"

We've not written here about WI's Supreme Court "recount" since it began last Wednesday, largely because we've had such a difficult time making heads or tails of the progress, the accuracy, the integrity of the ballots or the counting, or even of the various reports of bizarre anomalies which continue to occur, often with little explanation for their resolution...

'Necessary and appropriate light'

Two Wednesday's ago Kloppenburg announced her intention to request this count after the unverified results of the state canvass placed her some 7,300 votes behind the incumbent Republican Prosser. The 0.488% margin out of some 1.5 million ballots cast allowed for the state-sponsored count to take place at Kloppenburg's option. The unofficial and unverified canvass results followed on the startling and still-unexplained revelation of some 14,000 votes which were not initially included in the Election Night tallies by Prosser's former colleague, Republican Waukesha County Clerk Kathy Nickolaus. Those ballots changed the unofficial results from a 204 vote lead for Kloppenburg, to a 7,316 vote lead for Prosser.

When Kloppenburg made her announcement that she was exercising her right to a statewide recount, she declared, appropriately enough: "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."

Unfortunately, the process to date risks those hopes being dashed, unless changes are made broadly and quickly in the state's current "recount" process. If not, there is a great possibility that little if any "light" will ultimately be "shed" on the April 5th election results and they are likely to remain "suspect", sadly, for a long time to come.

Just 31 of Wisconsin's 72 counties are counting some or most of their paper ballots by hand. The others counties are running them back through the same machines that counted them --- either accurately or inaccurately --- in the first place, offering little assurance that the results are correctly tabulated.

Where ballots have been counted by hand over the last week or so, a number of anomalies have occurred and/or irregularities discovered.

Let's review a few of the most noteworthy incidents, in no particular order...

97 uncounted, unsecured ballots in the city of Verona

As reported by the Capitol Times last Friday...

On Thursday afternoon official "tabulators" [which is what they call the people who are counting] were busily counting ballots from the city of Verona when the votes came up more than 90 short of what the electronic readout from the voting machines said they should. That sent Verona officials on a hunt, and a rubber-banded stack of 97 ballots turned up in the office of Verona City Clerk Judy Masarik.

"There's a table in the clerk's office, and there was a binder and some other papers on top of the ballots," said City Administrator Bill Burns, who found the stack.
...
On election night, all the ballots were supposed to be secured in sealed bags, which were then supposed to be signed by local elections officials. The seals were supposed to remain intact.

Burns found the bundle unbagged. They were bagged and he drove them to Madison. The bag had no signatures or initials.
...
"I just have to ask," [newly appointed Dane County Clerk Karen] Peters asked Masarik: "Just why were these not sealed in a bag on election night?"

But no one could say now it happened.

Despite the mystery of the ballots provenance and the broken chain of custody for them, the Cap Times reports [emphasis added], "Through precinct stamps and initials on the ballots, the proceeding pretty much established that the ballots were genuine."

"Pretty much." Close enough for government work, then?

The paper continues [emphasis added]: "But the chain of custody was compromised. Not only did Masarik admit that her office was sometimes left unlocked while she was at lunch, a cleaning person had access to the office after hours."

So, no big deal? Apparently not in Wisconsin, for some reason --- even after we learn the results on those 97 votes: "the ballots in question favor Prosser by 30 votes: unexpected because he took a 2-1 beating in the city overall."

In fact, according to Dane County's canvass results [XLS], in the City of Verona (and be careful, because there is also a Town of Verona, as is the case with many WI cities, towns and villages), Kloppenberg supposedly defeated Prosser soundly 2380 to 1204. And yet, 97 votes show up after three unsecured weeks on someone's desk and Prosser gains 30 votes over Kloppenburg when they are counted. Okay.

Undocumented and torn ballot bags in the Town of Delafield

This is one of the strangest anomalies to date, and it's made all the more disturbing by the fact that it occurred not only in Kathy Nickolaus' Waukesha County, but in the Town of Delafield, where Justice Prosser says he spent the day after the election "trying to figure out what the hell is happening." But more on that in a moment.

Last Thursday, according to a volunteer observer in the Waukesha County counting room, the serial number on the protective plastic seal on one bag of ballots was not recorded at all on the "Inspector's Statement", raising serious chain of custody issues for the entire bag of ballots [emphasis in original]...

At around 2:15pm, we were ready to open the bags for Delafield. There were three bags total. Bags 1 & 2 were fine. The numbers all matched up. When we got to bag 3, we found out that the bag # was NOT RECORDED ON THE INSPECTOR'S statement...! The Republican canvass person said we could assume that the clerk forgot to write the # down on the inspector's statement and we could proceed. Of course, this is a break in the chain of custody!...

So Bill (volunteer lawyer) objected. I got my phone out and went to call the campaign. The sheriff wouldn't let me out the back door (even though I went out that door to use the restroom earlier) but made me go around everyone to the front door (front door is for reps, back door is for public). I had to get past the guy sitting out front wanting to know if I was leaving for the day, what my name was...

I called the campaign and they said to tell Bill to tell the judge that we are considering making an objection and want to have legal counsel. They said DO NOT open the bag. I raced back into the room and found Bill. He said the bag had already been opened...

He said he objected and asked the judge to open the other bags first, and not # 3, but the judge said NO. Bill said it's in the minutes and we have a record of it. BUT...they started counting the ballots in bag 3 first. By this time the ...media started pouring in.
...
I don't know how many votes we're talking here, but this is very suspicious. Why couldn't the judge wait? Why did they open # 3 first?

Equally troubling, another ballot bag from Delafield was later found to have been torn, reportedly, with the serial number scratched out and replaced with another.

We asked G.A.B. spokesperson Reid Magney for an explanation of these anomalies from last Thursday, but he didn't yet have one.

"I haven't been briefed on that situation and so I can't comment on it at this point," he told The BRAD BLOG this afternoon.

"Generally we don't have information about these things until we get minutes from the county. We don't get the minutes until the entire county has completed their count," he explained.

Aside from the obvious significance of (hundreds of? thousands of?) ballots in Waukesha County having fallen from what is supposed to be a secure chain of custody, the fact that these anomalies occurred out of Delafield is sure to raise even more eyebrows, given Prosser's admission that he spent the day there following the April 5 election.

It was on that very same day, April 6th, that Nickolaus says she discovered the unreported 14,000 votes from the town of Brookfield, though she failed to report that fact to either the G.A.B. or even her own Waukesha Canvass Board which was busy reconciling polling books and ballot totals that same day and the day after. It wasn't until Nickolaus' stunning 5:30pm press conference on April 7th that the canvassers and the G.A.B. learned of the problem (though Rightwing bloggers had been reporting the discovery which would change the course of the election, with very detailed and specific reports in the hours prior to Nickolaus' presser.)

When Kloppenburg filed for her "recount" on April 20th, she also requested that a special investigator be assigned by the G.A.B. to look into Nickolaus' many election reporting inconsistencies. In the complaint requesting the special probe [PDF], as we reported in detail on April 22, the following allegations were included:

17. On Wednesday, April 6, 2011, Justice Prosser was observed entering the Governor's Office late in the evening and attending a private, on-on-one [sic] meeting with Governor Scott Walker.

18. Governor Scott Walker made public statements on Wednesday, April 6, 2011, commenting that there might be "ballots somewhere, somehow found out of the blue that weren't counted before."

After Kloppenburg's complaint was made public, Prosser vehemently denied the charges, according to Milwaukee's Journal Sentinel. He "angrily" told the paper "The idea that I would go to the governor's office is just patently untrue. There is not a shred of evidence. That is pure malice."

But just one week later, Prosser's story had begun to change. In an interview with Tony Galli of Madison's ABC affiliate WKOW27 Prosser conceded, "It is conceivable that during that week, I stopped down to the governor's office."

"I certainly never went beyond the reception person," Prosser told WKOW27 in his apparent flip-flop, "I never met with the governor personally in his office."

More to the point of this article, while going on record with his changing story and carefully qualified remarks, Prosser added that he'd "spent almost all day in Delafield [the day after the election], where we're trying to figure out what the hell is happening here, are we going to have to have a recount?"

So he spent that day In Delafield? Interesting.

This is a sitting Supreme Court Justice who has already admitted to felony crimes as the Republican majority leader and speaker of the state Assembly as Ernest Canning meticulously documented in our recent exposé, and someone whose story on meeting with his old colleague, Republican Governor Scott Walker, the day after an election which had become a referendum on Walker's union-busting agenda, has changed from indignant denial to "maybe I did", in the period of one week.

So is there anything more behind his presence in Delafield and the two ballot bags which we now learn appear to have somehow fallen out of the chain of custody? Good questions for a special investigator, it seems to us.

Here's the package from WKOW27 News including Prosser's admission, changing his story, as captured on audio tape...

Whatever happened in Delafield, and whatever happened with those two ballot bags, the matter was of enough concern to the Kloppenburg campaign that they sent an attorney to monitor the count in Wakesha County the next day, according to TMJ 4, Milwaukee's NBC affiliate:

On Friday, day three of the statewide recount of the Supreme Court race, the Kloppenburg recall effort called in their attorney, Michael Maistelman, to monitor the recount in Waukesha County.

Earlier Friday a clerk discovered that one of the bags full of ballots from the Town of Delafield was not properly sealed. The Kloppenburg campaign said that means there was the possibility that people could have had access to the bag of ballots. On Thursday, a different bag containing hundreds of ballots wasn't recorded on the poll inspector's log. That bag was also from the Town of Delafield.

Despite that, poll officials promise the numbers all added up to those obtained on election night. Still, the Kloppenburg campaign sent Maistelman to oversee the recount.

"I was obtained to come down here to ensure the integrity of the process on behalf of the Kloppenburg campaign. "It's my understanding that there's been some issues with bags, ballot bags, identification numbers not adding up, so they just wanted to ensure that all the proper procedures were followed," Maistelman said.

The BRAD BLOG has learned, via a number of Kloppenburg volunteers, that while Maistelman was there on Friday, he was not there in some of the days which have followed since.

And again, the G.A.B. told us they have no comment at all on this matter, and likely would not until they receive and review minutes from the counting room after the counting has completed in Waukesha, where all ballots are being counted by hand, due to the serious concerns about County Clerk Kathy Nickolaus. She has (wisely) recused herself from this hand count.

Unfortunately, these anomalies are becoming less and less anomalous. As a blogger observing Waukesha County's progress via webstream reported over the weekend reported:

Three bags of ballots from a precinct in Oconomowoc (oh-CON-eh-meh-walk) have been identified as having no serial number on their bag labels.
...
Waukesha County officials discovered that all three ballot bags from a precinct consisting of wards 4, 5, 6, 14 and 22 in Oconomowoc had nothing written on the bag labels.
...
The municipal clerk from that area (not the County Clerk) was asked if she had an explanation. She said she had none.
...
This makes 8 bags of ballots so far in Waukesha County with serious "chain of custody" breaches.

See his report at dKos for more details.

Nearly impossible to follow "recount" updates


There have been various reports by the media, and very occasionally by the G.A.B., of problems and discrepancies elsewhere, as the recount is just over a third of the way done, at best. Some, such as this report on Monday, posted at the G.A.B. website, include more than 100 votes (in this case, for Kloppenburg) that were not included in the original post-election canvass results from Waupaca County.

In that incident report, County Clerk Mary Robbins details problems in two different towns discovered during their "recount". In the town of Larrabee "the original tally sheet from the April 5, 2011 election showed a 0 vote count," according to her email to the G.A.B. The "mistake" was not discovered during the canvass, and was explained by the town clerk Arlene Kratzke who admitted "she just forgot to transfer the numbers onto the sheet. ... The call in sheet, also, only shows 70 for Kloppenburg, the tape shows 167, the actual hand count shows 168 for Kloppenburg."

In the Town of Royalton, Kloppenburg's original count was 80, but the hand count tallied 95 votes for Kloppenburg. According to Robbins, Royalton's Town "Clerk had no explanation other than the election officials forgot to count a stack of ballots cast for Kloppenburg when they reported."

Anomalies, errors or out-and-out failures like the above are being discovered across the sate, and have affected both candidates, though usually not in numbers as large as those in one fell swoop.

Problems like this are not particular unusual in large counts like this. Shit happens, as they say. All a part of the problems that occur when ballots are not counted transparently, at the polling place, on Election Night in front of the public, all parties and video cameras, with results posted decentrally at each precinct before ballots move anywhere. We've come to call that sort of truly transparent process, "Democracy's Gold Standard" and recently posted a video "Special Comment" in regard to that standard being greatly missed in the WI Supreme Court election and so many others like it.

Of more import than the various small errors, is that it has become very difficult --- some would say damned near impossible --- to track the entire mess, thanks to the horrible job the G.A.B. has been doing in the first week of counting, to keep the public up to date with "recount" results as they happen.

On this score, the G.A.B.'s reporting has been a mess.

The failures started from the very first day, when numbers were released by the G.A.B. in a spreadsheet that didn't add up at all in some 25 different rows (each one representing a "counting unit", usually made of several different wards in one one municipality in Wisconsin.)

For example, in this April 27 spreadsheet [XLS], row 74, representing the Town of Sumner (Wards 1 & 2) in Barron County, shows 653 votes cast as counted during the "recount", but just 145 votes were reported from that "counting unit" in the original post-election canvas.

Unless 508 votes showed up out of nowhere in those two wards, it's likely there was a mistake in record keeping by the G.A.B. somewhere. There were similar anomalies seen in another 15 or 20 rows that day.

The next day, the G.A.B. explained cryptically on their website:

The updated spreadsheet that was posted late Wednesday was removed from this page early Thursday when we discovered some data entry errors. Some errors occurred in transferring information from clerk e-mails to the spreadsheet, and some were due to typos by clerks. We have been working today to ensure that the data we post is as accurate as possible. Please keep in mind that these are unofficial numbers.

For several days thereafter, results spreadsheets were posted with, instead of 3603 rows (one for each "reporting unit" in the state), just 53 rows, or perhaps a hundred or two hundred.

Of course, this made it nearly impossible for those trying to oversee the "recount" to track the updated numbers and changes in vote totals, since one could not easily compare numbers on one spreadsheet against another. The same rows represented completely different "reporting units" in each sheet.

As we said when we began here, Wisconsin is no Minnesota. During the Minnesota U.S. Senate count, tracking changes each day was a breeze, with clear results postings each and every night. That has decidedly not been the case in Wisconsin.

In their terse Monday night "Recount Summary for May 2", the G.A.B. announced:

A note about the spreadsheet: Going forward, it will contain all the reporting units, whether or not any results have been reported. Some past spreadsheets had reporting units removed if we had received data but were still in the process of reviewing it. Now, if data is in but not reported, it will say the reporting unit is under review.

G.A.B. spokesman Magney offered The BRAD BLOG a bit more detail today. "When we get in results that show more than a 10 vote change in any ward, we do a review internally, contact the clerk, to make sure that's not a typo. Initially, we weren't including it at all if it was under review, but we later decided it was better to include it with a notation."

Thankfully, as of Monday night, their May 2nd, 6:07pm report [XLS], once again had all rows ("counting units") fully restored to it. Finally.

(NOTE: Unfortunately, we failed to SAVE the above mentioned file locally and, as is their maddening custom, the G.A.B. has now removed that file from their system, replacing it with a newer one with a different name, rather than keeping them all available for download, so various versions of the update files could be compared. The G.A.B.'s spokesperson says we may request any particular file, however, and they can send it via email --- a seemingly necessarily burdensome process, as we have now suggested to him. He says it's their way of keeping things free from clutter and easier to follow along with the latest files as posted to the main G.A.B. "recount" information page. Magney notes anybody is free to save any posted files to their own systems locally, if they chose. Of course, as we told him, they need to view it to know about it in the first place, in order to do so!)

The problem seen on row 74 (the Town of Sumner) in the earlier spreadsheet, where 508 extra votes were reported, as noted above, is now cleared up in the latest versions of the spreadsheet, in that the canvass result totals are the same as the "recount" vote totals for that row. No change between canvassed and "recounted" numbers is reported from that "counting unit". The reason for the initially misreported "recount" totals? Unknown. Though the "recount" numbers initially reported for the Town of Sumner (Wards 1 & 2) on row 74, now show up in the same exact totals on row 70, the Town of Rice Lake (Wards 1 - 4) where they were likely supposed to have been shown on Day 1.

Making matters worse, many counties are failing to report the number of "Total Ballots Cast", crucial to overseeing the process, to the G.A.B., as requested in their April 26 directive [PDF] to Wisconsin County Clerks on the day before counting was to begin. Here's what the G.A.B. told counties to include when reporting numbers to them at the end of each day's counting:

Nightly Email: The Recount Plan requires a nightly email from each county identifying the wards completed, the total ballots cast, and the ballots for each candidate and scattering votes, as completed on that day. Please use "Daily Update" in the subject line of the email and use the following format for each completed reporting unit so that we can compile the information in an efficient manner:

Date
County
Name of Reporting Unit i.e. Town of Madison, Wards 1-7
Total Ballots Cast
Votes for Prosser
Votes for Kloppenburg
Scattering Votes

Note the instruction to include "Total Ballots Cast" with each update. That number is crucial for investigators and overseers to help determine any anomalous undervote totals, often a red flag that there may be a problem in the results somewhere along the way.

Unfortunately, in parts or all of 14 counties (Ashland, Bayfield, Burnett, Chippewa, Crawford, Green, Marquette, Menomonee, Monroe, Sauk, Sawyer, Taylor, Vilas and Winnebago) the "recount" totals are given, but the "Total Ballots Cast" column remains blank as of the latest spreadsheets.

The G.A.B.'s Magney tells us that they are "working to get that information, but it's not always provided to us."

He says, "this is information that the counties are going to be reporting in the official canvas of the recount. What we're providing now is information so people can follow along and see the process. Clerks are sending along the information each night, but there is no form or template. The numbers you are seeing are unofficial."

"At this point," he continued, "we're contacting the clerks and asking them to provide that information [Totals Ballots Cast]. I think those that haven't likely have the higher priority of actually counting the ballots. There's no statutory requirement for them to provide this information."

All the miscounted votes

Lastly, for now, the G.A.B. spreadsheets do not include another crucial set of numbers, though it's one we should be able to cull ourselves after the G.A.B.'s results reports finally settle into a single, reliable format. That is the number of miscounted votes.

As you'll see when following almost any of the reporting on this "recount", or usually any other, the only numbers reported are generally net gains or losses for each candidate.

Of far more interest to The BRAD BLOG --- and likely, election integrity advocates in general --- is the number of votes originally miscounted by the oft-failed, easily-manipulated electronic tabulating systems which are rarely checked for accuracy except in post-election contests such as this.

So if a hand-count discovers that Joe Candidate received 50 more votes in Ward 1 than originally reported by the machines on Election Night, but in Ward 2 Joe Candidate lost 49 votes, the county and the media would both end up reporting: "Hand count finds machines work almost perfectly! Only 1 vote lost by Joe Candidate!"

That, even though some 99 votes were actually miscounted for poor Joe in just two precincts. Had the hand count found that he'd lost a full 50 votes in Ward 2, the county and media would have reported that the "recount" found the original machines results were perfect!

And that's precisely what they do. Watch for it as you're reading reports on the "recount" progress in Wisconsin. We'll endeavor in the weeks ahead to pull together a report on the real number of miscounted votes to give you a better idea of how well the machines made by Diebold, ES&S and Sequoia actually worked, or didn't, in Wisconsin's April 5th election.

Unfortunately, in this contest, just 31 of the 72 counties will actually see some or all of their ballots counted by hand. So we'll only be able to get a limited sample. But it'll no doubt provide an interesting set of numbers to consider for the future as these very same systems are set for use in upcoming state Senate recall elections in Wisconsin, as well as set to tally millions of votes in next year's Presidential election cycle.

And, oh, for those interested, to date, according to the G.A.B.'s latest numbers as of 6pm CT today (Tuesday, May 3rd), Prosser has gained 245 votes net and Kloppenburg has gained 414 votes net. His unofficial, unverified 7,316 vote lead after the statewide canvass is now an unofficial, only-slightly-less-verified lead of 7,147 votes.