The recount in Wisconsin’s Supreme Court race begins this Wednesday, April 27. Why was the recount called, how will it be carried out, and how can individuals get involved?
A recount was expected after the final, unofficial vote count showed Kloppenburg winning by 204 votes. Governor Scott Walker implied as much when he told the Associated Press “[t]he overriding principle has got to be that every vote that was legally cast in Wisconsin needs to be counted.”
The landscape shifted two days after the election when Waukesha County Clerk Kathy Nickolaus, a Republican activist in the state’s most conservative county, announced she inadvertently missed 14,000 votes, giving the conservative Justice Prosser a lead of more than 7,500 votes. This eleventh-hour announcement by someone who once worked for Prosser led many to question the integrity of Wisconsin’s elections, and Congresswoman Tammy Baldwin asked the U.S. Department of Justice to investigate.
The election was marked by other problems. The director of the state elections board, Kevin Kennedy, significantly miscalculated public interest in the election, predicting a turnout of 20 percent when the actual turnout topped 33 percent statewide and in some areas was as high as 54 percent. Wards around the state ran out of ballots and resorted to using photocopies or requiring all voters to use a single touch-screen machine normally reserved for persons with disabilities. While no voters were turned away, long lines may have deterred some potential voters, and photocopied or otherwise improvised ballots can give rise to challenges.
Even if Prosser’s lead will be difficult to overcome, Kloppenurg said she called for the recount because:
“Wisconsin residents must have full confidence that these election results are legitimate and that this election was fair. A recount will establish where votes were incorrectly tabulated and expose if irregularities compromised the electoral process. A recount may change the outcome of this election or it may confirm it. But when it is done, a recount will have shone necessary and appropriate light on an election which, right now, seems to many people, suspect.”
Additionally, Kloppenburg’s campaign asked the state elections board to appoint an independent investigator to look into potential misconduct surrounding the uncounted Waukesha County votes, citing County Clerk Nickolaus’ partisan affiliations and history of incompetence, and noting that right-wing media outlets reported the changed results before Nickolaus’ April 7 press conference. Kloppenburg may be requesting an independent investigation because Kevin Kennedy rushed to the defense of Nickolaus, issuing a statement expressing “confidence in Wisconsin’s county and municipal clerks,” before he had a chance to investigate the issue and even while admitting that he himself was not informed of the problems with the Waukesha count prior to the press conference held by Nickolaus.
The complaint also alleges that Prosser had a meeting with Governor Walker on April 6, one day after the election (and one day before the Waukesha votes were announced), and that Governor Walker commented on April 6 that there might be “ballots somewhere, somehow found out of the blue that weren’t counted before.” Both Walker and Prosser have denied there was such a meeting.
Because Justice Prosser’s margin of victory was within ½ of one percent after statewide canvassing, Wisconsin law provides for a recount should a candidate request one. All counties will count simultaneously, with participants likely working through the weekends in order to finish by the May 9 completion date. See the recount manual for more information.
The Milwaukee Journal-Sentinel sets the scene:
An indoor sports arena is filled with poll workers from every municipality in Milwaukee County, each in their own area. At each station, poll workers examine and count ballots one by one. And as they count, campaign volunteers, attorneys and journalists watch their every move – with the campaign representatives sometimes challenging the poll workers’ decisions – while sheriff’s deputies stand guard.
The Journal-Sentinel also reports that “Prosser attorney Jim Troupis has already said the incumbent’s campaign would have hundreds of volunteers, including some flying in from around the country, to monitor the recounts.” Prosser had initially hired the DC lawyer who represented George W. Bush during the infamous 2000 Florida recount that made “W” president, but has apparently replaced him with Troupis, the go-to election lawyer for Wisconsin Republicans. In the past year Troupis has represented Americans for Prosperity in a challenge to fair election rules, legislative Republicans in redistricting efforts, and Club for Growth in a case to compel Senate Democrats back into the state. (See OneWisconsinNow’s 2009 Troupis bio here). He also sits on the Board of Directors of the right-wing, Koch-connected thinktank MacIver Institute.
Kloppenburg initially hired attorneys who represented now-Senator Al Franken in his successful Minnesota recount, but has since retained the Madison firm Cullen, Weston, Pines & Bach.
Both Candidates Are Looking for Volunteers and Donations
Both campaigns are seeking volunteers to aid with the recount. The “Kloppenburg for Justice” facebook page has information on who lawyers and other potential volunteers can email to get involved, and Justice Prosser’s “Recount for Victory” website has a volunteer signup sheet.
Observers can watch for lapses in procedure and challenge the decisions of the canvassers if the intent of the voter becomes an issue on any specific ballot. Even in the wards where optical scanners will be used, the ballots will be visually inspected before they are fed to the machine, and observers can verify the machine total.
Although the state will pay for most of the costs associated with the recount, it will not pay lawyers’ fees, and public funding for campaigns no longer applies. Both candidates are accepting donations for what may be substantial lawyers’ fees; according to Justice Prosser’s “Victory Recount Fund” site, “donations are unlimited,” but corporate donations will not be accepted, possibly to avoid conflict-of-interest issues if a case involving a donor comes before the Supreme Court.
By: Brendan Fischer, Center for Media and Democracy, April 26, 2011
Many voters went to sleep in Wisconsin and thought they woke up in Florida on Friday after a “Republican activist” county clerk announced that she discovered an extra 14,315 votes in a hotly contested Supreme Court race. Not surprisingly, the votes went to the conservative candidate giving incumbent justice David Prosser a 7,500 lead over challenger Joanne Kloppenburg. Oddly, 7500 was the exact number of votes Prosser needed to avoid a statewide recount.
The Supreme Court race has garnered national attention as a proxy vote on Governor Scott Walker’s radical proposal to end collective bargaining in the state and cut a billion dollars from public schools.
Long Time Republican Apparatchik
The county clerk in question is long-time Republican apparatchik Kathy Nickolaus. Nickolaus got her start in GOP politics in 1995 when the Republican Speaker of the Assembly was – that’s right – David Prosser. She worked for Prosser’s Republican Assembly Caucus, one of four GOP and Democratic legislative groups that were shut down following a criminal investigation for illegal campaign activity on state time.
Nickolaus first came to public attention in 2001 when she was granted immunity from criminal prosecution in exchange for testimony against her bosses at the Assembly Caucus. The case resulted in unprecedented convictions of Democratic and Republican legislators on felony counts of misconduct in office and arranging for illegal campaign contributions. Both Democratic and Republican leaders were sentenced to jail time.
In the caucus, Nickolaus was the person who ran the numbers, creating databases for illegal donations, partisan mailings and the like. When she escaped criminal prosecution, she hightailed it to Waukesha where she ran for county clerk in the conservative county in 2002.
She later botched a 2006 vote and stirred controversy by placing the entire voting system on her own personal computer. Prompting the County Corporation Counsel to charge: “If she wants to keep everything secret, she probably can.”
On Thursday of this week, she called a press conference to announce the new vote totals that put Prosser over the top and blamed “human error.” She claimed that the canvass was a “open and transparent” process, yet she found the error at noon on Wednesday and sat on the information for 29 hours, not even telling top election officials at the Government Accountability Board. According to election observers, the issue of 14,315 additional votes from Brookfield was never discussed at the canvass. But, this information somehow made its way to right wing bloggers before her press conference.
Wisconsin Citizen Action has demanded that federal prosecutors step in, confiscate her computer and start an investigation. “In the current political climate in Wisconsin, only an investigation by a U.S. Attorney can be seen by all citizens of the state as independent and above politics,” said Robert Kraig.
The Kloppenburg campaign has demanded “a full explanation of how and why these 14,315 votes from an entire city were missed.” As part of the search for that explanation, the campaign plans to file open records requests for relevant documents.
Meanwhile, both Kloppenburg and Prosser have lawyered-up. Kloppenburg is being represented by Marc Elias, the attorney who handled Al Franken’s U.S. Senate recount fight in Minnesota. Prosser is being represented by Ben Ginsberg, who served as national counsel to former President George W. Bush’s campaigns in 2000 and 2004 and was central to the 2000 Florida recount.
Lessons from Bush v. Gore Florida Recount
The Florida 2000 recount is on the mind of many Wisconsin voters. The big lesson from the nightmarish “hanging-chads” recount “is that you need a total statewide recount. If you only recount select counties the perception is you are only selecting counties that favor you,” says Jay Heck, the head of Wisconsin Common Cause.
Heck issued a statement on Friday:
The incredible and almost unbelievable events of the last two days with regard to the reporting of votes in the City of Brookfield in Waukesha County in Tuesday’s election for the State Supreme Court warrant a full investigation by the Wisconsin Government Accountability Board, the U.S. Attorney for the Eastern District of Wisconsin, the Wisconsin Department of Justice and the District Attorney of Waukesha County. Furthermore, the Government Accountability should authorize and supervise a statewide recount of all ballots cast in Tuesday’s elections and such a recount should be funded by the State of Wisconsin.
Why so many parties? Because this is the same constellation of offices that investigated the 2002 caucus scandal, giving voters more confidence that the manner was being handled appropriately and in a bipartisan fashion.
If Wisconsin is not to irreparably harm its reputation as a functional and relatively noncorrupt state, many Cheeseheads believe that a statewide recount is a necessity.
By: Mary Bottari, Center for Media and Democracy, April 9, 2011