Thursday, April 7, 2011

Updated: Grand Jury Necessary To Ensure Electoral Integrity

The grand jury is commonplace in many states but a rarity in Wisconsin because it's rarely needed. 

Unlike grand jury states our prosecutors can directly file charges and, if a secret proceeding and/or compelled testimony is needed to investigate a crime, a judge may hold a "John Doe" proceeding -- essentially a one-man grand jury with almost all of a grand jury's authority. But the grand jury law is still on the books in Wisconsin and there's a time and place for convening one. 

Now is the time.  Waukesha County is the place.  The reason is because the people of Wisconsin -- especially the citizens of Waukesha County -- need to be assured that the electoral process is fair, accurate and free of taint.

I have been intimately involved with the election process for more than forty years both in Wisconsin and elsewhere.  Despite the political rancor which permeates many election campaigns, the fact is that the thousands of election workers and clerks, regardless of their own political beliefs, are uniformly passionate and committed to ensuring that elections will be fair and square and everyone's vote will be counted.  I have undying respect and gratitude for them -- and so should you.

Yes, these folks are only human and they do make mistakes.  That's why there's an official canvass after the results are initially tabulated.  That's why recounts can be had.  It's certainly possible to transpose numbers or mistake a "2" or a "3" for "5." 

And there are system failures.  After the controversial 2000 presidential election where Florida's punch card voting system and it's proverbial "hanging chads" came under fire Nancy Principe, who had been Kenosha County Clerk, told me that she got rid of punch card voting because it was difficult to count those ballots more than once and come up with the same results.

This brings us to Waukesha County where Kathy Nickolaus, the county clerk, dropped a bombshell that 14,000 votes in the City of Brookfield weren't counted Tuesday.  14,000.  That's not tranposing a number of mistaking a "2" or "3" for a "5." 

Nickolaus said that she failed to save in her computer and consequently report 14,315 votes cast in the city of Brookfield, omitting them entirely in an unofficial tally released after Tuesday's election. The new totals give 10,859 more votes to incumbent Supreme Court Justice David Prosser from Brookfield and 3,456 more to challenger Joanne Kloppenburg. Smaller discrepancies turned up in two other communities as well.

A tearful Nickolaus told reporters that it was human error for which she accepts responsibility.  I tend to believe her.  You'd have to be awfully diabolical to conjure up a scheme like this.  

Nonetheless, a boner like this is bad even without evil intent and circumstances surrounding Nickolaus and her office suggest that a lot of folks won't be comfortable taking her word for it.  After all, she's the Republican county clerk in a heavily Republican county in which the bulk of the missing votes favor a former Republican legislator who yesterday was trailing by 204 votes.

Apart from that, Nickolaus has been under fire in her own county.  While she said the problem had nothing to do with her election system, which has been criticized as outdated, her election operation was the subject of a county audit last year after complaints that she was not cooperative with information technology specialists who wanted to check the system's integrity and backup.

The audit found that while the clerk's system generally complies with state and federal guidelines and accuracy of election totals was not at issue, Nickolaus should improve security and backup procedures.  Not among the audit recommendations was Nickolaus' decision to no longer report municipal election results separately on election night, as most other county clerks do. Nor does she show in the running totals throughout election night what proportion of the voting units are included in the tallies.  Had municipal results also been on her web site, the error might have been caught sooner.

Then there's what happened in 2006.  Christine Lufter, who lost a Republican primary in the 97th Assembly District, was originally shown by Nickolaus to be the winner.

Computer monitors at the county clerk's office showed Lufter winning her race, as county officials scrambled to correct flawed returns from the City of Waukesha.  Final results later showed Lufter losing to fellow Republican Bill Kramer by a significant margin.

Nickolaus said some returns from the City of Waukesha inexplicably had data recorded in the wrong column, which momentarily skewed results.

Nickolaus and her staff resorted to correcting the city's results manually -- a process that continued until 1 a.m., with staffers poring over a blizzard of numbers on computerized printouts.

"The best thing to do is go back to paper," Nickolaus said of the tedious process. "And that's exactly what we did."
Then there's the aura of partisanship. 

For 13 years Nickolaus worked for the Assembly Republican caucus, one of four partisan legislative groups that were shut down following a criminal investigation into state staffers doing campaign work on state time.

The investigation eventually led to the resignations and criminal convictions of leaders in the Senate and Assembly for directing caucus and staff employees to engage in illegal political activity during their state employment.  Nickolaus, a data analyst and computer specialist for Assembly Republicans, was granted immunity in 2001 by authorities conducting the investigation.

So, while Nickolaus may be right -- in fact, she probably is right -- that this was a massive human mistake, the public interest in ensuring a fair, accurate and competent election remains, particularily amidst the backdrop of questionable practices in her own office.  We need to do more than take her word for it.  Plus we need to make sure than reasonable measures are taken to ensure that it doesn't happen again.

A grand jury is necessary here not to go on a witch hunt or to order Nicklaus' head on a silver platter.  To the contrary, the grand jury isn't just a prosecutor and a judge where the opinions of two lawyers guide the course of the proceedings.  The grand jury is made up of Waukesha County citizens and with safety in numbers insulates the review process from potential accusations of collusion.

As a veteran public official Nickolaus should welcome the scrutiny.  She should realize that her constituents, the candidates and the people of the entire state have a stake in ensuring the integrity of our elections.  Toward that end the grand jury process should be open and transparent.

This is something much larger than whether Prosser or Kloppenburg wins.  In fact, the candidates should equally welcome such an investigation because not to have one would mean that the winner will take office under a cloud of a potentially suspicious election instead of the light of a free, fair and competent electoral process.

A hat tip to my nephew Brian for the additional information about the 2006 incident.


Anonymous said...

She said it was human error but she also said she did not know what happened. She said she loaded the returns in for Brookfield but they were not there when she submitted unofficial returns. This nonsense about not saving sufficiently is a red herring. Access databases do not require saving.

Claiming it was human error does not make it human error.

Since the outcome of an election is at stake. It'll take more than her word as an explanation of what happened.

The first course of action is a forensic examination of the computer, original transmission of Brookfield returns, and regrettably, the human.

Anonymous said...

"Waukesha County Clerk Kathy Nickolaus, a former staffer for the
Assembly Republican Caucus, has been sharply criticized in recent
months for her handling of recent elections. Even the
archly-conservative Waukesha County Board has sharply condemned
Nickolaus after past elections, demanding an immediate audit of her
practices following ominous red-flags that emerged regarding her lack
of oversight, failure to create backup files and her stubborn
insistence to “keep everything secret.” [Milwaukee Journal Sentinel,
8/18/10; 1/17/11]"

What no one is reporting is that before working for the assembly republican caucus (ARC) of the Jensen caucus scandal, she worked for the Legislative Technology Services Bureau (LTSB). I believe her work at ARC was computer related, probably included redistricting related.
She was a computer expert at LTSB.

John Foust said...

You can read the details of her involvement in the Jensen / Steven Foti business online.

Hand-crafted Excel and Access software, running on old Novell server? No audit trail. No two sets of eyes. What a mess. Why is "voter ID" more important than a uniform, trustworthy voting system?

Anonymous said...

Thank you for writing this. Compared to everything else I have read, this is the most unbiased description of the errors that may have been made and what should be done to correct them.

If outside auditors are not allowed to check the election results, the cloud of suspicion will be huge and will only further divide the state. Especially considering the fact that this is a HUGE number of votes that suddenly turns a close election into one where a recount is not called for. If the results are to be believed, let others from both sides of the aisle in to double check the errors that were made and to confirm it was corrected properly.

Also, as someone else mentioned, Microsoft Access saves every keystroke you make. There's no way to make an error by not saving the file. It's saved automatically. I don't want to believe that anything unethical was done. But there's too much to be suspicious about here to NOT allow for further review.

Let's help to unite the state and make sure that the winner of this election is believed by the population.

Anonymous said...

Do you really think the people of
Waukesha, thee most Republican county in the state, if not the
country, are going to want to upset
this apple cart? So long as any
mistakes went Prosser's way, I believe it is fine with them as they sit back worshiping Charles Sykes.