All Wisconsin Votes Unverified

Whether they're accurate is another question entirely …

The sturm and drang over those votes – and over the clerk who misreported them on election night – may well serve to distract from the real concerns about the state's Supreme Court election last week and those to come in the very near future. – Brad Friedman

As anyone who has ever read The BRAD BLOG likely knows, I am the last person in the world to defend Waukesha County, Wisconsin's hapless, hopeless, incompetent, untrustworthy, shamefully partisan, failure of a County Clerk Kathy Nickolaus.

Her disgraceful history as a partisan activist and as an election administrator with a long record of inexcusable “human errors” such as the monster of an error she finally copped to on Thursday and, even more importantly, the blatant disrespect for the citizenry and her own county's executive board's need for transparent oversight and checks and balances of the elections she runs is a blight on the county, the state and the nation.

With all of that said, however, the 14,045 “new” votes from the City of Brookfield that she reported on Thursday night as having suddenly been found in the initially-deadlocked state Supreme Court election/proxy battle between supporters and detractors of Republican Gov. Scott Walker are not, in fact, “new” at all.

Those results were independently reported – if not by Nickolaus – by both the City of Brookfield and a local reporter on election night. They are not, in fact, “new” after all. Whether they should be trusted as accurate, however, is another matter all together.

It's true that the newly corrected (and still unverified) totals from Waukesha place the current margin between Justice David Prosser – who has indicated fealty to Walker and the state GOP's agenda – and his independent challenger, Asst. Attorney General JoAnne Kloppenburg, are miraculously close to the numbers that will be needed to trigger a state-sponsored “recount” of the ballots. It is also true that Nickolaus' explanation for her “human error” are questionable at best. Her reasons for waiting some 29 hours between discovering the enormous error, as well as her blame on failing to hit a “save button” in Microsoft Access (which doesn't feature such a button) demand independent scrutiny from state, if not federal, authorities.

But, given the separate, contemporaneous and independently verifiable – if much overlooked – report of 10,859 votes said to have been recorded for Prosser and the 3,456 said to have been recorded for Kloppenburg on election night, by sources other than Nickolaus on Tuesday night, the focus on Waukesha and its disgrace of a county clerk may well serve to distract from the real concerns about Wisconsin's election last Tuesday. This is especially important in light of additional contests that will be coming up in short and rapid order in the likely recall elections of GOP state senators (and even the governor himself) in the months ahead.

On Tuesday night, just after midnight, local reporter Lisa Sink, formerly of the Milwaukee Journal Sentinel, reported at the local Brookfield Patch news site the exact same numbers that Nickolaus announced in her stunning news conference as having been “discovered” on Thursday evening.

Sink's April 6 report is posted here. The “new” numbers from the Waukesha canvass, including the exact same machine-reported, ward-by-ward results from Brookfield are now posted here on the state Governmental Accountability Board's web page among those results as submitted from County Boards of Canvassers for the April 5 election.

While the date on the Brookfield Patch report is Wednesday, April 6 (with no time stamp), I contacted Sink to confirm the time she posted and the source for her ward-by-ward numbers.

“I got these results on election night at City Hall from the City clerk's office, typed it up at City Hall and posted this story at 12:24 a.m.,” she told me. “That's why it says April 6. I didn't get any results from the county or AP because I only needed Brookfield city votes.”

“What was or was not included in the countywide total Nickolaus gave to AP on election night, I have no idea,” she continued. “Only Nickolaus and maybe AP have info on that.”

Sink says the numbers she contemporaneously published just after midnight on April 6 “have indeed always been Brookfield's vote tally since shortly after the polls closed Tuesday night.”

Thanks to Nickolaus' refusal to break down her own reported election night numbers by ward across the county, much less municipality, it was next to impossible for citizens to oversee the computer-tabulated results as they were being reported by the county on Tuesday night. In the bargain, it wasn't noticed that the totals from Brookfield were simply left out of the unverified country results as released by Nickolaus to the media. That failure is just one of many which Nickolaus has been called on the carpet for over the years and about which she has insultingly given the virtual finger to both county executives and citizens who have been trying to demand accountability and transparency for her office.

When the remarkable news broke last Thursday night, revealing the sea change in the originally reported 204-vote election night margin between Prosser and Kloppenburg (who had held that razor-thin lead), it came as little surprise, at least to me, that it was Nickolaus' county responsible for the error.

The BRAD BLOG had been following the outrageous practices and behavior of Nickolaus for at least much of the past year. In August of 2010, I had flagged her stunning practice of keeping election results on only a personal computer in her office, out of oversight by anybody else and the county's intention to audit that and other questionable election procedures and practices, which made democracy in her county almost impossible to be overseen by the citizenry.

In January of this year, when Waukesha County's Executive Committee met with her to discuss her refusal to implement the many recommendations to improve security and oversight made by the independent audit, including the strong urging that she apply years of security patches and create separate IDs and passwords for each office employee who accessed the election results computer, she said only that she would take them “into consideration.”

She was called out during that public meeting by the committee's Chairman Jim Dwyer for her “smirks” during the proceedings, as reported at the time by the Journal Sentinel. “There really is nothing funny about this, Kathy,” said Dwyer, chastising her as he reportedly raised his voice. “Don't sit there and grin when I'm explaining what this is about … Don't sit there and say I will take it into consideration.”

Even the state's election integrity advocate and award-winning public records investigator John Washburn of Fair Elections Wisconsin, himself a self-professed “Ron Paul Republican” and Prosser voter who has spoken in the past on Nickolaus' behalf at a County Board meeting, told me during an on-air, live interview on Thursday night's nationally-syndicated “Mike Malloy Show” (which I had been guest hosting last week) that he feels her explanation of what happened to Waukesha's election results “doesn't pass the smell test.”

And yet, if Sink's independent corroboration of Brookfield's election night numbers can be trusted, the real concern is not solely about those 14,045 “new” votes, but more that none of the results across the entire state have actually been verified as accurate by human beings!

In truth, the fact that the so-called canvassed results now on the state's web site match precisely to the numbers reported by Sink on election night ought to be of more concern to all of us than the fact that the incompetent Nickolaus somehow forgot to include them in the first place in her initial, unofficial report. Those numbers indicate that the votes cast in Brookfield have likely gone unexamined for accuracy and rely solely on unreliable, un-overseeable, computerized tabulation.

Most of the ballots cast across the state of Wisconsin on Tuesday were on hand-marked paper ballots. That's just about where the “good news” ends. Virtually none of those ballots have been examined by human beings to assure accuracy of the oft-failed, easily-manipulated, optical-scan tabulating computers used across the state, as made by companies like Diebold, ES&S and Sequoia.

The op-scan tabulators made by each of those companies have been examined by independent testers in state after state and found to be both failure prone and easily manipulated to give false readings of hand-marked paper ballots such that only a hand-count examination of the ballots can offer certainty that the computer-reported totals are accurate.

As The BRAD BLOG reported in November of 2008, during pre-election testing of their ES&S M-100 optical scanners (used widely across Wisconsin as well), officials discovered that the systems “yielded different results each time [the] same ballots were run through the same machines.” The county reported its findings to the US Election Assistance Commission (EAC), which subsequently failed to notify other jurisdictions using the same systems about the problem.

Prior to that, as seen in HBO's Emmy-nominated 2006 documentary “Hacking Democracy,” a first-of-its-kind test of Diebold's AccuVote optical-scan system (also used to “count” Wisconsin's votes) revealed that those tabulators could be undetectably manipulated to report the opposite of what the hand-marked paper ballots clearly showed. Only a hand-count of those ballots would reveal the actual correct results of the mock election as filmed in the documentary. You may watch that startling live mock election test, as it occurred in the movie's climactic final scene below.

And yet, with all of the known flaws in optical-scan election technology, Wisconsin's election laws states that optically scanned ballots may only be hand counted in a “recount” if ordered by a court.

The still unofficial, still unverified-by-human-being results now being reported across the state, even with Waukesha's “new” numbers, remain very close in an election where some 1.5 million voters cast ballots last week. The latest unverified totals give Prosser (a former colleague of Nickolaus' in the GOP state assembly) a just under 7,000 vote edge over the challenger Kloppenburg.

Surely this race, with all of the broader stakes involved in it – a win for Kloppenburg would change the balance of the state's Supreme Court from its current 4 to 3 right-leaning majority, as a challenge to Walker's legislation stripping citizens of their right to collectively bargain is likely headed their way – is worth a 100 percent transparent examination by the citizenry, so that they can know the actual results of the election, whatever they are, are accurate as per the intent of the electorate.

Of course, since the hand-marked paper ballots were not examined on election night at the precinct, in front of the citizenry (including all parties and video cameras rolling) with decentralized results posted publicly before ballots were moved anywhere, chain of custody questions, unfortunately, now come into play as well.

Had Wisconsin used “Democracy's Gold Standard,” as quickly described above, we would not likely be having these concerns at all today.

Sadly, even in the case of a hand-count examination, were it to be ordered at this point, after ballots have been moved and in the sole custody of folks like Nickolaus over the past week, voters would have to simply “trust” in their election officials' chain of custody procedures – something they should never be required to do in a truly democratic election.

Whether the election official is the Republican activist Nickolaus, or any other, “trust” has no place in our democratic system, which is supposed to be built instead on oversight, transparency and checks and balances. The very best election officials in the country will tell you themselves that even they should never be “trusted.”

Leon County, Florida's legendary, independent Supervisor of Elections Ion Sancho, who is so well respected by “both sides” that he was placed in charge of oversight of Florida's eventually aborted 2000 presidential recount, warned as long ago as 2006 that we should “trust no one,” when it comes to elections. “If it can't be verified,” he said, “it can't be used.”

If the citizenry can't verify it for themselves, rather than rely on “trust and faith” in election officials and proprietary computer tabulation systems, it has no place in our system of democracy. Election insiders, as computer security and election experts will tell you, and as history has borne out, have the easiest access to manipulating the results of elections in such a way that it is unlikely to ever be noticed.

This is not a partisan issue in any way, shape or form. This is not about right and left, but about right and wrong.

Back in October of 2005, just prior to the November election in Monterey County, California, with their then-new Sequoia touch-screen voting systems, I had the occasion to interview the county's Registrar of Voters Tony Anchundo on the “Peter B. Collins Show.”

I asked Anchundo how he had planned to handle discrepancies, if any were discovered, between machine-reported results on the county's new systems and their planned post-election “audit” of the so-called “paper trails” from those unreliable (and since decertified) electronic voting systems.

The well-respected 13-year election official responding by telling me: “There is obviously going to have to be some trust and faith in the elections official, or in this case, it's me.”

A few short months after the interview, in July of 2006, Tony “Trust Me” Anchundo was charged with 43 criminal counts, including charges of forgery, misapplication of funds, embezzlement, falsification of accounts and grand theft of nearly $80,000 of County money. In December of 2006 he pleaded “no contest” to all 43 criminal charges.

(Audio of the full interview with Anchundo is here, text transcript here, “Court TV's” Catherine Crier picked up on our reporting of this in a video editorial here.)

I have no idea what Anchundo's political affiliations are or were. I know what Nickolaus' are, but I don't actually care. What I care about is the citizenry being allowed to know that their elections are tabulated accurately without having to trust in election officials of any party or in computers which use secret, “proprietary” source code to “count” votes, in secret, without any human verification of those results before they are announced as “final.”

As these problems continue to occur in virtually each and every election since the federal Help America Vote Act of 2002 encouraged jurisdictions across the nation to move to these oft-failed, easily-manipulated, un-overseeable computer tabulation systems, it's time that we all say “enough.”

Return democracy and the ability for self-governance to we, the people. Where we have verifiable, hand-marked paper ballots, it's time to count them, in public, at the precinct, in front of everyone on election night, as they still manage to do in 40 percent of New Hampshire's towns each year, and where reliable, citizen-overseen results are routinely available to the media often before the towns who use Diebold optical-scan systems to “count” votes.

How much longer can the supposedly “Greatest Democracy in the World” continue to make a laughing stock out of its own (small “d”) democratic processes? Enough is enough. The threat to the very lifeblood of democracy has continued far too long, and with important recall elections likely to take place in rapid succession across Wisconsin in the coming months, and millions set to turn out to the polls for next year's presidential election, the time is long overdue for reforming out systems of vote counting.

Where we have actual verifiable ballots, let's count them – in front of we, the people, on election night. Where we don't, where we still use 100 percent unverifiable touch-screen systems to invisibly record votes, let's throw them into the sea to make a nice new artificial reef for the fish.

Our democracy, our citizenry, continue to deserve far better than this nation and its election officials and elected officials continue to give it. And that starts with simply bothering to count the votes in public. It really shouldn't be this difficult.