WASHINGTON — One thing we should expect from our government is certainty about who won an election and, within a reasonable margin of error, by how much.
Government famously failed that test in the 2000 presidential election and did so again April 5 in a down-to-the-wire election for a seat on the Wisconsin Supreme Court. The discovery, two days after the election, of 14,000 missing votes changed the likely outcome of a race that had become a referendum on Gov. Scott Walker and his slashing of pay, benefits and bargaining rights of public sector workers.
We run elections in this country in a way ripe for distrust: Imagine allowing A-Rod’s agent to be an umpire in a Yankees-Red Sox game. When votes just turn up in a high-stakes election, we’re suspicious, cynical and, in the worst case, alienated from our own democracy.
Until the 14,000 uncounted votes showed up, the Wisconsin court election was notable mostly for the outsized level of interest. Turnout was at presidential-primary levels and spending was through the roof, with $3.5 million spent on ads alone, according to the Brennan Center for Justice. JoAnne Kloppenburg, an unknown assistant attorney general, was given almost no chance of winning prior to the Walker controversy. By election day she seemed to have pulled even with the incumbent justice, David Prosser, a conservative aligned with Walker.
The vote seesawed in the hours after polls closed. The next day, Kloppenburg declared victory with a 204-vote lead. But before she could pop the champagne cork, Waukesha County Clerk Kathy Nickolaus, a Republican Party loyalist with a checkered electoral past, found the 14,000 uncounted votes, which snatched victory for Prosser from the jaws of defeat. Of the discovered cache, 11,059 went to Prosser, 3,456 to Kloppenburg.
The tally now is so close that it reminds me of the instruction President John F. Kennedy jokingly attributed to his father, Joseph, regarding the 1960 West Virginia primary: “Don’t buy one more vote than necessary. I’ll be damned if I’ll pay for a landslide.”
There may be nothing wrong here, but it smells bad. As long as we’re going to put partisans in charge of ballots, the results should be as reliable, as free from a whiff of human interference, as technologically possible.
Not so with Nickolaus, who brings to mind former Florida Secretary of State Katherine Harris, the wealthy diva from a prominent banking family who seemed all too eager to do the Bush family’s bidding in the 2000 presidential recount.
Nickolaus, a co-owner of Musky Mike’s Bait & Tackle shop in Okauchee, worked for the state Assembly’s Republican caucus when Prosser, as Assembly speaker, oversaw the caucus.
When all four of the Wisconsin Legislature’s Democratic and Republican caucus groups were accused of doing campaign work on government time, Nickolaus was given immunity from prosecution. According to the Milwaukee Journal Sentinel, a 2002 criminal complaint against the Assembly speaker at that time, Scott Jensen, said Nickolaus developed a computer software program that was used by state officials to track donations. Jensen ultimately pleaded guilty to a misdemeanor ethics charge.
Elected Waukesha County clerk in 2002, Nickolaus put in place her own counting system. As long as elections were won by wide margins, her methods didn’t attract attention. In 2006, however, Nickolaus posted returns that temporarily skewed results in a primary for an Assembly seat. After that, the county’s technical staff wanted to review her approach. She didn’t cooperate. The county ordered an audit.
At a hearing three months ago to review the findings, the Waukesha County Board chairman accused Nickolaus of smirking while saying she would take “into consideration” the audit committee’s recommendations to use technology like that employed elsewhere in the state.
She had no intention of modernizing. Her mistake on April 5 occurred while using a personal computer with old software, shared passwords that permit multiple users and a dial-up modem — a system that makes the butterfly ballot in Palm Beach, Fla., look sophisticated.
In an emotional press conference, Nickolaus explained that “human error” caused the undercount, as she’d forgotten to hit “save” after entering totals from the city of Brookfield. Which human’s intransigence made that error possible?
In a time when online marketers can see what kind of shoes I like and tailor their pitches accordingly, shouldn’t there be technology that knows 14,000 votes are missing before two days elapse? In a toxic political environment, we don’t need an election clerk going rogue.
A unanimous Supreme Court decision in 2006 noted that fraud “drives honest citizens out of the democratic process.” Like a bad call that spoils the World Series, a messy counting process soils an election. Prosser likely won fair and square, but for a lot of folks in Wisconsin, it doesn’t feel that way. Democracy is messy enough; the act of counting votes should be clean.
Margaret Carlson is a Bloomberg News columnist and former White House correspondent for Time magazine.