Kathy Nickolaus, the Waukesha County clerk at the center of the disputed state Supreme Court election, is no stranger to controversy. Nor is her former boss, Supreme Court Justice David Prosser, whose candidacy got a boost Thursday when Nickolaus revealed the results she gave to The Associated Press on election night failed to include more than 14,000 votes from the city of Brookfield.
The new total puts Prosser — who appeared to be losing by a minuscule 204-vote margin — ahead in the election by about 7,500 votes.
Nickolaus did not return email and phone messages for comment Friday. Prosser campaign manager Brian Nemoir said he learned of the discrepancy around 5 p.m. Thursday, just before Nickolaus' press conference.
In 2006, Nickolaus, who was elected Waukesha County clerk in 2002, was criticized for posting election returns that temporarily skewed results of a Republican primary for the 97th Assembly District. At the time, Nickolaus told reporters some returns from the city of Waukesha were entered in the wrong column.
And last summer, the Waukesha County Board ordered an internal audit of her office, citing concerns Nickolaus was secretive and refusing to cooperate with the county's technical staff in a security review of the computerized election system.
Some officials also were critical of Nickolaus' decision to stop posting municipal results to save time. Auditors who looked at the Waukesha County system found 26 of 62 counties surveyed also did not post local results — a step that might have revealed the missing Brookfield numbers.
Brookfield City Clerk Kris Schmidt said she learned her community's votes weren't reported by Nickolaus two days after the election, when Nickolaus called a press conference to explain the discrepancy.
"I should've had the courtesy of a call that they knew on Wednesday that there was a problem," Schmidt said. "If people would've known on Wednesday that there were an additional 7,000 votes for Prosser, all this talk about recount and everything would've calmed down."
Testified in secret hearing
Years ago, Nickolaus worked for Prosser at the Assembly Republican Caucus, one of the four legislative agencies that conducted secret, illegal campaign work for legislative leaders. The four offices were closed at the end of 2001 after the Wisconsin State Journal exposed the widespread covert campaigning carried out by the ARC and the other three partisan caucuses.
The stories prompted criminal charges against top Republican Assembly and Senate Democratic leaders, including then-Assembly Speaker Scott Jensen, R-Brookfield. Prosser was Jensen's predecessor, serving as the Assembly's top Republican leader in 1996 and 1997.
A few high-level staffers were charged or fined in the scandal. Nickolaus, a computer expert who handled lists of registered voters and other tasks, was among at least 18 Republican and Democratic staffers who avoided prosecution in exchange for testifying before a secret John Doe hearing in Dane County Circuit Court.
When Jensen went to trial in 2006, Prosser — by then a Supreme Court justice — served as a character witness for Jensen, who paid a $5,000 fine in December in exchange for dismissal of the charges.
Prosser was never questioned under oath about illegal campaign work, but in a statement prepared by Jensen's lawyers, Prosser said he also used state staff and resources to run Republican campaigns during his seven years in leadership.
"The legislative branch is the political branch of government, and a legislative office is a thoroughly political office," Prosser said in the court brief. "For the most part, every activity that could be characterized as a campaign activity can be conceivably construed to be an act that furthers the legislative process."