16 October 2014

State and local officials confirm the public records have been moved to off-site storage, though they remain in the custody of County Clerk Kathy Nickolaus...
The ballots cast in Waukesha County during the June 5th Gubernatorial recall in Wisconsin appear to be safe from destruction at the hands of one of the nation's most notorious election officials.
For now.

In our exclusive exposé earlier today, we detailed the threat made by the infamous Waukesha County Clerk Kathy Nickolaus to "destroy" the county's ballots from the historic recall election between Gov. Scott Walker and Milwaukee Mayor Tom Barrett, as early as noon today, in apparent contravention of state law. The threat to destroy the ballots was made even as they (and the rest of the ballots cast in the election across the state) are still subjects of public records requests by a number of citizen groups attempting to verify the otherwise completely unverified results of the race by examining the ballots by hand for the first time.

Nickolaus had denied the request by the largest group attempting to oversee the results of the election, and informed the requesters (see our previous article for her full responses): "Unless I receive a court order by noon on Monday, August 13, 2012 directing otherwise, I will proceed to retain or destroy the election materials from the June 5, 2012 Recall election according to state statute and GAB guidelines."

Her arbitrary deadline, the citizen auditors charge is in contravention of state public records statutes requiring 60 days after a request has been denied, before action can be taken. The BRAD BLOG has been able to confirm the legal 60 day requirement with several state officials today. Nickolaus' July 17th denial to grant the requesters access to the ballots means that, by law, she is barred from destroying the public records until at least September 15th.

After our story was published this morning, folks in WI seem to have sprung into action, leading the County District Attorney, the Waukesha County Corporation Counsel (who serves as Nickolaus' attorney) and the state's Government Accountability Board (G.A.B.) to respond with confirmation that the ballots in question will not be destroyed at this time, and were, instead, being moved from the Clerk's office, where they have been since the election, to off-site storage as of this afternoon.

"It would not be proper to destroy such materials at this time," County D.A. Brad Schimel confirmed to The BRAD BLOG late this afternoon, noting that "no records would be destroyed today, nor would they be destroyed until at least 60 days after the denial of the public records request"...

The first to report responses from the local officials today was the Badger Democracy blog, which reported, in part [emphasis in original]: Badger Democracy contacted Waukesha County District Attorney Brad Schimel for comment at 8:30 this morning. Schimel stated he knew nothing of the requests prior to this morning, expressed his concern about the Nickolaus situation, and "…now is not a good time to be destroying any election materials." When asked about the Nickolaus emails, Schimel stated he would contact County Corporate Counsel Thomas Farley and call back with an update.

At 10:15 am, Corporate Counsel Farley called back Badger Democracy with only the following statement, citing attorney/client confidentiality:

Kathy Nickolaus, my client, will act responsibly.

Within minutes, DA Schimel called Badger Democracy with further information. After discussion with the County Clerk's office, Schimel stated "Nothing is being destroyed today. Measures have been taken to preserve all election materials from the recall election, and things are on hold at this point."

Schimel also expressed his concern in the situation in light of Nickolaus not seeking re-election for another term. Kathy Nickolaus is out of the office today, and unavailable for comment.

By late this afternoon we were able to confirm most of Badger Democracy's report with both state and county officials.

D.A. Schimel, in response to a number of questions we'd sent, confirmed that he took up the matter with Waukesha Corporation Counsel Thomas Farley (who represents Nickolaus) when the matter was brought to his attention today.

He says Farley gave "his assurance that no records would be destroyed today, nor would they be destroyed until at least 60 days after the denial of the public records request."

"I have an interest in attempting to avoid Public Records Law violations," Schimel wrote via email, "especially when destruction of the records in question is imminent. I think this interest is especially significant when the records in question relate to public confidence in our elections."

"Thus, after becomming [sic] aware of these issues, I inquired and have been advised that the Clerk will not be destroying any records at this time. I do not know whether there is any plan to destroy them at a future date. It appears that the Clerk could legally destroy the records any time after 60 days have expired from the date of the denial of the records request. I have found no law that requires retention of the materials after that period."

"As the elected Clerk, [Nickolaus] has sole authority over those documents," he explained, "and I only have authority to intervene if there is a basis to conclude a law has been violated. If the requester of the records desires an order prospectively prohibiting the destruction of the records, they should seek a court order."

He went on to say: "I do not have sufficient information at this time to determine whether the denial of the records request was proper. The information I have received thus far is fragmented and unverified. If I receive a complaint from the requester of the records that sets for a potential violation of the Public Records Law, I will take action to address that complaint."

Reid Magney, the Public Information Officer for the Wisconsin Government Accountability Board (G.A.B.), the state's top election agency, responded to our query as well. Here was his response: Today, the G.A.B contacted Waukesha County Corporation Counsel regarding claims that ballots and election materials from the June 5 Recall Election would be destroyed today. The Waukesha County Corporation Counsel's office indicated that these materials would be transferred to offsite storage today. All further questions should be referred to Waukesha County Corporation Counsel or Clerk. The G.A.B. is not authorized to provide Waukesha County with legal advice regarding the public records law, nor does the G.A.B. have any authority to enforce the public records law.

We followed up with Magney to inquire as to whether the ballots were still in the custody of Nickolaus, even though they were being moved to off-site storage, or whether custody had been transferred to another party in the bargain.

"They're still in Waukesha County's custody," he replied.

Our call to Nickolaus' attorney, Waukesha County Corporation Counsel Thomas Farley, seeking further information, was not responded to today.

For now, at least, it seems the ballots in Waukesha County are "safe" and can hopefully be counted by actual human beings at some point in the near future. Though, for that to happen, the Hand Count Votes Now! coalition, which made the open records request in all 72 of the state's counties, in partnership with Wisconsin Wave, will have to challenge and reverse Nickolaus' July 17 denial in order to gain access to examine ballots. At that time, as we detailed this morning, Nickolaus issued her refusal to grant access on the basis that the request was "too broad" and "overly burdensome."

10 other counties in the state so far --- and some 15 scheduled to be examined in the near future by an assembled team of 750 citizens volunteers across the state --- disagree with Nickolaus' determination. Those counties have granted the citizen auditors access to the ballots to oversee the results of their election. Moreover, as we've discussed with Election Integrity and public records expert John Washburn (a Republican and Scott Walker voter) from Fair Elections Wisconsin, neither of Nickolaus' reasons for denying access to the ballots seem to have any basis or legitimacy under state law.

For now, in any case, the Waukesha ballots have not been destroyed, so the fight for citizen oversight of elections in one of the state's most Republican counties, and the rest of the state as well, will continue...