Candidates reach recount deal

By Jason Stein and Bill Glauber of the Journal Sentinel
April 21, 2011

Madison — Backing off stronger stances, Supreme Court Justice David Prosser and Assistant Attorney General JoAnne Kloppenburg found a courtroom compromise Thursday that called for a statewide recount, with a hand tally for ballots from the entire city of Milwaukee and other communities.

The hand recount will apply to ballots from some communities in 31 counties, including another 14 municipalities in Milwaukee County and 34 municipalities in Waukesha County. Dane County Circuit Judge Richard Niess approved the deal Thursday, allowing the first state recount in more than two decades to proceed with a cast that could include troops of observers for both sides.

"I think this is absolutely the right way to go," Niess said.

The deal came after Prosser representatives said he would strongly oppose any statewide recount as frivolous and Kloppenburg signaled that she wanted a hand recount of ballots from across the state.

The official tally in the race shows Kloppenburg lost to Prosser by 7,316 votes - less than 0.5% of the 1.5 million votes cast. The election initially appeared much closer, with Kloppenburg unofficially up by 204 votes. That was before Waukesha County Clerk Kathy Nickolaus announced her initial, unofficial tally given to news media on election night failed to include 14,315 votes from the city of Brookfield.

Minnesota journalist Jay Weiner and Washington, D.C., lawyer Chris Sautter, who have both written books on recounts, have said that it is unlikely to change the outcome in this race, though Sautter has said it's still worthwhile.

Attorneys for Kloppenburg and Prosser said the hand recount would be held in areas where older voting machines do not allow data to be copied. That would mean, absent a hand recount, that their data would have to be destroyed before the machines could be used to recount ballots.

Kloppenburg attorney Susan Crawford said that state law provides for a taxpayer-funded recount to candidates in Kloppenburg's position.

"We think this is a fair result," Crawford said.

Jim Troupis, an attorney for Prosser, said he stuck by earlier statements that the recount was "frivolous" and highly unlikely to change the outcome in the race. He claimed a recount could cost counties up to $1 million.

But "we're certainly comfortable with it," Troupis said of the compromise, noting it would allow the race to be resolved as quickly as possible.

Reid Magney, a spokesman for the state Government Accountability Board, said that the board expects to issue an order on Monday that would begin the recount on Wednesday. Magney said there are no reliable statewide cost estimates on what a recount might cost.

Magney said that the city of Brookfield would have a hand recount on ballots from two of its seven polling places. He said that at least for now, the court order is for the hand recount to proceed in the select areas of the 31 counties, even if it turns out that some of the voting machines in question actually can preserve their data.

Milwaukee's data could be preserved, according to Neil Albrecht, deputy director of the city Election Commission. He said city election officials routinely copy voting machines' data into computer software that keeps the results by ward and has been ruled to meet state records retention requirements.

Including Milwaukee in a hand recount could have a significant impact on the length and cost of the process, although no specific figures are available. Milwaukee is by far the state's largest municipality, with 312 wards. Milwaukee County Election Administrator Lisa Weiner estimated that a hand recount could take twice as long as a machine recount, with county taxpayers picking up the tab for city poll workers' time and other expenses.

In areas where there is no hand recount, ballots would be recounted by the same machines or other methods used to count them the first time. Even in those areas, elections officials and observers for the campaigns still will be able to look at individual ballots.

Troupis said he expected that Prosser's campaign could have hundreds of volunteer recount observers traveling to Wisconsin from around the country.

Crawford said Kloppenburg's campaign hoped and expected that the recount could be finished within the deadline in state law of 13 days from the date of the accountability board's order.

By law, the memory devices in voting machines cannot be cleared for 21 days after an election or during a recount.

But Steve Means, executive assistant to Attorney General J.B. Van Hollen, said that Van Hollen believed the best way to move forward would have been to verify the results in the specific machines and then erase those data. That's because by state law, a hand recount should only happen when it can be demonstrated in court to be more accurate than a machine count, he said.

But after hearing that concern, Niess moved forward with the deal.
Meeting denied

Meanwhile Thursday, Prosser angrily repeated his denial that he met with Gov. Scott Walker shortly after the court election, denouncing Kloppenburg's campaign for making the claim.

Melissa Mulliken, the campaign manager for Kloppenburg, made the claim Wednesday in a complaint filed with the accountability board. That complaint sought an inquiry into Nickolaus, not Prosser.

Citing unnamed sources, Mulliken alleges Prosser had a one-on-one meeting with Walker, a Republican, on the day after the election - a loaded allegation in an officially nonpartisan race in which the candidates questioned each other's claims of political independence. The next day, Walker's administration asked the Supreme Court to quickly get involved in a Dane County case that has blocked implementation of Walker's controversial plan to sharply limit collective bargaining for public employees.

Prosser said that since the election he hasn't met in private with either the governor or any of his staff.

"The idea that I would go to the governor's office is just patently untrue. There is not a shred of evidence. That is pure malice," Prosser said Thursday in an interview.

Walker aide Chris Schrimpf also denied Wednesday that the two officials met on April 6.

Crawford said Thursday that Mulliken felt her sources were reliable but would not reveal them since she didn't want to taint any possible investigation.

Larry Sandler of the Journal Sentinel staff contributed to this article from Milwaukee.

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