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Originally published April 7, 2011 at 10:00 PM | Page modified April 8, 2011 at 12:01 AM

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Clerk's error turns Wisconsin high-court race around

A conservative Wisconsin Supreme Court justice is likely to keep his job after a county clerk said Thursday that she found more than 7,500 more votes for him, putting the incumbent ahead of a challenger who had declared victory.

Milwaukee Journal Sentinel

MILWAUKEE — A conservative Wisconsin Supreme Court justice is likely to keep his job after a county clerk said Thursday that she found more than 7,500 votes for him, putting the incumbent ahead of a challenger who had declared victory.

The election drew national attention because it was seen as a referendum on Republican Gov. Scott Walker's proposal to strip most public workers of their collective-bargaining rights, which sparked huge protests and has been put on hold by a judge.

Kathy Nickolaus, clerk of Waukesha County, a Republican stronghold in the greater Milwaukee area, said she had omitted 14,315 votes from totals she released Tuesday night. Of those, Justice David Prosser had an advantage of 7,582 votes over Assistant Attorney General JoAnne Kloppenburg. The new vote count remains preliminary.

The stunning development wiped out Kloppenburg's slim lead and gave Prosser an advantage outside the margin that would mandate an automatic recount.

Prosser is a former Republican lawmaker seen as a conservative on the court while Kloppenburg is seen as the more liberal candidate.

"I'm thankful that this error was caught early in the process," Nickolaus said, her voice wavering. "This is not a case of extra ballots being found. This is human error, which I apologize for, which is common."

Nickolaus explained that she had failed to save data in her computer and consequently report votes cast in the city of Brookfield. Smaller discrepancies turned up in two other communities.

The fresh numbers provide a new tilt to a race that had appeared to be headed toward the first statewide recount in two decades. But the numbers also seemed almost certain to inject new controversy into an already heated race.

Elections officials statewide Thursday were tweaking unofficial results from the day before that had put Kloppenburg ahead of Prosser by a razor-thin 204 votes. Kloppenburg declared victory Wednesday based on the earlier results, saying, "Wisconsin voters have spoken and I am grateful for, and humbled by, their confidence and trust."

Kloppenburg's campaign manager Thursday demanded a full explanation of how the error occurred. Melissa Mulliken said an open-records requests for all relevant documents would be filed.

Rep. Peter Barca, Democratic Assembly minority leader, said the mistake raises significant suspicion that could warrant an investigation.

Nickolaus was given immunity from prosecution in a 2002 criminal investigation into illegal activity by members of the Republican Assembly caucus, where she worked as a data analyst and computer specialist.

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Prosser, who as speaker of the Assembly in 1995 and 1996 controlled the same caucus, was not part of the investigation. Nickolaus resigned from her state job in 2002 just before launching her county-clerk campaign.

The corruption probe took down five legislative leaders, all of whom reached plea deals.

Prosser issued a statement saying he was encouraged by various reports from counties as they were beginning the process Thursday of verifying the votes. He did not specifically mention the Waukesha County change.

"Our confidence is high, and we will continue to monitor with optimism, and believe that the positive results will hold."

At the news conference with Nickolaus, Ramona Kitzinger, the Democrat on the Waukesha County Board of Canvassers, said: "We went over everything and made sure all the numbers jibed up and they did."

As a Democrat, she said, "I'm not going to stand here and tell you something that's not true."

Kristine Schmidt, the clerk in the city of Brookfield, said in a separate interview that she shared the results with the news media on Tuesday night.

She said she also sent the results twice to the county. After the first results were sent, she said county officials requested a second set of data because they wanted results tabulated in a certain format with fewer columns.

"We sent it to the county and called the county to make sure they got it," Schmidt said.

Nickolaus explained that when she got Brookfield's results the second time in the correct format, she failed to save it. So when she totaled the results for the unofficial final report Tuesday night, Brookfield's total was not included.

She discovered the error Wednesday, when she transferred her data to a state computer program for the canvassers' review. Brookfield's results showed a zero. The Board of Canvassers started its work at noon Wednesday, but Nickolaus said she didn't report the blunder because everything had to be verified first.

Nickolaus said the problem had nothing to do with her election system, which has been criticized as outdated. Her election operation was the subject of a county audit last year after complaints were leveled that she was not cooperative with information-technology specialists who wanted to check the system's integrity and backup.

Once the final official numbers are in, either candidate — but no one else — can request a recount. If the margin between the candidates is less than 0.5 percent, the state charges nothing to conduct the recount.

But the added votes from Waukesha County could push the total far enough toward Prosser that a free recount would no longer be available to Kloppenburg, who on Wednesday had an unofficial 204-vote lead out of nearly 1.5 million votes cast.

Material from the Los Angeles Times and The Associated Press is included in this report.

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