UPDATED: Recount Will Be Complete Monday Except Waukesha County

Improperly sealed ballot bags containing City of Brookfield votes became the latest salvo in a dispute about whether a statewide recount of a hotly contested state Supreme Court race should continue or end.

UPDATE: By Monday, all of the state's 72 counties except Waukesha will have their recounts complete, the state Government Accountability Board said Friday. Waukesha and Dane counties had asked for extensions to Monday's deadline, but the state now believes Dane will not need extra time.

State elections officials will ask Dane County Circuit Court Judge Richard G. Niess in an 8 a.m. Monday hearing to extend Waukesha's deadline. They said they did not yet know how much more time Waukesha would need. 

But in an interview Thursday evening, retired Waukesha County Circuit Judge Robert Mawdsley, who is overseeing Waukesha's recount, said it could take until the week before Memorial Day.

Of the 125,070 countywide total votes certified after the election, Waukesha County had recounted 28,231 votes — or about 23 percent — by the end of Thursday. By the end of Friday, they had recounted 31,916 votes, or about 26 percent. As they did last weekend, Waukesha tabulators will work on Saturday and hope to finish the City of Brookfield's recount. There were seven wards and absentee ballots left to hand count.

“We cannot stress enough our gratitude for the meticulous work conducted by county clerks and their Canvass Board members throughout this historic time,” said Nathaniel E. Robinson, Elections Division administrator. “The recount process has uncovered some issues and corrected some vote totals, but these are to be expected in any recount.”

Melissa Mulliken, campaign manager for candidate JoAnne Kloppenburg, said during a press conference Thursday that the unsecured Brookfield ballot bags were the latest in a string of "anomalies" in various counties that has Kloppenburg "confident in her decision" a thorough recount was needed, even if the end result does not change.

"When bags are ripped or opened.... that’s a security issue and that is concerning," Mulliken said.

She said Kloppenburg supported the request for extension of time and said it was yet unknown if any of the anomalies would be challenged in court.

But Brian Nemoir, campaign director for incumbent Justice David Prosser Jr., said the anomalies were minor and the questioned "how much longer does this go on?"

"A minorly torn bag or a number not recorded properly — these are small issues," Nemoir said. "We have to remember elections aren’t something that happen 365 days a year. They happen a couple times a year, and they rely on largely volunteer forces to make sure they are secure."

Both campaigns praised Mawdsley's job in overseeing the recount.

The recount of the City of Brookfield's votes began Thursday with an objection to opening and counting the first six ballot bags because they were not completely sealed at the top, leaving an open gap.

Bill Hotz, a representative for Kloppenburg's campaign, objected to opening the bags, saying there was no way to know if the ballots inside were secure and untampered. Brandon O'Bryon, from Prosser's campaign, said they should be opened. He cited testimony from Brookfield City Clerk Kristine Schmidt about the protective custody her office takes of ballot bags after the election.

Schmidt said the bags are kept in a locked vault until city highway workers put them in boxes and drive them to the county clerk's office. Schmidt said the bags were heavy with large stacks of ballots from Wards 1, 2 and 3, which places strain on the plastic bags, causing tears and a gap at their opening. The bags are secured with a red plastic tie inserted in a single hole in the bag. 

Schmidt said the ballots were "absolutely not" tampered with, despite the opening that one Kloppenburg observer said was wide enough for a hand to be inserted.

"I guarantee these ballots were put in (the vault) and not tampered with until they left my City Hall and were taken to the county, and I'm sure the same situation was there," Schmidt said. 

O'Bryon said, "We would object to the notion that the people of Brookfield should be disenfranchised absent any clear evidence of fraud or wrongdoing."

Mawdsley said several bags appeared to be "improperly sealed." But he overruled the objections and said the bags would be opened and counted.

Mawdsley said it would be up to a future court to decide whether to remove those ballot counts from the statewide total, if the Kloppenburg campaign decided to challenge it in court.

The city's approximately 14,300 votes are under the spotlight after Waukesha County Clerk Kathy Nickolaus failed to include them in her election night countywide total.

Nickolaus said she realized the next day that she had failed to properly save the city's votes sent in a spreadsheet from the city. But she did not inform the city or the state Government Accountability Board until the following day, after her Board of Canvassers certified the election results.

Waukesha County has undergone a more cautious and meticulous hand recount, which has resulted in it being far behind other counties in finishing its recount.

Mawdsley plans to double the number of tabulators and move to a larger room starting on Monday.

The Board of Canvassers recounted 10 of the city's 24 wards Thursday but did not recount the city's absentee ballots from any wards. They plan to count the city's absentee votes at the end of the wards en masse.

"Today was a good day," Mawdsley said. He said it would be ideal if the rest of the city's votes could be recounted by the end of Friday.