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By Dave Umhoefer August 11, 2011

Democratic Party of Wisconsin chairman Mike Tate says Waukesha County Clerk Kathy Nickolaus has "screwed up counting the vote" in two consecutive elections

On the brink of falling one victory short of taking back the state Senate, state Democratic Party Chairman Mike Tate blamed a familiar punching bag late on election night.

Tate lashed out at Waukesha County Clerk Kathy Nickolaus, whose April 2011 failure to include an entire municipality’s unofficial vote count in the Supreme Court contest for more than a day led Democrats to falsely believe their preferred candidate, JoAnne Kloppenburg, had won.

This time around, there was no such delay, but partial election-night returns from one community in the county were among the last reported. Those figures from Menomonee Falls, a GOP stronghold, would ultimately reverse the early "lead" in unofficial returns that recall challenger state Rep. Sandy Pasch (D-Whitefish Bay) had over state Sen. Alberta Darling (R-River Hills).

While the Menomonee Falls totals were still out, Tate told a WISN-TV interviewer on Aug. 9, 2011 that "this is an election that Sandy Pasch has won" and that Nickolaus "at worst is conducting criminal voter fraud" amid some "very questionable activities."

He didn’t stop there.

"Look, this should be a concern shared by everybody who lives in Waukesha County," Tate said. "Two elections in a row she has screwed up counting the vote. Regardless if you are a Republican or a Democrat you should know that your vote is going to count."

Those are, to say the least, pretty strong statements.

But they weren’t just off-the-cuff remarks in the midst of a live interview.

The party immediately issued a news release (Headline: "Waukesha County Tampering") charging that Nickolaus "is once more tampering with the results of a consequential election and in the next hours we will determine our next course of action. For now, Wisconsin should know that a dark cloud hangs over these important results."

Let’s pause this tape and look at the process.

Given the party’s continued criticism, we thought it was important to see if Nickolaus, as Tate claimed, "screwed up counting the vote" for the second time in a row.

We asked Tate what evidence he had to back his claim of tampering with the election. He said suspicions were raised because the Waukesha vote totals were among the last to come in statewide on a night with six Senate recall elections. (Democrats unseated two GOP incumbents, falling one shy of regaining control of the Senate).

The most important word in his claim is the "counting" part.

County clerks such as Nickolaus don’t count any ballots on election night. That’s up to the municipal clerks who supervise polls in their community.

County clerks receive reports from municipalities, which send in their unofficial returns on election night. They are double-checked later later when they are certified by the county’s Board of Canvassers.

(In the April election, Nickolaus posted one final number for the county, not municipality-by-municipality numbers, which helped conceal the missing community for days. A recount confirmed Justice David Prosser won by about 7,000 votes. Since then, Nickolaus has been posting community-by-community numbers as they come in, as she did during the Aug. 9 election)

Two Waukesha County communities are in the 8th Senate District: Butler and Menomonee Falls. Butler sent in totals within 35 minutes of close of polls at 8 p.m., and those were posted early in the evening.

But Menomonee Falls Clerk Janice Moyer told us that heavy turnout there prevented tabulation of absentee ballots in some cases until after polls closed.

"It takes time, and we want them to do it correctly," Moyer said of poll workers.

Nickolaus did not get most of the Menomonee Falls count until 10:36 p.m., according to Moyer. Nickolaus said results were posted on the county’s web site by 10:47 p.m. The last batch came in an hour later, and Nickolaus said she posted them within six minutes.

So the gap in reporting Waukesha County results was not due to Nickolaus, who posts and tallies the totals but does not count the votes.

What’s more, a staggered flow of returns is common on election nights, as each community finishes its count. Other communities were still out when Tate made his statement, including on turf that Pasch won in Brown Deer in Milwaukee County.

And even in the races Democrats won, all precincts had not yet reported when victory was declared.

What about Tate’s contention of a "second time" Nickolaus messed up a vote count?

Nickolaus admitted a mistake in the Supreme Court race, but investigators found no vote-tampering. She failed to include Brookfield in the total she released that night, but that error was not related to counting the votes -- just reporting the totals she received from locals.

It looked suspicious, and caused a firestorm.

But it involved the unofficial count only and did not affect the official vote count released days after that election.

In the state Senate race, as the realization settled in early Wednesday morning that Darling would win with 54 percent of the vote, the Democratic Party of Wisconsin issued a retraction of sorts that it "would not pursue questions of irregularities."

But it threw fuel on the fire about the results, contending -- erroneously -- that the race was a "virtual tie."

And in a day-after media conference call, Tate again criticized Nickolaus, saying she had arguably been "sitting on these results." In that call, Tate responded to a questioner who asked if he felt he had defamed Nickolaus.

Tate responded that he has said a lot of things in his two years as party chairman. He added: "If that’s what’s going to be called defamatory, I guess I’m willing to stand by that."

So, we’ll return to the original remarks as well.

In claiming Nickolaus "screwed up counting the vote" for the second election in a row, Tate offered no proof that the numbers that eventually came in were off. Nor did he offer proof she was "sitting on" votes -- much less "tampering" or "conducting criminal voter fraud" on election night.

This claim is inaccurate and, in the "heat of the moment" as he put it, Tate made a ridiculous claim. In this case, where there’s heat, there’s fire: Pants on Fire.

Featured Fact-check

Our Sources

WISN TV, "Democratic Party Chair Claims Waukesha Votes ‘Suspicious,’" August 9, 2011

Democratic Party, press release, August 9, 2011

Democratic Party, follow-up press release, August 10, 2011

Conference call, Democratic Chair Mike Tate, August 10, 2011

Milwaukee Journal Sentinel, "Waukesha County clerk denies delaying voting results," August 10, 2011

Interview with Sauk County Clerk Rebecca A. DeMars, August 10, 2011

Interview with Janice Moyer, Menomonee Falls clerk, August 10, 2011

Interview with Kathy Nickolaus, Waukesha County clerk, August 10, 2011

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More by Dave Umhoefer

Democratic Party of Wisconsin chairman Mike Tate says Waukesha County Clerk Kathy Nickolaus has "screwed up counting the vote" in two consecutive elections

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