Requesting Absentee Ballots with Fictitious Names = Crime, Even if Ballots Are to Be Sent to Legislator for “Whistleblowing”

From State v. Zapata, decided May 12, by Wisconsin Court of Appeals Judge Sara Geenen, joined by Chief Judge Joseph Donald and Judge Pedro Colón (for more on the specific whistleblower argument, see this Courthouse News Service article [Destiny DeVooght]):

[T]he State charged {the Deputy Director of the City of Milwaukee Election Commission, Kimberly D. Zapata} with misconduct in public office (acting in excess of lawful authority) and three counts of making a false statement to obtain an absentee ballot….

[T]hrough the “MyVote website,” [Zapata] “fabricated three individuals who did not exist, … used those fabricated names to have military voter absentee requests sent to the municipal clerks in Shorewood, South Milwaukee, and Menomonee Falls,” and then “had the absentee ballots sent to” the state legislator. Zapata wanted to “make a point that there is fraud in existence” and have the legislator “focus” on “actual true fraud[.]” {Per the trial testimony, the MyVote website is a public-facing voter portal available in Wisconsin, wherein voters can request an absentee ballot, view their voting records and registration information, look up their polling place, and view a sample ballot.} Zapata acknowledged using her work laptop and accessing a “voter registration database” that is “only available to the municipality employees” in order to obtain the legislator’s address….

Prior to the fall 2022 election, Zapata became concerned about the process for requesting military absentee ballots. Because a person requesting a military absentee ballot on the MyVote website did not need to provide photo identification or be registered to vote to make the request, Zapata felt that the process was susceptible to fraud. Zapata raised this concern with her supervisor and with the Wisconsin Elections Commission, to no avail.

Frustrated with public criticism of her office and by conspiracy theories about election fraud, Zapata wanted “the truth to come out” about “actual problems” with elections. Using her work laptop in the early morning hours of October 25, 2022, she accessed the MyVote website and requested military absentee ballots in the names of three fake individuals: Holly Jones, Holly Adams, and Holly Brandtjen. Zapata looked up random home addresses in South Milwaukee, Shorewood, and Menomonee Falls, and assigned one to each fake name. She chose residences in South Milwaukee and Shorewood because she felt these areas had “subpar” municipal clerks who would not catch the fraud.

Zapata requested that each ballot be sent to the home of a state legislator because the legislator was “the most vocal election fraud politician” that she knew. To locate the legislator’s address, Zapata logged into “WisVote,” which is a statewide voter registration database only accessible to “employees who are responsible for administering elections.” Zapata hoped that the municipal clerks would issue the ballots and that when the legislator received them, the legislator would “redirect … her focus away from … outrageous conspiracy theories to something that’s actually real.” …

The court concluded that the state had adequately shown that Zapata had “[f]alsely ma[d]e any statement for the purpose of obtaining … an absentee ballot” (Wis. Stat. § 12.13(3)(i)):

We agree with the State that “obtaining” … does not necessarily require that the person making the false statement intends to physically possess the ballot. Interpreting “obtain” broadly to include actual and constructive obtainment is consistent with case law interpreting criminal statutes governing possessory offenses, and it is consistent with the manifest purpose of the statute. Section 12.13 aims to protect elections from various kinds of falsifications and fraud throughout various stages of the election process. It would defeat the purpose of § 12.13 to allow individuals to do what Zapata did here: inject false ballot requests into the electoral system so long as the requestors did not direct that the ballots be sent to themselves or someone they knew….

Having construed the term “obtaining” to include constructive obtainment, we turn to Zapata’s argument that she did not constructively obtain the ballots. Zapata asserts that she did not know or control the person to whom she sent the ballots, so she did not constructively possess or obtain the ballots.

[But t]he evidence demonstrates that by requesting the ballots, Zapata set off a series of actions she knew the ballots would be subjected to. She knew that by requesting the ballots, the ballots would be generated under the fake names that she provided. She also knew that the ballots, once generated per her request, would be sent to the address that she provided.

In other words, Zapata controlled both the names under which the ballots would be generated and the destination to which those ballots would be sent. She “knowingly had the power and intention to exercise dominion and control over” the ballots “through others” (i.e., via the election officials that create and send out absentee ballots), “thus establishing a nexus between” Zapata and the ballots. In our view, directing the creation and destination of the false ballots is “exercising control” over them. Because Zapata “exercised control” over the ballots, her conduct violated Wis. Stat. § 12.13(3)(i)….

The court also concluded that the government had adequately shown the elements of misconduct in public office:

Zapata argues that she did not act in her capacity as a public employee when she requested the absentee ballots, but rather, she was acting “as a concerned private citizen.” … [A]cting in an “official capacity” requires a material connection between the public official’s duties and powers and the forbidden act….

Zapata used her work laptop to request the absentee ballots, and she entered her employee credentials to access WisVote—an administrative website only accessible to employees administering elections—for the purpose of obtaining the address of the state legislator to whom she sent the ballots. Additionally, Zapata used her institutional knowledge to pick which municipalities to be the target of her fraud, believing that these clerks were “subpar” and would not catch the fraud.

Using City-issued equipment and credentials to access an employee-only database for the purpose of obtaining fraudulent absentee ballots from clerks that she believed to be subpar based on knowledge she accrued only because of her public office amounts to a “material connection” between the misconduct and the public office ….

Abigail Potts (AG’s office) represents the state.