Jury finds former Milwaukee election official guilty in fake military absentee ballot case

A former top Milwaukee election official was convicted at trial Wednesday in a case in which she was criminally charged for creating fake names to order three military absentee ballots ahead of the 2022 midterm elections and having them sent to a state legislator.

The Milwaukee County jury took about five hours to deliver its verdict in the trial of former Milwaukee Election Commission deputy director Kimberly Zapata, 47, of Milwaukee.

She was found guilty on a felony charge of misconduct in public office and guilty on three misdemeanor counts of making a false statement to obtain an absentee ballot. Zapata was charged in November 2022. Sentencing is scheduled for May 2.

Zapata left the courtroom silently after the verdict. She, her attorney and the prosecutor declined to comment.

In a recording of a police interview with Zapata that was played again for the jury before the verdict, she is heard saying she acted without a plan and in a high-stress moment.

“I did not think it through,” she said. “I didn’t have some manipulative plan.”

She said she made up the three people so no individual would be harmed.

Zapata said she sent the ballots to Republican state Rep. Janel Brandtjen because she knew she would not cast the ballots and because of her history with election fraud claims.

“She is the most vocal election fraud politician that I know of, and I thought that maybe this would make her stop and think and redirect her focus away from these outrageous conspiracy theories to something that’s actually real,” Zapata said.

Zapata said she originally had a “glimmer of hope” that one of the three clerks who received the ballot requests would raise questions and not issue it. That’s not how it unfolded, however, and all three military absentee ballots were sent to Brandtjen’s Menomonee Falls home.

The trial began Monday and went to the jury about 10:20 a.m. Wednesday. Zapata did not testify in her own defense.

Mayor Cavalier Johnson in a statement said the jury “brought accountability for a serious error.”

“At the time of Zapata’s removal from the Milwaukee’s Election Commission, I said it does not matter that this might have been an effort to expose a vulnerability that state law created,” he said in the statement. “It does not matter that City of Milwaukee ballots were not part of this. Nor does it matter that there was no attempt to vote illegally or tamper with election results. Fundamentally, the actions were a violation of trust.”

“At a time when election officials are subjected to false accusations and harassment, it is essential they act with the highest integrity,” Johnson said. “That is a standard Milwaukee will maintain.”

There was no contention over whether Zapata ordered three absentee ballots in the names of people who do not exist and directed them to the Menomonee Falls home of Brandtjen, a Republican lawmaker known for embracing conspiracy theories about the 2020 election. The ballots were mailed by clerks in Menomonee Falls, Shorewood and South Milwaukee.

Instead, the jury heard competing arguments about whether she was acting in her capacity as a public employee when she ordered the ballots from her home in the early morning hours of Oct. 25, 2022, and whether she violated the law or instead acted as a whistleblower trying to draw attention to a flaw in the state election system.

Part of the jury’s decision also hinged on the definition of “obtaining” the three ballots through false statements.

In closing arguments Wednesday morning, Assistant District Attorney Matthew Westphal told the jury that Zapata introduced fraud into the election system she was charged with safeguarding.

“The appropriate way to raise a concern is to bring forth information, it’s not to commit a crime,” Westphal said. “If Ms. Zapata felt this information needed to be brought to light, there was multiple, legitimate avenues she could have taken. She chose instead to take the avenue of breaking the law.”

He contended that her use of her work-issued laptop and a voter system available only to election officials to get Brandtjen’s address demonstrated that she was acting in her official capacity as the second-in-command at the city Election Commission.

As to the question of whether Zapata had “obtained” the three ballots, Westphal argued that the law did not require that she personally have those ballots in her possession. If that were the standard, he said, it would “immunize fraudsters” who send ballots to others.

He said she is not a whistleblower, as claimed by the defense, but rather someone who committed election fraud.

“This was not acting as a guardian of our elections, a guardian of our democracy,” Westphal said. “This was her deserting her duty to protect and secure our elections.”

Defense attorney Daniel Adams took issue with Westphal’s argument that Zapata had injected fraud into the election system.

Instead, he argued, her actions were driven by personal and professional stress and meant to highlight a true problem. She was a whistleblower showing through an “imperfect action, but a truthful action, what was going on,” he said.

“What she did was act to illuminate a gap between the American ideal of a perfect democracy and the facts as they are, which is there is a gap, a flaw in Wisconsin’s electoral system,” he said.

Zapata was not acting in her official capacity, he argued, when she ordered the ballots in the early morning hours from her home. He cited in part Tuesday’s testimony by Milwaukee Election Commission Executive Director Claire Woodall, a prosecution witness, in which she said under cross-examination that she did not believe Zapata was acting in her official capacity when she requested the ballots.

He urged jurors to use their “common sense” to define the word “obtain” as meaning to “get” or “acquire” something.

He argued Zapata never wanted to “obtain” the ballots and that she knew Brandtjen would not vote them. Instead, he said, she knew that sending them would “blow the whistle about this back door in the election system.”

“She knew that, frankly, by sending (a ballot) from a government municipal clerk through the government mail, U.S. postal, to a state representative who is a government official, it never left the hands of the government,” he said. “Nobody obtained that. It never left the state of Wisconsin.”

Alison Dirr can be reached at adirr@jrn.com.