COA affirms convictions for election fraud and misconduct in public office by Milwaukee Election Commission’s deputy director.
State v. Kimberly D. Zapata, 2025AP425-CR, 5/12/26, District I (recommended for publication); case activity
The Deputy Director of the City of Milwaukee Election Commission was convicted at trial of election fraud and misconduct in public office after she had fictitious military absentee ballots sent to a state legislator to publicize the potential for election fraud with such ballots. In a decision recommended for publication, the COA affirmed her convictions because the evidence was sufficient for the jury to find she “obtained” the ballots for purposes of election fraud and acted in her public capacity.
Kimberly Zapata was the Deputy Director of the Milwaukee Election Commission. At her trial, the evidence showed that she used her work computer to request three military absentee ballots in the names of fictitious people and assigned random home addresses for each person in South Milwaukee, Shorewood, and Menomonee Falls. She requested each ballot to be sent to the home of a state legislator who was a “vocal election fraud politician.” (¶ 10). To obtain the legislator’s address, Zapata accessed a database only accessible to city employees responsible for administering elections.
The municipal clerks in South Milwaukee, Shorewood, and Menomonee Falls mailed the absentee ballots to the legislator’s residence, who issued a press release stating that “someone was trying to point out how easy it is to get military ballots in Wisconsin.” (¶ 11). Zapata’s supervisor shared a news article about the legislator’s statement and she responded the legislator “had a point.” She later admitted to her supervisor that she falsified the requests for absentee ballots. (¶ 11).
Zapata filed two motions to dismiss after the State presented its evidence. She argued the State did not show her actions were committed in her capacity as a public employee and that she did not commit election fraud because her purpose was for the legislator, not her, to acquire the ballots. The circuit court denied the motions; Zapata was convicted of three counts of election fraud and one count of misconduct in public office. (¶ 15).
On appeal, Zapata challenged the circuit court’s orders denying her motions to dismiss. Regarding her charges for election fraud, the State needed to prove that she falsely made a statement “for the purpose of obtaining or voting an absentee ballot.” Wis. Stat. § 12.13(3)(i). Zapata argued that “obtain” should be narrowly construed to include only “actual, physical possession of the absentee ballot by the person who falsely made the statement requesting the ballot, and Zapata never physically possessed the absentee ballots she requested.” (¶ 19).
The COA determined “obtaining” under § 12.13(3)(i) “does not necessarily require that the person making the false statement intends to physically possess the ballot.” (¶ 23). The COA reasoned that “obtain” should be broadly construed in light of other criminal statutes that define possessory offenses to include constructive possession. (¶¶ 22-23). Further, to restrict the definition of “obtain” would defeat the purpose of the statute by allowing “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.” (¶ 23). The COA concluded the evidence at trial was sufficient to show Zapata constructively possessed the ballots because, “by directing the creation and destination of the false ballots is ‘exercising control’ over them.” (¶ 25).
The COA also rejected Zapata’s argument that she did not act in her capacity as a public employee because she “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.” (¶ 33).