Former Milwaukee election official given probation, fine in military ballots case

A former Milwaukee election official was ordered to serve one year of probation and pay a $3,000 fine Thursday afternoon for ordering three military absentee ballots under fake names ahead of the 2022 midterm elections and having them sent to a state legislator known for embracing conspiracy theories.

The criminal charges against Kimberly Zapata, 47, of Milwaukee came at a sensitive time for election workers across the state and nation, two years after former President Donald Trump lost the 2020 election and sought to sow doubt in the validity of the election results.

In his sentencing argument Thursday, the prosecutor referenced the Jan. 6, 2021, attack on the U.S. Capitol that followed Trump's false claims that the election was stolen from him.

More:In interview, Trump doesn't commit to accepting Wisconsin election results if he loses

Zapata's defense attorney, however, contended her actions did not resemble those of the people who participated in that attack, and Milwaukee County Circuit Court Judge Kori Ashley was cautious about casting blame on Zapata for mistrust in elections.

"The state referenced the climate around election fraud, and the tensions are high," Ashley said before handing down her sentence. "Ms. Zapata is not responsible for that. She did contribute to it."

Zapata was convicted in March by a Milwaukee County jury on a felony charge of misconduct in public office and three misdemeanor counts of making a false statement to obtain an absentee ballot. She told investigators that she sent the military ballots to Republican state Rep. Janel Brandtjen to highlight a real gap in the election system.

Ashley rejected the defense argument that Zapata was acting as a whistleblower, saying Zapata had options to make her point other than to commit crimes.

"I think you had legitimate means to go about solving an issue that you identified, and I think you took a shortcut," Ashley said.

Still, the judge said she did not think Zapata acted with "nefarious intent."

The sentence Ashley handed down included 120 hours of community service as a condition of probation.

Zapata would have to serve nine months in the Milwaukee County Community Reintegration Center, formerly known as the House of Correction, if she violates the terms of probation.

The felony charge carried a maximum sentence of 3 1/2 years in the state prison system while each misdemeanor count carried a maximum six-month sentence.

Before she was sentenced, Zapata expressed regret for her actions, which she said were the result of a "complete emotional breakdown." She also said she has autism spectrum disorder and struggles to regulate her emotions, sensory input and thought processes when she is stressed.

She said today she is better able to manage stressors in her life and has been learning to let go of things she cannot control.

"I now recognize my actions did not match my best intentions," she said.

Assistant District Attorney Matthew Westphal had argued for 18 months of probation on the felony count with 12 months in the Community Reintegration Center only if she violated the terms of probation. He also recommended a total of 60 days in the Community Reintegration Center for the three misdemeanor counts, consecutive to the sentence for the felony count.

"Ms. Zapata swore an oath to defend the federal and state Constitutions and to faithfully discharge her duties," Westphal said. "She abandoned that duty. She introduced fraud into the system."

The climate around elections only aggravated the offense, he said.

In a sentencing memorandum filed before Thursday's hearing, Zapata's defense attorney Daniel Adams recommended a $500 fine and said any time behind bars would be "a gross injustice and completely unnecessary."

"She has zero prior criminal record and has been convicted of non-violent offenses," he wrote to Ashley. "Her intention was not to steal votes but to expose a legitimate flaw in the elections system."

After the sentencing, he said he would be appealing Zapata's conviction.

Zapata was charged in November 2022 with fraudulently requesting three military absentee ballots and sending them to the Menomonee Falls home of Brandtjen. The ballots were mailed by clerks in Menomonee Falls, Shorewood and South Milwaukee.

She was fired from her job at the city after officials there learned of her actions.

In a recording of a police interview with Zapata that was played for the jury, she said she sent the ballots to Brandtjen because she knew she would not cast the ballots and because she wanted to "make (Brandtjen) stop and think and redirect her focus away from these outrageous conspiracy theories to something that's actually real."

Adams wrote in the memorandum that Zapata's "rash and unwise decision" was mitigated by factors including her not using any real person's identity, her emotional instability due to her brother's unexpected death and her making a full statement to the District Attorney's Office regarding her actions. He also wrote that her fixation on the absentee ballot issue was explained by the fact that she is on the autism spectrum.

Milwaukee Election Commission Executive Director Claire Woodall testified at trial that Zapata had come to her before the 2022 midterm election and told her she sent the ballots to Brandtjen, who had reported receiving military absentee ballots at her home. 

In a letter ahead of sentencing, Woodall wrote that Zapata "without a doubt, committed an enormous violation of public trust and sowed greater distrust in our democratic system."

Woodall described the personal and professional toll she felt from Zapata's actions but maintained that Zapata was trying to highlight a gap in the election system.

"As the executive director of the Election Commission, I faced severe skepticism and criticism from my colleagues, employees, and the citizens that I serve after Kim's actions came to light," Woodall wrote. "The Election Commission had already faced two years of ongoing conspiracy theories and false accusations; in November of 2022, those same critics suddenly gained legitimate ammunition to fire at our office as a result of Kim's actions. Despite the harm she has caused, her actions were rooted in a very real security vulnerability that state statute has created and that continues to persist."

Woodall said Zapata had already begun to serve "a life-altering sentencing" for her actions that were "out of character and the direct result of unconscionable stress, constant scrutiny, and personal grief."

Hers was one of nine letters submitted on Zapata's behalf ahead of sentencing.

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