State v. Kimberly D. Zapata

Summary

The Wisconsin Court of Appeals, District I, affirmed Kimberly D. Zapata’s convictions for three counts of election fraud and one count of misconduct in public office. The court held that obtaining an absentee ballot under Wisconsin Statutes section 12.13(3)(i) includes constructive obtainment and that Zapata’s conduct had a material connection to her public office for purposes of section 946.12(2).

Holdings

1. The term "obtaining" in WIS. STAT. § 12.13(3)(i) includes both actual and constructive obtainment and does not require the person making the false statement to intend to physically possess the ballot.
2. Zapata constructively obtained the absentee ballots because she exercised control over the names under which the ballots were generated and the destination to which they were sent.
3. The evidence established a material connection between Zapata's election-fraud conduct and her public office, supporting her conviction for misconduct in public office.
4. The court declined to consider Zapata's rule-of-lenity and First Amendment arguments because they were not raised in the circuit court and, as to the First Amendment arguments, were also undeveloped.

Questions Presented

1. Whether WIS. STAT. § 12.13(3)(i), which prohibits falsely making a statement for the purpose of obtaining or voting an absentee ballot, requires the person making the false statement to physically receive or personally possess the ballot.
2. Whether the evidence established that Zapata constructively obtained the absentee ballots by exercising control over their creation and destination.
3. Whether the evidence established a material connection between Zapata's election-fraud conduct and her public office sufficient to support conviction for misconduct in public office under WIS. STAT. § 946.12(2).
4. Whether Zapata's unpreserved rule-of-lenity and First Amendment arguments warranted reversal.

Disposition

affirmed