June 5, 2026 – A City of Milwaukee election official wanted to show it’s easy to fraudulently obtain absentee military ballots.

In succeeding, she committed election fraud, the District I Wisconsin Court of Appeals affirmed in State v. Zapata, No. 2025AP425-CR (May 12, 2026).

“We conclude that Wis. Stat. § 12.13(3)(i) prohibits making false statements for the purpose of actually or constructively obtaining an absentee ballot, and [Kimberly D.] Zapata constructively obtained the ballots she requested,” wrote Judge Sara J. Geenen for the panel that included Chief Judge Joseph M. Donald and Judge Pedro A. Colón.

“We further conclude that the evidence adduced at trial established a material connection between Zapata’s election fraud and her public office sufficient to support her conviction of misconduct in public office.”

Military Absentee Ballots

“As deputy director for the Milwaukee Election Commission, Zapata” had a duty “to ensure that elections ran smoothly and securely, including overseeing absentee voting.”

She was frustrated about “outrageous conspiracy theories” about election fraud.

She knew one way that election fraud was possible – by requesting military absentee ballots.

One didn’t need to show photo identification or even be a registered voter to make the request.

She raised that concern both with her supervisor, the election commission’s executive director, and to the Wisconsin Elections Commission, “to no avail.”

“Zapata wanted ‘the truth to come out’ about ‘actual problems’ with elections.”

Early on Oct. 25, 2022, Zapata used her work laptop to request three military ballots for fictitious names and random addresses on the MyVote website.

She targeted Menomonie Falls, South Milwaukee, and Shorewood. She thought the clerks of the latter two municipalities were “subpar” and wouldn’t 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.”

She found the legislator’s address by using her login to WisVote, the “statewide voter registration database only accessible to ‘employees who are responsible for administering elections.’”

Zapata hoped that after receiving the absentee ballots, the legislator would focus not on fictitious conspiracy theories but real problems with elections.

The legislator received the three ballots, issued a press release about “how easy it is to get military ballots in Wisconsin,” and the news broke.

Zapata told her supervisor that she “falsified the requests for absentee ballots.” She later met with police.

She was charged with three counts of making a false statement to obtain an election ballot, in violation of Wis. Stat. section 12.13(3)(i) and one count of misconduct in public office under Wis. Stat. section 946.12(2).

At the end of her trial in Milwaukee County Circuit Court, Zapata moved to dismiss for two reasons.

The state failed to show, she claimed, that she sent the absentee ballots “in her capacity as a public employee” and failed to show she “made a false statement for the purposes of obtaining an absentee ballot.”

The Circuit Court denied the motions. The jury found her guilty of all charges.

Purpose of Obtaining’ Ballots

Zapata’s appeal focused on the statutory meaning that “no person may ‘[f]alsely make any statement for the purpose of obtaining or voting an absentee ballot[.]’”

Zapata argued she never had the ballots. The state said she controlled the ballots – constructive possession.

Standard dictionary definitions, the decision said, define “obtain” to mean coming into possession.

In criminal statutes governing possessory offenses, the decision explained, the Wisconsin Supreme Court has consistently interpreted “possession” to include “both actual and constructive possession.”

United States v. Katz, 582 F.3d 749, 752 (7th Cir. 2009) defines constructive possession as “demonstrating that the defendant knowingly had the power and intention to exercise dominion and control over the object, either directly or through others.”

Although Zapata did not physically possess the ballot, the court of appeals held, she had constructive possession.

“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,” the decision explained.

Zapata counters “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.”

The court of appeals concluded, however, that she did “exercise control” through using the process and directing the ballots to where they went – violating the statute.

Misconduct in Public Office

Zapata also challenged the sufficiency of evidence about misconduct, a Class I felony to act knowingly “in excess of the officer’s or employee’s lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do” in an official capacity.

Zapata said she acted “as a concerned private citizen.”

“The mere fact that she was on duty when the acts were committed does not, in our judgment, transform private acts … into acts done in an official capacity,” concluded State v. Schmit, 115 Wis. 2d 657, 662 (Ct. App. 1983).

“The forbidden act must ‘inherently implicate the power of her public office,’” the case specified.

Zapata’s election fraud she perpetrated by using “her work laptop to request the absentee ballots,” “her employee credentials to access WisVote,” and “her institutional knowledge to pick which municipalities to be the target of her fraud,” the decision summarized.

These facts created “a ‘material connection’ between the misconduct and the public office,” the court of appeals concluded in affirming the circuit court.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.