Marcy Winograd, candidate in the36th Congressional District (LA-Beach Cities), attempts to present an arrest warrant to Republican appointed Secretary of State Bruce McPherson who was "NOT IN!" according to an unnamed press person sent to meet with Winograd and her supporters.
Fearing a repeat of the Ohio fiasco when there were numerous alleged voting irregularities in Diebold machines in an election that gave the presidency to George W. Bush, Winograd demands verifiable voting as well an open software. "We cannot have a repeat of what happened in Ohio in California's elections!"
The arrest warrant said in part: "Defendant has endangered the security of the citizens' vote by certifying untrustworthy electronic voting systems from Diebold, ES& S, and other corporations proven unworthy of our sacred voting rights! Defendant ignored Californians' state constitutional right 'of access to information concerning the conduct of the people's business' by such certifications."
McPherson, appointed by Republican Governor Arnold Schwarznegger after the resignation of the elected Democratic Secretary of State, did not respond to the warrant or to the demonstrators in front of his Sacramento office.
Winograd's opponent in the race, incumbent Jane Harman, has taken no position on the issue and did not appear at the State Democratic Convention in which Winograd's supporters amassed 449 delegate signatures to challenge Harman for the endorsement.

Photos: (c) 2006 Linda Sutton

Marcy Winograd, candidate for 36th Congressional District (LA-Beach Cities), demonstrating outside Republican- appointed Secretary of State\\\\\\\\\\\\\\\'s office

Trying to go back to potentially human biased counts is the goal of these sore losers of the last election. Anyone who has ever dealt with a computer program knows that they have no bias they just run programs, and i rather trust a machine than some poll worker who may not like my choice of canidate.

Dear "Justice,"
You have a little more investigating to do before trusting the computers that are programmed by people. In the case of Diebold, led by a staunch Bush supporter who had contributed thousands to his reelection and who publically stated that he'd deliver Ohio to Bush. When it became clear in the exit polling that Kerry was winning, suddenly the results began to show a lot more Bush votes coming in. A full report is here through John Conyer's efforts. Please spend the time doing your homework on this to better understand what happened in Ohio and why it's important to take back our democracy before it happens again. ________________________________________________
Preserving Democracy:
What Went Wrong in Ohio
______________________________
Status Report of the
House Judiciary Committee Democratic Staff
January 5, 2005
2
Table of Contents
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Chronology of Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Relevant Background Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A. Federal Constitutional Law Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Federal Statutory Election Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Ohio Election Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1. The Right to Vote in Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. Declaring Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3. Security of Ballots and Machinery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4. The Law of Recounts and Contests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
D. Determination of Ohio’s Electoral College Votes . . . . . . . . . . . . . . . . . . . . . . . . 21
Detailed Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Pre-Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1. Machine Allocations – Why were there such long lines in Democratic
leaning areas but not Republican leaning areas? . . . . . . . . . . . . . . . . . . 24
2. Cutting Back on the Right to Provisional Ballots . . . . . . . . . . . . . . . . . . 31
3. Cutting Back on the Right of Citizens to Register to Vote . . . . . . . . . . . 36
4. Targeting New Minority Voter Registrants – Caging . . . . . . . . . . . . . . . 40
5. Targeting Minority and Urban Voters for Legal Challenges . . . . . . . . . . 43
6. Denying Absentee Voters Who Never Got Their Ballots the Right to a
Provisional Ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7. Denying Access to the News Media . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
B. Election Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
1. County-Specific Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2. Myriad Other Problems and Irregularities . . . . . . . . . . . . . . . . . . . . . . . . 63
a. Intimidation and Misinformation . . . . . . . . . . . . . . . . . . . . . . . . . 63
b. Machine Irregularities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
c. Registration Irregularities and Official Misconduct and Errors . . 67
3. General Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
a. Spoiled Ballots – Hanging Chads Again? . . . . . . . . . . . . . . . . . . 70
b. Exit Polls Bolster Claims of Irregularities and Fraud . . . . . . . . . 72
C. Post-Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
1. Confusion in Counting Provisional Ballots . . . . . . . . . . . . . . . . . . . . . . . 78
2. Justice Delayed is Justice Denied – Recounts were Delayed Because of a
Late Declaration of Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
3. Triad GSI – Using a “Cheat Sheet” to Cheat the Voters in Hocking and
Other Counties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
4. Greene County – Long Waits, the Unlocked Lockdown and Discarded
Ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
3
5. Other Recount Irregularities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
a. Irregularities in Selecting the Initial 3% Hand Count . . . . . . . . . 92
b. Irregularities in Applying the Full Hand-Count Requirement . . . 94
c. Irregularities in the Treatment of Ballots . . . . . . . . . . . . . . . . . . . 94
d. Irregularities in the Treatment of Witnesses at the Recount and
their Access to Ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
A. Electoral College Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
B. Need for Further Congressional Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
C. Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
4
Executive Summary
Representative John Conyers, Jr., the Ranking Democrat on the House Judiciary
Committee, asked the Democratic staff to conduct an investigation into irregularities reported in
the Ohio presidential election and to prepare a Status Report concerning the same prior to the
Joint Meeting of Congress scheduled for January 6, 2005, to receive and consider the votes of the
electoral college for president. The following Report includes a brief chronology of the events;
summarizes the relevant background law; provides detailed findings (including factual findings
and legal analysis); and describes various recommendations for acting on this Report going
forward.
We have found numerous, serious election irregularities in the Ohio presidential
election, which resulted in a significant disenfranchisement of voters. Cumulatively, these
irregularities, which affected hundreds of thousand of votes and voters in Ohio, raise grave
doubts regarding whether it can be said the Ohio electors selected on December 13, 2004, were
chosen in a manner that conforms to Ohio law, let alone federal requirements and
constitutional standards.
This report, therefore, makes three recommendations: (1) consistent with the
requirements of the United States Constitution concerning the counting of electoral votes by
Congress and Federal law implementing these requirements, there are ample grounds for
challenging the electors from the State of Ohio; (2) Congress should engage in further
hearings into the widespread irregularities reported in Ohio; we believe the problems are
serious enough to warrant the appointment of a joint select Committee of the House and
Senate to investigate and report back to the Members; and (3) Congress needs to enact
election reform to restore our people’s trust in our democracy. These changes should include
putting in place more specific federal protections for federal elections, particularly in the areas
of audit capability for electronic voting machines and casting and counting of provisional
ballots, as well as other needed changes to federal and state election laws.
With regards to our factual finding, in brief, we find that there were massive and
unprecedented voter irregularities and anomalies in Ohio. In many cases these irregularities
were caused by intentional misconduct and illegal behavior, much of it involving Secretary of
State J. Kenneth Blackwell, the co-chair of the Bush-Cheney campaign in Ohio.
First, in the run up to election day, the following actions by Mr. Blackwell, the
Republican Party and election officials disenfranchised hundreds of thousands of Ohio
citizens, predominantly minority and Democratic voters:
• The misallocation of voting machines led to unprecedented long lines that
disenfranchised scores, if not hundreds of thousands, of predominantly minority
and Democratic voters. This was illustrated by the fact that the Washington Post
reported that in Franklin County, “27 of the 30 wards with the most machines per
1See Powell and Slevin, supra.
5
“True peace is not m erely the absence of ten sion: it is
the presence of justice."
-- Martin Luther King Jr.
registered voter showed majorities for Bush.
At the other end of the spectrum, six of the
seven wards with the fewest machines
delivered large margins for Kerry.”1 Among
other things, the conscious failure to provide
sufficient voting machinery violates the Ohio
Revised Code which requires the Boards of
Elections to “provide adequate facilities at
each polling place for conducting the
election.”
• Mr. Blackwell’s decision to restrict
provisional ballots resulted in the
disenfranchisement of tens, if not
hundreds, of thousands of voters,
again predominantly minority and
Democratic voters. Mr. Blackwell’s
decision departed from past Ohio law
on provisional ballots, and there is no
evidence that a broader construction
would have led to any significant
disruption at the polling places, and
did not do so in other states.
• Mr. Blackwell’s widely reviled
decision to reject voter registration
applications based on paper weight may have resulted in thousands of new voters
not being registered in time for the 2004 election.
• The Ohio Republican Party’s decision to engage in preelection “caging” tactics,
selectively targeting 35,000 predominantly minority voters for intimidation had a
negative impact on voter turnout. The Third Circuit found these activities to be illegal
and in direct violation of consent decrees barring the Republican Party from targeting
minority voters for poll challenges.
• The Ohio Republican Party’s decision to utilize thousands of partisan challengers
concentrated in minority and Democratic areas likely disenfranchised tens of
thousands of legal voters, who were not only intimidated, but became discouraged
by the long lines. Shockingly, these disruptions were publicly predicted and
acknowledged by Republican officials: Mark Weaver, a lawyer for the Ohio Republican
Party, admitted the challenges “can’t help but create chaos, longer lines and frustration.”
• Mr. Blackwell’s decision to prevent voters who requested absentee ballots but did
not receive them on a timely basis from being able to receive provisional ballots
6
likely disenfranchised thousands, if not tens of thousands, of voters, particularly
seniors. A federal court found Mr. Blackwell’s order to be illegal and in violation of
HAVA.
Second, on election day, there were numerous unexplained anomalies and
irregularities involving hundreds of thousands of votes that have yet to be accounted for:
• There were widespread instances of intimidation and misinformation in violation of
the Voting Rights Act, the Civil Rights Act of 1968, Equal Protection, Due Process
and the Ohio right to vote. Mr. Blackwell’s apparent failure to institute a single
investigation into these many serious allegations represents a violation of his statutory
duty under Ohio law to investigate election irregularities.
• We learned of improper purging and other registration errors by election officials
that likely disenfranchised tens of thousands of voters statewide. The Greater
Cleveland Voter Registration Coalition projects that in Cuyahoga County alone over
10,000 Ohio citizens lost their right to vote as a result of official registration errors.
• There were 93,000 spoiled ballots where no vote was cast for president, the vast
majority of which have yet to be inspected. The problem was particularly acute in two
precincts in Montgomery County which had an undervote rate of over 25% each –
accounting for nearly 6,000 voters who stood in line to vote, but purportedly declined to
vote for president.
• There were numerous, significant unexplained irregularities in other counties
throughout the state: (i) in Mahoning county at least 25 electronic machines transferred
an unknown number of Kerry votes to the Bush column; (ii) Warren County locked out
public observers from vote counting citing an FBI warning about a potential terrorist
threat, yet the FBI states that it issued no such warning; (iii) the voting records of Perry
county show significantly more votes than voters in some precincts, significantly less
ballots than voters in other precincts, and voters casting more than one ballot; (iv) in
Butler county a down ballot and underfunded Democratic State Supreme Court candidate
implausibly received more votes than the best funded Democratic Presidential candidate
in history; (v) in Cuyahoga county, poll worker error may have led to little known thirdparty
candidates receiving twenty times more votes than such candidates had ever
received in otherwise reliably Democratic leaning areas; (vi) in Miami county, voter
turnout was an improbable and highly suspect 98.55 percent, and after 100 percent of the
precincts were reported, an additional 19,000 extra votes were recorded for President
Bush.
Third, in the post-election period we learned of numerous irregularities in tallying
provisional ballots and conducting and completing the recount that disenfanchised thousands
of voters and call the entire recount procedure into question (as of this date the recount is still not
complete) :
• Mr. Blackwell’s failure to articulate clear and consistent standards for the counting
of provisional ballots resulted in the loss of thousands of predominantly minority
2See, e.g. Susan Page, Swing States Lean to Kerry: Democrat Ties Bush Nationally, USA
TODAY, Nov. 1, 2004; Anne E. Kornblut, Big Push to the Finish: Bush, Kerry Make Last Stand
in Crucial States, BOSTON GLOBE, Nov. 1, 2004; Mike Allen and Lois Romano, A Feverish
Pitch in Final Hours, WASH. POST, Oct. 31, 2004.
3See Page, supra.
4See Ford Fessenden, A Big Increase Of New Voters in Swing States, N.Y. TIMES, Sept.
26, 2004.
7
votes. In Cuyahoga County alone, the lack of guidance and the ultimate narrow and
arbitrary review standards significantly contributed to the fact that 8,099 out of 24,472
provisional ballots were ruled invalid, the highest proportion in the state.
• Mr. Blackwell’s failure to issue specific standards for the recount contributed to a lack
of uniformity in violation of both the Due Process Clause and the Equal Protection
Clauses. We found innumerable irregularities in the recount in violation of Ohio law,
including (i) counties which did not randomly select the precinct samples; (ii) counties
which did not conduct a full hand court after the 3% hand and machine counts did not
match; (iii) counties which allowed for irregular marking of ballots and failed to secure
and store ballots and machinery; and (iv) counties which prevented witnesses for
candidates from observing the various aspects of the recount.
• The voting computer company Triad has essentially admitted that it engaged in a
course of behavior during the recount in numerous counties to provide “cheat
sheets” to those counting the ballots. The cheat sheets informed election officials how
many votes they should find for each candidate, and how many over and under votes they
should calculate to match the machine count. In that way, they could avoid doing a full
county-wide hand recount mandated by state law.
Chronology of Events
The Lead Up to the 2004 Ohio Presidential Election In Ohio – In the days leading up to
election day 2004, a consensus appeared to have emerged among observers that the state of Ohio
would be one of the battleground states that would decide who would be elected the Forty-fourth
President of the United States.2 Both the Democratic and Republican Presidential campaigns, as
well as outside groups, had spent considerable time and resources to win the state, but the day
before the election, the Democratic candidate, Senator John Kerry, appeared to have the edge.3
The Democratic Party also had vastly outperformed its Republican counterparts in registering
voters in this key state.4
Election Day – Numerous irregularities were reported throughout Ohio. In particular, in
predominately Democratic and African-American areas, the voting process was chaotic, taxing
and ultimately fruitless for many. The repeated and suspicious challenges of voter eligibility and
a lack of inadequate number of voting machines in these areas worked in concert to slow voting
5See discussion infra.
6See discussion infra.
7Letter from John Conyers, Jr., Jerrold Nadler, and Robert Wexler (subsequently added to
this letter were the following signatories: Robert C. Scott, Melvin L. Watt, Anthony Weiner,
Rush Holt, John Olver, Bob Filner, Gregory Meeks, Barbara Lee, Tammy Baldwin, Louise
Slaughter, George Miller, Jan Schakowsky, Sam Farr, Bernard sanders, Elijah Cummings and
Lynn Woolsey), to David Walker, Comptroller General of the United States, Government
Accountability Office (November 5, 2004) (on file with the House Judiciary Committee
Democratic Staff and at
http://www.house.gov/judiciary_democrats/gaoinvestvote2004ltr11504.pdf. See also
Subsequent Letters from Members of Congress requesting to be added as original requesters to
the November 5 letter, (on file with the House Judiciary Committee Democratic Staff).
8
Reverend Jesse Jackson Receives Standing Ovation at
December 13 Columbus Hearing
to a crawl, with voting lines as long as ten hours.5 Voters reported bizarre “glitches” in voting
machines where votes for Senator Kerry were registered as votes for the President.6 The
counting process was similarly chaotic and suspect.
The Aftermath – On November 5, after receiving preliminary reports of election
irregularities in the 2004 General Election, Congressman John Conyers, Jr., the Ranking Member
of the House Judiciary Committee, and 14 Members of Congress wrote to the Government
Accountability Office (GAO) to request an investigation of such irregularities.7
On November 22, at the request of
the GAO, the House Judiciary Committee
Democratic staff met with GAO officials. In
this meeting, GAO officials advised that, on
its own authority, the GAO was prepared to
move forward with a wide ranging analysis
of systemic problems in the 2004 elections.
GAO officials also advised Judiciary staff
that they would be unable to examine each
and every specific election complaint, but
would look at some such complaints as
exemplars of broader deficiencies.
At the same time, the offices of
Democratic Staff and of Democratic
Judiciary Committee Members were deluged
with e-mails and complaints about the
election. While such complaints are still being processed, close to 100,000 such complaints were
received. As of this writing, the Judiciary Democratic office alone is receiving approximately
4,000 such e-mails a day. More than half of these complaints were from one state: Ohio. The
8The Election Protection Coalition consists of the Lawyers Committee for Civil Rights
Under Law, the People for the American Way Foundation, the National Coalition for Black Civic
Participation, and other groups.
9
Green Party Presidential Candidate David Cobb
Testifies at December 13 Columbus Hearing
Election Protection Coalition has testified that it received more complaints on election day
concerning irregularities in Ohio than any other state.8
On December 2, 2004, Members of the Judiciary Committee wrote to Ohio Secretary of
State Kenneth Blackwell that these complaints appear collectively to constitute a troubled
portrait of a one-two punch that may well have altered and suppressed votes, particularly
minority and Democratic votes. The Members posed 36 questions to Secretary Blackwell about
a combination of official actions and corresponding actions by non-official persons, whether in
concert or not, worked hand-in-glove to depress the vote among constituencies deemed by
Republican campaign officials to be disadvantageous.
Through his spokesman, Secretary Blackwell assured the public and the press that he
would be happy “to fill in the blanks” for the Committee and asserted that many questions were
easily answered. In fact, Secretary Blackwell belatedly replied to the letter with a refusal to
answer any of the questions. Ranking Member Conyers wrote back to Blackwell the same day
requesting that he remain true to his promise to answer the questions. Congressman Conyers has
yet to receive a reply.
At the same time, officials from the
Green Party and Libertarian Party have been
investigating allegations of voter
disenfranchisement in Ohio and other states.
Eventually, the Presidential Candidates for
those parties, David Cobb and Michael
Badnarik, filed requests for recounts to all 88
Ohio Counties. However, it appears their
efforts too are being stonewalled and
thwarted by nonstandard and highly selective
recounts, unnecessary delays, and blatant
deviations from long accepted Ohio law and
procedure. Recently, Senator Kerry, a party
to the recount action, joined the Green Party
and Libertarian Party in requesting immediate
action to halt these irregularities and potential
fraud in the recount. The recount is still pending before the federal court, and valid votes have
yet to be counted.
10
The Honorable Stephanie Tubbs Jones Calls
December 13 Columbus Hearing to Order
In addition, a challenge has been filed
to the Ohio results asserting, to a level of
sworn proof beyond a reasonable doubt, that
Senator Kerry, not President Bush, was the
actual victor of the Presidential race in Ohio.
Kenneth Blackwell is adamantly refusing to
answer any questions under oath in regard to
election irregularities or results. He is
apparently counting upon Congress accepting
the votes of the electors and, as an immediate
consequence, the Ohio Supreme Court
dismissing the citizens' election contest.
Committee Members and other
interested Members have gone to substantial
lengths to ascertain the facts of this matter.
The investigation by Congressman Conyers
and the Democratic staff of the House Judiciary Committee into the irregularities reported in the
Ohio presidential election has also included the following efforts:
• On November 5, 2004, Representatives Conyers, Nadler, and Wexler wrote to the
GAO Comptroller David M. Walker requesting an investigation of the voting
machines and technologies used in the 2004 election;
• On November 8, 2004, Representatives Conyers, Nadler, Wexler, Scott, Watt, and
Holt wrote to GAO Comptroller Walker requesting that additional concerns
surrounding the voting machines and technologies used in the 2004 election be
investigated;
• On November 15, 2004, Representatives Lee, Filner, Olver, and Meeks joined in
the request for a GAO investigation;
• On November 29, 2004, Representatives Weiner, Schakowsky, Farr, Sanders, and
Cummings joined in the request for a GAO investigation;
• On December 2-3, 2004, Congressman Conyers and other Judiciary Democratic
Members wrote to Ohio Secretary of State J. Kenneth Blackwell concerning Ohio
election irregularities;
• On December 3, 2004, Representative Woolsey joined in the request for a GAO
investigation;
• On December 3, 2004, Congressman Conyers wrote to Warren Mitofsky of
Mitofsky International requesting the release of exit poll raw data from the 2004
presidential election as such data may evidence instances of voting irregularities;
• On December 8, 2004 in Washington, D.C., Congressman Conyers hosted a
forum on voting irregularities in Ohio;
• On December 13, 2004 Congressman Conyers hosted a second forum on voting
irregularities in Ohio in Columbus, Ohio;
• On December 13, 2004 Congressman Conyers and other Members wrote to Ohio
Governor, Bob Taft, Speaker of Ohio State House, Larry Householder, and
President of Ohio State Senate, Doug White, requesting a delay of the meeting of
Ohio’s presidential electors;
11
Marquee of the Grand Lake Theater in Oakland,
California, Dec. 27, 2004
• On December 14, 2004, Congressman Conyers wrote to Ohio Secretary of State J.
Kenneth Blackwell in regards to the Secretary’s refusal to cooperate with the
Judiciary Democratic Members investigating election irregularities in Ohio;
• On December 15, 2004, Congressman Conyers wrote to FBI Special Agent in
Charge, Kevin R. Brock and Hocking County, Ohio Prosecutor, Larry Beal,
requesting an investigation into alleged Ohio election problems;
• On December 21, 2004 Congressman Conyers wrote to Ohio candidates
requesting that they report any incidences of irregularities or deviations from
accepted law or practices during the recount in Ohio;
• On December 21, 2004, Congressman Conyers wrote to several major media
outlets requesting the exit poll raw data from the 2004 presidential election;
• On December 22, 2004, Congressman Conyers wrote to Triad GSI President Brett
Rapp and Triad GSI Ohio Field Representative Michael Barbian, Jr. regarding the
voting machine company’s involvement in the Presidential election and Ohio
recount and allegations that it intentionally or negligently acted to prevent validly
cast ballots in the presidential election from being counted;
• On December 23, 2004, as a follow-up letter to the December 22 letter,
Congressman Conyers wrote to Triad’s President Rapp and Ohio Field
Representative Barbian upon learning that Triad had remote access to tabulating
computers controlled by the Board of Elections; and
• On January 3, 2004, federal
and Ohio state lawmakers
joined Reverend Jesse Jackson
in Columbus, Ohio for a rally
calling attention to the need
for national election reform
and the January 6th joint
session of Congress where
election results will be
certified.
Citizen groups have played a
substantial role in acquiring relevant information. Citizens Alliance for Secure Elections in Ohio
has organized hearings that have provided valuable leads for this report. We have been contacted
by thousands of concerned citizens: they want a full and fair count of all of the votes and
confidence in the electoral system, and they find both of these to be sorely lacking in this
election. Many have investigated these matters themselves and have made considerable
sacrifices to do so.
9Hendrik Hertzberg, Recounted Out, THE NEW YORKER, Dec. 24, 2001.
10U.S. COMM’N ON CIVIL RIGHTS, VOTING IRREGULARITIES IN FLORIDA (June 2001).
11Chris McGann and Angela Galloway, Recount Gives Rossi a 42-vote Victory, SEATTLE
POST INTELLIGENCER, Nov. 25, 2004.
12County Recount Gives Win to Democrat, at
http://www.cnn.com/2004/ALLPOLITICS/12/23/wash.gov/index.html (Dec. 23, 2004).
13David Ammons, It’s Governor-Elect Gregoire, but Rossi seeks “do-over”, ASSOC.
PRESS, Dec. 29, 2004.
14Aleksander Vasovic, Yanukovych Vows Challenge in Ukraine, ASSOC. PRESS, Dec. 27,
2004.
12
The Honorable Maxine Waters Speaks at December
13 Colum bus Hearing as the Honorable Stephanie
Tubbs Jones Looks On
The events surrounding the
Presidential election in Ohio must be viewed
in two important contexts. First, there is the
2000 Election debacle in Florida. In that
election, advocates for a full and fair count
were asked to “move on” after Vice President
Al Gore conceded the election to then-
Governor George W. Bush. Months later, it
was found that a full and fair count would
have resulted in Gore, not Bush, being elected
the Forty-third President of the United
States.9 Subsequent investigations also
uncovered rampant disenfranchisement in
Florida, particularly of African-American
voters.10
Second, as events have unfolded in
Ohio, telling events have taken place within
the United States, in the State of Washington, and across the globe, in the Ukraine. In
Washington State, after the Republican Gubernatorial Candidate, Dino Rossi, declared victory
after a partial recount,11 it was later found – after a full and fair recount – that the Democratic
candidate, Christine Gregoire, was the victor.12 While national and state Republican leaders in
Ohio have derided attempts to ascertain the Ohio Presidential election result and resolve the
questions described herein, after the Washington recount, Mr. Rossi has now asked for a re-vote
in the State of Washington, saying it is needed for the election to be “legitimate.”13
In the Ukraine, after the apparent defeat of the opposition leader, Viktor Yushchenko, in
that nation’s Presidential election, amid allegations of fraud and public protests, a new election
was held, and Yushchenko won by a significant margin.14 In fact, in the first, seemingly flawed
15William Branigin, U.S. Rejects Tally, Warns Ukraine, WASH. POST, Nov. 25, 2004.
16See Vasovic, supra.
17See Branigan, supra.
18Statement to Countdown with Keith Olbermann (Dec. 23, 2004).
19377 U.S. 533, 555 (1964). See also Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)
(“the political franchise of voting” is a “fundamental political right, because preservative of all
13
election, Yushchenko appeared to lose by three percentage points.15 However, he won by eight
percentage points in the subsequent revote.16 United States officials called the original vote rife
with “fraud and abuse,” largely relying on anecdotal evidence and deviations between exit polls
and reported results.17
A simple lesson may be drawn from these
two contexts: elections are imperfect. They are
subject to manipulation and mistake. It is,
therefore, critical that elections be investigated
and audited to assure the accuracy of results. As
Senator Kerry’s attorney recently noted, only
with uniformity in the procedures for such an
investigation and audit “can the integrity of the
entire electoral process and the election of Bush-
Cheney warrant the public trust.”18
Regardless of the outcome of the election,
and that outcome cannot be certain as long as
legitimate questions remain and valid ballots are
being counted, it is imperative that we examine
any and all factors that may have led to voting
irregularities and any failure of votes to be
properly counted.
Relevant Background Law
A. Federal Constitutional Law Safeguards
The right to vote is our most cherished democratic right and, as such, is strongly
protected under the Constitution. Both the Equal Protection and Due Process Clauses of the 14th
Amendment operate to protect our citizens’ right to vote for the candidate of their choice.
In the seminal voting rights case of Reynolds v. Sims, the Supreme Court held that “the
right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and
any restrictions on that right strike at the heart of representative government.”19 The Court
rights.”).
20Reynolds, 377 U.S. at 554 (emphasis added; collecting cases); id. (“it is ‘as equally
unquestionable that the right to have one’s vote counted is as open to protection . . . as the right
to put a ballot in a box.’”) (quoting United States v. Mosley, 238 U.S. 383, 386 (1915)).
“Obviously included within the right to choose, secured by the Constitution, is the right of
qualified voters within a state to cast their ballots and have them counted . . . .” United States v.
Classic, 313 U.S. 299, 315 (1941) (emphasis added).
21Reynolds, 377 U.S. at 555; Mosley, 238 U.S. at 386; Classic, 313 U.S. at 315.
22Bush v. Gore, 531 U.S. 98, 104 (2000).
23Mosley, 238 U.S. at 386; Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).
24Bonas v. Town of N. Smithfield, 265 F.3d 69, 74 (1st Cir. 2001); see also Marks v.
Stinson, 19 F.3d 873, 888 (3d Cir. 1994) (finding that substantive due process violation exists
where there is a “broad-gauged unfairness” that infects the results of an election); Duncan v.
Poythress, 657 F.2d 691, 700 (5th Cir. 1981) (holding that “the due process clause of the
fourteenth amendment prohibits action by state officials which seriously undermine the
fundamental fairness of the electoral process”); Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir.
1978) (“If the election process itself reaches the point of patent and fundamental unfairness, a
violation of the due process clause may be indicated and relief under § 1983 therefore in order”);
Siegel v. LePore, 234 F.3d 1163, 1187 (11th Cir. 2000) (a federally protected right is implicated
“where the entire election process including — as part thereof the state’s administrative and
judicial corrective process — fails on its face to afford fundamental fairness”) (citations omitted).
14
observed that, “undeniably the Constitution of the United States protects the right of all qualified
citizens to vote, in state as well as in federal elections. A consistent line of decisions by this
Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly
clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected
right to vote, . . . and to have their votes counted.”20
Under the Equal Protection Clause of the Fourteenth Amendment, Reynolds and its
progeny require that votes that are cast must actually be counted.21 The Equal Protection Clause
also requires that all methods the “legislature has prescribed” to preserve the right to vote be
effected, not thwarted.22
Courts have held that the Due Process Clause implemented in the context of voting rights
requires “fundamental fairness” — the idea that the state official cannot conduct an election or
apply vote-counting procedures that are so flawed as to amount to a denial of voters’ rights to
have their voices heard and their votes count. As a result, under the Constitution, citizens have a
fundamental right to vote and to have their vote counted by way of election procedures that are
fundamentally fair.23 Where “organic failures in a state or local election process threaten to work
patent and fundamental unfairness, a . . . claim lies for a violation of substantive due process.”24
25Matter of Issue 27 on November 4, 1997, 693 N.E.2d 1190, 1193 (Ohio C.P. 1998).
26McKye v. State Election Bd. of State of Oklahoma, 890 P.2d 954, 957 (Okla. 1995)
(emphasis added).
27Miller v. County Comm’n, 539 S.E.2d 770, 776 (W.Va. 2000), “[I]nherent in the
recount procedure is the concept of fairness to all interested candidates in an election. The
recount procedure is the only mechanism available in an election dispute which gives the
interested candidates a chance to identify and define problematic votes, thereby establishing the
parameters for an election contest. . . . It is, therefore, evident that where the challenge to election
results stems from specific votes cast, a recount plays an integral and indispensable role
tantamount to fundamental principles of due process, which cannot be ignored or omitted.”
28Voting Rights Act of 1965 § 11, 42 U.S.C.A. § 1963i (2004) The Voting Rights Act
was enacted in response to evidence that some states and counties had denied many citizens
access to the ballot because of their race, ethnicity, and language-minority status. Other major
provisions of the act prohibit enactment of any election law that would deny or abridge voting
rights based on race, color or membership in a language minority.
15
Importantly, protections for the right to vote extend to and include the right to a full and
fair recounting of those votes. A recount is fundamental to ensure a full and effective counting
of all votes. Ohio courts have held that “[a] recount ... is the only fair and equitable procedure to
ensure the correct tally of all the votes.”25 As the Oklahoma Supreme Court recently
emphasized, “[a] timely recount is an integral part of an election.”26 The West Virginia Supreme
Court, construing a recount statute similar to Ohio’s recount provisions, stressed the importance
of an election recount to the fairness and integrity of the election itself.27 Indeed, courts in states
which provide a statutory right to a recount uniformly have held that an election cannot be
deemed over and final until a recount provided under state law has been completed.
B. Federal Statutory Election Safeguards
There are numerous federal statutes that protect the right to vote. First and foremost, the
Voting Rights Act prohibits any person, whether acting under color of law or otherwise, from:
(1) failing or refusing to permit any qualified person from voting in ... federal elections;
(2) refusing to count the vote of a qualified person; or
(3) intimidating any one attempting to vote or any one who is assisting a person in
voting.28
In addition, the Civil Rights Act of 1968 provides criminal penalties for violations of
civil rights, including interference with the right to vote. Specifically, section 245 of title 18
makes it a crime for any person who “by force or threat of force willfully injures, intimidates or
interferes with, or attempts to injure, intimidate or interfere with any person because he is or has
2942 U.S.C. § 1973gg et seq. This is the so-called “motor-voter” law.
30Id. Specifically, the NVRA requires states to provide procedures so that eligible
citizens may register to vote:
(1) by application made simultaneously with an application for a motor
vehicle driver’s license ... ;
(2) by mail application ... ; and
(3) by application in person (A) at the appropriate registration site designated with respect
to the residence of the applicant in accordance with state law; and (B) at a federal, state,
or nongovernmental office designated under Section 7 (required for state agencies
providing public assistance and agencies primarily engaged in providing services to
persons with disabilities).
31In addition, a person who knowingly and willfully deprives, defrauds, or attempts to
deprive or defraud the residents of a State of a fair and impartially conducted election process, by
the procurement or submission of voter registration applications that are known by the person to
be materially false, fictitious, or fraudulent is guilty of a crime under Section 1973gg-10 of Title
42. The act of engaging in fraudulent voter registration practices, destroying voter registration
forms, or otherwise interfering with the ability of qualified voters to register as prescribed by law
are clearly covered by these statutes and demand prompt action by the Department of Justice.
32Pub. L. No. 107-252.
16
been, or in order to intimidate such person or any other person or any class of persons from
voting or qualifying to vote....”.
In 1993, Congress enacted the National Voter Registration Act29 (NVRA), which requires
that, for federal elections, states establish fair and expeditious procedures so that eligible citizens
may register to vote.30 Pursuant to the NVRA, section 1974a of title 42 makes it a crime for any
person to willfully steal, destroy, conceal, mutilate, or alter any voting records, including those
having to do with voter registration.31
After the widespread problems that occurred in the November 2000 election, Congress
enacted the Help America Vote Act (HAVA),32 thereby creating a new federal agency with
election administration responsibilities, setting requirements for voting and voter-registration
systems and certain other aspects of election administration, and providing federal funding.
Perhaps the central requirement of HAVA was that, beginning January 1, 2004, any voter not
listed as registered must be offered and permitted to cast a provisional ballot. HAVA included a
variety of additional new requirements, including a provision that beginning January 1, 2004
(extendable to 2006), states using voter registration must employ computerized, statewide voter
registration systems that are accurately maintained.
C. Ohio Election Safeguards
Ohio has enacted numerous provisions designed to protect the integrity of the voting and
tabulation process.
33OHIO CONST. art. 5, § 1.
34OHIO REV. CODE § 3505.10 (West 2004) (setting forth requirements for a presidential
ballot); id. §3 505.39 (describing the appointment of electors and setting of meeting by the
Secretary of State after the canvass); id. § 3505. 40 (requiring electors to vote for the candidate of
the political party they were slated to vote for).
35Id. § 3501.05 (N)(1).
36Id. § 3501.05 (W ).
37Id. § 3501.32.
38Id. § 3501.35.
39Id. §§ 3599.27, 3599.24, 3599.33-.34.
40Id. § 3599.12.
17
1. The Right to Vote in Ohio
Under the Ohio Constitution, “Every citizen of the United States, of the age of eighteen
years, who has been a resident of the state, county, township, or ward, such time as may be
provided by law, and has been registered to vote for thirty days, has the qualifications of an
elector, and is entitled to vote at all elections.”33 This includes the right to vote directly for
Presidential electors.34 The protection of this right is placed squarely on the Secretary of State,
who has the affirmative duty to “investigate the administration of election laws, frauds, and
irregularities in elections in any county, and report violations of election laws to the attorney
general or prosecuting attorney, or both, for prosecution.”35 To complete this task, the legislature
has given the Secretary the power to “issue subpoenas, summon witnesses, compel the
production of books, papers, records and other evidence.”36
Many specific provisions in the Ohio Revised Code help protect one’s right to vote:
• Polls must be open from 6:30 in the morning until 7:30 at night, and everyone in line at
that time must be allowed to vote.37
• Loitering around the polling place is barred, and no one may “hinder or delay” a voter
from reaching the polls or casting a vote.38
• Alteration or destruction of ballots, machinery or election records is prohibited.39
• Illegal voting is a felony.40
41Id. § 3505.24.
42Id. §§ 3599.32, 3599.16-19.
43Id. § 3505.35.
44Id. § 3501.05(U).
45Id. § 3515.04.
46Id.
47Id. § 3506.01(B).
18
• Those who cannot mark their own ballot due to illiteracy or disability are entitled to
assistance.41
• Election officials who do not enforce these provisions are criminally liable.42
2. Declaring Results
Ohio law requires that, before the Secretary of State can declare the initial results of the
Presidential election in Ohio, each of the 88 county boards of elections ("county boards") must
(1) canvass the results in the county, (2) certify abstracts of those results, and (3) send the
certified abstracts to the Secretary of State.43 Only after the Secretary of State receives the
certified abstracts from the county boards is the Secretary able to canvass the abstracts to
"determine and declare" the initial results of the Presidential election in Ohio.
Under Ohio law, the Secretary of State is required to fix the calendar by which the state's
Presidential election results initially are declared and by which a recount of those initial results
can occur. Specifically, the Secretary is to set the date by which Ohio's 88 county boards must
complete their canvass of election returns and send the certified abstracts of the results to the
Secretary.44 Any statutorily mandated recount of the votes cast in Ohio for President cannot
occur before the Secretary declares the initial results.
3. Security of Ballots and Machinery
In addition, Ohio law prohibits election machinery from being serviced, modified, or
altered in any way subsequent to an election, unless it is done so in the presence of the full board
of elections and other observers. Any handling of ballots for a subsequent recount must be done
in the presence of the entire Board and any qualified witnesses.45 Containers in which ballots are
kept may not be opened before all of the required participants in are attendance.46 The Ohio
Revised Code defines a ballot as “the official election presentation of offices and candidates . . .
and the means by which votes are recorded.”47 Therefore, for purposes of Ohio law, electronic
records stored in the Board of Election computers are to be considered “ballots.”
48OHIO ADMIN. CODE § 111:3-4-01 (2004).
49Mehul Srivastava, Greene County Elections Board Scrutinized; Office Containing
Ballots Found Unlocked Overnight, DAYTON DAILY NEWS, Dec. 12, 2004, at B1.
50Secretary of State J. Kenneth Blackwell, Absentee/Provisional Counting and Ballot
Security, Directive No. 2004-48 (Oct. 29, 2004).
51OHIO REV. CODE § 3599.27.
52Id. § 3599.24.
53Id. § 3599.34.
19
Further, any modification of the election machinery may only be done after full notice to
the Secretary of State. The Ohio Code and related regulations require that after the state certifies
a voting system, changes that affect “(a) the method of recording voter intent; (b) voter privacy;
(c) retention of the vote; or (d) the communication of voting records,”48 must be done only after
full notice to the Secretary of State.
Secretary Blackwell’s own directive, coupled with Ohio Revised Code § 3505.32,
prohibits any handling of these ballots without bipartisan witnesses present. That section of the
code provides that during a period of official canvassing, all interaction with ballots must be “in
the presence of all of the members of the board and any other persons who are entitled to witness
the official canvass.” In this election, the Ohio Secretary of State has issued orders that election
officials were to treat all election materials as if the State were in a period of canvassing,49 and
that, “teams of one Democrat and one Republican must be present with ballots at all times of
processing.”50
In addition to these provisions imposing duties on the Board of Elections, there are
numerous criminal sanctions for tampering with votes and the machines that tabulate them:
“No person shall tamper or attempt to tamper with, deface impair the use of, destroy or
otherwise injure in any manner any voting machine...No person shall tamper or attempt to
tamper with, deface, impair the use of, destroy or otherwise change or injure in any
manner any marking device, automatic tabulating equipment or any appurtenances or
accessories thereof.”51
“No person shall...destroy any property used in the conduct of elections”52
“No person, from the time ballots are cast or voted until the time has expired for using
them in a recount or as evidence in a contest of election, shall unlawfully destroy or
attempt to destroy the ballots, or permit such ballots or a ballot box or pollbook used at an
election to be destroyed; or destroy, falsify, mark, or write in a name on any such ballot
that has been voted.”53
54Id. § 3599.33.
55Id. §§ 3515.01-.03.
56Id. § 3515.05.
57Id. § 3515.03.
58See id.
20
“No person, from the time ballots are cast or counted until the time has expired for using
them as evidence in a recount or contest of election, shall willfully and with fraudulent
intent make any mark or alteration on any ballot; or inscribe, write, or cause to be
inscribed or written in or upon a registration form or list, pollbook, tally sheet, or list,
lawfully made or kept at an election, or in or upon a book or paper purporting to be such,
or upon an election return, or upon a book or paper containing such return the name of a
person not entitled to vote at such election or not voting thereat, or a fictitious name, or,
within such time, wrongfully change, alter, erase, or tamper with a name, word, or figure
contained in such pollbook, tally sheet, list, book, or paper; or falsify, mark, or write
thereon with intent to defeat, hinder, or prevent a fair expression of the will of the people
at such election.”54
All of these are fifth degree felonies.
4. The Law of Recounts and Contests
The Secretary of State's declaration of the initial results of a Presidential election in Ohio
is not final. Under Ohio law, a recount of the initial results is required where the margin of
victory is one-fourth of one percent or less, or where a candidate who is not declared elected
applies for a recount within five days of the Secretary of State declaring the results of the election
and remits the required bond.55 In either instance, the Secretary of State "shall make an amended
declaration of the results" of the Presidential election after a full and complete recount of the
initial results throughout the state is completed.56 Therefore, the Ohio legislature has determined
that, in certain statutorily-defined circumstances, the Secretary's final declaration of the results of
a Presidential election in Ohio shall not occur prior to a full and complete recount of the initial
results.
Once the recount applications have been filed, all affected county boards must notify the
applicant and all others who received votes in the election of the time, method and place at which
the recount will take place, such notice to be no later than five days prior to the start of the
recount.57 Nothing in Ohio law prohibits the notices from being mailed prior to the certification
of results. The recount must be held no later than ten days after the day the recount application is
filed or after the day the Secretary of State declares the results of the election.58
At the time and place fixed for making a recount, the Board of Elections, in the presence
of all witnesses who may be in attendance, shall open the sealed containers containing the ballots
59Id. § 3515.04.
60Id.
61Secretary of State J. Kenneth Blackwell, Directive to All County Boards of Elections
Directive No. 2004-58 (Dec. 7, 2004).
62Id.
63Id.
64Id.
653 U.S.C. §11.
66U.S. CONST. amend. XII.
673 U.S.C. § 5.
21
to be recounted and shall recount them.59 Each candidate may “attend and witness the recount
and may have any person whom the candidate designates attend and witness the recount.”60
Due to a directive issued by Secretary Blackwell, the recount does not automatically
require a hand count of every vote cast in the election.61 Each county board of elections
randomly takes a sample representing at least 3% of the votes cast and compares the machine
count to a hand count.62 If there is a discrepancy, the entire county must be hand counted.63 If
there is no discrepancy, the remainder of ballots may be recounted by machine.64
D. Determination of Ohio’s Electoral College Votes
Ohio and federal law intersect with regard to the issue of determining the extent to which
Ohio’s electoral votes are counted towards the election of the president through the electoral
college. The 12th Amendment sets forth the requirements for casting electoral votes and counting
those votes in Congress. The electors are required to meet, cast and certify their ballots and
transmit them to the Vice President in his or her capacity as President of the Senate. In addition,
the Electoral Count Act requires that the results be transmitted to the secretary of state of each
state, the Archivist of the United States, and the federal judge in the district in which the electors
met.65 Upon receipt of the ballots at a time designated by statute, the “President of the Senate
shall, in the presence of the Senate and House of Representatives, open all the certificates and the
votes shall then be counted.”66
Congress has specified that all controversies regarding the appointment of electors should
be resolved six days prior to the meeting of electors (on December 7, 2004, for purposes of this
year’s presidential election) in order for a state’s electors to be binding on Congress when
Congress meets on January 6, 2005, to declare the results of the 2004 election.67
Specifically, 3 U.S.C. § 5 provides, in pertinent part:
68“Congress shall be in session on the sixth day of January succeeding every meeting of
the electors. The Senate and House of Representatives shall meet in the Hall of the House of
Representatives at the hour of 1 o’clock in the afternoon on that day . . .” Id. §15.
69Id. §18 (“no debate shall be allowed and no question shall be put by the presiding
officer except to either House on a motion to withdraw.”).
70Id. §15.
71Id.
72Id.
73Id.
22
If any State shall have provided, by laws enacted prior to the day fixed for the
appointment of the electors, for its final determination of any controversy or contest
concerning the appointment of all or any of the electors of such State, by judicial or other
methods or procedures, and such determination shall have been made at least six days
before the time fixed for the meeting of the electors, such determination made pursuant to
such law so existing on said day, and made at least six days prior to said time of meeting
of the electors, shall be conclusive, and shall govern in the counting of the electoral votes
as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment
of the electors appointed by such State is concerned.
The joint session of the Senate and House is held on January 6, unless Congress
determines otherwise, of the year following the presidential election at 1:00 p.m.68 No debate is
allowed during the joint session.69 The President of the Senate opens the electoral vote
certificates in alphabetical order from each state, passes them to four tellers (required by statute
to be appointed two from each House) who announce the results. The votes are then counted and
those results announced by the President of the Senate. The candidates for President and Vice
President receiving a majority of the electoral votes, currently set at 270 of 538, are declared to
have been “elected President and Vice President of the States.”70
Section 15 of title 3, United States Code, provides that, when the results from each of the
states are announced, that “the President of the Senate shall call for objections, if any.” Any
objection must be presented in writing and “signed by at least one Senator and one Member of
the House of Representatives before the same shall be received.”71 The objection must “state
clearly and concisely, and without argument, the ground thereof.”72 When an objection has been
properly made in writing and endorsed by a member of each body the Senate withdraws from the
House chamber, and each body meets separately to consider the objection. “No votes . . . from
any other State shall be acted upon until the [pending] objection . . . [is] finally disposed of.”73
Section 17 of title 3 limits debate on the objections in each body to two hours, during which time
no member may speak more than once and not for more than five minutes. Both the Senate and
74Id. § 15.
75In this latter case, the statute addresses three scenarios to dispose of duplicate slates of
electors. First, only the votes from the electors properly appointed are counted. Second, when
the slates are presented by two different state authorities who arguably have properly certified the
electors, both houses of Congress must concur as to which is the “lawful tribunal of such State”
and accept the slate approved by that tribunal. And, finally, if there is no authority for which
slate was lawfully appointed, both houses of Congress must agree either to accept one set of
electors over the other or to reject the electors from that state altogether.
76In 1969 Senator Muskie and Representative O’Hara joined to file a objection against a
“faithless elector” who cast a vote for George Wallace and Curtis LeMay instead of the candidate
for whom he was expected to vote. The objection was debated and rejected by both houses. This
is the only objection that has been raised since the 1887 Act in accordance with its requirements.
23
the House must separately agree to the objection; otherwise, the challenged vote or votes are
counted.74
Historically, there appears to be three general grounds for objecting to the counting of
electoral votes. The law suggests that an objection may be made on the grounds that (1) a vote
was not “regularly given” by the challenged elector(s); (2) the elector(s) was not “lawfully
certified” under state law; or (3) two slates of electors have been presented to Congress from the
same State.75 Section 15 of title 3 specifically provides:
[N]o electoral vote or votes from any State which shall have been regularly given
by electors whose appointment has been lawfully certified . . . from which but one
return has been received shall be rejected, but the two Houses concurrently may
reject the vote or votes when they agree that such vote or votes have not been so
regularly given by electors whose appointment has been so certified. If more than
one return or paper purporting to be a return from a State shall have been received
by the President of the Senate, those votes, and those only shall be counted which
shall have been regularly given by the electors who are shown. . . to have been
appointed.
Since the Electoral Count Act of 1887, no objection meeting the requirements of the Act
has been made against an entire slate of state electors.76 In the 2000 election several Members of
the House of Representatives attempted to challenge the electoral votes from the State of Florida.
However, no Senator joined in the objection, and, therefore, the objection was not “received.” In
addition, there was no determination whether the objection constituted an appropriate basis under
the 1887 Act. However, if a State has not followed its own procedures and met its obligation to
conduct a free and fair election, a valid objection – if endorsed by at least one Senator and a
Member of the House of Representatives – should be debated by each body separately until
“disposed of”.
Detailed Findings
77Those requirements are ensuring that voting systems used in federal elections on and
after January 1, 2006 meeting six voting system standards; allowing provisional voting for
certain voters whose eligibility to vote is in question in federal elections held on and after
January 1, 2004; posting certain voting information at the polls on the day of each election for
federal office held on and after January 1, 2004; developing and maintaining a uniform
computerized statewide voter registration database no later than January 1, 2004, unless a waiver
until January 1, 2006, has been requested; and implementing requirements for voters who
register by mail on and after January 1, 2003.
78Information available at http://www.eac.gov/state_funding.asp?format=none.
79Michael Powell & Peter Slevin, Several Factors Contributed to ‘Lost’ Voters in Ohio,
WASH. POST, Dec. 15, 2004.
80James Dao et al., Voting Problems in Ohio Spur Call for Overhaul, N.Y. TIMES, Dec.
24, 2004, at A1.
24
A. Pre-Election
1. Machine Allocations – Why were there such long lines in Democratic leaning
areas but not Republican leaning areas?
Facts
One of the critical reforms of HAVA was federal funding for states to acquire new and
updated voting machines, and to fairly allocate the machines. Under HAVA, the Election
Assistance Commission (EAC) provides payments to States to help them meet the uniform and
nondiscriminatory election technology and administration requirements in title III of the law.77
In 2004, the EAC processed a payment of $32,562,331 for fiscal year 2003 and $58,430,186 for
fiscal year 2004 for a total of $90,992,517.78 There is no information publicly available
describing what, if any, Ohio HAVA funds were used and for what those funds were used. Nor
are we aware how such funds were allocated within the state of Ohio and between counties.
There was a wide discrepancy between the availability of voting machines in more
minority, Democratic and urban areas as compared to more Republican, suburban and exurban
areas. Even on election day, urban areas were hard pressed to receive the critical machines to
respond to the ever lengthening lines. According to a Washington Post investigation, “in
Columbus, Cincinnati and Toledo, and on college campuses, election officials allocated far too
few voting machines to busy precincts, with the result that voters stood on line as long as 10
hours – many leaving without voting.”79 Moreover, the Election Protection Coalition testified
that more than half of the complaints about long lines they received “came from Columbus and
Cleveland where a huge proportion of the state’s Democratic voters live.”80
Based upon various sources including complaints, sworn testimony, and communications
with Ohio election officials, we have identified credible concerns regarding the allocation of
machines on election day:
81Id.
82See Powell & Slevin, supra.
83Bob Fitrakis, How the Ohio Election Was Rigged for Bush, THE FREE PRESS, Nov. 22,
2004.
84Id.
85Franklin County Board of Elections 2004 Election Abstract,
www.co.franklin.oh.us/boe/content/electionAbstract.htm
86Bob Fitrakis et al., Startling New Revelations Highlight Rare Congressional Hearings
on Ohio Vote, THE FREE PRESS, Dec. 13, 2004.
25
Franklin County
• A New York Times investigation revealed that Franklin County election officials reduced
the number of electronic voting machines assigned to downtown precincts and added
them to the suburbs. “They used a formula based not on the number of registered voters,
but on past turnout in each precinct and on the number of so-called active voters – a
smaller universe. . . . In the Columbus area, the result was that suburban precincts that
supported Mr. Bush tended to have more machines per registered voter than center city
precincts that supported Mr. Kerry.”81
• The Washington Post also found that in voter-rich Franklin County, which encompasses
the state capital of Columbus, election officials decided to make do with 2,866 machines,
even though their analysis showed that the county needed 5,000 machines.82
• The Franklin County Board of Elections reported 81 voting machines were never placed
on election day, and Board Director Matt Damschroder admitted that another 77
machines malfunctioned on Election Day.83 However, a county purchasing official who
was on the line with Ward Moving and Storage Company, documented only 2,741 voting
machines delivered through the November 2 election day.84 While Franklin County’s
records reveal that they had 2,866 “machines available” on election day.85 This would
mean that the even larger number of at least 125 machines remained unused on Election
Day. Mr. Damschroder misinformed a federal court on Election Day when he testified
the county had no additional voting machines; this testimony was in connection with a
Voting Rights Act lawsuit brought by the state Democratic Party that alleged minority
precincts were intentionally deprived of machines.86
• After the election the Washington Post also reported that in Franklin County, “27 of the
30 wards with the most machines per registered voter showed majorities for Bush. At the
87See Powell & Slevin, supra.
88Bob Fitrakis, Document Reveals Columbus, Ohio Voters Waited Hours as Election
Officials Held Back Machines, THE FREE PRESS, Nov. 16, 2004.
89Id.
90Id.
91E-mails on file with House Judiciary Committee staff.
92Id.
93Judiciary Hearing transcript at 36 (Dec. 13, 2004).
94Id. at 140.
26
other end of the spectrum, six of the seven wards with the fewest machines delivered
large margins for Kerry.”87
• At seven of the eight polling places in Franklin County, a heavily populated urban
community, there were only three voting machines per location; but there had been five
machines at these locations during the 2004 primary.88
• According to the presiding judge at one polling site located at the Columbus Model
Neighborhood facility at 1393 E. Broad St., there had been five machines during the 2004
primary.89 Moreover, at Douglas Elementary School, there had been four machines
during the spring primary.90
• We have received additional information of hardship caused by the misallocation of
machines based on emails and other transmissions, with waits of 4-5 hours or more being
the order of the day. For example, we have learned of four hour waits at Precincts 35B
and C in Columbus; seven hours waits for one voting machine per thousand voters, where
the adjacent precinct had one station for 184 voters.”91 Additionally, it appears that in a
number of locations, polling places were moved from large locations, such as gyms,
where voters could comfortably wait inside to vote, to smaller locations where voters
were required to wait in the rain.92
• Dr. Bob Fitrakis testified before the House Judiciary panel that Franklin County Board of
Elections Chair, Bill Anthony, said that a truckload of 7

A previous post claims that computers would produce a more accurate vote count than a paper ballot method because computers only run programs. Think again.

A. COMPUTER PROGRAMS can be altered remotely.
They can be inserted in secret and removed before they are detected.

The programming could be either accidental, benign or deliberately unfair. A tiny unfair program designed to multiply one candidate's results by, say, one thousand, could completely overturn the will of the voters.

Do a search for "Harry Hursti" and "hack" to see how easy it is to add hidden code, run the program, and remove it before it has been detected.. Even a chimp has been taught to start such a program running.

B. TOUCH SCREEN only machines: Most verified voting advocates are against "touch screen" only machines because it is difficult to know whether that "touch" was really recorded. There are other alternatives to the touch screen machine method.

C. PAPER BALLOTS also have some problems.
Dishonest or inept employees could lose paper ballots. However, it is much more difficult to lose, transport or hide large boxes of paper ballots without being detected than to hide computer code that can be inserted through a network of computers in remote locations.

Most fair voting advocates favor either plain paper ballots marked by hand or an electronic method with a verifiable paper trail that can be tallied in a recount should be considered.

With two methods, cheating would be harder because the two tallies (electronic and paper), would have to arrive at the same final number.

GOOD SOURCES FOR FAIR VOTING::


Black Box Voting Org www.BlackBoxVoting.org
Verified Voting Org www.verifiedvoting.org
Vote Trust USA www.votetrustusa.org
Daily Kos www.dailykos.com/tag/Diebold
Debra Bowen(California) http://www.debrabowen.com/blog/
GuvWurld guvwurld.blogspot.com

Kathy Harness

Please tell us when Marcy Winograd tried to give the warrant to McPherson.

THANKS!

Linda --

You've not posted any contact info with your articles.

You've copyrighted your excellent photo of Marcy Winograd presenting the arrest warrant. I'd like to use it in an article for my new blog, "DD Revival" (http://ddrevival.blogspot.com). The article will be on the genesis of Diebold's software from the Hack-O-Matic I of Election 2004 to the Hack-O-Matic II now in play for Election 2006.

Avi Rubin, computer security guru at johns Hopkins, calls Diebold's latest iteration the "nuclear bomb" of vote counting systems.

Ordinary people in many states have vigorously opposed the widespread adoption of the hack-o-matics, with very little effect. I want to add to the overview coverage of citizen anger. Your photo will help.

I'm working to generate a national citizens organization that will work for an impeachment and removal Congress in Election 2006. It's actually just part of the national revival that I know we need. Please read my blog's first post, "Bush-Cheney Train Wreck -- Undo", 17 May.

The blog is new, but I'm not. Google my name and check out my first two sites, "Direct Democracy League" (http://ddleague-usa.net) and "TRG Polity" (http://trg-polity.org).

Thanks for any consideration you can give. Looking forward to receiving your permission for the use of your photo.

Stephen Neitzke
Direct Democarcy League
http://ddleague-usa.net

Linda --

You've not posted any contact info with your articles.

You've copyrighted your excellent photo of Marcy Winograd presenting the arrest warrant. I'd like to use it in an article for my new blog, "DD Revival" (http://ddrevival.blogspot.com). The article will be on the genesis of Diebold's software from the Hack-O-Matic I of Election 2004 to the Hack-O-Matic II now in play for Election 2006.

Avi Rubin, computer security guru at johns Hopkins, calls Diebold's latest iteration the "nuclear bomb" of vote counting systems.

Ordinary people in many states have vigorously opposed the widespread adoption of the hack-o-matics, with very little effect. I want to add to the overview coverage of citizen anger. Your photo will help.

I'm working to generate a national citizens organization that will work for an impeachment and removal Congress in Election 2006. It's actually just part of the national revival that I know we need. Please read my blog's first post, "Bush-Cheney Train Wreck -- Undo", 17 May.

The blog is new, but I'm not. Google my name and check out my first two sites, "Direct Democracy League" (http://ddleague-usa.net) and "TRG Polity" (http://trg-polity.org).

Thanks for any consideration you can give. Looking forward to receiving your permission for the use of your photo.

Stephen Neitzke
Direct Democarcy League
http://ddleague-usa.net