Marcy Winograd Delivers Arrest Warrant to Sec of State, McPherson : LA IMC

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

Los Angeles Indymedia : Activist News

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Marcy Winograd Delivers Arrest Warrant to Sec of State, McPherson

Brad Parker, PDA, with Marcy Winograd

Sore Loser Brigade

Read Conyers investigation

Re: Computers only run programs

when did this happen?

Contact info for Linda Sutton

Contact info for Linda Sutton