Preserving Democracy: What Went Wrong in Ohio

(Full report with sources and details HERE (pdf).)

Status Report of the
House Judiciary Committee Democratic Staff

(Executive Summary and Chronology of Events sections only)

January 5, 2005

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 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 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 third party 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 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.

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 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.

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 Election Protection Coalition has testified that it received more complaints on election day concerning irregularities in Ohio than any other state.

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.

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;
  • 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.

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. Subsequent investigations also uncovered rampant disenfranchisement in Florida, particularly of African-American voters.

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.”

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 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.

***

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