Mr. Speaker, I rise to address the House. Mr. Speaker, I include for printing in the Congressional Record the staff report of the House Judiciary Committee Democratic staff entitled, ``Preserving Democracy: What Went Wrong in Ohio.''…
Mr. Speaker, I rise to address the House.
Mr. Speaker, I include for printing in the Congressional Record the staff report of the House Judiciary Committee Democratic staff entitled, ``Preserving Democracy: What Went Wrong in Ohio.''
Preserving Democracy: What Went Wrong in Ohio
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 thousands 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.'' 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 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 disenfranchised 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. 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. 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. Voters reported bizarre ``glitches'' in voting
machines where votes for Senator Kerry were registered as
votes for the President. 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, 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, it was later found--after a full and fair recount--
that the Democratic candidate, Christine Gregoire, was the
victor. 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. In fact, in the first, seemingly flawed election,
Yushchenko appeared to lose by three percentage points.
However, he won by eight percentage points in the subsequent
revote. 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.
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.''
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.'' The Court 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.''
Under the Equal Protection Clause of the Fourteenth
Amendment, Reynolds and its progeny require that votes that
are cast must actually be counted. The Equal Protection
Clause also requires that all methods the ``legislature has
prescribed'' to preserve the right to vote be effected, not
thwarted.
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. 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.''
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.'' As the
Oklahoma Supreme Court recently emphasized, ``[a] timely
recount is an integral part of an election.'' 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. 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.
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 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
Act (NVRA), which requires that, for federal elections,
states establish fair and expeditious procedures so that
eligible citizens may register to vote. 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.
After the widespread problems that occurred in the November
2000 election, Congress enacted the Help America Vote Act
(HAVA), 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.
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.'' This includes the right to vote
directly for Presidential electors. 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.'' 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.''
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.
Loitering around the polling place is barred, and no one
may ``hinder or delay'' a voter from reaching the polls or
casting a vote.
Alteration or destruction of ballots, machinery or election
records is prohibited.
Illegal voting is a felony.
Those who cannot mark their own ballot due to illiteracy or
disability are entitled to assistance.
Election officials who do not enforce these provisions are
criminally liable.
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.'' 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. 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. Containers
in which ballots are kept may not be opened before all of the
required participants in are attendance. The Ohio Revised
Code defines a ballot as ``the official election presentation
of offices and candidates . . . and the means by which votes
are recorded.'' Therefore, for purposes of Ohio law,
electronic records stored in the Board of Election computers
are to be considered ``ballots.''
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,'' must be done only after full notice to the
Secretary of State.
Secretary Blackwell's own directive, coupled with Ohio
Revised Code Sec. 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,''
and that, ``teams of one Democrat and one Republican must be
present with ballots at all times of processing.''
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.''
``No person shall-destroy any property used in the conduct
of elections.
``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.
``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.
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. 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. 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 recounts.
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.
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 to be recounted and shall recount them. Each
candidate may ``attend and witness the recount and may
have any person whom the candidate designates attend and
witness the recount.
Due to a directive issued by Secretary Blackwell, the
recount does not automatically require a hand count of every
vote cast in the election. 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. If there
is a discrepancy, the entire county must be hand counted. If
there is no discrepancy, the remainder of ballots may be
recounted by machine.
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. 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.
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.
Specifically, 3 U.S.C. Sec. 5 provides, in pertinent part:
``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, unless Congress determines otherwise, of the year
following the presidential election at 1:00 p.m. No debate is
allowed during the joint session. 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.''
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.'' The
objection must ``state clearly and concisely, and without
argument, the ground thereof.'' 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.''
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 the House must separately agree to the objection;
otherwise, the challenged vote or votes are counted.
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. 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. 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
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.'' 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. 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.'' 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.''
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:
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.''
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.
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.'' 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.'' While Franklin
County's records reveal that they had 2,866 ``machines
available'' on election day. 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.
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 other end of the spectrum, six of the seven wards with
the fewest machines delivered large margins for Kerry.''
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.
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. Moreover, at Douglas Elementary School, there had
been four machines during the spring primary.
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.''
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.''
Dr. Bob Fitrakis testified before the House Judiciary panel
that Franklin County Board of Elections Chair, Bill Anthony,
said that a truckload of 75 voting machines were held back on
election day while people waited 5 to 6 hours to vote.
Over 102,000 new voters were registered in Franklin County.
A majority of them were African Americans. ``And so,'' said
State Senator Ray Miller, ``only logic would say, we need
more machines, particularly in the black community.''
Rev. William Moss testified that there were ``unprecedented
long lines'' and noted that Secretary of State Blackwell did
not provide sufficient numbers of voting machines to
accommodate the augmented electorate in Columbus.
Knox County
At Kenyon College, a surge of late registrations promised a
record vote. Nevertheless, Knox County officials allocated
two machines, just as in past elections. Voter Matthew Segal,
a student at Kenyon College, testified before the House
Judiciary panel about conditions that amounted to voter
disenfranchisement in Gambier, Ohio.'' The Gambier polling
place had two machines for a population of 1,300 people,
though nearby counties had one machine for every 100 people.
He noted that voters were ``compelled to stand outside in the
rain, through a hot gymnasium in crowded, narrow hallways,
making voting extremely uncomfortable.'' According to his
testimony, ``many voters became overheated and hungry'' and
had to leave the long lines to eat. ``One girl actually
fainted and was forced to leave the line,'' he said. ``Many
others suffered headaches due to claustrophobic conditions
and noise.''
In contrast, at nearby Mt. Vernon Nazarene University,
which is considered more Republican leaning, there were ample
voting machines and no lines.
Other
The NAACP testified that approximately ``thirty precincts
did not have curbside voting machines for seniors and
disabled voters.''
One entire polling place in Cuyahoga County had to ``shut
down'' at 9:25 a.m. on Election Day because there were no
working machines.
We received an affidavit from Rhonda J. Frazier, a former
employee of Secretary Blackwell, describing several
irregularities concerning the use of HAVA money and the
acquisition of election machinery by the state. She states
that Secretary Blackwell's office failed to comply with the
requirements of the voting reform grant that required all of
the voting machines in Ohio to be inventoried and tagged for
security reasons. Ms. Frazier also asserts that she ``was
routinely told to violate the bidded contracts to order
supplies from other companies for all 17 Secretary of State
offices throughout the State which were cheaper vendors,
leaving a cash surplus differential in the budget'' and that,
when she inquired as to where the money differential was
going, she was essentially told that this was not her concern
and that she should not inquire about where that money went.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
Through intent or negligence, massive errors that led to
long lines were made in the distribution and allocations of
voting machines. The Washington Post reports that in Columbus
alone, the misallocation of machines reduced the number of
voters by up to 15,000 votes. Given what we have learned in
our hearings, this is likely conservative estimate, and
statewide, the shortage of machines could have resulted in
the loss of hundreds of thousands of votes. The vast majority
of this lost vote caused by lengthy lines in the midst of
adverse weather was concentrated in urban, minority and
Democratic leaning areas. As a result, this misallocation
appears to be of the pivotal factors concerning the vote and
outcome in the entire election in Ohio.
On its face, the misallocation, shorting, and failure to
timely deliver working machines would appear to violate a
number of legal requirements.
First, it would seem to constitute a violation of the
Voting Rights Act and the constitutional safeguards of Equal
Protection and Due Process, particularly given the racial
disparities involved. Denying voters the means to vote in a
reasonable and fair manner is no different than preventing
them from voting outright.
Second, the failure to provide enough voting machinery
violates both Ohio's Constitution, that provides all eligible
adults the right to vote, and the Ohio Revised Code which
requires the Boards of Elections to provide ``for each
precinct a polling place and provide adequate facilities at
each polling place for conducting the election.'' Further,
``the board shall provide a sufficient number of screened
or curtained voting compartments to which electors may
retire and conveniently mark their ballots.''
These conclusions regarding Ohio legal violations are
supported by several precedents, as well as common sense:
The U.S. District Court for the Southern District of Ohio
found such a serious threat to the voting right that it took
the highly unorthodox step of ordering that those individuals
waiting in line for longer than two hours receive paper
ballots or some other mechanism.
There is specific precedence for a legal violation due the
fact that, under Ohio law in 1956, the courts were forced to
intervene to enforce the then-applicable requirement of one
machine per 100 voters. The court was highly critical of the
previous practice of requiring only one machine for 800
voters or two for 1,400. Nearly 50 years later, we are
unfortunately back to the antiquated practice of effectively
disenfranchising those who are unable to spend an entire day
voting.
Evidence suggests that the Board of Elections'
misallocation of machines went beyond urban/suburban
discrepancies to specifically target Democratic areas. In
particular, within the less urban county of Knox, the more
Democratic leaning precincts near Kenyon College were
massively shorted; the more Republican leaning precincts near
Mt. Vernon Nazarene University were not.
Third, it appears that a series of more localized legal
violations have not been investigated. These include Mr.
Damschroder's contradictory statements regarding the number
and availability of machines on election day in Franklin
County raise the possibility of perjury. The affidavit
submitted by Rhonda Frazier would also appear to demonstrate
a prima facie violation of the Help America Vote Act.
Fourth, Secretary of State Blackwell's failure to initiate
any investigation into this pivotal irregularity (which
perhaps borders on fraud), notwithstanding his clear
statutory duty to do so under Ohio Revised Code section
3501.05, represents a clear violation of Ohio law. The
Secretary of State's most important obligation under the Ohio
Constitution is to protect the right of every Ohio citizen
who is eligible to vote and invesigate any and all
irregularities concerning the same. Mr. Blackwell's failure
to obey Ohio law on this point constitutes a clear instance
where Ohio election law has been abrogated.
2. Cutting Back on the Right to Provisional Ballots
Facts
In a decision that Ohio Governor Bob Taft believed could
affect over 100,000 voters, on September 17, 2004, Secretary
Blackwell issued a directive restricting the ability of
voters to use provisional ballots. The Election Protection
Coalition testified that the narrow provisional ballot
directive led to thousands of ballots from validly registered
voters being thrown out because election officials with
limited resources never told many of the voters in their
jurisdictions where to cast a ballot on Election Day. While
the Help America Vote Act provided that voters whose names do
not appear on poll books are to sign affidavits certifying
that they are in the correct jurisdiction and to be given
provisional ballots, Secretary Blackwell considerably
narrowed the definition of ``jurisdiction'' to mean
``precinct.'' Alleging that allowing voters to use
provisional ballots outside their own precincts would be ``a
recipe for Election Day chaos,'' Secretary Blackwell required
such ballots to be cast in the actual precincts of voters
otherwise they would be discarded entirely. Mr. Blackwell's
rationalization appears to have ignored the fact that in
prior elections, Ohio was able to grant far broader rights to
provisional ballots, and that other states that permitted
voters to cast them from anywhere within their county did not
face the chaos he feared.
Because of Secretary Blackwell's restrictive order, the
Sandusky County Democratic Party filed a federal lawsuit to
overturn it. The plaintiff's basis for the suit was that the
order was discriminatory because lower-income people were
more likely to move and, thus, appear at the wrong precinct.
Furthermore, the order would have disenfranchised first-
time voters, many of whom would not know where to vote.
In his rulings in favor of the plaintiffs and against
Secretary Blackwell, U.S. District Judge James Carr held that
the blame lay squarely on Secretary Blackwell. The court was
forced to issue two rulings ordering Secretary Blackwell to
issue HAVA-compliant directives. Secretary Blackwell abided
by neither judgment and instead proceeded with directives
that would disenfranchise Ohio voters.
With respect to the speed of the case, the court noted that
its urgency was the result of Secretary Blackwell failing to
issue provisional voting guidelines for almost two years
after the enactment of HAVA: ``The exigencies requiring the
relief being ordered herein are due to the failure of the
defendant to fulfill his duty not only to this Court, as its
injunction directed him to do, but more importantly, to his
failure to do his duty as Secretary of State to ensure that
the election laws are upheld and enforced. . . . The primary
cause of the exigency is the defendant's failure to have
issued Directive 2004-33 relating to provisional voting for
nearly twenty-three months after HAVA's enactment. . . .
Blackwell has never explained why he waited so long to do
anything to bring Ohio's provisional election procedures into
line with federal law.''
The court then turned its attention to the substance of
Secretary Blackwell's original and amended directives. In
these directives, ``Blackwell described not a single
provision of federal law generally, much less HAVA in
particular. . . . By failing to discuss HAVA, on the one
hand, and describing only outmoded, no longer applicable
procedures on the other, Blackwell . . . left Ohio's election
officials more confused than they would have been if the
directive had not issued.'' In addition, because the amended
directive did not clearly state that persons who might not be
eligible to vote must be informed of their right to vote
provisionally, the court held that ``Blackwell's proposed
directive would disenfranchise all such individuals.'' The
court believed that, by seeming to deprive voters and county
election officials of valuable information regarding HAVA and
provisional ballots, ``Blackwell apparently seeks to
accomplish the same result in Ohio in 2004 that occurred in
Florida in 2000.'' Ultimately, the court was forced to
require the Secretary, within a tight deadline, to issue
specific guidelines pertaining to provisional ballots.
Instead of complying with this federal court order,
Secretary Blackwell entirely disregarded the ruling and
questioned the motives of the judge. He referred to Judge
Carr as ``a liberal judge . . . who wants to be co-secretary
of state.'' At a speech before the Loveland Area Chamber of
Commerce in Clermont County, Secretary Blackwell compared
himself to Mohandas Gandhi, Martin Luther King, and the
apostle Paul on the grounds that he would rather go to jail--
as they did--than issue an order he believed was illegal. He
also claimed his office could not speak with Judge Carr about
the case because the Judge was in Florida; Blackwell later
admitted he did not mean the Judge actually was in Florida.
Additionally, a journalist reported seeing Judge Carr in his
chambers the day the ruling was issued. Secretary Blackwell
appealed the judge's decision to the Sixth Circuit Court of
Appeals, which overturned the lower court decision and
authorized Mr. Blackwell's more restrictive legal
interpretation.
While Blackwell cited an October 12 resolution by the
Election Assistance Commission as authority for his decision,
EAC Chairman DeForest Soaries asked Blackwell in writing not
to say that the resolution endorsed the Blackwell order.
Chairman Soaries further stated that Secretary Blackwell was
the only secretary of state who actually misread the EAC's
ruling. The EAC did not ``agree that a person in the wrong
precinct shouldn't be given a provisional ballot. . . . The
purpose of provisional ballots is to not turn anyone away
from the polls. . . . We want as many votes to count as
possible.''
Many of Ohio's county boards of elections also disagreed
with Blackwell's interpretation of the law and with his
motivations. Franklin County Board Chairman William Anthony
stated, ``For him to come out with that decision so close to
Election Day . . . I'm suspect of his motivations.'' The
Director of the Franklin County Board also disagreed with
Blackwell and asserted that its precincts would have voters
who insist they are in the correct precinct sign affidavits
and submit provisional ballots. Cuyahoga County directed
people to the right precincts but still accepted provisional
ballots from anyone who insisted on voting. Cuyahoga County
Board Chairman Bob Bennett, who also chairs the Ohio
Republican Party, issued a statement saying the Board would
not deny ballots to voters who wanted them: ``The Cuyahoga
County Board of Elections will not turn voters away. . . . We
are simply trying to avoid confrontation at the ballot box
over the validity of each ballot. Those decisions will be
made by the board of elections according to state law.''
In response, Mr. Blackwell's spokesperson threatened such
election officials with removal from their positions.
In Hamilton County, election officials implemented Mr.
Blackwell's directive and refused to count provisional
ballots cast at the correct polling place even if they were
cast at the wrong table in that polling place. Some polling
places contained multiple precincts that were located at
different tables. As a result, 1,110 provisional ballots were
deemed invalid because people voted in the wrong precinct. In
about 40 percent of these cases, voters found the correct
polling places, which contained multiple precincts, but
workers directed them to the wrong table. In other areas,
precinct workers refused to give any voter a provisional
ballot. Also, in at least one precinct, election judges told
voters that they may validly cast their ballot in any
precinct, leading to any number of disqualified provisional
ballots. Similarly, in Stark County, the Election Board
rejected provisional ballots cast at the wrong precinct in
the right polling place. In earlier elections, a vote cast in
Stark County in the wrong precinct at the proper polling
location was counted.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
Mr. Blackwell's decision to restrict the use of provisional
ballots is one of the most critical in the election and could
well have resulted in disenfranchisement of tens of thousands
of voters. In a single polling place in Hamilton County,
denying provisional ballots if a voter showed up at the wrong
precinct cost more than 1,100 votes.
Although Mr. Blackwell's narrow interpretation was
ultimately upheld by the Sixth Circuit, this was not until
after a lower court found: ``The Proposed Directive fails in
many details to comply with HAVA by not instructing Ohio's
election workers about their duties under HAVA. Among the
crucial, but omitted details are: the mandatory obligation to
inform voters of the right to vote provisionally and the duty
to provide provisional ballots to all persons covered by the
statute, and not just to persons whose names are not on the
rolls.''
In our judgment, Mr. Blackwell's restrictive interpretation
violates the spirit, if not the letter, of HAVA. The decision
seems particularly unjust given that Ohio had not experienced
any notable difficulties giving provisional ballots on a
broader basis in past elections, and other states which
adopted broader constructions did not report the chaos and
confusion that Mr. Blackwell claimed to be the rationale for
his decision.
3. Cutting Back on the Right of Citizens To Register To Vote
Facts
On September 7, 2004, Secretary Blackwell issued a
directive to county boards of elections mandating rejection
of voter registration forms based on their paper weight.
Specifically, he instructed the boards to reject voter
registration forms not ``printed on white, uncoated paper of
not less than 80 lb. text weight.'' Then the counties were
instructed to follow a confusing procedure, treating the
voter registration forms not on this minimum paperweight as
an application for a new registration form. Mr. Blackwell's
issuance of this directive less than one month before Ohio's
voter registration deadline resulted in confusion and chaos
among the counties:
The Lake County Board of Elections Director, Jan Clair, who
happens to be a Republican, stated that the weight order
would ``create more confusion than the paper's worth. . . .
It's the weight of the vote I'm concerned about on Nov. 2--
that's the important thing.''
The Mahoning County Board of Elections Director, Michael
Sciortino, said mailing high weight registration paper to
voters was not a priority and might occur after the election
because of how it might confuse voters.
The Cuyahoga County Board of Elections Director, Michael
Vu, said his Board would rather not comply with the weight
order and asked state lawmakers to address it. Secretary
Blackwell gave permission for the Board to accept
registration forms that were printed in newsprint in the
Cleveland Plain Dealer.''' As Director Vu pointed out, his
office does not ``have a micrometer at each desk to check the
weight of the paper.''
Other counties such as Madison County followed Mr.
Blackwell's ruling and indicated that they sent letters and
new forms to voters.
The Franklin County Board of Elections was unlikely to
comply with the weight directive, largely because it does not
keep track of the weight of such forms.
The Lorain County Board of Elections accepted voter
registration on any weight of paper.
The Montgomery County Board of Elections said the paper
weight order was frustrating their ability to process
registrations. They attempted to comply by mailing a new form
to potential voters who sent forms of incorrect weight, but a
processing backlog of 4,000 forms prevented them from sending
new forms by the October 4 deadline, such that some voters
could have been disenfranchised. Steve Harsman, the Deputy
Director of the Board, says ``there is just no reason to use
80-pound paper.''
Finally, Secretary Blackwell was not following his own
order. An Ohio lawyer, John Stopa, noted that voter
registration forms obtained at Blackwell's office were
printed on 60-pound paper. An election board official stated
he obtained 70-pound weight forms from Blackwell's office.
After several weeks of pressure from voting rights
advocates, such as the League of Women Voters of Ohio and
People for the American Way, Secretary Blackwell reversed his
directive on September 28, 2004. Even his new order, however,
was not drafted clearly enough. He did not withdraw the first
directive, and the New York Times found the second directive
to be ``worded so inartfully that it could create confusion.
As a matter of fact, the Delaware County Board of Elections
posted a notice on its website stating it could not accept
its own Voter Registration Forms and directed voters to
request a new one by calling a number.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
Secretary Blackwell's directive to reject registration
applications based on paper weight, even though eventually
rescinded, undoubtedly had a negative impact on registration
figures. During the time period the directive was in place,
it likely resulted in an untold number of voters not being
registered in time for the 2004 election. In addition, even
after the directive was reconsidered, it was done so in a
confusing manner. For example, the directive continued to be
posted on the Ohio Secretary of State's website, and at least
one county, Delaware County, continued to post the directive
on its website as well.
Mr. Blackwell's initial directive appears to be
inconsistent with the National Voter Registration Act, which
put safeguards in place to ease voter registration, not
impede it. There is perhaps no more certain indication of the
disenfranchisement bias Secretary of State Blackwell brought
to his job than this controversial ruling, which was widely
reviled even by Republicans.
4. Targeting New Minority Voter Registrants--Caging
Facts
The Ohio Republican Party attempted to engage in
``caging,'' whereby it sent registered letters to newly
registered voters in minority and urban areas, and then
sought to challenge 35,000 individuals who refused to sign
for the letters or the mail otherwise came back as
undeliverable (this includes voters who were homeless,
serving abroad, or simply did not want to sign for something
concerning the Republican Party). Mark Weaver, an attorney
for the Ohio Republican Party, acknowledged the Party used
this technique. During a hearing before the Summit County
Board of Elections, a challenger admitted that she had no
knowledge to substantiate her claim that the voters she was
challenging were out of compliance with Ohio's election law:
Ms. Barbara MILLER (Republican Challenger): That was my
impression that these items that I signed were for people
whose mail had been undeliverable for several times, and that
they did not live at the residence.
Mr. Russell PRY (Member, Summit County Board of Elections):
Did you personally send any mail to Ms. Herrold?
Ms. MILLER: No, I did not.
Mr. PRY: Have you seen any mail that was returned to Ms.
Herrold?
Ms. MILLER: No, I have not.
Mr. PRY: Do you have any personal knowledge as we stand
here today that Ms. Herrold does not live at the address at
238 30th Street Northwest?
Ms. MILLER: Only that which was my impression; that their
mail had not been able to be delivered.
Mr. PRY: And who gave you that impression?
Ms. MILLER: Attorney Jim Simon.
Mr. PRY: And what did--
Ms. MILLER: He's an officer of the party.
Mr. PRY: An officer of which party?
Ms. MILLER: Republican party.
Mr. PRY: Where did you complete this challenge form at?
Ms. MILLER: My home.
Mr. PRY: What did Mr. Simon tell you with respect to Ms.
Herrold's residence?
Ms. MILLER: That the mail had come back undeliverable
several times from that residence.
Mr. PRY: And you never saw the returned mail?
Ms. MILLER: No, I did not.
Mr. PRY: Now, you've indicated that you signed this based
on some personal knowledge.
Mr. HUTCHINSON: (Joseph F. Hutchinson, Jr. Summit County
Board of Elections) No.
Mr. ARSHINKOFF: (Alex R. Arshinkoff, Summit County Board of
Elections) Reason to believe. It says, ``I have reason to
believe.'' It says it on the form.
Mr. JONES: It says, ``I hereby declare under penalty of
election falsification, that the statements above are true as
I verily believe.''
Mr. ARSHINKOFF: It says here, ``I have reason to believe.''
Mr. HUTCHINSON: It says what it says.
Mr. ARSHINKOFF: You want her indicted, get her indicted.
Mr. PRY: That may be where it goes next.
Among other things, the Republican Party arranged for the
Sandusky County sheriff to visit the residences of 67 voters
with wrong or non-existent addresses.
The caging tactics were so problematic that a federal
district court in New Jersey and a panel of the Third Circuit
found that the Republican Party was egregiously in violation
of the 1982 and 1987 decrees that barred the party from
targeting minority voters for challenges at the polls. They
found sufficient evidence that the Ohio Republican Party and
the RNC conspired to be ``disruptive'' in minority-majority
districts and enjoined the party from using the list. The
Third Circuit granted a hearing en banc and therefore
stayed the order and vacated the opinion.
The U.S. District Court for the Southern District of Ohio
found the same activities to violate the Due Process Clause
of the Constitution. Most importantly, notice of the
Republican-intended challenge and subsequent hearing was sent
to the 35,000 voters far too late to be of any use to the
challengee. In fact, the notice was sent so late, that many
did not receive it before the election at all, and the court
found that ineffective notice must have been the intent:
``The Defendants' intended timing and manner of sending
notice is not reasonably calculated to apprise Plaintiff
Voters of the hearing regarding the challenge to their
registrations, nor to give the them opportunity to present
their objections, as demonstrated by the individual
situations of Plaintiffs Miller and Haddix . . . it seems
that Defendants intend to send the notice to an address which
has already been demonstrated to be faulty.''
The court also found that the challenge statute in general
was not narrowly tailored enough justify the ``severe''
burden on voters. While the state's interest in preventing
fraudulent voting was compelling, there were other ways to do
that besides allowing partisan groups to arbitrarily
challenge voters.
Analysis
Although the ``caging'' tactics targeting 35,000 new voters
by the Ohio Republican Party were eventually struck down, it
is likely they had a negative impact on the inclination of
minorities to vote, although, it is difficult to develop a
specific estimate.
The caging tactics were clearly both discriminatory and
illegal. All three district court cases ruled in favor of the
plaintiffs, finding the challenges to be politically and
racially charged, and burdening the fundamental right to
vote. As one court stated, ``This Court recognizes that the
right to vote is one of our most fundamental rights.
Potential voter intimidation would severely burden the right
to vote. Therefore, the character and magnitude of
Plaintiffs' asserted injury is substantial.'' It went on to
note that the right to vote is paramount to any interest in
challenging other people: ``. . . Plaintiff's right to cast
votes on election day is a fundamental right. The
challengers, however, do not have a fundamental right to
challenge other voters. These decisions correctly overturned
these caging and challenging activities because they violated
the right to equal protection, due process, and Ohioans'
fundamental right to vote.
Ralph Neas, President of the People for the American Way
Foundation, emphasized the seriousness of these tactics when
he testified that ``the 35,000 people that were threatened
with being challenged. That's not the spirit of democracy;
that's the spirit of suppression. [The Republican Party] did
everything to minimize the vote in the urban areas and to
engage in voter suppression, and I hope the hearings really
emphasize this. I think that prosecution is something that
should be considered with respect to what happened in Ohio.''
5. Targeting Minority and Urban Voters for Legal Challenges
Facts
The Ohio Republican Party, which Secretary Blackwell helped
lead as Chair of the Bush-Cheney campaign in Ohio, engaged in
a massive campaign to challenge minority voters at the polls.
The Republican Party lined up poll challengers for 30 of
Ohio's 88 counties, and the vast majority were focused in
minority and urban areas. In addition to intimidating
minority voters, this scheme helped lead to increased delays
and longer waits in voting lines in these areas. This was a
particularly damaging outcome on a day of severe adverse
weather in Ohio. As a federal court looking at these issues
concluded: if challenges are made with any frequency, the
resultant distraction and delay could give rise to chaos
and a level of voter frustration that would turn qualified
electors away from the polls.
Three separate courts issued opinions expressing serious
concerns with Ohio's voter challenge processes. At the state
level, Cuyahoga County Common Pleas Judge John O'Donnell
found that Secretary Blackwell exceeded his authority in
issuing a directive that let each political party have
multiple challengers at each polling place. While the
Democratic Party registered only one challenger per polling
place, the Republican Party had registered one challenger for
each precinct (there are multiple precincts in many polling
places). Judge O'Donnell found the directive to be
``unlawful, arbitrary, unreasonable and unconscionable,
coming four days after the deadline for partisan challengers
to register with their county boards of elections.'' An
attorney with the Ohio Attorney General's office, Jeffrey
Hastings, admitted to Judge O'Donnell that Secretary
Blackwell had changed his mind in first limiting challengers
to one per polling place and then, after the October 22
challenger registration deadline, allowing multiple
challengers.
Two federal district court judges also found the challenge
procedure to be problematic and tantamount to voter
disenfranchisement. In one lawsuit, the plaintiffs were
Donald and Marian Spencer, an elderly African-American couple
who alleged the challenge statute harkened back to Jim Crow
disenfranchisement. In her opinion rejecting the GOP
challenger system, U.S. District Court Judge Susan Dlott
wrote that ``there exists an enormous risk of chaos, delay,
intimidation and pandemonium inside the polls and in the
lines out the door.'' In the other district court case,
Summit County Democratic Central and Executive Committee, et.
al. v. Blackwell, Judge John R. Adams noted the risk that
``the integrity of the election may be irreparably harmed.''
``If challenges are made with any frequency,'' he wrote,
``the resultant distraction and delay could give rise to
chaos and a level of voter frustration that would turn
qualified electors away from the polls.''
Judge Dlott also noted the racial disparity inherent in
challenges, citing that only 14% of new voters in white areas
would face challenges while up to 97% of new voters in black
areas would face them. The Chair of the Hamilton County Board
of Elections, Timothy Burke, was an official defendant in the
lawsuit but testified the use of the challenges was
unprecedented. Chairman Burke stated that the Republican
Party had planned for challengers at 251 of Hamilton County's
1013 precincts; 250 of the challenged precincts have
significant black populations.
Both federal courts blocking the use of challengers
highlighted that challengers were not needed because Ohio law
already safeguarded elections from voter fraud by the use of
election judges. In particular, Ohio law mandates that four
election judges staff each polling place and provides that
the presiding judge of each group can make decisions
regarding voter qualifications.
Although Secretary Blackwell reversed his position and
issued a statement on October 29, 2004, excluding challengers
from polling places, his position became less relevant when
Jim Petro, Ohio's Attorney General, argued in favor of the
challenges taking place and said the Secretary's new
statement was unlawful. Seeing the irony in these conflicting
opinions, Judge Dlott asked ``how can the average election
official or inexperienced challenger be expected to
understand the challenge process if the two top election
officials cannot?''
These two lower court rulings did not stand. The Sixth
Circuit Court of Appeals reversed the two lower court
opinions on a 2-1 vote. The Supreme Court of the United
States denied the applications to vacate the 6th Circuit's
stays of the lower court rulings. While troubled about the
``undoubtedly serious'' accusation of voter intimidation,
Justice John Paul Stevens said the full Court could not
consider the case because there was insufficient time to
properly review the filings and submissions.
Analysis
The decision by the Ohio Republican Party to utilize
thousands of partisan challengers in the voting booths
undoubtedly had an intimidating and negative impact on
minority voters. While it is difficult to estimate how many
voters were disenfranchised by the
challenger program, given the adverse weather conditions and
the lack of trained pollworkers, the disruptions caused by
challengers could easily have reduced minority turnout by
tens of thousands of voters, if not more. It is noteworthy
that these disruptions were predicted by Republican
officials: ``Mark Weaver, a lawyer for the Ohio Republican
Party, acknowledged, `[the challenges] won't be resolved
until [Election Day], when all of these people are trying to
vote. It can't help but create chaos, longer lines and
frustration.' He reiterated that `challengers at the polls]
were bound to slow things down.' '' This will lead to long
lines.
While the program of challenging voters was ultimately
upheld, after a series of back and forth decisions, clearly
this is an issue which harkens back to the ``Jim Crow'' era.
As U.S. District Court Judge John R. Adams wrote in his
Summit County opinion: ``In light of these extraordinary
circumstances, and the contentious nature of the imminent
election, the Court cannot and must not turn a blind eye to
the substantial likelihood that significant harm will result
not only to voters, but also to the voting process itself, if
appointed challengers are permitted at the polls on November
2. . . . The presence of appointed challengers at the polls
could significantly impede the electoral process, and
infringe on the rights of qualified voters.''
As a result, the Ohio challenger system deserves
reconsideration by the legislature or further judicial
appeal.
6. Denying Absentee Voters Who Never Got Their Ballots the Right to a
Provisional Ballot
Facts
Secretary Blackwell also issued a ruling preventing the
issuance of provisional ballots for voters who requested
absentee ballots, even if they failed to receive them by the
official deadline or did not receive them at all. Despite the
fact that these errors occurred on the part of the Ohio
government and not the voters, Secretary Blackwell determined
they should not receive provisional ballots at the polls.
A lawsuit filed by a college student, Sara White, who never
received her absentee ballot and was denied a provisional
one, led to a ruling that other similar voters must be
issued provisional ballots. The court ordered Lucas County
to start providing provisional ballots, and directed
Secretary Blackwell to advise all Boards of Elections of
the same within 30 minutes. The legal ruling overturning
Mr. Blackwell's restrictive ruling on absentee ballots
came late in the afternoon, and as a result, many voters
intending to vote that day were prevented from doing so.
Analysis
Mr. Blackwell's decision to prevent those voters who
requested absentee ballots, but did not receive them on a
timely basis, from being able to vote, also likely
disenfranchised many voters, particularly seniors who were
turned away from the polls before the decision was known.
The federal court found that Mr. Blackwell's decision
clearly violated HAVA: ``HAVA is clear; that all those who
appear at a polling place and assert their eligibility to
vote irrespective of the fact that their eligibility may be
subject to question by the people at the polling place or by
the Board of Elections, shall be issued a provisional
ballot.'' In addition, this restrictive directive also likely
constituted violations of Article S, Section 1 of the Ohio
Constitution, granting every Ohio citizen the right to vote
if he or she is otherwise qualified.
7. Denying Access to the News Media
Facts
Secretary Blackwell also sought to prevent the news media
and exit poll takers from locating themselves within 100 feet
of polling places. This would have been the first time in
thirty years in which reporters were prevented from
monitoring polls. Media organizations challenged the barrier,
leading to a U.S. Court of Appeals for the Sixth Circuit
ruling that struck down Secretary Blackwell's decision. In
its opinion, the court noted that ``democracies die behind
closed doors'' and found that the district court's ruling had
``interpreted and applied the statute overly broadly in such
a way that the statute would be violative of the first
amendment''.
Analysis
Mr. Blackwell's decision to prevent news media and exit
polls from interviewing Ohio citizens after they voted
constitutes a clear violation of the First Amendment's
guarantee that state conduct shall not abridge ``freedom . .
. of the press.'' His decision also likely violated Ohio's
own Constitution that provides: ``Every citizen may freely
speak, write, and publish his sentiments on all subjects,
being responsible for the abuse of the right; and no law
shall be passed to restrain or abridge the liberty of speech,
or of the press.'' His decision does not appear to have had
any negative impact on the vote, but potentially made it more
difficult for the media to uncover voting irregularities,
discrepancies, and disenfranchisement.
B. Election Day
1. County-Specific Issues
Warren County--Counting in Secret Because of a Terrorist Threat?
Facts
On election night, Warren County, a traditional Republican
stronghold, locked down its administration building and
barred reporters from observing the counting. When that
decision was questioned, County officials claimed they were
responding to a terrorist threat that ranked a ``10'' on a
scale of 1 to 10, and that this information was received from
an FBI agent. Despite repeated requests, County officials
have declined to name that agent, however, and the FBI has
stated that it had no information about a terror threat in
Warren County.
Warren County officials have given conflicting accounts of
when the decision was made to lock down the building. While
the County Commissioner has stated that the decision to lock
down the building was made during an October 28 closed-door
meeting, e-mailed memos--dated October 25 and 26--indicate
that preparations for the lockdown were already underway.
Statements also describe how ballots were left unguarded
and unprotected in a warehouse on Election Day, and they were
hastily moved after county officials received complaints.
It is important to view the lockdown in the context of the
aberrant results in Warren County. An analyst who has
received all the vote data for 2000 and 2004 by precinct in
several Ohio counties did a detailed analysis of the greatest
increase in votes for President Bush by precinct, and the
Bush-Kerry margin in Warren County. The analyst revealed that
Warren County first did a lockdown to count the votes, then
apparently did another lockdown to recount the votes later,
resulting in an even greater Bush margin and very unusual new
patterns.
Moreover, in the 2000 Presidential election, the Democratic
Presidential candidate, Al Gore, stopped running television
commercials and pulled resources out of Ohio weeks before the
election. He won 28% of the vote in Warren County 223 In
2004, the Democratic Presidential candidate, John Kerry,
fiercely contested Ohio and independent groups also put
considerable resources into getting out the Democratic vote.
Moreover, unlike in 2000, independent candidate Ralph Nader
was not on the Ohio ballot in 2004. Yet, the tallies reflect
John Kerry receiving exactly the same percentage, 28 percent,
in Warren County as Gore received.
In support of his assertion that there was no wrongdoing in
Warren County, Secretary Blackwell has referred to a
Democratic election observer in Warren County, Jeff Ruppert,
who has said he observed nothing inappropriate at the County
administration building. While we have no reason to doubt Mr.
Ruppert's truthful account of what he actually observed, a
complete review of his statements shows numerous problems at
the building. At the outset, Mr. Ruppert acknowledges that he
was subject to the lockout and had to present identification
to even be admitted to the building. Once he gained
admission, Mr. Ruppert said he did ``have concerns over how
provisional ballots were handled at polling places--which he
said seemed to be inconsistent.'' He also points to a number
of areas he observed that were centers of activity (ballots
being transferred from vehicles, precinct captains
accompanying ballots in elevators, and ballots being stored),
but it clearly would have been impossible for Mr. Ruppert to
observe all of these activities at the same time. Finally,
considering that he left before the ballot count was
completed, it is inaccurate to state with certainty that
there were no problems in Warren County.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
Given the total lack of explanation by Mr. Blackwell or
Warren County officials, it is not implausible to assume that
someone is hiding something. We do not know whether what
happened is simply a miscommunication or mix up, where an
election official misunderstood an FBI directive. If that
were the case, it would seem to be an easy matter to dispel
the confusion surrounding this episode. Given that no such
explanation has been forthcoming and given the statistical
anomalies in the Warren County results, it is impossible to
rule out the possibility that some sort of manipulation of
the tallies occurred on election night in the locked down
facility. The disclosure that the decision to lock down the
facility the Thursday before the election, rather than on
election day would suggest the lockdown was a political
decision, not a true security risk. If that was the case, it
would be a violation of the constitutional guarantees of
equal protection and due process, the Voting Rights Act, and
Ohio right to vote. We believe it is the statutory duty for
the Secretary of State to investigate irregularities of this
nature.
Mahoning County--Innumerable Flipped Votes and Extra Votes
Facts
We have received numerous reports of transfers of votes for
Senator Kerry to votes for President Bush. Specifically, in
Youngstown, the Washington Post reported that their
investigation revealed 25 electronic machines transferred an
unknown number of Kerry votes to the Bush column. Jeanne
White, a veteran voter and manager at the Buckeye Review, an
African American newspaper, stepped into the booth, pushed
the button for Kerry--and watched her vote jump to the Bush
column. ``I saw what happened; I started screaming: `They're
cheating again and they're starting early!' '' The Election
Protection Coalition also confirmed
these voting ``glitches'' noting that a ``voter reported
`Every time I tried to vote for the Democratic Party
Presidential vote the machine went blank. I had to keep
trying, it took 5 times.' ''
The voting machine in Youngstown experienced what election
officials called ``calibration problems.'' Thomas McCabe,
Deputy Director of the Mahoning County Board of Elections,
stated that the problem ``happens every election'' and
``[i]t's something we have to live with and we can fix it.''
There is also information, still being investigated, that
in several precincts, there were more votes counted by
machine than signatures in poll books (which includes
absentee voters). This would mean that more people voted by
machine at a precinct than actually appeared at that
location. For example, in CMP 4C Precinct, there were 279
signatures and 280 machine votes. In BLV 1 Precinct, there
were 396 signatures but 398 machine votes. In AUS 12
Precinct, there were 372 signatures but 376 machine votes. In
POT 1 Precinct, there were 479 signatures but 482 machine
votes, and in YGN 6F Precinct, there were 270 signatures but
273 machine votes. It would appear from these numbers that
the machines counted more votes than voters.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
Evidence strongly suggests many individuals voting in
Mahoning County for Senator Kerry had their votes recorded
for President Bush. Due to lack of cooperation from Secretary
of State Blackwell, we have not been able to ascertain the
number of votes that were impacted or whether the machines
malfunctioned due to intentional manipulation or error. This
determination would help us determine if the Voting Rights
Act was also violated. Ascertaining the precise cause and
culprit could help ensure that the error does not occur in
the future. Secretary of State Blackwell's apparent failure
to initiate any investigation into this serious computer
error would seem inconsistent with his statutory duty to
review these matters.
Butler County--The Strange Case of the Downballot Candidate
Outperforming the Presidential Candidate
In Butler County, a Democratic candidate for State Supreme
Court, C. Ellen Connally, received 59,532 votes. In contrast,
the Kerry-Edwards ticket received only 54,185 votes, 5,000
less than the State Supreme Court candidate. Additionally,
the victorious Republican candidate for State Supreme Court
received approximately 40,000 less votes than the Bush-Cheney
ticket. Further, Connally received 10,000 or more votes in
excess of Kerry's total number of votes in five counties and
5,000 more votes in excess of Kerry's total in ten others.
According to media reports of Ohio judicial races,
Republican judicial candidates were ``awash in cash,'' with
more than $1.4 million in campaign funding, as well as
additional independent expenditures made by the Ohio Chamber
of Commerce.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
It appears implausible that 5,000 voters waited in line to
cast votes for an underfunded Democratic Supreme Court
candidate and then declined to cast a vote for the most well-
funded Democratic Presidential campaign in history. We have
been able to ascertain no answer to the question of how an
underfunded Democratic State Supreme Court candidate could
receive such a disproportionately large number of votes in
Butler County over the Kerry Edwards ticket. This raises the
possibility that thousands votes for Senator Kerry were lost,
either through manipulation or mistake. The loss of these
votes would likely violate constitutional protections of
equal protection and due process; if manipulation is
involved, that would also violate the Voting Rights Act and
Ohio election law. This anomaly calls for an investigation,
which Mr. Blackwell has failed to initiate.
Cuyahoga County--Palm Beach County for Pat Buchanan-Redux?
Facts
It has been well documented that a flawed Palm Beach County
ballot design in the 2000 Florida Presidential election may
well have cost Al Gore thousands of votes, by misrecording
such votes as votes for Pat Buchanan. A similar problem may
well have occurred in Cleveland in 2004.
Precincts in Cleveland have reported an incredibly high
number of votes for third party candidates who have
historically received only a handful of votes from these
urban areas. For example, precinct 4F in the 4th Ward cast
290 votes for Kerry, 21 for Bush, and 215 for Constitution
Party candidate Michael Peroutka. In 2000, the same precinct
cast less than 8 voters for all third party candidates
combined. This pattern is found in at least 10
precincts throughout Cleveland in 2004, awarding hundreds
of unlikely votes to the third party candidate. Notably,
these precincts share more than a strong Democratic
history; they share the use of a punch card ballot. This
problem was created by the combination of polling sites
for multiple precincts, coupled with incorrect information
provided by poll workers.
In Cuyahoga County, each precinct rotates candidate ballot
position. Therefore, each ballot must go into a machine
calibrated for its own precinct in order for the voter's
intent to be counted. In these anomalous precincts, ballots
were fed into the wrong machine, switching Kerry votes into
third party votes. This was done on the advice of poll
workers who told voters that they could insert their ballots
into any open machine--and machines were not clearly marked
indicating that they would work only for their designated
precinct.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
It appears that hundreds, if not thousands, of votes
intended to be cast for Senator Kerry were recorded as being
for a third party candidate. At this point it is unclear
whether these voting errors resulted from worker negligence
and error or intentional manipulation. While Cuyahoga County
election official Michael Vu said he would investigate, there
has been no further explanation about what will be done to
remedy this situation, and Secretary of State Blackwell has
refused to cooperate in our investigation or pursue his own
inquiry. In any event, those voters whose votes were not
properly counted suffered a violation of their constitutional
protections of equal protection and due process; if
intentional manipulation is involved, this would also
implicate the Voting Rights Act and Ohio election law.
Franklin County (Gahana)--How does a computer give George W. Bush
nearly 4,000 extra votes?
Facts
On election day, a computerized voting machine in ward 1B
in the Gahana precinct of Franklin County recorded a total of
4,258 votes for President Bush and 260 votes for Democratic
challenger John Kerry. However, there are only 800 registered
voters in that Gahana precinct, and only 638 people cast
votes at the New Life Church polling site. It has since been
discovered that a computer glitch resulted in the recording
of 3,893 extra votes for President George W. Bush--the
numbers were adjusted to show President Bush's true vote
count at 365 votes and Senator Kerry's at 260 votes.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
At this point it is unclear whether the computer glitch was
intentional or not, as we have received no cooperation from
Secretary Blackwell or other authorities in resolving the
question. In order to resolve this issue for future
elections, it must be determined how it was initially
discovered that such a computer glitch did and could occur
and what procedures were employed to alert other counties
upon the discovery of the malfunction. Further, a
determination should be made as to whether we can be
absolutely certain that this particular malfunction did not
occur in other counties in Ohio during the 2004 Presidential
election, and what actions have been taken to ensure that
this type of malfunction does not happen in the future.
Miami County--Where did nearly 20,000 extra votes for George W. Bush
come from?
Facts
In Miami County, voter turnout was a highly suspect and
improbable 98.55 percent. With 100% of the precincts
reporting on Wednesday, November 3, 2004, President Bush
received 20,807 votes, or 65.80% of the vote, and Senator
Kerry received 10,724 votes, or 33.92% of the vote. Thus,
Miami reported a total of 31,620 voters. Inexplicably, nearly
19,000 new ballots were added after all precincts reported,
boosting President Bush's vote count to 33,039, or 65.77%,
while Senator Kerry's vote percentage stayed exactly the same
to three one-hundredths of a percentage point at 33.92
percent. Roger Kearney of Rhombus Technologies, Ltd., the
reporting company responsible for vote results of Miami
County, stated that the problem was not with his reporting
and that the additional 19,000 votes were added before 100%
of the precincts were in.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
Mr. Kearney's statement does not explain how the vote count
could change for President Bush, but not for Senator Kerry,
after 19,000 new votes were added to the roster. Thus, we are
primarily concerned with identifying a valid explanation for
the statistical anomaly that showed virtually identical
ratios after the final 20-40% of the votes were counted.
Specifically, we have received no explanation as to how the
vote count in this particular county could have changed for
President Bush, but not for Senator Kerry,
after 19,000 new votes were added to the roster. The vote
results in Miami constitute yet another significant anomaly
in the tens of thousands range without any explanation or
investigation by Secretary of State Blackwell, leading us to
conclude that there is likely some vote error or vote
manipulation. This could constitute a violation of
constitutional guarantees of equal protection and due process
and, if intentional, would likely violate the Voting Rights
Act and Ohio election law.
Perry County--Discrepancy in Number of Votes and Voters
Facts
The House Judiciary Committee Democratic staff has received
information indicating discrepancies in vote tabulations in
Perry County. Similar discrepancies have been found in other
counties. For example, in Trumbull County there are
apparently more absentee votes than absentee voters according
to a recent study. For example, the sign-in book for the
Reading S precinct indicates that approximately 360 voters
cast ballots in that precinct. In the same precinct, the
sign-in book indicates that there were 33 absentee votes
cast. In sum, this would appear to mean that fewer than 400
total votes were cast in that precinct. Yet, the precinct's
official tallies indicate that 489 votes were cast. In
addition, some voters' names have two ballot stub numbers
listed next to their entries, creating the appearance that
voters were allowed to cast more than one ballot.
In another precinct in Perry County, W Lexington G AB, 350
voters are registered according to the County's initial
tallies. Yet, 434 voters cast ballots. As the tallies
indicate, this would be an impossible 124% voter turnout. The
breakdown on election night was initially reported to be 174
votes for Bush, and 246 votes for Kerry. We are advised that
the Perry County Board of Elections has since issued a
correction claiming that, due to a computer error, some votes
were counted twice. We are advised that the new tallies state
that only 224 people voted, and the tally is 90 votes for
Bush and 127 votes for Kerry. This would make it appear that
virtually every ballot was counted twice, which seems
improbable.
In Madison Township, Precinct AAS, a review of the poll
books shows that 481 people signed in to vote on election
day, yet the Perry County Board of Elections is reporting
that 493 votes were cast in that precinct, a difference of 13
votes. The same discrepancy appears with respect to Monroe
Township AAV. The poll books show that 384 people signed in
on election day to vote, while the Perry County Board of
Elections reports that 393 votes were cast, a difference of 9
votes.
We have also received information that in at least three
precincts, Pike West AAY, New Lexington I AB, and Redfield
AAC, more signatures appear in the sign-in books than votes
cast. This would indicate that votes may have been thrown
out.
In Perry County, there appears to be an extraordinarily
high level of 91% voter registration; yet, a substantial
number of these voters have never voted and have no signature
on file. Of the voters that are registered in Perry County,
an extraordinarily large number of voters are listed as
having registered in 1977, a year in which there were no
federal elections. Of these, an exceptional number are listed
as having registered on the exact same day: in total, 3,100
voters apparently registered in Perry County on November 8,
1977.
In addition, according to a Democratic staff count of the
poll books, there are approximately 751 registered voters in
Madison Township AAS, while the Perry County Board of
Elections reports that there are 850 registered voters in
that township.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
Clearly, there is an unexplained discrepancy between the
actual vote tallies and the number of registered voters in
various precincts as well as other statistical anomalies in
the County. Given the lack of any explanation to date, and an
absence of willingness by Secretary Blackwell or any other
authorities to explain or investigate these irregularities,
it is not inconceivable that some sort of vote tampering has
occurred. If so, that would likely constitute a denial of the
constitutional guarantees of equal protection and due
process, the Voting Rights Act, and Ohio election law.
Republicans in the State of Washington are currently citing
such ``mystery voters'' as evidence of fraud. The State
Republican Chairman has commented, ``people ask me what fraud
would look like? It would look like this.
2. Myriad Other Problems and Irregularities
We learned of literally thousands upon thousands of
additional irregularities in Ohio. As a matter of fact, the
Election Protection Commission has testified that to date,
there have been over 3,300 incidents of voting irregularities
entered for Ohio alone. The following is a brief highlight of
some of the more egregious irregularities we have learned of
during the course of our investigation:
a. Intimidation and Misinformation
Facts
In the course of our hearings we learned:
The NAACP testified that it received over 200 calls
regarding incidents of suspected voter intimidation or
unusual election related activities, particularly actions
taken by challengers who intimidated poll workers and voters.
Other specific incidents involved a caller who reported that
someone was going door-to-door telling people they were not
registered to vote. A voter in Franklin County received
information in the mail identified as being from the state
that said he would have to vote by provisional ballot because
he had moved; in fact, the voter had not moved and had lived
at the address for 10-15 years. One polling place worker was
only asking African American voters for their address. A new
voter was told that there were vote challengers at her
precinct. When she was voting, she was confused by the punch
cards. She was afraid to ask poll workers for help for fear
that she would be challenged. Vote challengers were demanding
that voters provide ID, leading many people to leave. This
egregious behavior should be curtailed by the state.
In Franklin County, a worker at the Holiday Inn observed a
team of 25 people who called themselves the ``Texas Strike
Force'' using payphones to make intimidating calls to likely
voters, targeting people recently in the prison system. The
``Texas Strike Force'' members paid their way to Ohio, but
their hotel accommodations were paid for by the Ohio
Republican Party, whose headquarters is across the street.
The hotel worker heard one caller threaten a likely voter
with being reported to the FBI and returning to jail if he
voted. Another hotel worker called the police, who came but
did nothing.
Phone calls incorrectly informed voters that their polling
place had changed.
The Cleveland Plain Dealer found that several Lake County
residents received an official-looking letter on Board of
Elections letterhead informing them that their polling place
had changed or that they were not properly registered to
vote.
On election day, a fake voter bulletin from Franklin County
Board of Elections was posted at polling locations, and
fliers were distributed in the inner city, telling
Republicans to vote on Tuesday and Democrats to vote on
Wednesday due to unexpected heavy voter registration.
In Cleveland, the Washington Post reported that unknown
volunteers began showing up at voters' doors illegally
offering to collect and deliver complete absentee ballots to
the election office.
The Election Protection Coalition testified that in
Franklin County, voters received fliers informing them that
they could cast a ballot on November 3.
In Franklin County there were reports that about a dozen
voters were contacted by someone claiming to be from the
county board of elections, telling them their voting location
was changed.
``Door-hangers'' telling African-American voters to go to
the wrong precinct were distributed.
Analysis
The use of intimidation and misinformation in Ohio on
election day was widespread and pervasive and clearly
suppressed the vote. The NAACP testified that they received
over 200 complaints of such acts in Ohio, so it is likely the
actual number of incidents ranged in the thousands, if not
higher. It is difficult to estimate how many of these
incidents actually resulted in lost votes.
These incidents of voter intimidation and misinformation
clearly violate the Voting Rights Act, the Civil Rights Act
of 1968, Equal Protection, Due Process and the Ohio right to
vote. The fact that Secretary Blackwell did not initiate a
single investigation into these many serious allegations may
represent a violation of his statutory duty to investigate
election irregularities. Cases of intimidation and
misinformation such as we have seen in Ohio appear to have
become a regular feature of our election landscape and would
appear to warrant the development of a stronger investigative
and law enforcement system than we have at present, at both
the state and federal levels.
b. Machine Irregularities
Facts
In the course of our hearings we learned:
In Auglaize County, there were voting machine errors. In a
letter dated October 21, 2004, Ken Nuss, former deputy
director of the County Board of Elections, claimed that Joe
McGinnis, a former employee of ES&S, the company that
provides the voting systems in Auglaize County, had access to
and used the main computer that is used to create the ballot
and compile election results. Mr. McGinnis's access to and
use of the main computer was a violation of county board of
election protocol. After calling attention to this
irregularity in the voting system, Mr. Nuss was suspended and
then resigned.
In Cuyahoga County and Franklin County, there were voting
machine errors with respect to absentee ballots. The arrows
on the absentee ballots did not align with the correct punch
hole. This likely led to voters casting a vote for a
candidate other than the candidate they intended to support.
In Mahoning County, one precinct in Youngstown recorded a
negative 25 million votes.
In Mercer County, one voting machine showed that 289 people
cast punch card ballots, but only 51 votes were recorded for
president. The county's website appeared to
show a similar anomaly, reporting that 51,818 people cast
ballots but only 47,768 ballots were recorded in the
presidential race, including 61 write-ins, meaning that
approximately 4,000 votes, or nearly 7%, were not counted for
a presidential candidate.
At our Washington, D.C. hearing, investigative journalist
Bob Fitrakis highlighted malfunctions in Lucas County: ``When
the machines in Lucas County, which is a heavily Democratic
county, when they are locked in the principal's office and
nobody may vote at that site; when they're going wrong all
day, and the [Lucas County Election Director Paula Hicks-
Hudson] admits the test failed prior to that, and the
software is provided, of course, by Diebold, whose CEO,
Walden O'Dell, is a member of President Bush's Pioneer and
Ranger team, has visited the Crawford ranch and wrote a
letter promising to deliver the electoral votes of Ohio, one
has to be somewhat suspect.
In Hamilton County, the Washington Post learned many
absentee ballots did not include Kerry's name because workers
accidentally removed Kerry when removing Ralph Nader's name
from the ballots.
Analysis
There is no doubt that there were a number of machine
irregularities and glitches in the election, beyond the major
discrepancies highlighted earlier in our report However, it
is difficult for us to quantify the number of votes that were
altered or affected by these irregularities.
Given the lack of cooperation we have received from the
Secretary of State's office, it is difficult for us to
ascertain whether the glitches were the result of mistake,
negligence, or intentional misconduct. Depending on the type
of misconduct involved, these errors may constitute
violations of the Voting Rights Act, Equal Protection and
Due Process, and Ohio's right to vote. Morever, it would
appear that Secretary Blackwell's apparent failure to
follow-up on these machine errors by way of an
investigation would violate his duty to investigate
election law irregularities.
The role of voting machines and computers in our election
represents an increasingly serious issue in our democracy.
Our concerns are exacerbated by the fact that there are very
few companies who manufacture and operate voting machines,
and they tend to be controlled by executives who donate
largely, if not exclusively, to the Republican Party and
Republican candidates. Issues such as the need for verifiable
paper trails and greater accountability all warrant further
investigation and possibly legislation.
c. Registration Irregularities and Official Misconduct and
Errors
Facts
In the course of our hearings we learned:
A Washington Post investigation found that many longtime
voters discovered their registrations had been purged.
Numerous voters were incorrectly listed on roster as
felons, and thus not allowed to vote.
The NAACP testified to receiving over 1,000 calls related
to voter registration issues, generally from individuals who
were not on the voter rolls even though they had voted in
previous elections, individuals with questions on how to
register, and individuals with concerns about not receiving a
voter registration card.
The Election Protection Coalition found that ``Individuals
frequently reported having `disappeared' from the voter rolls
. . . Many individuals expressed concerns that they had
registered but never received confirmation or were not listed
on the voter rolls at the precincts.''
At our Columbus, Ohio hearing, several documented problems
in Cuyahoga County were brought to our attention by the
Greater Cleveland Voter Registration Coalition (GCVRC). GCVRC
registered approximately 10,000 voters before the 2004
elections, yet when they tracked the registrations, 3.5% were
either not entered at all or entered incorrectly, completely
disenfranchising the applicants. While the board of Cuyahoga
County was alerted to this problem as early as September, no
corrective measures were taken. Projected out county-wide,
over 10,000 people were likely not correctly registered and
lost their right to vote. These registration problems led to
provisional ballots being thrown out.
The NAACP reported that many voters complained they were
asked to show ID when they thought it was unnecessary or were
unable to vote because they lacked proper ID. At several
locations in Cuyahoga County, all voters were being asked for
ID, not just new voters. A voter called to say that all
voters are being asked for ID. The poll workers were checking
the address of the voter against the address on the
registration and if they did not match, the voter was being
turned away, often without casting a provisional ballot. In
still another case, a voter was challenged because the
address on the ID did not match the registration address (but
was in the same precinct).
There were numerous cases where election workers sent
voters to the wrong precinct.
A voter stated that a polling place in Cleveland ran out of
ballots, and put in an emergency request for ballots but did
not receive them.
The Associated Press reported that officials ticketed
lawfully parked cars at the polling stations.
Election protection volunteers received complaints about
provisional ballots from voters, many of whom reported being
denied the opportunity to vote by provisional ballot. Some
polling places either ran out of provisional ballots or never
had any at their location. For example: a voter registered to
vote in September. When she went to the polling place in
Cuyahoga County on Election Day, they said she was not
registered and they refused to give her a provisional ballot.
In Franklin County, some voters, who were in line to vote,
but outside of the doors to the polling place, were sent home
at 7:30 p.m. when the polls closed.
Analysis
Just as we witnessed in the Florida presidential debacle
four years ago, improper purging and other errors by election
officials represent a very serious problem and have a
particularly negative impact on minority voters. The fact
that 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 and that the NAACP received more than
1,000 purging complaints on election day indicate that the
overall number of voters who may have been disenfranchised as
a result of official mistakes and wrongful purging is in the
scores of thousands, if not more. Congressional passage of
HAVA's provisional ballot requirement was intended to
mitigate errors such as this, but Secretary Blackwell's
unduly narrow interpretation of this requirement, as well as
weak rules for counting and checking provisional ballots,
have made it far less likely that individuals whose
registration was wrongfully purged or never entered would be
able to receive a provisional ballot and have it counted.
Given the information we have, it is unclear whether
improper purging and other registration errors which appear
so prevalent in Ohio were the result of human mistake or
intentional misconduct. If it was intentional, a strong case
can be made that it violated the Voting Rights Act, Equal
Protection, Due Process, possibly the National Voter
Registration Act, as well as Ohio's right to vote law. The
Secretary of State's failure to investigate these
registration errors and other irregularities may also violate
his duties to do so under Ohio law.
HAVA funds were supposed to be used to implement a fairer
and more efficient registration system statewide.
Unfortunately, full funding has been delayed, and most
states, including Ohio, have received waivers from this
federal requirement.
3. General Problems
a. Spoiled Ballots--Hanging Chads Again?
Facts
Ohio had a significant number of spoiled votes--
approximately 93,000. These are ballots in which either no
presidential vote was recorded or multiple votes were
indicated and therefore ignored. For example, someone may not
have filled in his presidential choice dark enough for an
optical scan machine to read, but did fill it in clearly
enough to be a valid selection in a hand count. In addition,
a punch card voter may not have punched completely through
his choice, leaving a ``chad'' attached that could not be
read by the tabulator. However, that same chad could be read
in a hand count because Ohio law provides that hanging chads
may be considered valid votes as long as two corners are
detached.
According to a New York Times investigation, ``the problem
[with spoiled ballots] was pronounced in minority areas,
typically Kerry strongholds. In Cleveland ZIP codes where at
least 85% of the population is black, precinct results show
that one in 31 ballots registered no vote for president, more
than twice the rate of largely white ZIP codes where one in
75 registered no vote for president. Election officials say
that nearly 77,000 of the 96,000 [spoiled] ballots were punch
cards.''
One of the principal purposes of the recount in Ohio was to
ascertain the intent of these 93,000 ballots. However, by
manipulation or otherwise every county in Ohio but Coshocton
County avoided completing a full hand recount. This means
that the vast majority of these spoiled ballots will never be
reviewed.
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.
This is in stark contrast to the 2% of undervoting county-
wide. Disturbingly, predominately Democratic precincts had
75% more undervotes than those that were predominately
Republican.
Secretary of State Blackwell has refused to answer any of
the questions concerning these matters posed to him by
Ranking Member Conyers and 11 other Members of the Judiciary
Committee on December 2, 2004.
Analysis
Given the high level of interest in the presidential
election in 2004, it is logical to assume that many of the
persons casting spoiled ballots intended to cast a vote for
president, so this irregularity alone could account for tens
of thousands of disenfranchised votes, with a
disproportionate amount being minority voters and Kerry
voters. One of the reasons Ohio has such a large number of
ballots is that the state relies so heavily on the outdated
and antiquated punch card system that proved to
be error prone in Florida. Sixty-eight of the 88 Ohio
counties still rely on the outdated punch card machines.
Thus, at least in the critical swing state of Ohio the
promise of HAVA funding to help states acquire better
equipment so that more votes could count has not been met.
With regard to the severe undercount voting figures in
Montgomery County, we have not received any cooperation from
Secretary Blackwell in ascertaining how this occurred. This
may have been due to some equipment or poll worker error or,
in the worst case, manipulation.
b. Exit Polls Bolster Claims of Irregularities and Fraud
Facts
An exit poll serves as a predictor of the final vote
results in an election. It is conducted by interviewing
voters about their vote selections as they are leaving the
polls. The process for conducting reliable exit polls was
largely created in 1967 by CBS News pollster and
statistician, Warren Mitofsky, now known as ``a world
recognized expert in exit polling in particular and public
opinion polling in general.'' Former Mexican President Carlos
Salinas credited Mr. Mitofsky's work for contributing to the
prevention of fraud and an increase in credibility in the
1994 election in Mexico.
The exit poll data taken on November 2, 2004, was compiled
by two well-respected firms--Mitofsky International and
Edison Media Research. Joseph Lenski, who conducted the exit
polls for Edison Media Research, trained in the field of exit
polling under Mr. Mitofsky before starting his own firm. They
conducted in 2004 exit polls under a contract from the
National Election Pool (NEP), a consortium of six news and
media organizations: the Associated Press, ABC, CNN, CBS,
NBC, and Fox.
In this year's election, the National Election Pool
conducted two types of exit polls: 73,000 voters were
interviewed in statewide polls, and an additional 13,000
voters were interviewed for a national poll. The national
poll's sample size was approximately six times larger than
the sample normally used in high quality pre-election
national polls. This poll size would normally yield a very
small margin of error and would be very accurate.
Furthermore, such a poll would normally result in a close
congruence between exit poll and official results. The sample
size for Ohio was 1,963 voters, which is quite large for
statistical purposes and equivalent to the 2,000 person norm
for most national polls. In addition, this year's poll
numbers were designed to account for absentee votes after a
large number of absentee votes contributed to the inaccurate
projections of the Florida race in 2000. This year, Mitofsky
and Edison began telephone surveys in key states before the
election to screen for absentee voters and create an accurate
estimate of their votes.
While exit pollsters caution against using their results to
predict election results, exit polls can be extremely
accurate, with only small variations from the official
outcomes in numerous elections. For example, in the three
most recent national elections in Germany, exit polls
differed from the final official vote counts by an average of
only 0.26%. Their results have proven to be very accurate;
correctly predicting the winner with no evidence of
systematic skew of the data. United States exit polls have
also been precise. Brigham Young University students' exit
poll results for Utah in this election indicated 70.8% for
Bush and 26.5% for Kerry.
The official results were 71.1 % for Bush and 26.4% for
Kerry.
In the Ohio election for 2004, early exit polls that were
released just after noon on November 2 showed that Senator
Kerry was leading President Bush by three percentage points.
Shortly after midnight on November 3, exit poll data
continued to indicate that 52.1% of Ohio voters selected
Senator Kerry and 47.9% selected President Bush. These
numbers, however, differed greatly from the final results of
the election; in the official results, President Bush led
Senator Kerry by 2.5 percentage points in Ohio.
National poll data showed a similar shift from a clear
advantage for Senator Kerry on Election Day to a victory for
President Bush on the day after the election. Data that was
provided by Edison/Mitofsky to the National Election Pool
members at 4 p.m. on Election Day showed Senator Kerry
leading 51% to 48%. These percentages held the same in the
data released at 7:30 p.m. that day. By the time Senator
Kerry conceded the election on Wednesday, November 3, the
Edison/Mitofsky poll numbers had been aligned with reported
vote counts. For the first time the poll numbers showed an
advantage for President Bush with 51% to Senator Kerry's 48%.
On December 3, 2004, Rep. Conyers requested the raw exit
poll data from Mitofsky International. Mr. Mitofsky replied
``The data are proprietary information gathered and held for
the benefit of those news organizations, and I am not at
liberty to release them.'' On December 21, 2004, as a follow-
up, Rep. Conyers requested the data directly from the news
wire and television companies that contracted with Mr.
Mitofsky and Mr. Edison for the data. Though the Congressman
has not received a response to his letter, Edie Emery, a
spokesperson for the NEP and a CNN employee, said the exit
poll data was still being analyzed and that the NEP's board
would decide how to release a full report in early 2005. ``To
release any information now would be incomplete,'' she said.
Furthermore, Jack Stokes, a spokesperson for the Associated
Press said, ``like Congressman Conyers, we believe the
American people deserve answers. We want exit polling
information to be made public as soon as it is available, as
we intended. At this time, the data is still being evaluated
for a final report to the National Election Pool.''
Analysis
Clearly something unusual is indicated by the differential
between the exit poll information we have obtained and the
final vote tallies in Ohio. It is rare, if not unprecedented,
for election results to swing so dramatically from the exit
poll predictions to the official results. Kerry was predicted
to win Ohio by a differential of 4.2 percentage points. The
official results showed Bush winning by 2.5 percentage
points. The differential between the prediction for Kerry and
the winning results for Bush represent a swing of 6.7
percentage points. According to University of Pennsylvania
Professor Steven Freeman, this ``exit poll discrepancy could
not have been due to chance or random error.'' Professor
Freeman has further concluded that statistical analysis shows
a probability of 1 in 1,000 that the difference
between Senator Kerry's share of the exit poll projection
and the official count of the vote would be as much as the
final 3.4% spread, a virtual impossibility. As a matter of
fact, there are broad statistical variations of up to 9
percentage points between exit poll data and official
results in Ohio and other key states in the 2004 election.
In state after state, Senator Kerry's advantage in the
exit poll results was lost by sizable margins.
The discrepancy between the exit polls and the official
vote count must be due to an inaccurate poll or an inaccurate
vote. Either there was unintentional error in the exit poll
or the official vote count, willful manipulation of the exit
poll or the official vote count, or other forms of fraud,
manipulation or irregularities occurred in the electoral
process. Pollsters Mitofsky and Lenski have intimated that
their poll numbers deviated from the official results because
a disproportionate number of Bush supporters refused to
participate in their polls. However, Professor Freeman posits
that part of the discrepancy is due to a miscount of the
vote.
As noted above, election polls are generally accurate and
reliable. Pollsters are able to categorize their sources of
error and develop extensive methodologies to limit those
errors with each successive poll. Political scientist Ken
Warren noted claims, ``. . . exit polling has become very
sophisticated and reliable, not only because pollsters have
embraced sound survey research techniques, but because they
have learned through experience to make valid critical
adjustment.'' In fact, prominent survey researchers,
political scientists and journalists ``concur that exit polls
are by far the most reliable'' polls.
Unfortunately, throughout American history various devices,
schemes and legal structures have been used to shape the
outcome of an election. Elections at every level of
government have been skewed by tactics that deny voting
rights, establish poll taxes, lose voter registrations,
disqualify voters and disqualify ballots to ensure a certain
outcome. The Florida election in 2000 provides ample evidence
that our system is rife with election irregularites that have
profound impacts on our election outcomes.
Elections are politically controlled, with extreme
pressures for certain outcomes. In our system, victory can
become more important than an accurate vote count. While
pollsters are privately hired based on their accuracy and
timely results, candidates and campaigns are primarily
concerned with winning. When key election officials are also
key campaign officials, as was the case in Florida in 2000
and in Ohio in 2004, the goal of providing an accurate vote
tally gets into the murky waters of winning the political
contest. But pollsters lose their legitimacy, and thus future
contracts, if they are not accurate. Thus, `` the systemic
pressures on polling accuracy are much greater than they are
on vote count accuracy.
While pollsters use feedback and detailed analysis to
improve their results, are motivated towards accuracy, and
face market competition if they fail to provide thorough,
accurate and timely exit poll results, ``there is little
competition, feedback and motivation for accuracy in election
processing.'' Thus we do not dismiss these exit poll results,
and their discrepancy with the official vote counts, as
others might do. We believe they provide important evidence
that something was amiss in the Ohio election.
Full, accurate and reliable statistical analysis cannot be
completed until the raw data from the exit polls is released.
The limited available ``uncalibrated'' or raw data indicates
the broad discrepancies that are discussed above. However, it
appears that the National Election Pool data was
``calibrated'' or corrected after the official results were
publicized. It may be standard practice to recalibrate poll
results to reflect the actual outcome ``on the assumption
that the [official] count is correct, and that any
discrepancies must have been due to imbalanced representation
in their samples or some other polling error.'' Thus data
that was publicized on Election Day showing these large
discrepancies is no longer publicly available; only the
recalibrated numbers are available on the Internet. An
independent, detailed analysis of the early exit poll data
is necessary to verify the actual outcome of the vote in
Ohio, and thus restore complete legitimacy to this
election. In any event, the discrepancies that we are
able to identify place the entire Ohio election results
under a cloud of uncertainty.
C. Post-Election
1. Confusion in Counting Provisional Ballots
Facts
Secretary Blackwell's failure to issue standards for the
counting of provisional ballots led to a chaotic and
confusing result such that each of Ohio's 88 counties could
count legal ballots differently or not at all. In turn, this
fostered a situation where subsequent to the election,
Cuyahoga County mandated that provisional ballots in yellow
packets must be ``rejected'' if there is no ``date of birth''
on the packet. This ruling was issued despite the fact that
the original ``Provisional Verification Procedure'' from
Cuyahoga County stated, ``Date of birth is not mandatory and
should not reject a provisional ballot'' and simply required
that the voter's name, address and a signature match the
signature in the county's database. The People for the
American Way Foundation sought a legal ruling ordering
Secretary Blackwell and the county elections board to compare
paper registration and electronic registration records.
People For the American Way further asked the Board to notify
each voter whose ballot was invalidated and how the
invalidation could be challenged. Neither of these actions
were taken.
In another case, while the state directed counties to
ensure voters had been registered during the thirty days
before the election, one college student who had been
registered since 2000 and was living away from home was
denied a provisional ballot.
Analysis
Mr. Blackwell's failure to articulate clear and consistent
standards for the counting of provisional ballots likely
resulted in the loss of several thousand votes in Cuyahoga
County alone, and untold more statewide. This is because the
lack of guidance and the ultimate narrow and arbitrary review
standards imposed in Cuyahoga County appear to have
significantly contributed to the fact that in Cuyahoga
County, 8,099 out of 24,472 provisional ballots, or
approximately one third, were ruled invalid, the highest
proportion in the state. This number is twice as high as the
percentage of provisional ballots rejected in 2000.
These series of events constitute a possible violation of
the Voting Rights Act, as not only were legitimate votes
apparently thrown out, they undoubtedly had a
disproportionate impact on minority voters, concentrated in
urban areas such as Cuyahoga County which had the highest
shares of the state's provisional ballots. The actions may
also violate Ohio's constitutional right to vote.
2. Justice Delayed is Justice Denied--Recounts were Delayed
Because of a Late Declaration of Results
Facts
Ohio law requires the Secretary of State to provide county
boards of elections with directives governing voting
procedures, voting machine testing, and vote tallying. Prior
to the election, Secretary Blackwell thus issued a directive
providing that Ohio boards of elections would have to
complete their official canvasses by December 1, almost one
month after the date of the 2004 election. The directive
further states that ``no recount may be held prior to
the official canvass and certification of results,'' so
that county boards would have to wait until Secretary
Blackwell decided to certify the results before proceeding
with recounts.
Ohio law also sets deadlines for the conduct of recounts.
First, applications for statewide recounts must be submitted
within five days of the Secretary of State's declaration of
results. Second, such recounts must begin within ten days of
the recount request. Secretary of State Blackwell gave county
boards of election until December 1 to certify their returns
and then waited to another five days, until December 6, to
certify the results. As a consequence, recounts could not be
sought until at least December 11, and were required to begin
by December 16. The Green/Libertarian recount began on
December 13, 2004. As a result, the recount was pending when
the Secretary of State sent certificates to electors on
December 7, and before the electoral college met on December
13. Because it appeared the Secretary of State had
intentionally delayed certification to ensure that the
recount could not be completed by these time periods, 11
Members of Congress, including Rep. Conyers, wrote to Gov.
Taft asking that they delay or treat as provisional the
December 13 meeting of the state's presidential electors.
The counties completed their recounts on December 28, 2004,
but due to a variety of irregularities and alleged legal
violations in the recount, they remain embroiled in
litigation as of the date of this report.
Analysis
The scenario created by Secretary Blackwell effectively
precluded recounts from being concluded prior to the December
13 meeting of electors. By setting the vote tally deadline so
late and then delaying the declaration of results--it took a
full 34 days after the November 2 election for the results to
be certified--Secretary of State Blackwell insured that the
time for completing recounts, therefore, was pushed to after
the date of the Electoral College meeting. As a result of
this intentional course of conduct, it appears that Mr.
Blackwell has ensured that the controversies concerning the
appointment of electors could not be resolved by December 7,
2004, thereby causing Ohio to lose the benefit of the
electoral college safe harbor so that there appointment of
electors is not necessarily binding on Congress. In addition,
this diminishment of the recount law may violate the voters'
right to equal protection and due process, as well as
undermine the entire import of Ohio's recount law.
3. Triad GSI--Using a ``Cheat Sheet'' to Cheat the Voters in
Hocking and Other Counties
Facts
Perhaps the most disturbing irregularity that we have
learned of in connection with the recount concerns the
activities and operations of Triad GSI, a voting machine
company. On December 13, 2004, House Judiciary Committee
Democratic-staff met with Ms. Sherole Eaton, Deputy Director
of Elections for Hocking County. She explained that on
Friday, December 10, 2004, Michael Barbian, Jr., a
representative of Triad GSI, unilaterally sought and obtained
access to the voting machinery and records in Hocking County,
Ohio.
Ms. Eaton witnessed Mr. Barbian modify the Hocking County
computer vote tabulator before the announcement of the Ohio
recount. She further witnessed Barbian, upon the announcement
that the Hocking County precinct was planned to be the
subject of the initial Ohio test recount, make further
alterations based on his knowledge of that information. She
also has firsthand knowledge that Barbian advised election
officials how to manipulate voting machinery to ensure that a
preliminary hand recount matched the machine count.
According to the affidavit, the Triad official sought
access to the voting machinery based on the apparent pretext
that he wanted to review some ``legal questions'' Ohio voting
officials might receive as part of the recount process. At
several times during his interaction with Hocking County
voting machines, Mr. Barbian telephoned into Triad's offices
to obtain programming information relating to the machinery
and the precinct in question. It is now known that Triad
officials have intervened in other counties in Ohio--Greene
and Monroe, and perhaps others.
In fact, Mr. Barbian himself has admitted to altering
tabulating software in Hocking, Lorain, Muskingum, Clark,
Harrison and Guernsey counties. Todd Rapp, President of
Triad, also has confirmed that these sorts of changes are
standard procedure for his company.
First, during an interview, film maker Lynda Byrket asked
Barbian, ``you were just trying to help them so that they
wouldn't have to do a full recount of the county, to try to
avoid that?'' Mr. Barbian answered, ``Right.'' She further
inquired: ``did any of your counties have to do a full
recount?'' Mr. Barbian replied, ``Not that I'm aware of.''
Second, it appears that Mr. Barbian's activities were not
the actions of a rogue computer programmer but the official
policy of Triad. Rapp explained during a Hocking County Board
of Elections meeting:
``The purpose was to train people on how to conduct their
jobs and to help them identify problems when they conducted
the recount. If they could not hand count the ballots
correctly, they would know what they needed to look for in
that hand count.''
Barbian noted that he had ``provided [other counties]
reports so they could review the information on their own.''
As one observer asked, ``Why do you feel it was necessary
to point out to a team counting ballots the number of
overvotes and undervotes when the purpose of the team is to
in fact locate those votes and judge them?''
Barbian's response was, ``. . . it's just human error. The
machine count is right . . . We're trying to give them as
much information to help them out.''
In addition, Douglas W. Jones, a computer election expert
from the University of Iowa, reviewed the Eaton Affidavit and
concluded that it described behavior that was dangerous and
unnecessary:
``I have reviewed the Affidavit of Sherole L. Eaton (``the
Eaton Affidavit''), the Deputy Director of the Hocking County
Board of Election, as well as the letter of Congressman John
Conyers to Kevin Brock, Special Agent in Charge with the FBI
in Cincinnati, Ohio. In light of this information, and given
my expertise and research on voting technology issues and the
integrity of ballot counting systems, it is my professional
opinion that the incident in Hocking County, Ohio, threatens
the overall integrity of the recount of the presidential
election in Ohio, and threatens the ability of the
presidential candidates, their witnesses, and the counter-
plaintiffs in the above-captioned action, to properly
analyze, inspect, and assess the ballots and the related
voting data from the 2004 presidential election in Ohio. It
is my understanding that 41 of Ohio's 88 counties use Triad
voting machines. As a result, the incident in Hocking County
could compromise the statewide recount, and undermine the
public's trust in the credibility and accuracy of the
recount.''
We have received several additional reports of machine
irregularities involving several other counties serviced by
Triad, including a report that Triad was able to alter
election software by remote access:
In Union County, the hard drive on the vote tabulation
machine, a Triad machine, had failed after the election and
had been replaced. The old hard drive was returned to
the Union County Board of Elections in response to a
subpoena.
The Directors of the Board of Elections in both Fulton and
Henry County stated that the Triad company had reprogrammed
the computer by remote dial-up to count only the presidential
votes prior to the start of the recount.
In Monroe County, the 3% hand-count failed to match the
machine count twice. Subsequent runs on that machine did not
match each other nor the hand count. The Monroe County Board
of Elections summoned a repairman from Triad to bring a new
machine and the recount was suspended and reconvened for the
following day. On the following day, a new machine was
present at the Board of Elections office and the old machine
was gone. The Board conducted a test run followed by the 3%
hand-counted ballots. The results matched this time and the
Board conducted the remainder of the recount by machine.
In Harrison County, a representative of the Triad company
reprogrammed and retested the tabulator machine and software
prior to the start of the recount. The Harrison County
tabulating computer is connected to a second computer which
is linked to the Secretary of State's Office in Columbus. The
Triad technician handled all ballots during the machine
recount and performed all tabulation functions. The Harrison
County Board of Elections kept voted ballots and unused
ballots in a room open to direct public access during daytime
hours when the courthouse is open. The Board had placed voted
ballots in unsealed transfer cases stored in an old wooden
cabinet that, at one point, was said to be lockable and,
at another point, was said to be unlockable.
On December 15, 2004, Rep. Conyers forwarded information
concerning the irregularities alleged in the Eaton Affidavit
to the FBI and local prosecutors in Ohio. He has not received
a response to that letter. On December 22, 2004, Rep. Conyers
forwarded a series of questions concerning this course of
events to the President of Triad GSI and to Mr. Barbian.
Counsel for Triad GSI has indicated that a response would be
forthcoming later this week or shortly thereafter.
Analysis
Based on the above, including actual admissions and
statements by Triad employees, it strongly appears that Triad
and its employees engaged in a course of behavior to provide
``cheat sheets'' to those counting the ballots. The cheat
sheets told them 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. If true, this would frustrate the entire purpose of the
recount law--to randomly ascertain if the vote counting
apparatus is operating fairly and effectively, and if not to
conduct a full hand recount. By ensuring that election boards
are in a position to conform their test recount results with
the election night results, Triad's actions may well have
prevented scores of counties from conducting a full and fair
recount in compliance with equal protection, due process, and
the first amendment.
In addition, the course of conduct outlined above would
appear to violate numerous provisions of federal and state
law. As noted above, 42 U.S.C. Sec. 1973 provides for
criminal penalties for any person who, in any election for
federal office, ``knowingly and willfully deprives, defrauds,
or attempts to defraud the residents of a State of a fair and
impartially conducted election process, by . . . the
procurement, casting, or tabulation of ballots that are known
by the person to be materially false, fictitious, or
fraudulent under the laws of the State in which the election
is held.'' Section 1974 requires the retention and
preservation of all voting records and papers for a period of
22 months from the date of a federal election and makes it a
felony for any person to ``willfully steal, destroy, conceal,
mutilate, or alter'' any such record.
Ohio law further prohibits election machinery from being
serviced, modified, or altered in any way subsequent to an
election, unless it is so done 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. This would
seem to operate as a de facto bar against altering voting
machines by remote access. Containers in which ballots are
kept may not be opened before all of the required
participants in are attendance. It is critical to note that
the fact that these ``ballots'' were not papers in a box is
of no consequence in the inquiry as to whether state and
federal laws were violated by Barbian's conduct: Ohio Revised
Code defines a ballot as ``the official election presentation
of offices and candidates . . . and the means by which votes
are recorded.'' Ohio Rev. Code Sec. 3506.01 (B) (West 2004).
Therefore, for purposes of Ohio law, electronic records
stored in the Board's computer are to be considered
``ballots.'' Triad's interference with the computers and
their software would seem to violate these requirements.
Further, any modification of the election machinery may
only be done after full notice to the Secretary of State.
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 the (d) communication of voting
records, must be done only after full notice to the Secretary
of State. We are not aware that any such notice was given to
the Secretary.
Finally, Secretary Blackwell's own directive, coupled with
Ohio Revised Code Sec. 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.''
The Ohio Secretary of State issued orders that election
officials are to treat all election materials as if the State
were in a period of canvassing, and that, ``teams of one
Democrat and one Republican must be present with ballots at
all times of processing.''
Triad has sought to respond to these charges by arguing
that Ohio law requires a Board of Elections to prevent the
counting or tabulation of other races during a recount and
limit these activities to those offices or issues for which a
formal recount request has been filed. However, this
requirement does not supercede the above requirements that
election machinery only be serviced or otherwise altered in
the presence of the full elections board and observers. There
are at least two ways this recount process could have been
conducted legally. First, recounters could have been given
the full ballot and been simply instructed not to count
the other races recorded. Second, the service company
employees could have waited to alter the software program
until the official recount began in the presence of the
board and qualifying witnesses. Neither of these scenarios
occurred in the present case.
In addition to these provisions imposing duties on the
Board of Elections, there are numerous criminal penalties
that can be incurred by those who actually tampered with the
machines. These apply to persons who ``tamper or attempt to
tamper with . . . or otherwise change or injure in any manner
any marking device, automatic tabulating equipment or any
appurtenances or accessories thereof;'' ``destroy any
property used in the conduct of elections;'' ``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 [or] falsify;'' and ``willfully and
with fraudulent intent make any mark or alteration on any
ballot.''
It is noteworthy that the companies implicated in the
misconduct outlined above, Triad and its affiliates, are the
leading suppliers of voting machines involved in the counting
of paper ballots and punch cards in the critical states of
Ohio and Florida. Triad is controlled by the Rapp family, and
its founder Brett A. Rapp has been a consistent contributor
to Republican causes. In addition, a Triad affiliate, Psephos
Corporation, supplied the notorious butterfly ballot used in
Palm Beach County, Florida, in the 2000 presidential
election.
4. Greene County--Long Waits, the Unlocked Lockdown and
Discarded Ballots
We have received information indicating negligence and
potential tampering with Greene County ballots and voting
machines. On December 9, election observers interviewed the
County Director of Elections, Carole Garman, and found
substantial discrepancies in the number of voting machines
per voter in low-income areas as compared to other areas.
Apparently, some consolidated precincts had almost the state
imposed limit of 1,400 registered voters and others had only
a few hundred voters. One of the precincts disproportionately
affected included Central State University and Wilbur Force
University, both historically black universities.
The next day, the observers returned to that office and
requested voter signature books for copying. Ms. Garman
granted such access. After leaving the office for three
hours, the observers returned and had been advised that,
under Ohio law, they were entitled to copies of the precinct
books for a nominal fee, and requested such copies from
Garman. Garman did not concur with that view of Ohio law and
telephoned the office of Secretary Blackwell, eventually
reaching Pat Wolfe, the Election Administrator for the
Secretary of State. Garman then advised the observers that,
per Blackwell, all voter records for the State of Ohio were
``locked down'' and they now were ``not considered public
records.'' Garman subsequently physically removed the books
from one observer's hands'' After attempting to persuade
Garman to reverse this decision to no avail, the observers
departed the office.
The observers returned the following day, a Saturday, at
10:15 am. While a number of cars were parked in the parking
lot and the door to the office was unlocked, and there was no
one in the office. One light was on in the office that had
not been on the previous night after the office was closed.
In the office, unsecured, were the poll books that had been
taken from then observers the day before. There were also
voting booths, ballot boxes apparently containing votes, and
voting equipment, also unsecured. Shortly after the observers
had left the office, a police officer arrived and later
elections officials and members of the media. The officials
were unable to offer any explanation for the unsecure office,
other than negligence, and said they would ask a technician
(from the Triad company) to check out the machines on Monday.
A number of other substantial irregularities in Greene
County have come to our attention that were uncovered after
the office
was discovered to be unsecure. In the short period of time
that observers were given to examine voting records, ballots
were not counted for apparently erroneous reasons. In a
number of cases, Greene County officials rejected ballots
because the secrecy envelope for the ballot appeared to
indicate that the voter had voted in the wrong precinct,
notwithstanding the fact that a notation was made--apparently
by an election worker--indicating the vote should count. The
records appeared to indicate that, in some cases, voters were
sent to the wrong precinct by election workers and, in
others, were given the wrong precinct's envelope for the
ballot because election workers had run out of envelopes for
the correct precinct.
These records also appeared to indicate that some voters
were purged from the voting rolls on the basis that they
failed to vote in the previous election, while other voters
who had not voted in several elections had not been purged.
On October 26, Secretary Blackwell issued a directive and
provided it to Greene County officials regarding the ``pre-
challenging'' process, where a voter's eligibility is
challenged prior to the election, and sent an attached list
of voters who were to be pre-challenged in Greene County, to
the Board of Elections. Notice was sent by the Board to these
voters on the Friday before the election by registered mail,
and was likely not received until Monday, advising such
voters of their right to be present at a Monday hearing,
where the voter's eligibility would be decided.
Other irregularities appear in the official ballot counting
charts prepared by election officials, including a number of
precincts where the number of voters do not match the number
of votes cast despite the fact that the charts indicate that
those numbers ``must match.''
We have also obtained evidence indicating that eligible
voters did not have their ballots counted for invalid
reasons. For example, an overseas military ballot was not
counted because it was a photocopy rather than the original
ballot; an 85 year old voter did not have his absentee vote
counted because it did not have a stub attached; a disabled
voter who indicated she marked her ballot with the assistance
of election workers did not have her absentee vote counted
because no stub was attached; an absentee voter with a
properly postmarked ballot did not have his vote counted
because it was received ``too late,'' but before the initial
certification of results; and provisional ballots that were
not counted because an election official forgot to sign as a
witness when the ballot was cast. Substantial numbers of
provisional ballots appear to have been rejected because
voters were purged in the last two years.
Analysis
Numerous Ohio laws appear to have been broken in Greene
County. First it is a misdemeanor to deny the public access
to election records. Ohio law clearly states that ``No
director of elections, deputy director of elections, or
employee of the board of elections designated by the director
or deputy direct shall knowingly prevent or prohibit any
person from inspecting, under reasonable regulations
established and posted by the board of elections, the public
records filed in the office of the board of elections.'' Not
only is this a crime, but grounds for dismissal from election
duties--required whether the offender is an official or an
employee. It does not appear that anyone has been prosecuted,
and no one has been dismissed as required by statute.
Second, the complete lack of security on Friday night
violates any number of Ohio laws requiring that ballots and
machinery be kept absolutely secure. Section 3505.31 requires
that ballots, pollbooks, poll lists, tally sheets and voting
machines be kept tamper-proof and under seal. Ballots are to
be held secure until a recount is properly conducted in front
of witnesses, and ballots may not be handled by anyone except
the board and its employees. Failure of these duties by board
members and their employees, is a felony, as ``No member,
director or employee of a board of elections shall willfully
or negligently violate or neglect to perform any duty imposed
upon him by law, or willfully perform or neglect to perform
it in such a way as to hinder the objects of the law.''
Again, it requires that the offender be dismissed, and again,
it appears that those actions have not been taken in Greene
County. It is important to note that this statute does not
require any intent of wrongdoing--simple negligence is enough
to invoke the statute and there is no explanation as to why
it has not been enforced.
Third, Greene County's operation seems to have several
Constitutional problems, both federally and at the state
level. The selective use of challenges and purges invokes the
Equal Protection clause. We were unable to confirm any
legitimate reason why some voters were challenged and then
purged, and others were not. There are also Due Process
concerns as those to be purged were not given sufficient
notice to meaningfully participate in their scheduled
hearings. And finally, these actions violate Ohio's own
constitution that guarantees the right to vote.
5. Other Recount Irregularities
We learned of numerous additional troubling recount
irregularities in the course of our investigation. The
groundwork for these problems was laid when the Secretary of
State failed to issue specific standards for the recount. In
essence, Mr. Blackwell's directive on recount procedures
permitted each county board of election to determine its own
recount rules. Mr. Blackwell failed to issue such standards,
notwithstanding the fact that election officials themselves
had offered contrasting election recount procedures,
including some counties who sought to unilaterally oppose
doing any recount whatsoever.
Some of the serious recount irregularities that we learned
of in connection with our investigation include the
following:
a. Irregularities in Selecting the Initial 3% Hand Count--Many County
Boards of Elections Did Not Randomly Select the Precinct Samples
In the course of our investigation we learned:
Mr. Keith Cunningham, Director of the Allen County Board of
Elections, explained that it would take considerably longer
to carry out the recount if there were a random selection
process employed. Instead, the Board pre-selected four
precincts, totaling slightly more than the required three
percent, for the recount. Democratic and Green Party
witnesses raised objections but to no avail.
The Clermont County Board of Elections selected the 3%
precinct samples by choosing the thirteen precincts with
lowest number of voters plus the next number of precincts
that reached the total of 3% of the total votes cast in that
county. This selection process eliminated larger and more
diversified precincts. The staff of the Board admitted that
small precincts were chosen because fewer problems would be
encountered in smaller precincts. A witness objected to
this selection process, but to no avail.
The Cuyahoga County Board of Elections decided to choose
only precincts with 550 votes or more and from a cross-
section of areas--one East side, one West side, one affluent,
one non-affluent. This criterion left only eight percent of
precincts available to be selected. In addition, witnesses
observed that the ballots were not in a random order, and
that they had been previously sorted. As the ballots were fed
into the counting machines, there were long runs of votes for
only one candidate and then long runs for another, which
seemed statistically improbable.
The total number of votes cast in Morrow County was 16,694.
Three percent of this would be 501. The Morrow County Board
of Elections selected the Harmony Township precinct for the
initial hand count because it had 517 ballots cast. When
observers complained this was not random, the Board responded
that it had the right to select the precinct. During this
discussion, an election official with the Board called the
Secretary of State's office and reported that the Secretary
of State's office stated that the Board was correct.
The Hocking County Board of Elections met and Rod Hedges, a
Republican Board member, stated that he believed the Board
should select a precinct that was not heavily in favor of
George W. Bush or John F. Kerry. The Board decided to
consider only the precincts where the vote totals for Bush
and Kerry were similar. An observer objected that this was
not a random selection, but to no avail.
Election officials in Medina County were aware of several
``problem'' districts, but instead chose to perform the
manual 3% test recount on two precincts that had been part of
a school levy recount the previous Monday. That meant that
those ballots had been taken out of the standard ``double
lock'' situation and had been handled several times since
that Monday.
The Board of Elections in Vinton County selected a precinct
3% manual recount test simply because its vote total was
closest to 3% of the total votes cast in the county.
The Summit County Board of Elections selected precincts
randomly with the Director and Deputy Director of the Board
of Elections and two other Board employees present, both of
whom were IT specialists for the Board so that they could
compute the three percent. The Board shuffled 475 precinct
cards and then chose randomly from the pile. The Summit
County Board of Elections conducted this selection without
any recount witnesses present.
b. Irregularities in Applying the Full Hand-Count Requirement--Counties Not Conducting Full Hand Count After 3% Hand and Machine Counts Did Not
Match
In the course of our investigation we learned:
In Monroe County, the 3% hand-count failed to match the
machine count twice. Subsequent runs on that machine matched
neither each other nor the hand count. The Monroe County
Board of Elections summoned a repairman from Triad to bring a
new machine and the recount was suspended and reconvened for
the following day. On the following day, a new machine was
present at the Board of Elections office and the old machine
was gone. The Board conducted a test deck run followed by the
3% hand-counted ballots. The results matched this time and
the Board conducted the remainder of the recount by machine.
In Fairfield County, the hand recount of the 3% test sample
did not match the machine count, even after two attempts. The
Board suspended the recount and stated that Secretary
Blackwell recommended that the recount should begin again
``from scratch.'' The Green recount observers were then told
that it was 4:00 PM, the building was closed, and all had to
leave. The Republican recount observers, however, were
allowed to stay in a
conference room for an additional ten minutes or so for a
private discussion. When the Board reconvened a few days
later, it announced that it would be conducting a machine
count of the county's votes. When a Green Party observer
objected, she was told by the Board that she was not allowed
to speak.
c. Irregularities in the Treatment of Ballots--Some Counties Marking
Ballots and Some Counties Not Securely Storing Ballots
In the course of our investigation we learned:
In Washington County, the Board of Elections had, in the
first count, excluded ballots which included no votes and
overvotes. During the recount, the Board altered many such
ballots to make them work. An observer protested this
practice. An election official pulled a black marker from his
right pocket near the beginning of the recount and stated
that he was the mark-up man. He proceeded to do all of the
marking of the ballots. Another election official assisted
with the ``band-aids''. The observer noted that all the re-
marking and band-aiding of ballots did reflect the will of
the voter, with one exception. In the precinct Belpre 4A, a
voter had both marked the oval and put an X through it for
presidential candidate Michael Peroutka and had marked the
oval for Bush. The election official put a band-aid over the
Peroutka vote and put his own X on the Bush vote. The
observer objected that it should be counted as an overvote.
The Board ruled that the vote should count for Bush.
In Lucas County, an observer witnessed the physical
alteration of three ballots for the apparent reason of
ensuring that the vote count produced by the optical scan
machine would match the 3% hand count. At least one of the
election officials stated that she did not want the hand
count and machine count to be different because they did not
want to do a complete hand count. The Board made the
alterations to the ballot after determining the intent of the
voters. Following a lunch break during the recount, the Board
kept recount observers waiting while a technician from the
Diebold company reprogrammed the machine.
In Ashland County, ballots cast in the presidential
election were stored by precinct in open cubicles along one
wall in the employee lunchroom/meeting room, completely open
and visible to anyone who enters the room. Piled on top of
the cubicles were bags of Doritos, mugs, cleaning products,
Glad Wrap and other miscellaneous items. Board of Election
officials said the room was kept locked, except when used.
In Coshocton County, the Board stored voted ballots mixed
with blank, unused ballots in partially-opened boxes,
unsealed at the time of observation and apparently never
sealed after the election. While ballots were stored in a
locked room, all Board employees had keys to the room.
In Belmont County, the Deputy Director of Elections stated
that her county had hired an independent programmer (``at
great expense'') to reprogram the counting machines so that
they would only count votes for President during the recount.
In Portage County, all ballot boxes were locked and
reopened, locked and re-opened again--always in plain sight--
and transported methodically from the visual inspection area
to the tabulator room.
d. Irregularities in the Treatment of Witnesses at the Recount and
their Access to Ballots
In the course of our investigation we learned:
In Summit County, recount witnesses were threatened with
expulsion if they spoke to counting teams. In some instances,
they were expected to ``observe'' from up to 20 feet away,
which prevented them from being able to actually observe
recount.
In Huron County, the punchcard tabulator test was observed
only by Republican witnesses. This test was conducted the day
before the Green Party witness was invited to observe the
recount.
In Putnam County, Board of Elections officials told
observers that their Board would meet on December 15th to
decide the start date. When the observer called back on the
15th, she was told the recount had already taken place.
In Allen County, observers were not allowed to examine
provisional ballots and absentee ballots during the recount.
The Board told them that they must make an appointment at a
later time working around the Board's schedule. The Board
further stated that only the specific person who cast such a
ballot is allowed to inquire whether his or her vote was
counted.
In Holmes County, observers asked to see the spoiled ballot
pile, comprised of five ballots, but the Board denied access,
stating that they were in a sealed envelope that could not be
opened.
In Licking County, the Board denied observers access to
view provisional and absentee ballots.
In Mahoning County, the Board denied observers access to
view rejected absentee ballots.
In Medina County, the Board denied observers access to view
provisional ballot tallies, provisional ballots, and the
actual machines and ballot booklets used.
In Morgan County, 30 of 160 provisional and absentee
ballots were not counted, and the Board denied observers
access to view these ballots. The Board stated that these
ballots were locked away and would be destroyed 60 days after
the election.
In Stark County, the Board denied an observer request to
view the provisional ballots.
In Warren County, the Board denied an observer request to
view provisional and absentee ballots. The observer has
requested that the Board have this decision reviewed by the
county prosecutor and the Board is now awaiting the county
prosecutor's decision.
Analysis
The Secretary of State's failure to issue specific
standards for the recount was a major problem. It appears to
have contributed to a lack of uniformity that may very well
violate both the Due Process Clause and the Equal Protection
Clause of the Constitution. As the U.S. Supreme Court held in
2000, ``Having once granted the right to vote on equal terms,
the State may not, by later arbitrary and disparate
treatment, value one person's vote over that of another.''
As the Court articulated in that case, ``It is obvious
that the recount cannot be conducted in compliance with
the requirements of equal protection and due process
without substantial additional work. It would require not
only the adoption (after opportunity for argument) of
adequate statewide standards for determining what is a
legal vote, and practicable procedures to implement them,
but also orderly judicial review of any disputed matters
that might arise.'' It may also have violated Ohio state
law which charges the secretary of state with ``[issuing]
instructions by directives and advisories to members of
the boards [of elections] as to the proper methods of
conducting elections'' and ``[preparing] rules and
instructions for the conduct of elections.''
In terms of the specific irregularities, they would seem to
be inconsistent if not in outright violation of several
aspects of Ohio's recount law. Those counties which did not
randomly select the precinct samples appears to violate the
Secretary of State's directive on this point. Those counties
which did not conduct a full hand count after the 3% hand and
machine counts did not match is inconsistent with Ohio's
statutory right to have inconsistent results rechecked. Those
counties that allowed for irregular marking of ballots and
which failed to secure and store ballots and machinery appear
to have violated provisions of Ohio law mandating that
candidates have the right to ensure that ballots are secure
between the election and the official recount, that ballots
may not be handled by anyone besides Board members and their
staff, and may not be handled outside of the presence of the
Board and qualifying witnesses. Finally, those counties which
prevented witnesses for candidates from observing the various
aspects of the recount appear to have violated provisions of
Ohio law providing that candidates have the right to observe
all ballots.
Recommendations
A. Electoral College Challenge
We believe there are ample grounds for challenging the
electors from Ohio as being unlawfully appointed.
We say this for several reasons. First, there is
considerable doubt that all controversies regarding the
appointment of the electors were lawfully resolved six days
prior to the meeting of the electors (on December 7) in order
for the state's electors to be binding on Congress as
required by 3 U.S.C. Sec. 5. This is because, among other
things, the Secretary of State appears to have intentionally
delayed the initial certification of the electors until
December 6, making it impossible for the recount (of which he
was fully aware) to be completed by December 7, let alone the
December 13 meeting of the electors.
Second, there are numerous irrefutable instances where Ohio
election law has been violated by the Secretary of State and
others such that the election cannot be said to comply with
Ohio law, and the electors cannot be considered lawfully
certified under state law within the meaning of 3 U.S.C. Sec.
15. These violations of law are highlighted throughout this
Report.
The failure to provide adequate voting machinery would
appear to violate both Ohio's Constitution, that provides all
eligible adults the right to vote, and the Ohio Revised Code
which requires the Boards of Elections to provide ``for each
precinct a polling place and provide adequate facilities at
each polling place for conducting the election.'' Secretary
of State Blackwell's failure to initiate any investigation
into this pivotal irregularity notwithstanding his statutory
duty to do so under Ohio Revised Code Sec. 3501.05,
represents another likely violation of Ohio law.
The ``caging'' tactics targeting 35,000 new voters by the
Ohio Republican Party for preelection legal challenge were
found by three federal courts to be illegal as being
politically and racially charged, and burdening the
fundamental right to vote. The tactic would also appear to
violate Ohioans' right to vote under the Ohio Constitution.
Mr. Blackwell's decision to prevent news media and exit
polls from interviewing Ohio citizens after they voted was
found by a federal court of appeals to have violated the
First Amendment's guarantee that state conduct shall not
abridge ``freedom . . . of the press''. His decision also
likely violated Ohio's Constitution that provides: ``Every
citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the
abuse of the right; and no law shall be passed to restrain
or abridge the liberty of speech, or of the press.''
Mr. Blackwell's decision to prevent those voters who
requested absentee ballots, but did not receive them on a
timely basis from being able to vote, was found by a federal
court to violate HAVA. This restrictive directive also likely
violated Article 5, Section 1 of the Ohio Constitution,
granting every Ohio citizen the right to vote if he or she is
otherwise qualified.
Numerous incidents of voter intimidation and misinformation
engaged in Ohio on election day likely violate the Voting
Rights Act, the Civil Rights Act of 1968, and the Ohio right
to vote. Mr. Blackwell's apparent failure to institute a
single investigation into these acts likely represents a
violation of his statutory duty to investigate election
misconduct.
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. By insuring that election boards were
in a position to conform their test recount results with the
election night results, Triad's actions may well have
prevented scores of counties from conducting a full and fair
recount. Triad's action appears to violate Ohio law
prohibiting 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.
Numerous Ohio laws appear to have been broken in Greene
County, where after initially being granted access to poll
books to conduct an audit, election observers had this access
abruptly revoked under the orders of Secretary Blackwell, and
arbitrary and capricious practices and counting procedures
that disenfranchised hundreds of voters were identified.
These practices violate Ohio law requirements preventing the
denial of public access to election records; requiring that
ballots and machinery be kept absolutely secure; and
protecting the right to vote.
The Secretary of State's failure to issue specific
standards appears inconsistent with Ohio state law which
charges the secretary of state with ``[issuing] instructions
by directives and advisories to members of the boards [of
elections] as to the proper methods of conducting elections''
and ``[preparing] rules and instructions for the conduct of
elections.''
There were numerous specific irregularities in the recount
that are inconsistent with several aspects of Ohio's recount
law. Those counties which did not randomly select the
precinct samples violated the Secretary of State's directive
on this point. Those counties which did not conduct a full
hand court after the 3% hand and machine counts violated
Ohio's statutory right to have inconsistent results
rechecked. Those counties which allowed for irregular marking
of ballots and which failed to secure and store ballots
and machinery appear to have violated provisions of Ohio
law mandating that candidates have the right to ensure
that ballots are secure between the election and the
official recount, that ballots may not be handled by
anyone besides Board members and their staff, and may not
be handled outside of the presence of the Board and
qualifying witnesses. Finally, those counties which
prevented witnesses for candidates from observing the
various aspects of the recount violated provisions of Ohio
law providing that candidates have the right to observe
all ballots.
Whether the cumulative effect of these legal violations
would have altered the actual outcome is not known at this
time. However, we do know that there are many serious and
intentional violations which violate Ohio's own law, that the
Secretary of State has done everything in his power to avoid
accounting for such violations, and it is incumbent on
Congress to protect the integrity of its own laws by
recognizing the seriousness of these legal violations.
B. Need for Further Congressional Hearings
It is also clear the U.S. Congress needs to conduct
additional and more vigorous hearings into the irregularities
in the Ohio presidential election and around the country.
While we have conducted our own Democratic hearings and
investigation, we have been handicapped by the fact that key
participants in the election, such as Secretary of State
Blackwell, have refused to cooperate in our hearings or
respond to Mr. Conyers questions. While GAO officials are
prepared to move forward with a wide ranging analysis of
systemic problems in the 2004 elections, they are not
planning to conduct the kind of specific investigation needed
to get to the bottom of the range of problems evident in
Ohio. As a result, it appears that the only means of
obtaining his cooperation in any congressional investigation
is under the threat of subpoena, which only the Majority may
require.
Given the seriousness of the irregularities we have
uncovered, and the importance of the federal elections, we
recommend that the House and Senate form a joint, select
committee to investigate the full gamut of irregularities
across the board.
Among the issues which require further attention at
Congressional hearings are the following:
The misallocation of voting machines. Congress should
examine the extent to which the lack of machines in certain
areas led to unprecedented long lines that disenfranchised
predominantly minority and Democratic voters.
The decisions to restrict provisional ballots to actual
precincts and to deny them to voters who did not receive
absentee ballots. Congress should examine the extent to which
the decisions departed from past Ohio law on provisional
ballots, how many voters were impacted, and whether a broader
construction would have led to any significant disruption at
polling places.
The use of partisan, pre-election ``caging'' tactics.
Congress should examine to what extent caging is used and to
what degree minority voters were targeted for intimidation
and suppression.
The use of voter suppression and intimidation tactics.
Congress should investigate reports 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.
The use of partisan challengers. Congress should examine
whether the use of such challengers is disruptive and
intimidating to voters. Further, Congress should investigate
whether the precinct judges, which are required by law, are
sufficient to regulate voting practices.
Voter purging and other registration errors. Congress
should look at what methods of voter purging are used and
whether they target minority groups.
The prevalence of undervotes, in which ballots are cast but
lack votes for president. Congress should further investigate
whether undervotes are principally caused by punchcards and
what reforms can be made to prevent them.
The need for greater accountability in ballot counting.
Congress should examine whether an audit capability for
voting machines would enhance the ability to verify voter
choices.
The lack of national standards for issuing provisional
ballots and conducting recounts. Congress should examine
areas in which national standards would promote the
guaranteed right to vote and would ensure that every vote
counts.
Restrictions on the use of government-granted power for
political or personal gain. Congress should investigate the
need for restricting the ability of state contractors and
public officials involved in the administration of elections
to participate in campaign activities.
C. Legislation
Our investigation has made it abundantly clear that
Congress and the States must reform the election laws to
address the many inequities that have come to light. At the
very least, we must--
Develop a fair and uniform system of processing provisional
ballots, including training of poll workers and counting
votes.
Ensure that every voting machine has a verifiable audit
trail, guidelines for which could be established by the
Election Assistance Commission.
Consider an Amendment to the Constitution of the United
States to reaffirm the right to vote.
Facilitate voter turnout through the establishment of a
national election day holiday, the expansion of early voting,
and the re-enfranchisement of former felons.
Ensure full enforcement by the Justice Department of anti-
voter intimidation laws, including prohibitions on voter
suppression and caging.
Establish national standards for voter registration,
polling place opening hours, and ballot recounts.
Establish an explicit private right of action for voter
rights in the Help America Vote Act.
Ensure that state and local election officials involved in
the administration of elections do not use their offices for
political gain.
Ensure enough accessible voting machines and poll workers
are available at all precincts such that waiting times are
reasonable, including in lower-income and minority
communities.
Consistent with the First Amendment, restrict state
contractors from participating in campaign activities.
Develop and fund public campaigns to educate voters on
voting rights, anti-voter intimidation laws, etc.
Fully fund the Help America Vote Act.
Clarify that provisional ballots are available to all
citizens who request them, as long as they are in the
appropriate County.
We recommend that House and Senate Members join together in
reforming these laws and preserving our democracy.
Mr. Speaker, I yield to the gentleman from Missouri (Mr. Clay) for the purpose of making a unanimous consent request.
(Mr. CLAY asked and was given permission to revise and extend his remarks.)
Members of the House, we are here today not as partisans for one Presidential candidate or another, but because we want to do our duty under the Constitution to protect our democracy. We are here because of the inner-city voter in Franklin County who waited 10 hours in the pouring rain while suburban voters in the same county had no wait because election officials decided to reallocate voting machines from Columbus to the suburbs. We are here because of the Hispanic voter in Hamilton County who also stood in line for hours, but was directed to the wrong voting table and had his ballot thrown out because of a decision by the Secretary of State of Ohio to throw out ballots cast at the right polling place but the wrong precinct.
We are here because of the elderly voter in Lucas County who requested an absentee ballot that never showed up and was refused a provisional ballot because of another partisan decision by the Secretary of State of Ohio. We are here because of the new voter in Delaware County whose registration form was thrown out because it did not meet the paper weight requirements set forth by the Secretary of State. We are here because of the African American voter in Summit County who was targeted with an unlawful voter challenge because of her race and because she refused to answer a certified letter from the chairman of the Republican Party.
Most of all we are here because not a single election official in Ohio has given us any explanation for the massive and widespread irregularity in the State. No explanation for the machines in Mahoning County that recorded Kerry votes for Bush. No explanation of improper purging in Cuyahoga County. No explanation for the lockdown in Warren County. No explanation for the 99 percent turnout in Miami County. No explanation for machine tampering in Hocking County.
Read on our Web page 101 pages of great staff work that takes this out of semantics, of partisanship; and I appeal to every Member of this body to sustain this objection.
We are here today, not as partisans for one Presidential candidate or another, but because we want to do our duty under the Constitution to protect our democracy.
We are here because of the inner city voter in Franklin County, who waited 10 hours in the pouring rain, while suburban voters in the same county had no wait because election officials decided to reallocate voting machines from Columbus to the suburbs.
We are here because of the Hispanic voter in Hamilton County who was directed to the wrong voting table, and had their ballot thrown out because of a decision by the Secretary of State to throw out ballots cast at the right polling place but the wrong precinct.
We are here because of the elderly voter in Lucas County who requested an absentee ballot that never showed up and was refused a provisional ballot because of another partisan decision by the Secretary of State.
We are here because of the new voter in Delaware County, whose registration form was thrown out because it did not meet the paper weight requirements of the same Secretary of State.
We are here because of the African American voter in Summit County, who was targeted with an unlawful voting challenge because of her race and because she refused to answer a certified letter from the chairman of the Republican Party.
Most of all we are here because not a single election official in Ohio has given us any explanation for the massive and widespread irregularities in that State: No explanation for the machines in Mahoning County that recorded Kerry votes for Bush--No explanation for the improper purging in Cuyahoga County--No explanation for the lock down in Warren County--No explanation for the 99 percent voter turnout in Miami County--No explanation for the machine tampering in Hocking County.
The debate we have today will not change the outcome of November's election. We know that. But out of today's debate, I hope this Congress will respond to our challenge:
A challenge to hold true bipartisan hearings to get to the bottom of what went wrong in Ohio and around the Nation on election day.
A challenge to show the same concern about voter disenfranchisement in this country that we show in Afghanistan, and the Ukraine, and Iraq.
A challenge to enact real election reform; that gives all citizens the right to a provisional ballot; that gives all voters a verifiable paper trail; and that bans election officials from serving as campaign chairs.
The thing we should never fear in Congress is a debate, and the thing we should never fear in a democracy is the voters. I hope that today we have a fair debate and 4 years from now, we have an election all our citizens can be proud of.
Mr. Speaker, I am proud to yield the balance of my time to the distinguished gentleman from Vermont (Mr. Sanders).
Mr. Speaker, will the gentleman yield?
Mr. Speaker, I want to thank all the Members of the House who have stayed here with us, who have participated in the debate, who have shared their views, as different as many of them are, because this is the way we work.
This debate, I think we all know, will not change the outcome of the November election. But we do know that out of today's debate, the Congress will respond to the challenge that has been raised here in connection with a better system of voting, not just for Ohio but for everywhere. A challenge has been raised here this afternoon to hold true bipartisan hearings to get to the bottom of not just what went wrong in Ohio but around the Nation on Election Day. This day, the first time in our history, that since 1877 this law has been used in which the Senate and the House have come together to say that an objection has enough merit to keep us here in this discussion.
Join us. Enact real election reform and give the citizens the right to an operative provisional ballot and give all voters a verifiable paper trail. We should never fear this debate in the Congress, and I hope that today we have a fair debate and that 4 years from now, Mr. Speaker, we have an election that all our citizens can be proud of.