-Caveat Lector-
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From: [EMAIL PROTECTED]
Date: July 31, 2007 7:09:57 PM PDT
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Subject: Ohio's 2004 Ballots, Ordered Preserved by Federal Judge,
Destroyed or "Missing"
In Violation of Federal Law,
Ohio's 2004 Presidential Election Records
Are Destroyed or Missing
By Steven Rosenfeld, AlterNet
Posted on July 30, 2007, Printed on July 31, 2007
http://www.alternet.org/story/58328/
Two-thirds of Ohio counties have destroyed or lost their 2004
presidential ballots and related election records, according to
letters from county election officials to the Ohio Secretary of
State, Jennifer Brunner.
The lost records violate Ohio law, which states federal election
records must be kept for 22 months after Election Day, and violates
a U.S. District Court order issued last September that the 2004
ballots be preserved while the court hears a civil rights lawsuit
alleging voter suppression of African-American voters in Columbus.
The destruction of the election records also frustrates efforts by
the media and historians to determine the accuracy of Ohio's 2004
vote count, because in county after county the key evidence needed
to understand vote count anomalies apparently no longer exists.
"The extent of the destruction of records is consistent with the
covering up of the fraud that we believe occurred in the
presidential election," said Cliff Arnebeck, a Columbus attorney
representing the King Lincoln Bronzeville Neighborhood Association,
which filed voter suppression suit. "We're in the process of
addressing where to go from here with the Ohio Attorney General's
office."
"On the one hand, people will now say you can't prove the fraud,"
he said, "but the rule of law says that when evidence is destroyed
it creates a presumption that the people who destroyed evidence did
so because it would have proved [them guilty]."
Brunner's office confirmed the 2004 ballots were missing, but
declined to comment.
"Because this case is still pending, Secretary of State Jennifer
Brunner is unable to comment on this," said Jeff Ortega, a
spokesperson. "Ultimately, whether the boards of elections are in
violation of a federal court order is a matter for the court to
decide."
The missing presidential election records were discovered this past
spring by Brunner, a Democrat and former judge who was elected
Secretary of State in 2006. Her predecessor, Republican J. Kenneth
Blackwell, was sued in August 2006 by a Columbus community
organization that alleged the former Secretary of State and other
"unnamed" officials "selectively and discriminatorily designed and
implemented procedures for the allocation of voting machines in a
manner to create a shortage. For certain urban precincts where
large numbers of African-Americans resided," according to the
complaint.
Under federal and Ohio law, all ballots and election records from
federal races must be preserved for 22 months after Election Day,
which fell on Sept. 2, 2006. While election integrity activists and
reporters from a Columbus website, FreePress.org, had sought the
ballots and other election records soon after the presidential
election, Blackwell would not allow county boards to release the
ballots, citing court challenges to the 2004 results and a 2005
suit from the League of Women Voters alleging the state was not
following the newest federal election law, the Help America Vote
Act. By spring 2006, after the League's lawyers stipulated they
were not challenging the 2004 election results, some counties began
to release their 2004 election records. Scrutiny of those records
raised questions about the conduct of the election and some county
vote totals.
On Aug. 23, 2006, lawyers for the King Lincoln Bronzeville
Neighborhood Association notified the Secretary of State's office
of their voter suppression suit. The following day Blackwell's
office sent letters to all 88 of Ohio's county Boards of Election,
notifying them of the suit. It is customary for public officials to
preserve potential evidence when notified of pending litigation.
Blackwell negotiated with opposing attorneys and agree to send a
directive to election boards saying the ballots should be retained.
Ian Urbina, a New York Times reporter working on the story,
reported that Blackwell said he would be creating a process whereby
county election officials could eventually review and dispose of
the 2004 ballots.
On Sept. 11, 2006, U.S. District Judge Algenon Marbley ordered the
election boards "to preserve all ballots from the 2004 Presidential
election, on paper and in any other format, including electronic
data, unless and until such time otherwise instructed by this Court."
Two months after Marbley's order, Blackwell lost the race for
governor to Democrat Ted Strickland and Brunner was elected
Secretary of State. During the following winter and spring, Brunner
and the state's attorneys began negotiating a settlement for the
voter suppression suit, according to lawyers involved in those
talks. Part of that agreement, which has not yet been brought
before the federal district court, was the creation of a statewide
repository of the 2004 presidential ballots. When conducting an
inventory and attempting to collect those records, Brunner's office
learned that seven counties had no ballots to turn over and 56
counties only had partial records from the 2004 vote.
"This is not just a violation of a 22-month ballot retention law.
It is a violation of a court order," Arnebeck said. "Blackwell told
the New York Times that he would create a clearance procedure
before destroying any ballots. The combination of Blackwell's
directive and my letter should have been enough to give the
counties notice."
What happened to the 2004 ballots
The presidential ballots and election records were lost, misplaced,
damaged by water, taken to landfills -- all apparently by mistake,
due to miscommunications, or because the local election
administrators were not aware of the state ballot preservation law
or the federal court order, according to letters to Brunner's
office from the various county election boards.
"Our staff unintentionally discarded boxes containing Ballot Pages
as requested in (Brunner's) Directive 2007-07 due to unclear and
misinterpreted instructions," wrote Butler County Board of Election
Director Betty McGary and Deputy Director Lynn Kinkaid in a May 9
memo. "Several boxes containing all the wire-bound ballot pages
were discarded into a Rumpke dumpster. The dumpster would have been
emptied into the local landfill."
"The Hamilton County (Cincinnati) Board of Elections was unable to
transfer the unvoted precinct ballots and soiled precinct ballots,"
wrote John Williams, Hamilton County Director of Elections on May
16, 2007. "To the best if my knowledge, the above ballots were
inadvertently shredded between January 19th and 26th of '06 in an
effort to make room for the new Hart voting system."
"No one could remember the disposition of said ballots," wrote Mike
Keeley, of Clermont County's Board of Elections on May 10, 2007,
referring to the "unvoted" or unused ballots from the 2004
presidential election.
Since the 2004 election, a handful of media organizations, civil
rights groups, attorneys, historians and authors have been
investigating how the president won in Ohio by 118,775 votes. These
inquiries have had two primary focuses: examining Republican-led
voter suppression tactics and problems with the vote count,
suggesting vote count fraud.
The partisan voter suppression tactics have been easier to
document. Before the election, Blackwell, who was co-chair of the
state's Bush-Cheney campaign, issued numerous administrative orders
that fueled an extreme partisan climate. One of the most notable
came as Ohio was seeing large voter registration drives in
mid-2004. Blackwell issued an order, which he later rescinded under
pressure, saying only voter registrations on 80-pound paper would
be accepted and processed. At the time, Republican Gov. Robert Taft
told reporters that directive could disenfranchise 100,000 voters.
The state Republican Party also threatened to send thousands of
poll challengers to local precincts, to ensure only properly
registered voter exercised that right.
On Election Day in many Ohio cities, the turnout -- or voter
accommodation rate -- in these traditional Democratic strongholds
was markedly lower than in nearby suburbs, where Republicans have
tended to be the majority. In Columbus, the King Lincoln
Bronzeville Neighborhood Association sued saying African-American
voters in Franklin County were disenfranchised because urban
precincts received fewer voting machines per capita than the
whiter, wealthier suburbs. They noted urban precincts had many more
voting machines during the spring primary.
Ohio's Secretary of State and Attorney General are engaged in
settlement talks in the neighborhood association suit, suggesting
the voter suppression claims have merit. In contrast, the case for
Republican vote count fraud in the rural areas has been much harder
to prove, even as the certified vote count is problematic in some
counties.
Compared to Ohio's Democratic urban core, turnout in the Republican
districts was higher than the 2000 election. Moreover, in a handful
of counties there were vote count anomalies that made post-election
observers question whether Bush's vote was padded. The most notable
example is more than 10,000 voters from several Bible belt counties
who voted for Bush and voted in favor of gay marriage, if the
results are true. In a dozen rural counties, virtually unknown
Democrats at the bottom of the ballot received more votes that
Kerry, an oddity in a presidential year.
Reporters associated with FreePress.org and Arnebeck's legal team
hoped the court order preserving the 2004 ballots would enable them
to investigate how these results occurred. Depending on the ballot
type and vote-counting machine used, they have theories about how
Bush's vote could have been inflated. But because many of these
rural counties apparently have destroyed the very 2004 election
records that would clarify what happened, it is now virtually
impossible to determine what happened.
In Warren County, where county election officials said on Election
Day that the FBI had declared a homeland security alert -- which
they later retracted -- ballots were diverted to a warehouse before
counting. The local media was not allowed to observe the vote
count. According to a letter from the Warren County Board of
Election to Brunner's office, the election board cannot find 22,000
unused ballots from the election.
"The missing records reveal where the fraud occurred," said
Arnebeck. "You take as an example, Warren County. It is well
documented that there was a phony homeland security alert and that
was the excuse for excluding the public and the press from
observing what was going on during Election Day. So the missing
unused ballots would suggest that ballots were remade to fit the
desired result."
"The same situation occurred in Clermont County," he said. "We have
sworn affidavits from people who saw white stickers placed over the
Kerry-Edward ovals in this optical scan county," he said, referring
to one way of masking a would-be Kerry vote, because optical-scan
machines read ink marks on paper ballots. "So the missing unused
ballots would suggest they were used to remake ballots to reflect
the desired vote for Bush."
Many rural Ohio counties did not have vote count problems, Arnebeck
said. But enough did have significant problems that called for
further investigation.
"The Attorney General says the rural counties all say human error
was to blame (for the missing ballots)," he said. "There are some
counties where ballots are missing and we don't believe anything
was wrong with the vote count. But there are others where that
human error covers up what we think was vote count fraud."
Another big category of votes that will never be explained are the
nearly 129,000 ballots that were rejected by voting machines and
not counted. Many of these 2004 ballots -- a mix of computer punch
cards, paper ballots to be marked by ink and electronic votes --
are among the incomplete 2004 election records. One post-election
analysis found 94,000 of these ballots come from Democratic-
majority precincts, and estimated these that ballots could have
cost Kerry an additional 26,000 votes.
Steven Rosenfeld is a senior fellow at Alternet.org and co-author
of What Happened in Ohio: A Documentary Record of Theft and Fraud
in the 2004 Election, with Bob Fitrakis and Harvey Wasserman (The
New Press, 2006).
© 2007 Independent Media Institute. All rights reserved.
View this story online at: http://www.alternet.org/story/58328/
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