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Preserving Democracy: What went wrong in Ohio? Status Report of the House Judiciary Committee Staff HA-5-1-05

By Representative John Conyers, Jr & Staff

“True peace is not merely the absence of sin: it is the presence of justice."

Martin Luther King Jr.

“Injustice anywhere is a threat to justice everywhere.”

Martin Luther King Jr., Letter from Birmingham Jail, April 16, 1963

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.

We have found numerous, serious election irregularities in the Ohio presidential election, which resulted in a significant disenfranchisement of voters. Cumulatively, these irregularities, which affected hundreds of thousand of votes and voters in Ohio, raise grave doubts regarding whether it can be said the Ohio electors selected on December 13, 2004, were chosen in a manner that conforms to Ohio law, let alone federal requirements and constitutional standards.

This report, therefore, makes three recommendations: (1) consistent with the requirements of the United States Constitution concerning the counting of electoral votes by Congress and Federal law implementing these requirements, there are ample grounds for challenging the electors from the State of Ohio; (2) Congress should engage in further hearings into the widespread irregularities reported in Ohio; we believe the problems are serious enough to warrant the appointment of a joint select Committee of the House and Senate to investigate and report back to the Members; and (3) Congress needs to enact election reform to restore our people’s trust in our democracy. These changes should include putting in place more specific federal protections for federal elections, particularly in the areas of audit capability for electronic voting machines and casting and counting of provisional ballots, as well as other needed changes to federal and state election laws.

With regards to our factual finding, in brief, we find that there were massive and unprecedented voter irregularities and anomalies in Ohio. In many cases these irregularities were caused by intentional misconduct and illegal behavior, much of it involving Secretary of State J. Kenneth Blackwell, the co-chair of the Bush-Cheney campaign in Ohio the Republican Party and election officials disenfranchised hundreds of thousands of Ohio citizens, predominantly minority and Democratic voters:

The Lead Up to the 2004 Ohio Presidential Election In Ohio – In the days leading up to election day 2004, a consensus appeared to have emerged among observers that the state of Ohio would be one of the battleground states that would decide who would be elected the Forty-fourth President of the United States.2 Both the Democratic and Republican Presidential campaigns, as well as outside groups, had spent considerable time and resources to win the state, but the day before the election, the Democratic candidate, Senator John Kerry, appeared to have the edge. 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.

First, 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

Second, on election day, there were numerous unexplained anomalies and irregularities involving hundreds of thousands of votes that have yet to be accounted for:

Third, in the post-election period we learned of numerous irregularities in tallying provisional ballots and conducting and completing the recount that disenfanchised thousands of voters and call the entire recount procedure into question (as of this date the recount is still not complete) :

The primary findings were:

• 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 by the long lines. Shockingly, these disruptions were publicly predicted and acknowledged by Republican officials: Mark Weaver, a lawyer for the Ohio Republican Party, admitted the challenges “can’t help but create chaos, longer lines and frustration.”

• Mr. Blackwell’s decision to prevent voters who requested absentee ballots but did not receive them on a timely basis from being able to receive provisional ballots likely disenfranchised thousands, if not tens of thousands, of voters, particularly seniors. A federal court found Mr. Blackwell’s order to be illegal and in violation of HAVA. Second, on election day, there were numerous unexplained anomalies and irregularities involving hundreds of thousands of votes that have yet to be accounted for:

• There were widespread instances of intimidation and misinformation in violation of the Voting Rights Act, the Civil Rights Act of 1968, Equal Protection, Due Process and the Ohio right to vote. Mr. Blackwell’s apparent failure to institute a single investigation into these many serious allegations represents a violation of his statutory duty under Ohio law to investigate election irregularities.

• We learned of improper purging and other registration errors by election officials that likely disenfranchised tens of thousands of voters statewide. The Greater

Cleveland Voter Registration Coalition projects that in Cuyahoga County alone over 10,000 Ohio citizens lost their right to vote as a result of official registration errors.

• There were 93,000 spoiled ballots where no vote was cast for president, the vast majority of which have yet to be inspected. The problem was particularly acute in two precincts in Montgomery County which had an undervote rate of over 25% each – accounting for nearly 6,000 voters who stood in line to vote, but purportedly declined to vote for president.

• There were numerous, significant unexplained irregularities in other counties throughout the state: (i) in Mahoning county at least 25 electronic machines transferred an unknown number of Kerry votes to the Bush column; (ii) Warren County locked out public observers from vote counting citing an FBI warning about a potential terrorist threat, yet the FBI states that it issued no such warning; (iii) the voting records of Perry county show significantly more votes than voters in some precincts, significantly less ballots than voters in other precincts, and voters casting more than one ballot; (iv) in Butler county a down ballot and underfunded Democratic State Supreme Court candidate implausibly received more votes than the best funded Democratic Presidential candidate in history; (v) in Cuyahoga county, poll worker error may have led to little known thirdparty candidates receiving twenty times more votes than such candidates had ever received in otherwise reliably Democratic leaning areas; (vi) in Miami county, voter turnout was an improbable and highly suspect 98.55 percent, and after 100 percent of the precincts were reported, an additional 19,000 extra votes were recorded for President Bush.

• 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.

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, 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.15 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.

In the seminal voting rights case of Reynolds v. Sims 377 U.S. 533, 555 (1964) 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.” 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.”26 The West Virginia Supreme Court, construing a recount statute similar to Ohio’s recount provisions, stressed the importance of an election recount to the fairness and integrity of the election itself.27 Indeed, courts in states which provide a statutory right to a recount uniformly have held that an election cannot be deemed over and final until a recount provided under state law has been completed.

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 Act29 (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),32 thereby creating a new federal agency with election administration responsibilities, setting requirements for voting and voter-registration systems and certain other aspects of election administration, and providing federal funding. Perhaps the central requirement of HAVA was that, beginning January 1, 2004, any voter not listed as registered must be offered and permitted to cast a provisional ballot. HAVA included a variety of additional new requirements, including a provision that beginning January 1, 2004 (extendable to 2006), states using voter registration must employ computerized, statewide voter registration systems that are accurately maintained. 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.

Under Art. 5 §1 of 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 § 3501.05

• Loitering around the polling place is barred, and no one may “hinder or delay” a voter § 3501.32.

from reaching the polls or casting a vote § 3501.35.

• Alteration or destruction of ballots, machinery or election records is prohibited §§ 3599.27, 3599.24, 3599.33-.34.

• Illegal voting is a felony § 3599.12.

•Those who cannot mark their own ballot due to illiteracy or disability are entitled to assistance . § 3505.24.

• Election officials who do not enforce these provisions are criminally liable §§ 3599.32, 3599.16-19.

• 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 § 3599.33.

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. Secretary Blackwell’s own directive, coupled with Ohio Revised Code § 3505.32,

prohibits any handling of these ballots without bipartisan witnesses present.

The 12^th Amendment to the US Constitution 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.”

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.76 In the 2000 election several Members of the House of Representatives attempted to challenge the electoral votes from the State of Florida. However, no Senator joined in the objection, and, therefore, the objection was not “received.” In addition, there was no determination whether the objection constituted an appropriate basis under the 1887 Act. However, if a State has not followed its own procedures and met its obligation to conduct a free and fair election, a valid objection – if endorsed by at least one Senator and a Member of the House of Representatives – should be debated by each body separately until “disposed of”. 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.

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.