Apr. 19, 2006 – During both the 2004 presidential election and subsequent recount in Ohio, elections observers reported hundreds of problems and irregularities in precincts across the state. But while top-ranking officials have avoided repercussions, one county prosecutor is going after mid-level elections workers in Ohioâ€™s biggest county, accusing them of illegally fixing the recount.
While some voting-rights activists welcome the indictments of three county workers as an opportunity to expose flaws in Ohioâ€™s polling system, some criticize the investigation for failing to hold state leaders and top-level elections officials accountable. Instead, activists are turning to lawsuits over Ohioâ€™s recount procedures to force state officials to repair fundamental defects in the system before the next election.
Last week, Special Prosecutor Kevin Baxter issued formal charges against Jacqueline Maiden, the third and highest-ranking Cuyahoga Board of Elections employee to be indicted by a grand jury. The state has charged Maiden, a former elections coordinator, along with ballot director Kathleen Dreamer and Rosie Grier, an assistant manager of ballots, with violating six counts of Ohio election law, two of them felonies.
The state accuses the defendants of opening sealed ballots and poll books before the official recount scheduled on December 16â€“17, 2004, and reviewing, sorting, counting or deleting ballots outside the presence of witnesses. Maidenâ€™s defense attorney, Cara Santosuosso, said if convicted on all counts, defendants face dismissal from their positions, up to $21,600 in fines and 18 monthsâ€™ imprisonment.
Witnesses noticed that ballots cast for John Kerry and for George W. Bush were grouped together in batches, suggesting they had been counted before the observers arrived.
State law requires that during the recount process, elections workers, in the presence of witnesses, do a hand recount of ballots within a randomly selected sample of precincts representing 3 percent of total ballots cast in a county. The recounted ballots are then run through a machine for verification. If the numbers fail to match, state law requires a countywide hand recount of all the ballots.
Baxter told The NewStandard that during the recount, witnesses noticed that ballots cast for John Kerry and for George W. Bush were grouped together in batches, suggesting they had been counted before the observers arrived. "It became suspicious to them, because it looked like [the ballots] had already been separated or counted prior to that time," said Baxter.
All three defendants have denied any wrongdoing and pleaded not guilty. Santosuosso, said her client, a 19-year Board of Elections employee, was only following long-established procedures.
"The presidential recount in 2004 was conducted [like] every other recount in Cuyahoga County since at least 1987," Santosuosso told TNS. "These procedures are not new; theyâ€™re what have been employed for years."
While Baxter said his investigation is still open, some voting rights advocates question why the state has not also charged Cuyahoga Countyâ€™s top elections officials. Baxter said the grand jury heard from about 15 witnesses over two-and-a-half days, though he would not disclose the names of witnesses and said he was unsure how many were Board of Elections employees.
Reports of pre-counts are not isolated to Cuyahoga County.
Responding to defendantsâ€™ claims they followed standard procedure, Baxter commented that he had "looked at that, and thatâ€™s an issue." He also said that he "didnâ€™t know" if county Board of Elections Director Michael Vu knew that pre-counting was taking place.
"He has not been indicted, and you know, I canâ€™t say whatâ€™s going to happen," Baxter said.
Vu did not return calls from TNS, but recently told the Cleveland Plain Dealer workers followed procedures that had been in place for 23 years. But he would not say whether these procedures included pre-counting ballots.
Stuart Comstock-Gay, executive director of the National Voting Rights Institute (NVRI), a non-partisan voter advocacy organization, said his group had not expected the election-worker indictments and was pleased to see problems with election administration being taken seriously. But he also said he does not think the indictments will make the problems go away.
"I donâ€™t have evidence to say that the top officials in the department should be charged under this," said Comstock-Gay. "However, in any system where mid-level employees are making mistakes, whether intentional or not, youâ€™ve got to look at how the department is managed. And there should be some level, at least, [of] public responsibility, for the failure in this case."
Cuyahoga Board of Elections workers have not been charged with vote fraud. Some involved with the issue believe that the pre-counting of ballots was not likely a result of malfeasance but instead a way to avoid the costs of a full hand recount. With Cuyahoga Countyâ€™s estimated 600,000 ballots, the procedure could have taken weeks.
Toledo attorney Richard Kerger, a former member of Kerryâ€™s regional litigation committee who originally brought witnessesâ€™ concerns to the prosecutorâ€™s office, said he doesnâ€™t believe the defendants were intentionally trying to affect the outcome of the election.
"I think they were all just tired and didnâ€™t want to face the prospect of a recount in Ohioâ€™s largest county," said Kerger, "so they tried to stack the deck. Unfortunately [for them] thatâ€™s against the law."
But reports of pre-counts are not isolated to Cuyahoga County. Dozens of similar instances were recorded across the state by recount witnesses working on behalf of Green Party presidential candidate David Cobb and Libertarian Party presidential candidate Michael Badnarik, the candidates who originally requested the recount.
In Allen County, Democratic-recount observer Marilyn Smith reported that Keith Cunningham, director of the county board of elections, "explained that it would take considerably longer to carry out the recount if there were a random selection process employed."
In Champaign County, Green Party observer Phil Fry reported that after questioning whether the precinct to be recounted was randomly chosen, elections workers said they did choose randomly between two precincts.
"I told them that the way to do random was to put all the precinct names on pieces of paper and into a bowl, then make a blind selection of one," wrote Fry. "If that selection was smaller than 3 percent, they needed to choose a second and continue in that way until they had 3 percent." He also recalled telling the workers they were "not following the requirements of law" and that he would note it in his report.
And in Jefferson County, Green Party observer Ed Bortz reported that precinct staff had pre-selected "random" districts for the recount. "We called our legal team for guidance on this issue," wrote the witness. "Essentially, our legal team could not provide specific instructions that would stop the recount based on this issue."
Cobb and Badnarik are also plaintiffs in a lawsuit filed by NRVI against Ohio Secretary of State Kenneth Blackwell for alleged defects in the stateâ€™s recount process. In addition to citing "inadequate" guidelines for random selection, it also accuses Blackwell of delaying the official election results, thereby pushing back the date on which Presidential candidates can call for a recount. As a result, the lawsuit argues, the state had insufficient time to do a proper recount within the timetable mandated by federal law.
The judge originally dismissed the suit, but plaintiffs are asking him for reconsideration.
"Itâ€™s very clear that the recount was a mess, all across the state of Ohio," said NVRIâ€™s Comstock-Gay. He said the problems resulted from malfeasance and many precinctsâ€™ ignorance of statewide standards.
Though Comstock-Gay doesnâ€™t believe a full recount would have changed the final election results, he said there "clearly would have been different numbers than there are."
"What it shows is if itâ€™s a really close race â€“ if itâ€™s closer than the one in Ohio, if itâ€™s like Florida in 2000 â€“ then you might as well flip a coin at this point because we canâ€™t trust the systems," he said. "And the administration of the systems is not thorough and efficient enough to be sure weâ€™re getting it right."
A second lawsuit was filed against Blackwell by the Ohio League of Women Voters and is being heard by the same judge presiding over the NVRI case. The League accuses Blackwell, Governor Bob Taft and the officials preceding them of failing to protect the rights of voters, as required by constitutional guarantees of equal protection and due process.
The suit also alleges that Ohio has not met its obligations under the Help America Vote Act of 2002. Plaintiffs argue that for over three decades, the state has maintained a deficient system, including "widespread problems with the voter registration system, the absentee- and provisional-ballot processes, the training of poll workers, the organization of polling places and precincts, and the allocation of voting machines."
Plaintiffs want the state to institute changes before the November 2006 general election.
"One of the reasons we got involved in this is that, frankly, left to the [two major] parties alone, itâ€™s harder to press for standards that would be common across the country," Comstock-Gay said. "[The parties] are going to make their arguments based on whether they are going to win or not. Our focus is on, is every vote being counted? And is everybody having a fair chance to vote?"