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Volume 15, Issue 14
Published August 8th, 2007
News Lead

The Dog Ate Our Ballots

Most 2004 Vote Records Are Gone, And Some Of The Excuses Are Pathetic

While Ohio's mainstream media last week obsessed over whether the state's bridges are safe, you had to scour newspapers to find the latest revelation on the collapse of another crucial infrastructure in the state: its elections system.

In mid-July, attorney/journalist Bob Fitrakis and his team at Columbus-based freepress.org learned that in 56 of Ohio's 88 counties, some or all of the ballots and other elections records from the November 2004 presidential election were missing, lost or destroyed. This occurred despite a federal and state requirement that they be retained for 22 months (through September 2, 2006) and a court order issued by Judge Algernon Marbley in US District Court on September 11, 2006 that they be retained indefinitely, pending a lawsuit filed by the King Lincoln Bronzeville Neighborhood Association in Columbus against former Secretary of State Ken Blackwell, alleging voter suppression.

Fitrakis' team had been trying to access the ballots and related records since 2005, under the Freedom of Information Act. "We made public record requests that were stonewalled," says Steve Rosenfeld, who worked with Fitrakis and was one of the first to report on the missing records. "The boards of election didn't respond to FOIA requests."

But then new Secretary of State Jennifer Brunner began attempting to collect all the records at a repository in Columbus. Her office found that in dozens of counties, unused, spoiled and, in some cases, all ballots, as well as ballot pages listing the candidate rotations, had disappeared.

Fitrakis' crew learned the scope of the problems in mid-July. By the end of the month it had run a pair of articles; an overview by Rosenfeld which also ran on the Alternet Web site and a detail-heavy feature by statistician Richard Hayes Phillips, which also ran on onlinejournal.com. On August 2, Fitrakis and his Free Press colleague Harvey Wasserman posted their own take. The story was picked up by Web sites such as rawstory.com and americablog.com, but was encapsulated in six scant paragraphs on page four of the Plain Dealer's Metro section and on the back page of the Dispatch's Metro section, "under the obituaries," according to Fitrakis.

"We were notified by the attorney general's office on July 10 that there may be some problems," says Fitrakis. "We were getting vague reports that there was missing material by the end of May, early June; we just didn't know the extent of it. To tell you the truth, I had no idea the magnitude of information that would be missing."

Brief mainstream newspaper stories downplayed the importance; after all, we know Bush won, don't we? In reality, the missing records have virtually assured that we will never know who carried Ohio in 2004. That's in contrast to Florida in 2000 where a recount of the retained ballots showed that, even with widespread problems, Al Gore carried the state legitimately.

A count of unused ballots, for instance, could show whether some were taken and filled in to replace other ballots or added to the total. Some counties showed inexplicably high voter totals, in some places exceeding the number of registered voters; others had large, unexplained blocs of votes show up for Bush after the initial count. The infamous "Connally anomaly" occurred in 12 southwestern rural counties, in which Supreme Court candidate C. Ellen Connally, a liberal Cleveland Democrat virtually unknown in Southern Ohio, earned more votes than John Kerry. (It's typical for down-ticket candidates to receive as much as 30 percent fewer votes than top-of-ticket races as names become less familiar and voter interest flags.)

Fitrakis and his researchers were hoping to discover explanations for these oddities, but without the records preserved, that won't happen.

"Nobody was going to figure out if the vote was counted fairly and accurately without looking at a paper trail," says Rosenfeld. "Now we know, thanks to the Secretary of State's inquiries, that in 56 of 88 counties the record is incomplete, so you won't be able to make that determination. The evidence trail stops there."

Brunner's office requested written explanations from the boards of election that couldn't produce all their records, resulting in a litany of mistakes and excuses that Fitrakis and Wasserman's article headlines as "fraudulent," "absurd" and "pathetic." A scan of the letters, as excerpted by Rosenfeld, Phillips, Fitrakis and Wasserman, shows that's hardly exaggerated.

"In Allen County, [BoE director] Mr. [Keith] Cunningham informed [Brunner] that the basement where the ballots were had been leaking for six years," says Fitrakis. "He said the 2004 ballots had to be moved to the floor because they needed stuff on a higher shelf. He provided papers to the Free Press that said they had to throw them out because they were moldy. If you put ballots in a vault that's been leaking for six years by Mr. Cunningham's own admission and you put them on the floor, that's an intentional destruction of public records from my perspective."

One explanation verged on the comical. In rural Holmes County, the board claimed a shelving unit containing ballots and other material from the 2004 election collapsed onto a table containing a working coffeemaker, shattering its filled carafe and soaking the material with coffee. "Many of the stored items had to be destroyed due to broken glass and hot coffee," their letter states.

Fitrakis doesn't buy it: "When coffee falls on public records, you have an obligation to clean them up. There's a thing called hair dryers, there's a thing called paper towels. There's plenty of products, stuff you can buy very cheap that deals with mold and mildew. This isn't the dark ages. They should have called the Ohio Historical Society."

Mainstream news articles quoted Brunner describing the destruction scenarios as "legitimate," but she was referring only to the handful of counties who destroyed the records between September 2 and September 11, 2006. Most were destroyed before or after. And Fitrakis says that boards were notified of the pending lawsuit in late August, which should have been sufficient to warn them to save all records.

The failure to do so would seem to indicate either a singularly high level of incompetence and ignorance - scary in itself - or possible fraud, which Fitrakis claims.

"Ohio evidence laws deal with this," he says. "You presume fraud. You presume they were destroyed because there was damaging information in those records. Almost all of this overwhelmingly was done in counties under control of Republican directors. I think they were worried about an actual audit, thrown in with standard incompetence."

Even if you completely discard all the conspiracy theories, the picture painted by the loss of the 2004 ballots is one of an elections system that hasn't emerged from the 19th century, let alone entered the 21st.

"If you're an official and don't know elections law, you should step down," says Fitrakis. "If you don't know "all ballots' means all voted ballots and all unused ballots, you should step down. What you have is a system in Ohio where political hacks and incompetents take these positions for a paycheck when they're not qualified to hold these positions."

Jennifer Brunner's communications director, Patrick Gallaway, adds another explanation for the confusion, one familiar to Ohio elections activists: Ken Blackwell didn't do his job.

"When Judge Marbley's decision came down, we've found proof there was a message forwarded to the boards about the decision but no directive about what to do," he says. "They forwarded the judge's decision with no accompanying definition of what it meant. So as far as they knew they could dispose of them after the 22 months. If they had had better advice from the Secretary of State's office, this wouldn't have happened."

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