The Ohio Recount: Reluctant Officials and Few Rules

by ANN HARRISON

Thousands of protesting Ukrainians successfully forced their Supreme Court to order a new presidential run-off election and are still agitating for anti-fraud legislation. But their counterparts in the U.S. – which holds itself up as a model of Democracy – are plunging into a tough fight to recount and dispute the election in Ohio which handed President Bush twenty decisive electoral votes.

On December 6th, Ohio Secretary of State J. Kenneth Blackwell certified the vote in the critical swing state declaring that President George Bush beat out John Kerry by 118,775 votes. The President’s 136,000 vote lead on election night was narrowed to two percent after the absentee and provision votes were counted. But the election was not close enough to trigger an automatic recount and Blackwell, who co-chaired Bush’s campaign, declared on NPR that there was "no widespread proof of fraud or intimidation or shenanigans."

Not so, say Ohio election activists who have spent the past month gathering what they say is evidence of voting irregularities, voter intimidation and suppression. Green Party presidential candidate David Cobb and Libertarian presidential candidate Michael Badnarik plan to file a request for a recount in all 88 Ohio counties. Having raised the required $113,600 and landed a favorable federal ruling against a county that tried to stop the recount, the candidates also want to review all 155,000 provisional ballots. A recount must begin within ten days of the formal request, but it is unlikely that it will be completed when Ohio’s presidential electors are set to meet on December 13th.

There’s an urgency to postpone the electors meeting, but the pressure’s not coming from the Democrats. The third party recount is supported by John Kerry’s presidential campaign which also wants to count votes, but not dispute the results. "The Kerry Edwards campaign does not expect the outcome to change," said Don McTigue, a Columbus lawyer who filed suit for the campaign in U.S. District Court seeking to impose uniform standards for counting provisional ballots.

The Democratic National Committee announced December 6th that it would appoint a panel of experts to look at voting problems in Ohio. Outgoing Democratic National Chairman Terry McAuliffe, vowed that Democrats will spend "whatever it takes" to examine voting flaws and "make sure every vote is counted." But they’re not seeking to overturn the race either, focusing instead on issuing a report on how to improve future elections – due out next spring.

The main effort to actually channel election investigations into a win for Kerry is being led by a fair election group called the Alliance for Democracy. The organization says it will press the Ohio Supreme Court to review what it says is abundant evidence of election irregularities and ask the court for a declaratory judgment which names Kerry the winner.

"We are basically going to make allegations that the votes, if properly counted, would reveal a different result then that which was certified by the Secretary of State not in the change in number, but a change in the outcome by which candidate won," said Cliff Arnebeck, a Columbus lawyer who represents the group. He says that for this to happen, the December 13 meeting of the state electors should be postponed. "The Supreme Court has the power to order that the election outcome be determined differently than what was presented by the Secretary of State by a standard of proof and by clear and convincing evidence," said Arnebeck.

 

Gathering The Evidence and Making It Count

As an example of the type of evidence that might overturn the Ohio election, Arnebeck points to a computer error on election night which recorded an extra 3,893 votes for Bush in the Columbus suburb of Gahanna where the precinct recorded only 638 people casting votes on Danaher electronic voting machines. He said concerns about "inadvertent migration of votes from one candidate to the other" has been raised in a number of Ohio counties with different types of voting systems. According to Arnebeck, they include Clermont County’s optical scan machines and punch card ballot readers used in Warren, Butler and Hamilton County.

About 70% of Ohio voters cast their ballots via punch cards. Arnebeck notes that the certification of votes on December 6th did not address the 92,000 spoiled punch card ballots with no valid presidential choice which he says will be addressed in the recount process. The Alliance for Democracy also plans to use sworn testimony gathered in public hearings in Columbus, Cincinnati and Cleveland where witnesses charged that election officials disenfranchised voters by withholding voting machines in African American and Democratic precincts – while dispersing them generously to Republican leaning suburbs.

But the Alliance for Democracy is particularly concerned about voting machines. According to Arnebeck, statistical anomalies in vote totals are evident in both a statewide county by county macro analysis of the vote, and a micro analysis on the precinct level. He says his group seeks to break the vote analysis down by county and determine if the anomalies are a result of error, inadvertence or fraud. "We want to clearly establish what happened and that can include having all the machines and all the documents subjected to analysis by the top experts in the country," said Arnebeck.

Getting election officials to agree to an analysis of voting machines has proved difficult. On November 22, the Electronic Frontier Foundation (EFF) and the Verified Voting Foundation (VVF) announced that they had sent letters to voting officials in eight counties around the country urging them to allow independent testing of their electronic voting machines. The two groups were among the 60 organizations in the Election Protection Coalition which ran an election day hotline and the web-based Election Incident Reporting System. The Coalition received 37,862 reports of election irregularities, including 2,112 incidents concerning voting machines.

The two major machine errors involved voters who selected Kerry on an electronic touch screen and saw their vote change to Bush on a summary screen. The second was a specific problem with the Sequoia AVC Edge machine where voters saw preselected default choices presented to them. According to EFF and VFF, counties where the most serious problems were reported include Mahoning and Franklin County in Ohio, Broward and Palm Beach Counties Broward and Palm Beach in Florida, in Florida, Mercer and Philadelphia County in Pennsylvania, Harris County in Texas and Bernalillo County in New Mexico.

The response so far from these counties? "Pretty much zilch," says EFF staff attorney Matt Zimmerman who notes that many county officials are under heavy pressure to certify the vote. Matt Damschroder, directer of Ohio’s Franklin County Board of Elections, said officials there have received the request. But he insisted that the county had "no problems" with it’s Danaher e-voting machines – the same machines that malfunctioned in Gahanna. "They functioned as they were intended to on election night," said Damschroder.

Even when election activists appeal to the courts, Zimmerman says judges often give local election officials broad authority on how to conduct machine audits. Former Riverside, California County Board of Supervisors candidate Linda Soubirous learned this lesson when she challenged Riverside County and its Registrar of Voters earlier this year. The county refused to conduct a proper recount of a race that Soubirous lost by 45 votes. Soubirous requested examination of the audit logs and redundant memory stored in the machines. But the Registrar refused to grant her access to any of this material arguing it was not "relevant" to a recount. According to Zimmerman, a state court ruled that local election officials could decide what recount data is relevant and the case is now on appeal.

"If we wanted to get close to voter intent, that would mean going to machines individually to look at data," said Zimmerman. "But a judge is mostly going to defer to election officials and the law does not require them to look at individual machines and undergo the labor intensive task to get the vote counts – the judge will not require them to do that."

Even if activists turn up evidence of tampering with punch card readers or optical scan machines, Zimmerman says there are few clear guidelines or laws that would force officials to act on the information. "To the extent that there is some kind of paper record, that is good thing," said Zimmerman. "But unless the laws and regulations force you to do something with it, they are almost worthless."

Will recount activists be able to look inside each voting machine in Ohio to conduct a post election analysis? If they get the right judge with the right disposition who lets them look at the logs, it’s possible, says Zimmerman. But if the judge simply requires that the election tallies be recounted, he says the counties may just look at the votes after they have been filtered through a central tabulation system.

EFF is trying to use the Open Records Act to get access to voting data, but Zimmerman said it cannot be used effectively to impound voting machines. "It underscores the notion that election laws have not caught up to technology," said Zimmerman. "Right now we are up against a ticking clock and time is running out to uncover problems and malfeasance that might have been examined."

ANN HARRISON covers politics for CounterPunch, the San Francisco Bay Guardian and other publications. She can be reached at ah@well.com.

 

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