VOTING INTEGRITY - LOOKING GLASS NEWS | |
Shreds of evidence |
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by Richard Hayes Phillips, Ph.D. The Free Press Entered into the database on Wednesday, August 01st, 2007 @ 19:05:59 MST |
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On September 11, 2006, Judge Algenon L. Marbley, United States District Judge,
Southern District of Ohio, Eastern Division, in the case of King Lincoln Bronzeville
Neighborhood Association, et al. v. J. Kenneth Blackwell, et al. (Case No. 06-CV-745),
issued an order requiring the Boards of Elections for all 88 counties in Ohio
to preserve as evidence all the ballots from the 2004 presidential election,
“on paper or in any other format, including electronic data.” The
intent of Judge Marbley’s order was to extend the 22-month records retention
period required by law for federal elections, which period would have ended
on September 2, 2006. Judge Marbley cited Ohio Revised Code Section 3505.31,
which states in relevant part: . . . if the election includes the nomination or election of candidates for
. . . president, the board shall carefully preserve all ballots prepared and
provided by it for use in that election, whether used or unused for twenty-two
months after the day of the election. (emphasis added) . . . provided that the secretary of state . . . may order the board to preserve
the ballots or any part of the ballots for a longer period of time, in which
event the board shall preserve those ballots for that longer period of time. In fact, Directive 2004-43, issued by Secretary of State J. Kenneth Blackwell,
dated October 25, 2004, eight days before the election, had also instructed
the Boards of Elections that “All used and unused ballots must be retained
for at least 22 months.” In addition, wrote Judge Marbley, the Boards of Election were required to preserve
the ballots because they were the subject matter of a lawsuit (King Lincoln
v. Blackwell), and the “duty to preserve the ballots began when each county
Board of Elections office received a letter from Plaintiffs” on August
31, 2006, notifying them of the filing of the lawsuit. In short, all ballots, used and unused, were protected from destruction until
September 2, 2006 by Ohio Revised Code Section 3505.31 and Secretary of State
Directive 2004-43; from August 31, 2006 onward by the filing in Federal District
Court of King Lincoln v. Blackwell (Case No. 06-CV-745); and by Order of Judge
Algenon L. Marbley from September 11, 2006 “unless and until such time
otherwise instructed by this Court.” As it happens, Boards of Elections in at least 56 of 88 Ohio counties did not
comply with the law. During the spring of 2007, the parties to the King Lincoln v. Blackwell lawsuit
reached a court approved Stipulated Agreement under which Ohio Secretary of
State Jennifer Brunner, successor to J. Kenneth Blackwell, agreed to take possession
of the ballots from all 88 counties in Ohio. According to records provided by
Brunner’s office, 46 counties destroyed their unused ballots (a.k.a. “unvoted”
ballots). In addition, I was personally informed by the Trumbull County Board
of Elections that their unused ballots had been destroyed as well. The 46 counties
are: Allen, Ashland, Ashtabula, Athens, Champaign, Clermont, Columbiana, Coshocton,
Darke, Erie, Fairfield, Fayette, Guernsey, Hamilton, Hancock, Hardin, Jackson,
Lawrence, Licking, Logan, Lorain, Madison, Mahoning, Marion, Medina, Mercer,
Monroe, Montgomery, Morgan, Morrow, Noble, Perry, Preble, Putnam, Richland,
Sandusky, Scioto, Seneca, Shelby, Stark, Summit, Tuscarawas, Van Wert, Warren,
Wayne, Wood. Many of these counties (e.g. Ashland, Champaign, Erie, Fayette, Monroe, Perry,
Shelby, Warren) claimed that the records retention schedule does not state that
they must retain their unused ballots for more than 60 days. Fairfield County
could only “assume” that the unvoted ballots “would have been
shredded” 60 days after the election. Others (e.g. Hardin, Scioto, Stark)
stated that their unused ballots were destroyed prior to the court order. Hancock
County claimed that they “received verbal direction” from the office
of former Secretary of State J. Kenneth Blackwell that the unused ballots and
spoiled ballots “did not have to be retained and these items were destroyed.”
Logan County actually claimed that they destroyed their unused ballots “pursuant
to the Ohio Revised Code.” Putnam County stated that “Following
the 2004 General Election all unused ballots were destroyed for security purposes.”
Thirteen counties which failed to produce their unused ballots (Columbiana,
Coshocton, Darke, Lawrence, Licking, Lorain, Madison, Morgan, Noble, Summit,
Tuscarawas, Wayne, Wood) submitted no explanation at all. Five counties (Athens, Guernsey, Hamilton, Mercer, Van Wert) expressed surprise
at being unable to locate their unused ballots. The Athens County Board of Elections
stated that “The Director in 2004 has retired and we feel that these unvoted
ballots from the polls were inadvertently discarded.” The Guernsey County
Board of Elections stated that “The unused ballots as well as the punch
card ballot pages were destroyed in error” because “the county maintenance
worker, when collecting trash, picked up the boxes” that contained them.
The Mercer County Board of Elections stated that the unused ballots “were
not found in our storage area. Please note that the previous office administration
was responsible for the handling of these ballots. We will continue to search
for the unused ballots from this election.” The Van Wert County Board
of Elections stated that “After a thorough search of our basement (where
most of our equipment and supplies are kept) and our office, we are unable to
find any unvoted ballot cards from the November 2, 2004 General Election. We
assume that those ballots were discarded.” John M. Williams, Director
of the Hamilton County Board of Elections, first discovered that their unused
ballots were missing on August 22, 2006 when he failed to find them pursuant
to my public records request. He submitted the following explanation to Secretary
Brunner regarding the “unvoted” ballots and “soiled”
ballots: The above ballots were secured after the election in a basement storage
area. To the best of 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. The unvoted ballots were stored in
boxes and wheeled carts. The voted ballots were not destroyed as they were
stored in punch card filing cabinets that were also located in the basement
area. The unvoted punch cards cannot be replicated. Failure to preserve the unused ballots makes it impossible for any Board of
Elections to verify the authenticity of the voted ballots. The sum total of
voted, spoiled, and unused ballots in each precinct must equal the total number
of ballots issued to that precinct. Without the unused ballots, there is no
way for Hamilton, Montgomery, Richland, Stark, Summit and Trumbull counties
to prove that ballots in selected precincts were not punched in advance for
independent and third-party presidential candidates. Without the unused ballots
(and the stub numbers torn from the voted and spoiled ballots), there is no
way for Clermont, Darke, Mercer, Shelby, Van Wert and Warren counties to prove
that fake ballots were not substituted for real ones. Clermont County is a special case, because of their infamous “stickered
ballots.” During the “recount” of December 14, 2004, several
witnesses saw numerous optical scan ballots with white stickers over the Kerry-Edwards
mark, and the Bush-Cheney oval filled in. By the time we were allowed to photograph
these hand-counted ballots in July of 2006, only one “stickered”
presidential ballot survived. The most likely explanation is that the incriminating
“stickered” ballots were replaced with “duplicates,”
and then destroyed. The making of “duplicate” ballots would have
partially depleted the stash of unused ballots, and because such a shortage
would also be incriminating, the unused ballots would also have been destroyed. My initial records request to the Clermont County Board of Elections was dated
April 3, 2006. More than twenty weeks later, on August 24, 2006, Director Mike
Keeley stated in writing to me that “As time permits, we are still attempting
to locate said un-used ballots. When they are located you, and numerous other
requestors, will be so notified.” More than one year later, on May 10,
2007, they were still looking, as stated in Keeley’s letter of explanation
to Brunner: The Clermont County Board of Elections (has) been unable to locate the unused
ballots regarding the 2004 Election. In interviewing the staff, no one could
remember the disposition of said ballots. No one remembers specifically discarding
the ballots. There is a possibility that the ballots will surface as we complete
the re-organization of our warehouse section, as well as a re-visit to our records
storage facility. If/when we locate the unused ballots we will notify our Liaison,
for disposition. According to records provided by Secretary Brunner, 23 counties destroyed their
spoiled ballots (a.k.a. “soiled and defaced” ballots). The 23 counties
are: Allen, Ashtabula, Clark, Darke, Hamilton, Hancock, Holmes, Jackson, Lawrence,
Licking, Logan, Marion, Medina, Miami, Montgomery, Morrow, Preble, Richland,
Sandusky, Seneca, Shelby, Stark, Wyandot. Miami was the only one of these counties that destroyed their spoiled ballots
and nothing else. They submitted no letter of explanation. Failure to preserve
the spoiled ballots makes it impossible for Miami County to verify the authenticity
of their 570 “recount remakes.” Without the spoiled ballots, there
is no way to prove that the “remakes” match the originals they supposedly
duplicate. As stated in a previous chapter, “Rain-Soaked Records in Miami
County,” the rate of undervotes among the “remakes” was 13.9
percent (79 of 570), compared to a rate of 0.50 percent (248 of 49,744) among
all the other ballots in the county. It cannot be proven that these were not
“remakes” of tampered ballots on which a presidential choice had
been erased or covered over. In Darke County, in Precinct Greenville 3-A, 225 punch card ballots were cast
on the wrong voting machine with the wrong ballot rotation, causing votes for
all contested offices to be shifted to candidates not of the voters’ choosing.
Somehow the Board of Elections knew which ballots these were, because the others
were counted according to which positions were punched. But the 225 ballots
in question were all “duplicated” by the Board of Elections on hot
pink punch cards, with no punches at all for President or for any other contested
office subject to ballot rotation. Clearly, these are not accurate duplications
of the original ballots. The proper procedure, when making “duplicate”
ballots, is to identify them by their stub number, and to attach that stub to
the “original” ballot being duplicated, so that an auditor can match
them up. If we had the originals, we could figure out which ballot rotation
was utilized, and restore the votes to the rightful candidates. But because
Darke County has failed to turn over its spoiled ballots (submitting no letter
of explanation), there is no way we can do this, and 225 voters have been needlessly
disenfranchised. Also according to records provided by Secretary Brunner, 19 counties destroyed
their “ballot pages.” These are booklets, placed upon the voting
machines, which list the candidates and the numbered positions on the punch
cards that correspond to their names. The 19 counties are: Adams, Ashtabula, Butler, Clinton, Fayette, Guernsey, Lorain, Marion, Medina,
Montgomery, Morrow, Paulding, Preble, Richland, Sandusky, Scioto, Seneca,
Shelby, Summit, Wyandot. Fayette County stated that “The actual Election Day ballot pages would
have been destroyed a month before the next election so we could reuse the frames.”
The Director of the Clinton County Board of Elections stated that “I discovered
the punch card ballot pages were not included in the boxes from the Records
Department and began to search for them immediately. I called previous Board
of Elections employees and searched our office.” She stated that they
“opened and searched each box stored at the Records Department,”
but the “Presidential ballot pages were not found.” Four of these counties (Adams, Butler, Clinton and Paulding) destroyed their
ballot pages and nothing else. The Butler County Board of Elections offered
the following explanation: In early March of 2007, we were in the process of creating an inventory
of all storage items being held in our off-site warehouse. At that time,
a request to discard unused forms from the 2004 Precinct Kits was approved.
When these instructions were related via telephone to our offsite warehouse
staff, a miscommunication occurred. The instructions were interpreted as
to include boxes containing the 2004 ballot pages – as they were being
stored next to the unused forms boxes. At no time was anyone specifically
instructed to discard these items. Our warehouse staff then began cleaning
the storage area and marking boxes for inventory purposes. During that process,
several boxes containing all the wire-bound ballot pages were discarded
into a Rumpke dumpster. This dumpster would have been emptied into the local
landfill. Failure to preserve the ballot pages makes it impossible to verify that the
ballot rotation was listed correctly on each and every voting machine. Without
the ballot pages, there is no way for Butler County, for example, to prove that
the “Connally anomaly” in specific precincts was not due to the
ballot positions being reversed on one of several voting machines in that precinct.
This could have happened in one of two ways. If the presidential positions were
reversed on a machine in a “blue precinct,” there would have been
a net loss of Kerry votes to Bush; or if the Chief Justice positions were reversed
on a machine in a “red precinct,” there would have been a net loss
of Moyer votes to Connally. Either way, by fraud or error, Connally would likely
have run ahead of Kerry in that precinct. Reversing the ballot rotations on
all machines for a single precinct would make the results obviously erroneous.
But if only one machine of several was affected, the results would be merely
anomalous. Among the counties that failed to provide all their voted ballots to Secretary
Brunner, two counties (Mahoning, Ross) are listed as having destroyed only their
absentee ballots. That is because the only paper ballots they ever had were
absentee ballots. Both of these counties utilized electronic voting at the polls
on Election Day. The Mahoning County Board of Elections blamed the destruction
of evidence on poor communications with the “Green Team” (a.k.a.
Mahoning County Commissioners’ Reuse and Recycling Division): The ballots were accidentally disposed of on Friday, March 23rd of 2007.
On Wednesday the 21st the warehouse supervisor asked the Director, Thomas
P. McCabe, if it was acceptable to have the Mahoning County Green Team pick
up all recyclables in the storage room for disposal pursuant to the retention
schedule. The Director gave the affirmative that it was acceptable. Lost
in the communication was the previous memorandum between said two of the
September court order to retain all 2004 materials past the retention date. Five counties (Allen, Holmes, Jackson, Lawrence, Scioto) provided some but
not all of their voted ballots to Secretary Brunner. The Lawrence County Board
of Elections, which failed to provide their provisional ballots, offered no
explanation at all. The Jackson County Board of Elections found only “a
partial portion” of the voted ballots, and offered two alternative explanations
for how the ballots went missing: “They may have been destroyed pursuant
to the retention schedule,” or they may have been “accidentally
destroyed when we moved our Board of Elections office.” The Scioto County
Board of Elections offered the following explanation: Un-voted ballots were released and shredded following the twenty-two (22)
month retention period and prior to our receipt of Judge Marbley’s
order on September 11, 2006. Our staff has searched diligently and thoroughly
for the box of missing voted ballots but they have not been located, to
date. The ballots have not been intentionally destroyed. It is unknown whether
the ballots were accidentally destroyed or have been otherwise misplaced. The letter of explanation from the Holmes County Board of Elections is entertaining,
although it does fall short of compliance with the spirit of the law (Ohio Revised
Code Section 3505.31), which requires the Board to “carefully preserve
all ballots.” (emphasis added) A shelving unit collapsed in the Board of Elections storeroom on the morning
of Friday, April 7, 2006. That shelving unit held the voted ballots, stubs,
soiled and defaced ballot envelopes, and ballot accounting charts from the
2004 General Election. The shelves and stored items collapsed onto a side
table holding a working coffee maker. The carafe on the coffee maker was
full at the time of the incident. Many of the stored items had to be destroyed
due to the broken glass and hot coffee. The ballot pages and unused ballots
were stored on a neighboring shelf and were not damaged. More serious problems were encountered by the Allen County Board of Elections: Following the 2004 General Election the Allen County Board of Elections
boxed and labeled all voted ballots and placed them in our vault for the
required 22 months of storage. Throughout the latter part of 2004 and into
2005 the Allen County Board of Elections began to experience problems with
storm water migrating and subsequently penetrating our primary storage areas
including our vault. As a result of these events, much of what was stored
in our vault, including the 2004 General Election ballots, was compromised
by water damage and subsequently destroyed on or about August 20, 2006.
Pursuant to the recommendations of the Allen County Health Department, the
boxes displaying mold or mildew were set aside to be discarded. Unfortunately,
the contractor hired to remove the damaged boxes also accidentally removed
the undamaged boxes as well. Those items include: Poll Books, Clerks Books
and a box containing 498 write-in ballots. Finally, seven counties (Ashtabula, Marion, Medina, Montgomery, Preble, Sandusky,
Seneca) provided no ballots at all to Secretary Brunner. Marion, Medina, Sandusky
and Seneca counties stated that they destroyed their ballots pursuant to the
records retention schedule, shortly after September 2, 2006. Marion and Medina
counties stated that this was done before they received Judge Marbley’s
order. Sandusky and Seneca counties claimed that they have “no record”
of receiving Judge Marbley’s order. Ashtabula County gave the following
explanation: The 2004 Presidential ballots were inadvertently disposed of when the old
punch card equipment appurtenances were disposed of before the May 2006
primary when the new optical scan voting equipment was implemented. A similar explanation was provided by Preble County: We are in receipt of Secretary Brunner’s Directive #2007-07 requesting
delivery of the 2004 general election ballots to her office. Upon receipt of
that Directive our director and deputy director went to our storage area to
retrieve the ballots but were unable to find them. They contacted our recently
retired director to see if she might know where they were located. She told
them that she had been aware that they were not where they were supposed to
be and thought it likely that they had been inadvertently discarded by the Courthouse
maintenance staff when room had to be made for our new electronic voting equipment. The Montgomery County Board of Elections, in a letter signed by Steven P. Harsman,
Director, provided a lengthy and contentious explanation: As you are aware, in accordance to Ohio Revised Code the retention schedule
for a Federal Election is 22 months. We prepared the certificate of destruction
in preparation of destroying the materials from the Presidential Election and
we received the signed copy of Certificate of Destruction from the county records
to proceed with destruction according to the retention schedule. In addition,
we contacted our county prosecutor for further authorization. In addition, we
experienced an extra ordinary situation having 4 elections during a 90 day period.
We literally ran out of space to prepare, stage, and retain material for those
elections. It was imperative that we process the 2004 materials for destruction
under the guidelines of the 22 month retention. Therefore, all materials were
properly destroyed in a timely manner and we are unable to comply due to those
circumstances. We did not receive formal notice from the courts prior to preparing
the certificate of destruction. In short, Harsman is saying that the 2004 election records still existed at
the time the Board of Elections received Judge Marbley’s order to preserve
them, but because they “ran out of space” to store these records,
and because the Board had already received authorization from the County Prosecutor
to destroy these records, it was “imperative” and “proper”
to destroy them. The opinion of the County Prosecutor trumps an order from a
United States District Judge. It was Steven P. Harsman who, accompanied by Betty Smith, Deputy Director,
barged into the room where I was photographing ballots at about 3:30 P.M. on
Thursday, August 24, 2006, and ordered me to stop. I refused, stating that Harsman
had agreed to allow me one full day to photograph the uncounted ballots from
all 23 precincts specified in my public records request. Earlier on this same
day, the Montgomery County Board of Elections had received notification by e-mail
from Cliff Arnebeck, Attorney at Law, of the impending lawsuit, and was asked
to preserve the ballots as evidence in the case. But the Board was eager to
destroy them. The employees who handled the ballots for me brought up the subject
themselves. Of the 501 uncounted ballots photographed in these 23 precincts, 322 (64.3
percent) contained multiple punches for president. Of these, 21 (6.5 percent)
were punched for both Bush and Kerry, 273 (84.8 percent) were punched for Kerry
and one or two independent or third-party presidential candidates, and only
19 (5.9 percent) were punched for Bush and for one or two independent or third-party
presidential candidates. It is my conclusion, stated in a previous chapter,
“Pre-Punched Ballots in Deep Blue Precincts,” that these ballots
were pre-punched in order to ruin otherwise valid ballots in heavily Democratic
precincts, but that the pre-punching was not done by the Board of Elections. However, 70 (14.0 percent) of the uncounted ballots had “dimpled chads”
for president, 57 intended for Kerry, and 13 intended for Bush. There were 1124
holes punched cleanly through the very ballots on which these 70 “dimpled
chads” were found, indicating that some of the voting machines were rigged
to make it more difficult to vote for president than for any other office or
ballot initiative. If the holes in the “masks” or “shields”
that cover the punch card ballots are too small, the punching implement, or
“stylus,” will leave only a dent, or “dimple,” in the
ballot. It is the Boards of Elections, not the voting machine vendors, who punch
the holes in the “masks” or “shields.” This would be
a powerful incentive for the Board of Elections to destroy the ballots. Richard Hayes Phillips has been investigating the 2004 Ohio election ever
since it happened. The Free Press was the first to publish any of his writings.
The preceding chapter will appear in his forthcoming book, “Witness to
a Crime: A Citizens’ Audit of an American Election.” |