By Steven Rosenfeld, AlterNet
Posted on July 30, 2007, Printed on August 1, 2007
In 56 of Ohio's 88 counties, ballots and election records from 2004
have been "accidentally" destroyed, despite a federal order to preserve
them -- it was crucial evidence which would have revealed whether the
election was stolen.
Two-thirds of Ohio counties have destroyed or lost their 2004
presidential ballots and related election records, according to letters
from county election officials to the Ohio Secretary of State, Jennifer
lost records violate Ohio law, which states federal election records
must be kept for 22 months after Election Day, and a U.S. District
Court order issued last September that the 2004 ballots be preserved
while the court hears a civil rights lawsuit alleging voter suppression
of African-American voters in Columbus.
The destruction of the
election records also frustrates efforts by the media and historians to
determine the accuracy of Ohio's 2004 vote count, because in county
after county the key evidence needed to understand vote count anomalies
apparently no longer exists.
"The extent of the destruction of
records is consistent with the covering up of the fraud that we believe
occurred in the presidential election," said Cliff Arnebeck, a Columbus
attorney representing the King Lincoln Bronzeville Neighborhood
Association, which filed voter suppression suit. "We're in the process
of addressing where to go from here with the Ohio Attorney General's
"On the one hand, people will now say you can't prove
the fraud," he said, "but the rule of law says that when evidence is
destroyed it creates a presumption that the people who destroyed
evidence did so because it would have proved the contention of the
Brunner's office confirmed the 2004 ballots were missing, but declined to comment.
this case is still pending, Secretary of State Jennifer Brunner is
unable to comment on this," said Jeff Ortega, a spokesperson.
"Ultimately, whether the boards of elections are in violation of a
federal court order is a matter for the court to decide."
missing presidential election records were discovered this past spring
by Brunner, a Democrat and former judge who was elected Secretary of
State in 2006. Her predecessor, Republican J. Kenneth Blackwell, was
sued in August 2006 by a Columbus community organization that alleged
the former Secretary of State and other "unnamed" officials
"selectively and discriminatorily designed and implemented procedures
for the allocation of voting machines in a manner to create a shortage
for certain urban precincts where large numbers of African-Americans
resided," according to the complaint.
Under federal and Ohio law,
all ballots and election records from federal races must be preserved
for 22 months after Election Day, which fell on Sept. 2, 2006. While
election integrity activists and reporters from a Columbus website,
FreePress.org, had sought the ballots and other election records soon
after the presidential election, Blackwell would not allow county
boards to release the ballots, citing court challenges to the 2004
results and a 2005 suit from the League of Women Voters alleging the
state was not following the newest federal election law, the Help
America Vote Act. By spring 2006, after the League's lawyers stipulated
they were not challenging the 2004 election results, some counties
began to release their 2004 election records. Scrutiny of those records
raised questions about the conduct of the election and some county vote
On Aug. 23, 2006, lawyers for the King Lincoln
Bronzeville Neighborhood Association notified the Secretary of State's
office of their voter suppression suit. The following day Blackwell's
office sent letters to all 88 of Ohio's county Boards of Election,
notifying them of the suit. It is customary for public officials to
preserve potential evidence when notified of pending litigation.
Blackwell negotiated with opposing attorneys and agree to send a
directive to election boards saying the ballots should be retained. Ian
Urbina, a New York Times reporter working on the story, reported that
Blackwell said he would be creating a process whereby county election
officials could eventually review and dispose of the 2004 ballots.
Sept. 11, 2006, U.S. District Judge Algenon Marbley ordered the
election boards "to preserve all ballots from the 2004 Presidential
election, on paper and in any other format, including electronic data,
unless and until such time otherwise instructed by this Court."
months after Marbley's order, Blackwell lost the race for governor to
Democrat Ted Strickland and Brunner was elected Secretary of State.
During the following winter and spring, Brunner and the state's
attorneys began negotiating a settlement for the voter suppression
suit, according to lawyers involved in those talks. Part of that
agreement, which has not yet been brought before the federal district
court, was the creation of a statewide repository of the 2004
presidential ballots. When conducting an inventory and attempting to
collect those records, Brunner's office learned that seven counties had
no ballots to turn over and 56 counties only had partial records from
the 2004 vote.
"This is not just a violation of a 22-month ballot
retention law. It is a violation of a court order," Arnebeck said.
"Blackwell told the New York Times that he would create a clearance
procedure before destroying any ballots. The combination of Blackwell's
directive and my letter should have been enough to give the counties
What happened to the 2004 ballots
presidential ballots and election records were lost, misplaced, damaged
by water, taken to landfills -- all apparently by mistake, due to
miscommunications, or because the local election administrators were
not aware of the state ballot preservation law or the federal court
order, according to letters to Brunner's office from the various county
"Our staff unintentionally discarded boxes
containing Ballot Pages as requested in (Brunner's) Directive 2007-07
due to unclear and misinterpreted instructions," wrote Butler County
Board of Election Director Betty McGary and Deputy Director Lynn
Kinkaid in a May 9 memo. "Several boxes containing all the wire-bound
ballot pages were discarded into a Rumpke dumpster. The dumpster would
have been emptied into the local landfill."
"The Hamilton County
(Cincinnati) Board of Elections was unable to transfer the unvoted
precinct ballots and soiled precinct ballots," wrote John Williams,
Hamilton County Director of Elections on May 16, 2007. "To the best if
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
"No one could remember the disposition of said
ballots," wrote Mike Keeley, of Clermont County's Board of Elections on
May 10, 2007, referring to the "unvoted" or unused ballots from the
2004 presidential election.
Since the 2004 election, a handful of
media organizations, civil rights groups, attorneys, historians and
authors have been investigating how the president won in Ohio by
118,775 votes. These inquiries have had two primary focuses: examining
Republican-led voter suppression tactics and problems with the vote
count, suggesting vote count fraud.
The partisan voter
suppression tactics have been easier to document. Before the election,
Blackwell, who was co-chair of the state's Bush-Cheney campaign, issued
numerous administrative orders that fueled an extreme partisan climate.
One of the most notable came as Ohio was seeing large voter
registration drives in mid-2004. Blackwell issued an order, which he
later rescinded under pressure, saying only voter registrations on
80-pound paper would be accepted and processed. At the time, Republican
Gov. Robert Taft told reporters that directive could disenfranchise
100,000 voters. The state Republican Party also threatened to send
thousands of poll challengers to local precincts, to ensure only
properly registered voter exercised that right.
On Election Day
in many Ohio cities, the turnout -- or voter accommodation rate -- in
these traditional Democratic strongholds was markedly lower than in
nearby suburbs, where Republicans have tended to be the majority. In
Columbus, the King Lincoln Bronzeville Neighborhood Association sued
saying African-American voters in Franklin County were disenfranchised
because urban precincts received fewer voting machines per capita than
the whiter, wealthier suburbs. They noted urban precincts had many more
voting machines during the spring primary.
Ohio's Secretary of
State and Attorney General are engaged in settlement talks in the
neighborhood association suit, suggesting the voter suppression claims
have merit. In contrast, the case for Republican vote count fraud in
the rural areas has been much harder to prove, even as the certified
vote count is problematic in some counties.
Compared to Ohio's
Democratic urban core, turnout in the Republican districts was higher
than the 2000 election. Moreover, in a handful of counties there were
vote count anomalies that made post-election observers question whether
Bush's vote was padded. The most notable example is more than 10,000
voters from several Bible belt counties who voted for Bush and voted in
favor of gay marriage, if the results are true. In a dozen rural
counties, virtually unknown Democrats at the bottom of the ballot
received more votes that Kerry, an oddity in a presidential year.
associated with FreePress.org and Arnebeck's legal team hoped the court
order preserving the 2004 ballots would enable them to investigate how
these results occurred. Depending on the ballot type and vote-counting
machine used, they have theories about how Bush's vote could have been
inflated. But because many of these rural counties apparently have
destroyed the very 2004 election records that would clarify what
happened, it is now virtually impossible to determine what happened.
Warren County, where county election officials said on Election Day
that the FBI had declared a homeland security alert -- which they later
retracted -- ballots were diverted to a warehouse before counting. The
local media was not allowed to observe the vote count. According to a
letter from the Warren County Board of Election to Brunner's office,
the election board cannot find 22,000 unused ballots from the election.
"The missing records reveal where the fraud occurred," said
Arnebeck. "You take as an example, Warren County. It is well documented
that there was a phony homeland security alert and that was the excuse
for excluding the public and the press from observing what was going on
during Election Day. So the missing unused ballots would suggest that
ballots were remade to fit the desired result."
situation occurred in Clermont County," he said. "We have sworn
affidavits from people who saw white stickers placed over the
Kerry-Edward ovals in this optical scan county," he said, referring to
one way of masking a would-be Kerry vote, because optical-scan machines
read ink marks on paper ballots. "So the missing unused ballots would
suggest they were used to remake ballots to reflect the desired vote
Many rural Ohio counties did not have vote count
problems, Arnebeck said. But enough did have significant problems that
called for further investigation.
"The Attorney General says the
rural counties all say human error was to blame (for the missing
ballots)," he said. "There are some counties where ballots are missing
and we don't believe anything was wrong with the vote count. But there
are others where that human error covers up what we think was vote
Another big category of votes that will never be
explained are the nearly 129,000 ballots that were rejected by voting
machines and not counted. Many of these 2004 ballots -- a mix of
computer punch cards, paper ballots to be marked by ink and electronic
votes -- are among the incomplete 2004 election records. One
post-election analysis found 94,000 of these ballots come from
Democratic-majority precincts, and estimated these that ballots could
have cost Kerry an additional 26,000 votes.
Steven Rosenfeld is a senior fellow at Alternet.org and co-author
of What Happened in Ohio: A Documentary Record of Theft and Fraud in
the 2004 Election, with Bob Fitrakis and Harvey Wasserman (The New