Saving The Ballot Evidence From Ohio 2004

This weekend was to be "D-Day" in Ohio. It marked the September 2 deadline after which federal law allows the destruction of ballots from the 2004 election.

It didn't happen, at least on a statewide basis. But the fight to preserve that vital evidence is far from over.

Republican election officials here have been chomping at the bit to shred, burn or otherwise destroy the ballots and other related materials from the dubious vote count that gave George W. Bush a second term. Yet, in several rural southwest Republican-dominated counties, you have to trip over boxes of ballots and election material from earlier elections dating back as far as 1977 in order to see the stickers "Destroy on 9/3/06" on the 2004 ballot boxes.

J. Kenneth Blackwell, the Republican Secretary of State, is running for governor. His dual role as administrator of the election and state co-chair of the Bush-Cheney campaign has raised deep-seated embarrassment and ire throughout the Buckeye State.

The disturbing revelations of irregularities, theft and fraud continue to pour from the ballots still stored by election boards around the state. Statistician Dr. Richard Hayes Phillips has been instrumental in the research process along with a volunteer crew of election protection activists. This summer, Dr. Ron Baiman of Loyola has also been analyzing ballots and other election records from the 2004 election in a project funded by the CICJ. Many have spent countless hours pouring through and photographing piles of voter records and thousands of ballots, some of them stacked in filthy, leaky warehouses. Through this work, the evidence that the 2004 election was stolen continues to build. We will cover some of these new revelations in a future piece.

Unfortunately, some vital material has already been destroyed by various county election boards. Fears have also been expressed that some BOEs might ignore the new orders to preserve the ballots. Some 2004 election workers have already been indicted in Cuyahoga County. A major partisan battle has erupted in the Democratic stronghold of Cleveland over the actions of the Executive Director of the Board of Elections, Michael Vu, for Cuyahoga County. Nominally a Democrat, Vu only holds his position because of the support of Cuyahoga County BOE Chair, Robert Bennett, also the Chair of the Ohio Republican Party. Bennett and his fellow Republican on the election board are keeping Vu from being ousted by the Democratic Party who originally appointed him. Legal battles also continue over the firing of Sherole Eaton, a federal whistleblower who dared to call attention to unauthorized manipulations of a central tabulator during the recount in 2004 in Hocking County.

How many more such legal and political battles will come is unclear. But what is clear is that it will take years of hard investigating to get to the bottom of what really happened in 2004. And that doing so will require preservation of the ballots, which the GOP has been all too eager to destroy.

Ironically, the state of Florida has saved its ballots from 2000. A concerted campaign by academics and other interested parties gathered enough political clout to force Gov. Jeb Bush and Secretary of State Katherine Harris to order those records be moved to a state repository in Tallahassee, where they are now air conditioned and protected for future generations.

Until this past week, Blackwell has made clear his intent to rid himself of the remnants of 2004. Federal law says ballots must be preserved 22 months after a presidential election, which would have meant Blackwell and the BOEs could have shredded them all September 2.

But a week prior, a legal team including Columbus-based Clifford Arnebeck filed notice with Blackwell that action would be taken to preserve the evidence. The formal filing came Thursday, August 30, in the form of a civil rights action. In concert with the New York-based Center for Constitutional Rights, Arnebeck and John Marshall, also of Columbus, asked the federal district court in Columbus to force Blackwell to order the 88 county boards of elections to preserve the ballots. The filing says the ballots are needed as evidence of official fraud, manipulation and discrimination that violated the rights of young and black voters.

With prior wind of the action, Blackwell issued a directive asking the BOEs not to destroy the ballots and election records, at least for the time being. The directive looks like little more than a reciting of existing law that has on more than one occasion, gone unenforced. Initially, Blackwell claimed he did not have the power to order the BOEs not to destroy the ballots. But he has now indicated they are under a limited legal obligation to do so.

Blackwell's prior claim of powerlessness is absurd. Throughout the 2004 campaign the secretary of state ordered major unilateral changes by directive in provisional ballot counting and voter registration procedures. He threatened to remove election board officials who failed to comply. By Ohio law, all BOE officials serve at the pleasure of J. Kenneth Blackwell. Blackwell also denied paper ballot backups to Franklin County (Columbus), in case of long lines during the 2004 election, even after they were requested by the Democratic Franklin County BOE Chair William Anthony and Republican Director Matt Damschroder.

Technically, Blackwell and Ohio's 88 county BOE's appear legally bound under the law not to destroy these ballots. Blackwell has issued guidelines on how to destroy them should the ban be lifted. A Rule 26 letter was delivered to the Secretary of State's office and Attorney General Jim Petro's office last week outlining the fact that the ballots will be evidence in the civil rights case.

For those on all sides of Ohio 2004, the preservation of the ballots should be without controversy. It will take countless hours of serious effort to go through them and other voter records in all of Ohio's 88 counties. There can be no ultimate answers without the preservation of these records. And, says attorney Arnebeck, "the 2004 ballots and records are relevant evidence for issues in our civil rights case, and therefore must be preserved."

The 2004 Ohio presidential electoral college slate became the first ever challenged in its entirety, leading to a historical debate in the U.S. Congress in January 2005. These ballots are essential to political scientists, historians and other interested parties that wish to sort out the controversies and irregularities that surrounded Ohio's 2004 election.

To destroy these ballots would further deprive future generations of a precious artifact, a core document in the history of our nation's democracy. This destruction would desecrate what America is supposed to stand for. It must not be allowed to happen.

Bob Fitrakis and Harvey Wasserman are co-authors, with Steve Rosenfeld, of What Happened in Ohio? A documentary record of theft and fraud, to be published September 15 by the New Press. Help save the Ohio voting records at http://www.savetheballots.org/.

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