Apparently Illegal OH Recount Activity Exposed

The Republican executive director of the Hocking County Board of Elections (BOE) may have written at least one memo outlining possibly illegal behavior during the scandal-ridden 2004 Ohio presidential recount. And an explosive five-count complaint has been filed by Ohio's new Secretary of State, Jennifer Brunner, against two GOP directors in Cuyahoga County. It is built in part on evidence gleaned from the federal report issued by Congressman John Conyers (D-MI) after the 2004 election, from stories broken at the Freepress.org website, and evidence gathered by grassroots voting rights activists in Cleveland.

After the 2004 election, the Green Party and Libertarian Party paid $113,620.00 for a recount of the state's presidential balloting.

Lisa Schwartze, the executive director of the Hocking County Board of Elections, supervised the recount in that county. On Friday morning, December 10, 2004 as the recount was about to commence there, a technician, Michael Barbian, Jr. from Triad Governmental Systems, Inc., called the Hocking County BOE and informed them he would be in that afternoon “to check out your tabulator [and] computer . . .” a court affidavit documents.

In a court filing by the National Voting Rights Institute contesting the legality of the recount, the following description is offered: “. . . Michael Barbian, Jr. appeared . . . asked for the identity of the precincts selected for the recount, and then proceeded to take apart the computer used for vote tabulation and reprogram it. While there, Mr. Barbian instructed the Hocking County Board of Elections on how to create a ‘cheat sheet’ to avoid a full hand recount of the votes cast there for president.”

At a December 20 hearing conducted by the Hocking County BOE, Barbian was asked “You were just trying to help them so they wouldn’t have to do a full recount of the county, to try to avoid that?” Barbian replied, “Right.”

Hocking County BOE Deputy Director Sherole Eaton took Barbian’s coat when he arrived on the recount day, and followed him to the room where the county’s central computer tabulator was located. As she describes the events, “I had my back to him when he turned the computer on. He stated that the computer was not coming up. I did see some commands at the lower left hand of the screen but no menu. He said that the battery in the computer was dead and that the stored information was gone. He said that he could put a patch on it and fix it. My main concern was – what if this happened when we were ready to do the recount.”

Barbian proceeded, according to Eaton, to take both the central tabulating computer and the spare “apart.” Eaton stated, “He proceeded to take the computer apart and call his office to get information to input into our computer.” He arrived at 12:30pm and by 3pm after dissembling both computers, he pronounced the computer ready for the recount. Barbian stayed for another two hours and asked which precinct was going to be recounted. “I told him Good Hope 1,” Eaton later swore in an affidavit to U.S. Congressman John Conyers.

According to Eaton, Barbian remained until 5pm and, “He advised Lisa [Schwartze] and I how to post a ‘cheat sheet’ on the wall so that only the Board members and staff would know about it and what the codes meant so the count would come out perfect and we wouldn’t have to do a full hand recount of the county.” Eaton swore in her affidavit that, “The realization that this company and staff would do anything to dishonor or disrupt the voting process is distressing to me and hard to believe.”

Conyers on December 15, wrote to the FBI agent in charge, Kevin Brock and Hocking County Prosecutor Larry Beal pointing out that, “Triad is controlled by the Rapp family, and its founder Tod A. Rapp has been a consistent contributor to Republican causes. A Triad affiliate, Psephos Corporation, supplied the notorious butterfly ballot used in Palm Beach County, Florida, in the 2000 presidential election.”

Public records show that Rapp had given $500 to the Bush-Cheney re-election campaign in February 2004 as well as another $500 to the Republican National Committee that same month. At the time of the recount, Triad sold copies of the butterfly ballot, that had disenfranchised so many voters, as a “commemorative item” on its website.

Eaton was fired soon after swearing out her December 13 affidavit. She has since sued to get her job back. The Free Press has obtained a memo that Eaton claims is from Executive Director Schwartze. The memo is part of the evidence submitted in Eaton’s court case, and the Hocking County BOE has never denied its authenticity. The memo refers (in all caps) to the handling of the computer tabulators by saying "MICHAEL FROM TRIAD HAS PROGRAMMED THE COMPUTER (FOR FREE), AND IS GIVING US ANOTHER RUN THROUGH."

Conyers raised the issue of election tampering in a December 21, 2004 letter to President Bush, among others, stating “Triad employees possibly accessed computers and tabulating machines before the recount and out of the presence of board members and witnesses in at least 41 counties. You have the right to have ballots secured until witnesses and board members are present." Conyers referenced Ohio Revised Code Section 3515.04.

Conyers also pointed out that: “You have the right to have the 3% randomly selected” and cited Blackwell’s directive 2004-58 issued on December 7, 2004.

Schwartze’s memo goes on to indicate that, in direct contradiction to Ohio law, the BOE executive director approved the choice of a single precinct to recount not at random, but with deliberate predetermination. Referring to the choice of which precinct to re- examine, the memo notes that the law requires that 3% of the county's votes be re-counted, and then states that: “3% EQUALS TO 404 VOTES. I RECOMMEND THAT WE HAND COUNT GOOD HOPE 1 BECAUSE THEY HAVE 405 VOTERS.”

If this memo was in fact written and issued by Schwartze, it constitutes a possible official order to commit an illegal act. The clear intent would have been to avoid hand-counting all the ballots cast in the county, which would have been mandated had the re- count in the test precinct come up at variance with the initial official results.

In confirmation of that, the memo goes on to say: “WE CAN HAVE A TEAM OF FOUR, WHICH MEANS THAT EACH BOARD MEMBER CAN COUNT THE BALLOTS ONCE BEFORE IT RUNS THROUGH THE TABULATOR, INCREASING OUR CHANCE OF SUCCESS, AVOIDING A HAND COUNT FOR ALL PRECINCTS.”

This is precisely the type of behavior that led to felony convictions, and 18-month prison sentences, recently meted out to two lower-level poll workers in Cuyahoga County (Cleveland). If this memo came from Schwartze, it indicates that at least one county executive director also broke the law during the Ohio 2004 presidential recount. In this case, she is known to have ties to then- Secretary of State J. Kenneth Blackwell. It is unlikely that Schwartze would have carried out these activities, or have put their blueprint in writing, without at least the tacit approval of her Republican cohort in Columbus.

Meanwhile, Brunner has accepted resignations from two of the four directors of the Cuyahoga County Board of Elections which she has requested. The complaint for the summary removal of the two who are refusing to resign contains material from the report on the 2004 election issued by Conyers, and material first reported at freepress.org.

Brunner's action constitutes the first time since 1972 that an Ohio Secretary of State is attempting to remove BOE members for cause. In 2005, Blackwell asked the Lucas County (Toledo) BOE to resign after the botched 2004 election, but all four members did so voluntarily. In Cuyahoga, Republicans Sally Florkiewicz and Bob Bennett are refusing to resign. Bennett is chair of both the BOE and the Ohio Republican Party.

The first of Brunner's five counts is “Failure to Adopt Adequate Procedures for Election Recounts Resulting in the Felony Convictions of Two Board Employees.” In this first count, Brunner cites the generally ignored Blackwell Directive 2004-58 that specifically mandated “. . . that the Board randomly select for the hand recount whole precincts whose votes cast equaled at least 3% of the total vote.”

The complaint also alleges that Jacqueline Maiden, one of the convicted Cuyahoga County BOE officials, acknowledged at a public meeting that the randomly selected precincts may have been secretly viewed by Board employees. This viewing actually was exposed as a “pre-count” of ballots with the June 28, 2006 indictment of Maiden, Kathleen Dreamer and Rosie Grier. Maiden and Dreamer were convicted of a felony and misdemeanor each; Grier was found not guilty.

Count Two against the BOE is for misfeasance and nonfeasance, specifically "Failure to Manage Competently the Board’s Financial Affairs." Brunner charges that the Cuyahoga BOE initially estimated its 2006 budget needs as $11,460,174. But it then filed an additional request for another $12,900,000 because of its mishandling of the 2006 primary and general election.

Count Three is an additional charge of misfeasance and nonfeasance alleging "Failure to Ensure the Efficient Administration of Elections in 2004, 2005 and 2006." A key and explosive charge is the Board’s failure to maintain “Ballot Security and Voted Absentee Ballot Storage.”

According to Brunner, ballots were not properly sealed, and during the November 2006 election, “keys to allegedly-secured ballot storage areas were kept in unsecured locations potentially allowing unauthorized and unsupervised access to the ballots.”

Also, “. . . the Board distributed approximately 1500 absentee ballots that listed the wrong party affiliations of candidates, including two candidates for an Ohio House of Representatives district.”

Brunner also charges that 5100 voters received ballots “containing material errors in the November 2006 election.”

For the first time, an Ohio Secretary of State has also taken on the “unintended and illegal purging of voter registration lists.” The Free Press originally broke the story about nearly 10,000 Cleveland voters who were supposedly thrown off the Cuyahoga County voter rolls because of a Diebold computer glitch prior to the 2004 presidential election. The following charge is included in Brunner’s complaint: “In 2004 the Board installed a new voter registration system that has resulted in the unintended cancellation of the registrations of large numbers of voters due, in part, to software deficiencies in the Board’s new system.”

Furthermore, Brunner alleges, “The Board failed to timely address the deficiencies in the new voter registration system and failed to establish a formal process for identifying, tracking and resolving the improper purging of voter registration lists.” [For a detailed account of this incident, see the book What Happened in Ohio? from the New Press.] Overall, more than 170,000 voters were purged from voting lists in Cuyahoga County, most from heavily Democratic Cleveland wards, according to public records between the 2000 and 2004 presidential elections. The 2004 presidential election was decided in Ohio by fewer than 119,000 votes.

Count Four is still another charge of misfeasance and nonfeasance, specifically "Failure to Ensure an Acceptable Level of Performance of Voting Equipment." Brunner’s complaint states “Due to a defect in ballot layout, the optical scan voting machines used by the Board in the May 2006 primary election failed to read all absentee ballots on the day of the election.” The BOE was forced to delay the reporting and spend an additional $400,000 to correct the problem.

Count Five outlines "Good and Sufficient Cause for Removal," which is summed up as follows: “Administration of elections in Cuyahoga County has resulted in a lack of public confidence in the integrity of the election process in Cuyahoga County.” Brunner’s complaint cites the Conyers Report “Preserving Democracy: What Went Wrong in Ohio” issued on January 5, 2005 as well as the Final Report by the Cuyahoga Election Review Panel dated July 20, 2006 and the Cleveland State University Center for Election Integrity Monitor Report issued on January 8, 2007.

The aggressive nature of Brunner's complaints against the Cuyahoga BOE indicate Ohio's Secretary of State seems set on guaranteeing that what has happened in Ohio's recent elections will not happen again in 2008. Given the mountain of evidence surrounding the chaos that has recently defined the electoral process in Cleveland, these hearings promise to be explosive – especially with the surfacing of a memo in yet another Ohio county where the law may have been knowingly broken during the 2004 presidential recount.

Bob Fitrakis & Harvey Wasserman are co-authors of three books on Ohio's recent elections; the books and their on-going reporting are available via www.freepress.org

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