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Destruction of Evidence – Ohio’s 2004 Ballots

Letter from an Ohio Board of Elections (Holmes County) on missing 2004 ballots.

“Letters from the Edge” - Part 1

By Michael Collins
“Scoop” Independent News
Washington, D.C.

Overall this blatant destruction of evidence only reinforces the widespread belief that the 2004 election was stolen.

Bob Fitrakis and Harvey Wasserman, Free Press August 2, 2007

The 2004 presidential election was mired in controversy all over the country. Candidate Kerry’s legion of volunteer lawyers was ready to fight anticipated election fraud. Serious challenges were defused when Kerry conceded the election in the early morning of November 3, 2004. Failing to recognize that candidates cannot concede the votes of citizens, the news media and political parties called it a night.

Ohio was ground zero for charges of election fraud. These are ably detailed in several articles and won’t be repeated here. One post election event is worth mentioning. The March 13, 2007 Toledo Blade ran this headline at the end of a major trial in Cleveland:

2 election workers get 18 months for rigging presidential recount.

The crime took place in the largest voting district in Ohio, Cuyahoga County, which includes Cleveland. Election workers created the recount that wasn’t thus denying the public of vital information about charges of election fraud.

The tale of the lost ballots and destroyed evidence begins with a law suit brought by citizens against Ohio officials: King Lincoln Bronzeville Neighborhood Association (KLBNA) v. Blackwell. The suit charges Blackwell and other Ohio officials with: “election fraud, vote dilution, vote suppression, recount fraud and other violations.”

Specific charges include: “withholding unused (unvoted) ballots” in response to legitimate requests to review these ballots; violation of Ohio law by “breaks in the bipartisan chain of custody;” and “tampering with ballots” by marking Bush’s name on ballots with no presidential vote and switching ballots from Kerry to a third party candidate. Amended Complaint October 9, 2006

In order to prove their case, plaintiff’s counsel, noted voting rights attorney Cliff Arnebeck, needed all of the ballots from the 2004 election. Federal law stipulates a 22 month retention period for all federal elections, as does Ohio law for state elections. The presiding judge in the case, Algenon L. Marbley, issued a court order on September 6, 2006 extending the retention requirements for an additional 12 months. Blackwell was instructed to distribute the order to Ohio’s boards of elections.

The Judge then ordered that the ballots be turned over to the new Secretary of State, Democrat Jennifer Brunner on April 7, 2007. Brunner sent a request out for the ballot evidence two days later

When the Ohio Secretary of State sent requests for delivery of the ballots, 56 of Ohio’s 88 counties replied that they no longer had some or all of the ballots requested. Only 41 bothered to provide an explanatory letter as to the missing ballots. Fifteen counties offered no reason at all for noncompliance. Counties failing to return complete sets of ballots accounted for a majority of Ohio’s 2004 presidential votes.

Federal and State Law on Preserving Ballots

In the section on “Federal Election Records,” federal law (United States Code) clearly states the rule:

Section 1974. Retention and preservation of records and papers by officers of elections; deposit with custodian; penalty for violation:

Every officer of election shall retain and preserve (“records and papers”) for a period of twenty-two months from the date of any general, special, or primary election (involving federal candidates)

Ohio law requires that “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.”

July 2004 Secretary of State Blackwell issued a reminder to all of the county boards regarding the 22 month retention standard for election records.

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Through the Secretary of State, a federal judge, and the lead attorney in a law suit, the 88 counties received multiple notices that they were to retain all ballots from the 2004 election for federal office, president in particular, for at least 22 months and after that “until such time as otherwise instructed by the court.”

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But look what happened.

Destruction of Ballot Evidence

The five types of ballots requested were: (1) voted; (2) unvoted; (3) absentee; (4) provisional; and (5) spoiled. All ballots are required to determine if fraud took place. Unvoted ballots are no exception. There are several key points to remember when reading the explanatory letters from the boards:

• Federal law requires retaining all “records and papers” for 22 months.


• Ohio law requires retention of “all ballots” for a similar period.


• Federal and Ohio laws offer no exception for unvoted ballots.


• There is an assumed standard of care for ballots that includes concerns like chain of custody and secure and safe storage.

The first letter in the collection is from the Ashtabula County Prosecuting Attorney. Why would the prosecuting attorney write this letter when all the other explanatory letters were written by election board members? Perhaps someone in that county understood the gravity of destruction of evidence and the penalties involved.

Unfortunately, the actual ballot cards were inadvertently discarded and destroyed by the Ashtabula County Board of Elections just prior to the receipt by the Board of Judge Marbley’s Order and subsequent directive to your office.

Thomas Sartini, Prosecuting Attorney, Ashtabula County Apr. 16, 2007

There is a clear intent to use the term inadvertently or somehow imply unintentional destruction of ballots in many of the letters. Webster’s defines inadvertent as: 1: not focusing the mind on a matter: inattentive. 2: unintentional.

In Athens County, for example, the board said “they feel that these unvoted ballots were inadvertently discarded.” These must have been very special feelings since they were powerful enough to intuit inadvertent discarding of ballot evidence. No further explanation was offered.

On April 11, 2007, Clermont said that they didn’t know where the ballot evidence was but that “no one remembers specifically discarding the ballots.”

Like Clermont, Brown County couldn’t find all the ballots but they were sure that they “were not intentionally destroyed.”

Guernsey County says that unvoted ballots “were destroyed in error due to the county maintenance worker.” This is inadvertent destruction of evidence by proxy. The janitor did it. Several counties blamed retired elections officials without indicating any effort to contact those officials for an explanation.

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As you look at the examples of ballot evidence destruction, keep in mind that destruction of ballots is the one way to be 100% certain that the charges in KLBNA v. Blackwell are never verified. Ironically, that destruction of 2004 ballots seems to break the very same laws charged in the civil action.

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Allen County had a “migrating water” problem that flooded their vault holding the ballots. This caused them to be “compromised by water damage and subsequently destroyed.” The dry ballots were also lost when a contractor threw them out, inadvertently no doubt. The ballot wipe out in Allen combined both inadvertent destruction (of damaged ballots) and destruction by proxy (all the rest).

Let’s look at two of Ohio’s largest voting districts, those including Cincinnati and Cleveland.

Cincinnati is part of Hamilton County, population 823,000. Election board director John Williams had this to say:

In January of ’06, the staff was engaged in a sizable effort to make room for the Hart voting system. To the best of my knowledge, the above ballots (unvoted precinct ballots) were inadvertently shredded between January 19th and 26th of ‘06 in an effort to make room for the new Hart voting system.

John M. Williams, Director of Elections, Hamilton County Board of Elections, May 16, 2007

So Hamilton had to make room for new voting machines but they shredded the ballots inadvertently; in which case the given reason for the destruction of evidence had nothing to do with the anticipation of new machines since it was inadvertent, “not focusing the mind on matter” or “unintentional,” meaning the absence of specific intent, i.e., moving them to make way for new machines.

Or possibly Hamilton destroyed the ballot for an unspecified reason and found that the shredding made room for the new voting machines; in which case they confused the unspecified reason with inadvertent shredding and used the new machine arrival as a convenient excuse.

Or possibly the staff of the board of elections was so concerned with clearing up storage space that they failed to notice the ballots, the key product of their role as election workers, and set them aside resulting in the shredding; only later rationalizing their negligence with the excuse of needing for extra space for e-voting machines.

Is there a fourth option? The statement by Hamilton as written makes no sense at all. What really happened in this huge voting district?

Hamilton County could produce a receipt for the inadvertent ballot shredding. That might provide clues that would make sense out of their nonsensical letter. But as we will see shortly, before even investigating, Secretary of State Brunner and Attorney General Dann applied a benign motive for what seem to be blatant violations of federal and state law.

Cuyahoga County, population 1.3 million, was unable to determine how many unvoted ballots it had in its possession. It took records for “ballots ordered” for 2004 and subtracted the total ballots cast, assuming the difference was sufficient instead of actually counting the unused ballots.

From Cuyahoga County transmission to Ohio Secretary of State, April 17, 2007.
Collection of Letters and Reports, (p. 222)

The unused ballots are of grave importance for Cuyahoga. The county was the site of a wide range of election problems. One would think they’d want to explain why they needed 1,135,265 ballots for 1,007,187 registered voters when turnout is rarely exceeds 60%. That’s a lot of extra ballots floating around in a county that produced a “rigged” presidential recount. There were several other counties with large quantities of extra ballots.

Cuyahoga County acting elections director Jane Platten was so concerned about the state of the ballots delivered that she amended her certification statement to the Secretary of State.

Statement of Jill Platten, April 17, 2007 Full Collection of Letters and Reports, (p. 223)

Platten wrote in an email regarding the issue on April 17, 2007: “I did not know the chain of custody and storage of those ballots since the November 2004 election. None of the persons responsible for those ballots … work at the BOE any longer.” (Full Collection, p. 225) Did those persons cease to exist altogether? Surely they could have been reached by phone, paid a visit, or asked for a sworn statement or deposition. Was any such effort made? Apparently not.

Platten had no doubt seen this report on the board’s activities dated January 17, 2007, three months before her amended certification above. The Center for Election Integrity at Cleveland State University did a study of the board and reported the following:

Center for Election Integrity, Cleveland State University, January 17, 2007, (p. 7)

This finding is presented as an understatement when it should be a headline. The essence of the gross security lapse in Cuyahoga is obvious: just about anyone associated with the board could have gained access to the 2004 ballots. Both ballot security and chain of custody were compromised. How would anyone know that the ballots delivered to the Secretary of State were the actual 2004 ballots with so many people allowed unsupervised access over time? Inefficiency and poor record keeping on the part of public officials trump the search for justice.

What regard do you have for ballots when you fail to produce them and then don’t even bother to explain why? Fifteen counties never bothered to explain their failure to obey federal law and a federal court order. For those who wrote letters, why not simply say “we’re very sorry to report…” or “we deeply regret to inform you?” How many expressed regrets? There were only two or three by my count.

Did any of those who had already destroyed ballots by the time of Judge Marbley’s order bother to write the Secretary of State explaining that fact when they received the order? If not, why not? Did any of those who had already destroyed ballots after the 22 month federal retention period but prior to the request for delivery in April 2007 bother to report this to the Secretary of State? If not, why not?

Reaction by Ohio’s Secretary of State and Attorney General

Both Attorney General Dann and Secretary of State Brunner made clear promises to pursue 2004 election fraud investigations during their campaigns. Their words on this subject are well documented. Once elected and faced with the massive destruction of evidence from the 2004 election, they may have experienced an inadvertent memory lapse.

2006 general election winner, Secretary of State Jennifer Brunner (D), was quick to respond to the destruction of evidence. The Cincinnati Enquirer of August 11, 2007 reported Brunner’s remarks: “If I had evidence of a cover-up, I would investigate. For me, the bigger question in 2004 was how many people were prevented from voting (something) you can’t quantify?” Attorney General Marc Dann (D), also elected in 2006, responded quickly by seconding Brunner’s position. So much for campaign promises.

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While the two Democratic officials were quick to absolve those who destroyed evidence, both have refused to meet with voting rights activists to receive and discuss extensive data and analysis that supports election fraud in the 2004 presidential election.

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How Do We Interpret the Destruction of Ballot Evidence?

There are a number of ways to look at the vanished ballots. Let’s consider two broad approaches.

This could just be a series of coincidences Explanations for the missing ballots include: (a) inadvertent shredding or other forms of unintended ballot destruction; (b) aggressive maintenance personnel removing what was taken to be trash; (c) retired officials blamed by their replacements; (d) ignorance of the law; and (e) this is just the way we do things. The benign interpretation of the destruction or loss of evidence would accept each and every explanation is accurate. Furthermore, the benign interpretation would also include an assignment of coincidence to 56 of 88 counties performing these acts, many in areas where charges of election irregularities were raised. The explanation might go something like this:

We’ve got a loose patchwork of election boards who’ve become accustomed to doing things their own way. The summary sheets are sufficient since there was no ill intent. It’s not really destruction of evidence. It’s just what happened. Nothing to worry about here. Lets move on to a new election cycle in 2008.

A less benign interpretation is expressed in the following analogy:

Your neighbor is charged with assaulting you and stealing all your money. The neighbor vigorously denies this. The police know that the neighbor has a security video camera and taping system that covers his front yard, the scene of the assault. The police tell the neighbor to preserve the tape and bring it down town to police headquarters. The neighbor sends the police a fax saying, “I no longer have the tape. I spilled coffee on it and then my cleaning crew threw it out. As proof of my innocence here is the tape summary I compiled which says: Summary of video - No unusual events noted. “

Now imagine how you would react when the police chief appeared on television and announced, “I’m sure that the destruction of evidence was unintended. If I thought there was a crime, I’d conduct an investigation. There’s no reason to think a crime took place. Besides, I’m more interested in car theft anyway.”

The explanations shouldn’t matter at all. The federal statutes are clear. Ballots are to be preserved for 22 months following elections. Those counties that destroyed them prior to that deadline violated both federal and state statutes and should be considered for prosecution under federal and state law. Ignorance of the law, particularly for public officials, is no excuse.

The court order for ballot preservation was delivered by the plaintiff’s attorney, by the Secretary of State, and was the subject of media coverage. The counties who still had ballots after the federal deadline had adequate notice to retain them from plaintiff’s attorney. County personnel should be held accountable to federal and state laws on ballot preservation and destruction of evidence.

All counties had a responsibility to know and obey federal law and the court order. All counties had a responsibility to store safely and with care all of the 2004 ballots and any other ballots they had in their possession. All counties had a responsibility to have a chain of custody procedure in place to assure that the ballots stored could be accounted for as the original set from the election. This is standard operating procedure for any organization. Why wasn’t this done?

Will there be justice and accountability? Will the possible theft of a presidential election cause the newly elected Secretary of State and Attorney General to reconsider their quick dismissal of destruction of election evidence? Will the federal courts take note and provide a consequence for those who inadvertently or intentionally destroyed evidence?

America has been robbed of its history here. The public has a right to know the true outcome of the 2004 election, and to have its laws about preservation of critical records honored.

Bob Fitrakis and Harvey Wasserman, Free Press August 2, 2007

END

Letters of explanation from counties that provided them, including those referenced in this article. (1.02 MB)

The full collection of letters and records for the provision of ballots from the 2004 election can be found here. (19.1 MB)

Permission to reproduce this article in whole or part with a link to the original article in “Scoop” Independent News and attribution of authorship to Michael Collins.

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