In Violation of Federal Law, Ohio's 2004 Presidential Election Records Are Destroyed or Missing

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 Brunner.

The 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 office."

"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 other side."

Brunner's office confirmed the 2004 ballots were missing, but declined to comment.

"Because 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."

The 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 totals.

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.

On 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."

Two 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 notice."

What happened to the 2004 ballots

The 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 election boards.

"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 voting system."

"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.

Reporters 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.

In 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."

"The same 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 for Bush."

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 count fraud."

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.