Ohio Will Likely Face Big Vote-Counting Problems in 2008

It is a very odd spectacle. Ohio's Democratic secretary of state, Jennifer Brunner, who was elected on a pledge to clean up voting problems in her presidential battleground state, is now under attack by would-be progressive allies for her solutions.

And her critics, who on Tuesday said her remedies could disenfranchise tens of thousands of likely Democratic voters in Ohio's primary in March and in next fall's presidential election, are not even aware of the biggest irony of all: Brunner could have solved the same problems months ago if she would have settled a federal voting rights suit from the 2004 election. Instead of working through the federal courts, she is now fighting in Ohio's notoriously partisan political arena.

"All the critics' concerns are valid. But they are confirming stuff that was known months ago and was in the (proposed court) consent decree," said Robert Fitrakis, an attorney, political scientist and journalist from Columbus, Ohio, who -- at the request of Ohio's attorney general -- was part of a legal team that drafted a proposed settlement that contained 50 legal reforms to make Ohio elections more transparent, accurate and accountable. "They have had a rational blueprint in their hands since April."

Instead, Brunner this fall conducted an extensive $1.9 million study of vulnerabilities in Ohio's electronic voting systems and predictably found major problems, and then late last week announced a series of solutions for 2008. Those suggestions were criticized in a teleconference on Tuesday by the New York University Law School's Brennan Center for Justice, the Verified Voting Foundation, Cleveland State University's Center for Election Integrity and a member of Brunner's own advisory voting rights council.

"No matter what happens, there will be no good answer," said Larry Norden, chair of the Brennan Center Task Force on Voting System Security, speaking of voting in the March presidential primary in the state's largest county, where Cleveland is located.

"We are aware there is a lot of criticism," said Patrick Gallaway, Brunner's spokesman. "These are all truly recommendations right now. Jennifer Brunner as secretary of state is not going to dictate at this point what she thinks the solutions should be for a fix in Ohio. We want to work in a bipartisan fashion with the Ohio legislature and governor, and figure out what the best solution should be for the state."

Gallaway was not aware of the consent decree that raised -- and would have settled - most of the issues Brunner is now grappling with.

The criticism from voting rights advocates does not come from Brunner's analysis of Ohio's voting problems, but her recommendations to fix those problems. As in a handful of states, Brunner commissioned a major study to evaluate Ohio's voting systems before next year's presidential election. Her evaluation found that Ohio's new paperless voting systems, which were first widely used in 2006, had security and accuracy problems. The study revealed many ways votes and vote counts could be altered.

In response, Brunner made a series of suggestions for 2008. In general, she wants the state to move from using paperless electronic machines to voting systems where people mark paper ballots that are then counted by electronic scanners. That proposal has been adopted in other states and is generally regarded as sound, because using paper ballots means audits and recounts can occur where voter intent can be discerned. New federal legislation to fund that transition will be introduced in Washington this week.

Instead of counting paper ballots at local precincts, however, Brunner said she wanted to create a system of centralized counting locations. She also wants to move to vote-by-mail for special elections. And she urged Cuyahoga County, where Cleveland is located, to adopt a new optical scan paper voting system for the March primary election. That suggestion came after the county's paperless system broke down while counting votes last November in an election with only 15 percent voter turnout.

Moving to centralized counting and pushing Cleveland to adopt a new paper-based system drew the heaviest criticism from the Tuesday teleconference. Norman Robbins, who is a Case Western Reserve University professor emeritus of neurosciences and longtime Cleveland voting rights activist -- and a member of Brunner's Voting Rights Advisory Council executive committee -- said centralized counting would prevent voters from correcting mistakes made when voting.

In 2004, he said more then 90,000 Ohio ballots were not counted because of uncorrected mistakes. George W. Bush won Ohio by less than 119,000 votes. In 2004, Robbins said Cleveland's inner city -- where African-Americans and other minorities live -- had twice the error rate of ballots with mistakes as the city's white-majority suburbs. Centralized counting would prevent people from correcting mistakes and could end up disqualifying thousands of ballots, Robbins said. "There is a terrible disenfranchisement when you don't have second chance voting," he said.

The Brennan Center's Larry Norden said the same potential for disenfranchisement could occur with a fast transition to voting by mail. He said studies by voter registration groups have shown minority voters tend to fall off when first establishing vote-by-mail systems. "You change who is voting," he said, saying low-income, minority and elderly voters are disproportionately impacted.

The other major criticism concerned Brunner's suggestion Cleveland adopt an optical-scan voting system for the March primary. Cuyahoga County's board of elections had a day-long meeting on Monday and rejected that idea, saying there was not enough time to acquire the new machinery and train poll workers and election officials. "There wasn't support among the strongest proponents of moving to scanning," said Candace Hoke, director of the Center for Election Integrity at Cleveland State University.

"What we will do in the short term, we will try to help Cuyahoga County find a solution," said Patrick Gallaway, Brunner's spokesman. "For the rest of the state, we have to work with the equipment we have. We will try to put in place some of the safety precautions and safeguards. We will help poll workers with their training."

He said that the critics were ignoring a key point in Brunner's recommendations that poll workers at local precincts would scan ballots to see if there were are mistakes such as voting for more than one candidate. However, at the teleconference both Norman Robbins and the Brennan Center's Norden said that was not a practical idea, mostly because once voters leave the voting booth and turn in their ballots they tend to quickly leave the precinct.

Gallaway said it was somewhat unfair that "groups that we thought were advocating for us are now being critical." He said, "Why are they not talking to us. It's unfair to do this ... Our first goal that was established when we came into office was to ensure trust for every Ohio voter."

However, Columbus attorney Robert Fitrakis has another view. After the 2004 election, he, Columbus attorney Cliff Arnebeck and others compiled evidence of problems with that presidential election. That record was used in reports by the House Judiciary Committee, cited by Democrats who unsuccessfully challenged Ohio's 2004 Electoral College votes and became the basis for a federal voting rights lawsuit that alleged intentional voter suppression of minorities.

That suit, which was filed in August 2006 -- before Brunner was elected -- resulted in a federal court order to preserve the 2004 ballots as evidence. When Brunner came into office, she asked all 88 Ohio counties to preserve those records and found that 56 counties had destroyed part or all of their 2004 ballots -- violating the court order.

During the spring of 2007, Ohio's attorney general's office -- representing the secretary of state -- asked Arnebeck and Fitrakis to draft a settlement document, called a consent decree. Their submission contained 50 legal and policy solutions that, if adopted, would have dealt with most of the problems uncovered by Brunner's recent study of Ohio's voting systems. However, Fitrakis said Brunner never took the lawsuit or proposed settlement seriously. In September, he published the draft decree on his website, FreePress.org.

"She is making 101-level mistakes that everyone in the voting integrity movement has been talking about for years," he said. "She chooses optical scans, but goes to central counting. That is not an improvement. In Miami County in 2004, 16,000 votes were added at the close of voting in central counting. She comes to the right conclusion on DREs (direct recording electronic or paperless voting machines), but not the right implementation."

"They cut off negotiation," Fitrakis said, speaking of settling the federal voting right case. "They never acknowledged they had the solution in their hands. They have done nothing but stall. We warned the attorney general ... They could settle a federal case and take it out of the state political realm. The judge could monitor it. What they are doing by delaying is running out of time and opening themselves up to new lawsuits."