Destruction of Evidence - Ohio's 2004 Presidential 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.

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