by Bob Fitrakis and Harvey Wasserman
March 6, 2007
After the recent convictions of two Cuyahoga County Board of Election workers for felony recount tampering, Republican County Prosecutor Robert Batchelor is stonewalling efforts to investigate similar well-documented charges in Coshocton County, Ohio.
The Cuyahoga County Board of Elections (BOE) third-ranking employee and an assistant manager were each convicted of a felony count of negligent misconduct and a misdemeanor count of failing to perform their duties during the 2004 recount. The convictions stemmed from the secret pre-counting of precincts prior to the lawfully required open recount. The convicted election workers only allowed the pre-counted precincts that matched the official results to be used in the recount. This caused the special prosecutor to tell the jury that the election recount was "rigged" in Cuyahoga.
Testimony and eyewitness reports document similar activity in several Ohio counties regarding the illegal rigging of the 2004 recount.
The Green and Libertarian Parties brought the Ohio 2004 recount after Democratic hopeful John Kerry conceded with nearly a quarter of million votes uncounted in the state. Under Ohio law, county boards of elections must set a "time and place fixed for making a recount"" and ""in the presence of all witnesses [who may] may be in attendance, shall open the sealed containers containing the ballots to be recounted and shall recount them." The sealed ballot containers are to be opened in front of BOE officials and recount candidates may "attend an witness the recount and may have any person whom the candidate designates attend and witness the recount," under ORC 3515.03.
It is illegal to secretly pre-count recount ballots. The BOE can"t do a pre-count of ballots for whatever reason, secretly, after the certified vote goes to the state and after there has been a mandate for a statewide recount.
What happened in Coshocton County before the 2004 recount also appears to be a clear violation of Ohio law and could be damning for the Coshocton County BOE.
On December 8, 2004, Tim Kettler, the Coshocton County recount coordinator for Green presidential candidate David Cobb, was informed by a Coshocton County Board of Elections (BOE) employee that the county would officially recount on Tuesday, December 14.
In a follow up phone call to the BOE a few days later, Kettler learned that BOE Director Mary Fry was planning a full hand count on December 14. This was a surprise, since the Coshocton County BOE had certified its vote total to Ohio Secretary of State Kenneth Blackwell on December 6 as required by law and the required recount only mandated a hand count of 3% of the county's votes, not a full hand recount. The reasons for the hand count would prove even more shocking.
Documents obtained by the Free Press, from a criminal complaint filed by Kettler, show that despite fixing the legal time and place for the recount, the Coshocton County BOE ha begun to pre-count, just like Cuyahoga County, the ballots without notifying representatives of the Green and Libertarian Parties.
BOE records obtained by the Free Press, and filed by Kettler with Prosecutor Batchelor, indicate that a 'special Meeting" was called on December 9 by the Coshocton County BOE to discuss the recount. At the BOE meeting, "a motion was made by David Burns to hand count Precinct 3-C . . . " after the legal certification of the vote, and prior to the recount.
Records indicate that on December 10, 2004, a new certified vote total was sent to Blackwell's office.
Fry informed Kettler in a December 27, 2004 letter that the unexplained December 10 filing contained ". . . amended totals."
The December 27 letter to Kettler also documents that Director Fry knew that errors were being made by the ES&S 550 vote counting machines in tabulating the certified Election Day votes.
"Fry's reason for the allegedly illegal pre-count calls into question the accuracy of ES&S scantron voting machines: "MANY OF THE ERRORS IN TOTALS WERE NOTED TO HAVE BEEN CONDUCTED ON THE 550 [ES&S] COUNTER, WHERE TOTALS ON THE 150 COUNTER WERE STILL REMAINING THE SAME AS ON ELECTION NIGHT AND DURING OUR RECOUNT OF THE BALLOTS FOR CERTIFICATION TOTALS."
The Free Press found similar problems with ES&S 550 counting machines during the 2004 election in Miami County. In Miami County, the counter appeared to add phantom votes never cast to the 2004 presidential election totals. (See "Official States Electronic Voting System Added Votes Never Cast in 2004 Presidential Election; Audit Log Missing," by Peter Peckarsky, Ron Baiman and Robert Fitrakis.)
Fry claims that she contacted the Secretary of State's office and was told to pre-count the ballots prior to the recount, thus raising potential criminal conduct by Secretary of State Blackwell's office.
""I THEN CALLED PAT WOLFE WITH THE SECRETARY OF STATE's OFFICE, TO SEE WHAT WE SHOULD DO. MRS. WOLFE WAS IN MEETING ALL DAY LONG, THIS TRANSPIRED ON DECEMBER 9, 2004. HAVING NOT REACHED HER OR GETTING A PHONE CALL BACK FROM MRS. WOLFE. WE THEN CALLED OUR REPRESENTATIVE FROM THE SECRETARY OF STATE's OFFICE, MICHAEL HERNON, HAVING EXPLAINED WHAT WE HAD DISCOVERED, MICHAEL RECOMMENDED THAT WE RECOUNT ALL BALLOTS THAT WERE RAN ON THE [ES&S] 550 MACHINE, AND IMMEDIATELY GET AN AMENDED SET OF TOTALS TO THEIR OFFICE BEFORE THE ELECTORAL COLLEGES MET, WHICH WAS ON MONDAY, DECEMBER 13TH, 2004. WHILE TALKING WITH MICHAEL HERNON, PAT WOLFE RETURNED OUR PHONE CALL, EVERYTHING WAS EXPLAINED TO PAT WOLFE, SHE ALSO RECOMMENDED THAT WE RECOUNT ALL BALLOTS ON THE 550 COUNTER ALONG WITH ALL BALLOTS," Fry wrote Kettler in the December 27, 2004 letter.
On December 14 as the recount began, the BOE distributed a document entitled "Official - Nov. 2, 2004" dated December 10, 2004, including lists of vote totals, indicating that the Board had secretly hand recounted the ballots prior to the official recount. Fry, in her December 27 letter to Kettler, admits to the secret recount: "DURING THE TIME OF HAND POSTING ELECTION CERTIFIED RESULTS ON OUR ABSTRACT MANY OF THE FIGURES WERE UNUSUAL LOOKING. THEREFORE KATHY [HENDRICKS] AND MYSELF PULLED SEVERAL PRECINCTS AND HAND COUNTED THE PRSSIDENTAL [sic] RACE ONLY, FINDING MANY ERRORS IN TOTALS THAT WERE CERTIFIED TO THE SECRETARY OF STATE's OFFICE."
Kettler contends that Fry's statement is a "blatant lie" and that the minutes of the December 9 special meeting document that the discrepancies in presidential vote totals were discovered during the "cursory count" of Precinct 3-C. That precinct had been pre-selected for the recount, according to Kettler.
On December 14, Coshocton County conducted the only full hand recount of any of Ohio's 88 counties. The hand recount produced a total vote discrepancy of 1079 presidential votes between the certified results of December 6 and the recount results of December 14. With only 17,321 votes cast in Coshocton County, this represented a discrepancy of 6.25% of all votes cast in the county.
In the 1079 vote discrepancy, Kerry received 49% of the vote. This is a stark contrast to the less than 43% he received of the original certified vote totals, before the amended totals.
Kettler further asserts that the "full hand recount" was meant not only to cover up the illegal unwitnessed pre-count but to also steer witnesses away from running a test deck of ballots through the malfunctioning machine." He claims that a test deck of ballots was only run through one of the tabulators, probably the "150," which did not experience problems.
Despite the known problems with the ES&S 550 machines, Fry stated in a Coshocton Tribune interview published on December 18 that the "optical scan technology worked remarkably well."
Kettler asks "Why in the hell would you make a statement like that knowing that the tabulators lost over 6% of the vote?"
He also is "greatly concerned" with what he calls "the unmonitored handling of the ballots during the period of November 2 to December 14" 2004. "No one really knows what may have happened to the ballots given the cardboard box security and the Board's willingness to act in a manner inconsistent with Ohio law," said Kettler.
He noted that the December 9 minutes of the Coshocton BOE meeting recorded that similar events had occurred in another county an d that their Board had proceeded in the same manner as Coshocton.
According the Kettler, though, the Coschocton County BOE officials have not been indicted or convicted because they are being protected by Batchelor.
On August 16, 2006, Kettler filed a police report charging that the Coshocton County BOE had violated Ohio election laws and delivered a copy to prosecutor Batchelor. Three days later, the police assigned a complaint number 0106002634.
A letter was sent from the police investigator to the Coshocton prosecutor on October 10. On October 13 Batchelor refused to prosecute BOE officials in Coshocton County although he never denied that the alleged criminal events occurred. Following the Cuyahoga County convictions, Kettler has now asked that Batchelor be removed and that a special prosecutor be appointed in Coshocton County to investigate this case.
Kettler wrote the Free Press and stated, "My purpose in pursuing this to the bloody end is accountability, reform and [that] the people who perpetrated these misdeeds are still running our elections. Unacceptable!"
Bob Fitrakis and Harvey Wasserman are co-authors of HOW THE GOP STOLE AMERICA'S 2004 ELECTION & IS RIGGING 2008 (http://www.freepress.org/), and, with Steve Rosenfeld, of WHAT HAPPENED IN OHIO?, published by the New Press.