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Election Attorneys Amplify Importance of Convictions for Recount Rigging in Ohio 2004 Pres Race

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a news analysis
by Paul Lehto, Attorney at Law


The verdict is in on whether the November 2004 presidential election recount in Ohio was "illegally rigged {by election officials} in what was supposed to be a random sample recount in {order} to avoid a time-consuming hand count of all votes."

Verdict: Two officials found Guilty of felony level negligent misconduct in elections. The lowest level manager of the three officials charged was acquitted on all counts.

The two convicted Election officials face terms of 6 to 18 months in prison. A third assistant manager was acquitted on all counts.

The recount was originally requested by the Green and Libertarian presidential candidates, David Cobb of the Green Party and Michael Badnarik for the Libertarians as a statewide recount. The felony convictions represented misconduct only in Democratic-vote-rich Cuyahoga County, located in and around Cleveland.



"If any intelligent and loyal company of American citizens were required to catalogue the essential human conditions of national life, I do not doubt that with absolute unanimity they would begin with free and honest elections. "And it is gratifying to know that generally there is a growing and nonpartisan demand for better election laws; but against this sign of hope and progress must be set the depressing and undeniable fact that election laws and methods are sometimes cunningly contrived to secure minority control, while violence completes the shortcomings of fraud."

--Remarks on the Tariff and On Voting Rights, From the Second Annual Message to Congress, by President Benjamin Harrison, on December 1, 1890. (italics added)

As an election attorney, in response to the above news of the convictions of Ohio Elections officials concerning the 2004 presidential recount, I talked briefly with some other election attorneys that could be reached on short notice. Unless otherwise noted or quoted, the following news analysis is mine.

First, the prosecutors in Ohio did not seek to prove that the criminal misconduct affected the election ┬ľ but this does not mean the presidential election wasn't affected by the recount shenanigans. As any lawyer knows it would be foolish to set out to prove more than one is required to prove by the elements of the offenses charged. Moreover, charges of partisan intent would likely fall flat with a jury in a Democratic county like Cuyahoga, so the prosecutors played it mostly by the book in alleging only a motive of avoiding work. That motive would apply statewide, but additional partisan motive would be present in other places.

Ohio attorney Bob Fitrakis, an attorney involved with 2004 election-related litigation in Ohio, commented:

"The rigging of the recount was the NORM in Ohio, and the Cleveland convictions are just the tip of the iceberg. The recount rigging came right from the top with Ken Blackwell saying that the definition of "random" recount was whatever the locals decided -- including nonrandom selection of ballots and allowing private vendors to pick the precincts to be recounted. I think Blackwell (who was co-chair of the Bush Cheney campaign) knew that a proper recount would have revealed that John Kerry was elected by Ohioans in 2004, and not the candidate Blackwell represented in Ohio. As attorneys in pending litigation in Ohio, in our case it is our goal is to continue to preserve the ballots in Ohio so that citizens and scholars can determine the true count someday soon. As a matter of fact, limited proper recounts have been performed and wherever we've counted we've found discrepancies in favor of Kerry."

According to the Free Press Defense attorney Roger Synenberg, who represents {election official} Dreamer, told the jury that the recount was an open process, and that his client and the others "were just doing it the way they were always doing it." These and other defense excuses were either rejected, or else the jury impliedly also found that Ohio's recounts have always been criminally negligent.

I am involved in congressional election contests in California and state election contests in other states, and it seems to me that it's especially important to note these convictions come in a Democratic County, showing that Democratic officials could not be trusted to recount DEMOCRATIC votes. For these election officials, avoiding the personal embarrassment, avoiding the fishbowl, and avoiding being "another Florida" all combined to inspire criminally negligent misconduct on the part of elections officials, and thus obviously trumped both any desire the election officials may have had to get at the most truthful honest total as well as any desire they may have had to see Democrats prevail, if any.

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Paul Lehto practiced law in Washington State for 12 years in business law and consumer fraud, including most recently several years in election law, and is now a clean elections advocate. His forthcoming book is tentatively titled DEFENDING (more...)
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