by Steve Rosenfeld, Bob Fitrakis, and Harvey Wasserman
March 24, 2005
Ohio Secretary of State J. Kenneth Blackwell finally testified – something he had refused to do in the Moss v. Bush Ohio election challenge before the State Supreme Court and refused to do in Washington, D.C. His testimony proved so contentious that at one point Rep. Stephanie Tubbs-Jones, D-OH, told him to “haul butt” if he was unwilling to answer questions about irregularities in the 2004 election.
Blackwell vigorously defended his role in last fall’s presidential election at a congressional hearing on Monday, March 21, at the Ohio Statehouse, claiming critics have smeared his state as if it were a “third world country” rather than the national model of election administration that Blackwell said it was. In December, Republican state senators blocked a similar Democrat-sponsored forum from using the Statehouse, forcing testimony to be taken at the Democrat-controlled Columbus City Council chambers. Meanwhile, hundreds of disenfranchised voters testified under oath in Columbus, Cleveland, Cincinnati, Toledo and Warren concerning their voting day hardships.
“We had a good election in the state of Ohio. Not a perfect election – elections are human endeavors,” Blackwell, a Republican gubernatorial candidate and co-chair of the Bush-Cheney campaign, told the House Committee on Administration in Columbus. In opening remarks, he also noted Ohio coped with a million new voters and tremendous efforts by both political parties to exploit legal tactics to their advantage.
“While much has been written by the conspiracy theorists, I would like to point out that there has only been one complaint filed by the HAVA process,” Blackwell said, referring to the Help America Vote Act, which was enacted by Congress after Florida’s 2000 election debacle. “I am interested in clean, fair and transparent elections.”
Blackwell’s opening remarks set the stage for a dramatic, revealing hearing where observers either accepted his assertions that explained away and minimized the vast problems documented on November 2, 2004 – or his remarks, in tandem with earlier testimony from other Ohio election officials, made the strongest possible case that the entire voting process must be federalized, or else elections will run under separate and unequal laws drafted according to varying local and state whims.
“We had the most successful election on a punch card system ever,” he said. “It’s silly on its face to say there was systematic attempt to disenfranchise blacks in Franklin County… We have to work very hard to make sure our system is fraud proof… and that’s what I found so offensive that charges were made against the system by folks who didn’t have the decency to check the facts… We were targeted for such chaos and confusion.”
Blackwell’s wholesale denial of the legal record documenting the scores of Election Day problems that disenfranchised tens of thousands of voters – from the House Judiciary Committee Democrats’ report, to the 900 pages of sworn affidavits and other analysis filed at the Ohio Supreme Court in response to his attempt to sanction the lawyer who filed a lawful challenge of the 2004 presidential results, to the statements made in Washington on January 6, 2005 during the Electoral College challenge – did not go unanswered by Democrats on the House Administration Committee.
“Mr. Secretary of State, you have a lot of improvement to do,” said Rep. Juanita Millender-McDonald, D-CA, the ranking Democrat on the panel.
Blackwell testified after a string of county election directors and election board chairs said his office did not provide adequate funds for poll worker training and public education. In addition, they said their offices were deluged with administrative orders by Blackwell before the election and continuing through Election Day, complicating the process and leading to poll worker confusion, especially in some of Ohio’s biggest cities – the traditional Democratic strongholds. Those complications slowed or sullied the voting process, several county board of election directors said.
The county directors and chairs also said voter registration information from Blackwell’s office – the basis for allocating voting machines in some cases – also was typically 6 months old. And Cayuhoga County’s Michael Vu said his effort to tell 6,000-plus poll workers how to better-handle provisional ballots were met with written threats from Blackwell.
“Mr. Blackwell, there have been many allegations put out there – you don’t want to hear that,” Rep. Juanita Millender-McDonald said. “But they are out there… you did have long lines, therefore there was a certain amount of disenfranchisement.”
Blackwell – who turned his back to Millender-McDonald when she spoke and was told by the congresswoman to face him and speak up – had answers for all the problems cited. The shortage of voting machines was in part the federal government’s fault, he said, as HAVA required new machines – but only provided limited funding to buy those new machines. Thus he said he was unable to replace old machines or buy new ones, adding – and this is notable in itself – that even the newest electronic voting machines had unacceptable security flaws.
While Vu noted that there were 10,000 voting machines available in the Cleveland area, Franklin County Election Board Chair William Anthony acknowledged that his county and the city of Columbus was woefully short. Anthony has repeatedly stated that Franklin County operated with only 2866 machines available, about half the number necessary.
As for why his office had not provided or spent poll worker raining and voter education funds given to the state through HAVA, Blackwell said he did spend some of that money, but was holding back until the state bought a new generation of voting machines.
Blackwell was asked why he enforced a rule only giving voters 5 minutes in a voting booth if there was a line of people waiting to vote. He said that was Ohio law and provided the state statute. He was asked why he instituted a rule that mailed-in voter registrations had to be on a certain weight paper or they’d be rejected. He said there were stricter state standards before the 2004 election season and he “relaxed” them.
Blackwell was also asked by Millender-McDonald about following the provisional ballot rules in HAVA. Not making these ballots available to voters who are not on the poll’s list of registered voters is illegal under HAVA, and Blackwell said he did this.
“In Ohio in this election, everyone got a provisional ballot who requested one,” he said. “There was a good faith effort to do that.”
“Giving provisional ballots is one thing, but counting them is another,” Millender-McDonald replied.
Blackwell replied that ballots would not be counted unless voters too them to the county courthouses or board of election office. He said voters were told that at the polls.
“But that disenfranchised them anyway,” Millender-McDonald replied.
Blackwell’s response was Ohio had one of the highest rates of counting provisional ballots in the country; with 78 percent of the provisional ballots cast being accepted.
The thrust of Millender-McDonald’s questioning suggested that Blackwell’s policies, en masse, created barriers to voting – rather than opening the process to all citizens.
“A lot of assertions are made on Internet blogs or by wild conspiracy theorists,” he replied. “If I could interpret their brains or their minds, I’d be a rich man.”
ENTER REP. STEPHANIE TUBBS-JONES
Rep. Stephanie Tubbs-Jones, the judge-turned-congresswoman from Ohio’s largest city, Cleveland, led the House challenge to the 2004 Electoral College certification. While she is not a member of the House Administration Committee, the committee members let her participate as a panel member as a House courtesy.
When it was her turn to ask questions, Blackwell said it was “good to see you,” to which Rep. Tubbs-Jones replied, “It was so good to see you that you chose not to shake my hand in the anteroom.”
Jones followed up the questioning on the provisional ballots by asking Blackwell why his ‘public education’ campaign – radio ads and recording phone messages to voters’ homes - did not tell people that if they were given a provisional ballot they had to be turned in at the board of elections to be counted.
“In this ad you said ‘Vote your precinct,’ but you didn’t say ‘Vote in your board of elections,” Tubbs-Jones said. “You did an ad statewide and you spent $2.5 million.”
“We went into one million households by phone, in your district and Cleveland. We told them how to vote,” Blackwell replied. “As much as you want to create a third-world situation in your state, we called… We told them how to make their vote count.”
“Let’s count the words, you could have said…” Tubbs-Jones replied.
“I refuse to sit here and be harangued by you,” Blackwell said.
“Not every voter has a master’s degree. Not every voter has a bachelor’s degree. We want to make sure that information is on a level where everyone understands,” Millender-McDonald said.
“I used the language that a bipartisan (advertising) firm recommended,” Blackwell said.
“Bipartisan doesn’t mean a thing when they speak over the heads of the average voter,” Millender-McDonald replied.
This and other exchanges between Blackwell and the congresswomen typically ended with Blackwell saying he was following the “best practices” in the election field and defending state election workers as models for other states to follow.
“We will defend the professionalism and integrity of the 50,000 election workers in this state,” he defiantly concluded.
Another View: County Election Directors
While Blackwell sought to deflect criticism and dismiss those who said the 2004 election in his state was marred by problems, some of the very people who serve at his pleasure – county board of election directors who he appoints and fires – testified in the panel just before him that the Secretary of State’s policies, practices and orders confused and complicated the voting process.
County election officials were asked why there was confusion over provisional ballots. The first problem explored was why many registered voters received these ballots. One explanation was voters were not adequately directed at polling places, especially where multiple precincts were located. Thus, voters got in any line, or the shortest line, and did not realize that they needed to be in the correct line, said Cayuhoga County Board of Elections Director Michael Vu. Often, voters did not realize this until after waiting for hours. And then there was confusion over filling out the ballots, casting and counting. “Poll workers also were confused by the provisional ballot process,” Vu said.
Several county officials pointed out that they did not have access to the federal funds allocated under HAVA to better train poll workers. Blackwell later said he was holding onto the money for future training purposes, particularly for new voting machines.
“It could have been a bigger mess,” said Bill Anthony, Franklin County Director of Elections, referring to the use of provisional ballots. Anthony said there should be “no-excuse absentee voting” and “Election Day should be a holiday,” but he then added Ohio’s legislature did not want these two options as law.
Long Lines, Too Few Machines
House Administration Committee Chairman, Republican Robert Ney, R-OH, asked Anthony about the cause of the long lines on Election Day. In many inner-city precincts, people waited as long as seven hours to vote, at times standing outside in a cold rain.
“We did not have enough machines,” Anthony said, saying the county had an increase in voter registration but allocated the voting machines based on the 2000 election. “We tried to have at least two machines for each precinct.”
Later, Michael Vu said Cayuhoga County, which includes Cleveland, has one machine for every 115 registered voters. In Franklin County, where Columbus is located, the ratio was as high as one machine for every 500 voters.
When Anthony was asked if Franklin County could have borrowed machines from other cities, he said that was not possible because his county used different brands and machine types. Moreover, the machines in Franklin County were not on “an approved list” from the Blackwell’s office, meaning Anthony could not buy more of them – even if he wanted to. “We’re in between a rock and hard spot,” he said, adding, “We don’t believe the optical scan machines will work in large county like ours.” (Of course, many cities and counties across America use optical-scan voting machines).
When asked about Knox County, where Kenyon College was located at students had to wait until 4 a.m. to finish voting – because there was only one working machine - Keith Cunningham, President of the Ohio Association of Election Officials and Director of the Allen County Board of Elections, said that problem was blown out of proportion because that “was only one precinct.” Rep. Millender-McDonald quickly replied, “Come on. No one should be denied the right to vote.”
Public Participation
When asked what preparations were made in preparation for Ohio’s battleground state role, Cunningham said such heightened scrutiny – by the public, press and partisans – was a tremendous problem. “We never had attorneys in our office. We never had activists in our office. They were very disruptive,” he said. “People were trying to create chaos and confusion to exploit.”
Mike Sciortino, Director, Mahoning County Board of Elections, said he and other county election directors had daily telephone conference calls with Blackwell, but in his case – a county where numerous electronic voting machines malfunctioned by recording a vote for Kerry as a vote for Bush – Sciortino said poll workers could not be trained “more than 30 days out.” His county did not have funds to train poll workers, he said, adding that to do so earlier in the year was ineffective because “they don’t retain that information.”
As a result, Blackwell issued “a blizzard of directives” at the last minute on a long list of Election Day procedures to follow, Vu said. However, none of Blackwell’s directives said how voters were to be notified about up-to-date registration information, he said.
Notably, the county election directors said the registration information they received from Blackwell’s office was six months old. “You’re saying the Secretary of State was late and you guys were not,” Rep. Millender-McDonald said. “Yes,” Anthony replied. “That’s awful,” Millender-McDonald said. In later testimony, Blackwell said this gap was an unavoidable consequence of modernizing Ohio’s statewide voter registration database, adding that Ohio was now in the national forefront of computerizing these records.
Blackwell’s Heavy Hand
Rep. Stephanie Tubbs-Jones, D-OH, said rather than blame poll workers, explain what happened with the federal voter education money allocated under HAVA. The county directors said they didn’t receive that money from Blackwell. “It might have answered some of the issues that were floating around for this election,” she said.
Tubbs-Jones also asked if the county directors took park in creating a statewide election plan, another HAVA requirement. All replied no. In one instance, Cayuhoga County’s Vu said he told his 6,000 poll workers and 500 alternates to give out provisional ballots to anyone voter in question – which conflicted with Blackwell’s directive that provisional ballots only were to go to people who were in the proper precinct – a problem when a polling place had multiple lines and multiple precincts. Vu said he then received a threatening letter from Blackwell on the matter.
“It was an implied threat,” he said, to which, Rep. Millender-McDonald, replied, “Sir, threats are not implied. They are made.”
In sum, the House Administration Committee field hearing is likely to be one of the few chances the public will have the opportunity to hear Blackwell questioned and challenged in a legal forum. When the committee last asked him to appear– while he was in Washington, D.C. – Blackwell did not show up. Similarly, Blackwell refused to be deposed during the 2004 election challenge lawsuit process.
Blackwell did not answer many of the questions that would have been asked had he appeared before the election challenge legal team, attorney Cliff Arnebeck said. For example, Blackwell did not answer questions about specific vote counts in counties – where the number of votes tabulated was bigger than the number of registered voters. Those figures, which were certified and used to calculate Bush’s victory margin, were pointed out in the election challenge suit. Since then, Blackwell’s office has ‘corrected’ the official vote count, another election challenge legal team member said.
But the biggest point made at the March 21 hearing was this: if you accept Blackwell’s assertion that his administration of the 2004 vote was a model for the nation to follow, then this example of ‘best practices’ shows why elections have to be run based on one federal standard. Otherwise, you get what Rep. Jesse Jackson, Jr., D-IL, says are “13,000 separate and unequal” voting jurisdictions across the country.
Election officials like Blackwell and his county election directors all want to retain the power to run elections - creating rules, imposing barriers or removing them - as they see fit. That power, coupled with what Blackwell said were “security issues” with the latest electronic voting machines, even those with paper trails, shows why elections in the country have a long way to go before they can be fully free and fair.
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