Ohio to Delay Destruction of Presidential Ballots

Michael Houghton for The New York Times

Harvey Wasserman, a historian and election rights advocate, examining presidential ballots stored in an old pump station in Troy, Ohio.

Published: August 31, 2006

With paper ballots from the 2004 presidential election in Ohio scheduled to be destroyed next week, the secretary of state in Columbus, under pressure from critics, said yesterday that he would move to delay the destruction at least for several months.

Since the election, questions have been raised about how votes were tallied in Ohio, a battleground state that helped deliver the election to President Bush over Senator John Kerry.

The critics, including an independent candidate for governor and a team of statisticians and lawyers, say preliminary results from their ballot inspections show signs of more widespread irregularities than previously known.

The critics say the ballots should be saved pending an investigation. They also say the secretary of state’s proposal to delay the destruction does not go far enough, and they intend to sue to preserve the ballots.

In Florida in 2003, historians and lawyers persuaded state officials not to destroy the ballots in the 2000 presidential election, and those ballots are stored at the state archive.

Lawyers for J. Kenneth Blackwell, the Ohio secretary of state, said although he did not have the authority to preserve the ballots, Mr. Blackwell would issue an order in a day or two that delays the destruction and that reminds local elections officials that they have to consult the public records commissions in each county.

Federal law permits, but does not require, destroying paper ballots from federal elections 22 months after Election Day.

The critics say their sole interest in the question is to improve the voting system.

“This is not about Mr. Kerry or Mr. Bush or who should be president,’’ said Bill Goodman, legal director of the Center for Constitutional Rights, a New York group that is part of the lawsuit. “This is about figuring out what is not working in our election system and ensuring that every cast vote counts.

“There is a gap between the numbers provided in the local level records, which until recently no one has been allowed to see, and the official final tallies that were publicly released after this election, and we want to figure out why that gap is there.”

The planned action of Mr. Blackwell, a Republican who is running for governor, and the threatened suit could draw attention to possible irregularities in the election that he supervised.

The suit would follow what researchers call the first time anyone other than county and state officials in Ohio have been given such extensive access to the main material from the previous presidential election.

After eight months inspecting 35,000 ballots from 75 rural and urban precincts, the critics say that they have found many with signs of tampering and that in some precincts the number of voters differs significantly from the certified results.

In Miami County, in southwestern Ohio, official tallies in one precinct recorded about 550 votes. Ballots and signature books indicated that 450 people voted.

The investigation has not inspected all 5.6 million ballots in the election because the critics were not given access to them until January. That followed an agreement by the League of Women Voters, a plaintiff in another election suit against the state, that it was not contesting the 2004 results, Mr. Goodman said.

The new suit, to be filed in Federal District Court in Columbus, would be argued on civil rights grounds, saying the state deprived voters of equal treatment.

Last week, lawyers sent a legal notice to Mr. Blackwell notifying him that suit was pending and asking him to issue an administrative order directing the 88 county election boards to retain the 2004 records.

“The decision of who decides whether the records will be preserved is quite simply not the secretary’s to make,” said Robert A. Destro, a lawyer for the secretary of state’s office.

Mr. Destro said preservation decisions belonged to the county public records commissions, the county boards of elections and the Ohio Historical Society.

“But by issuing this order,” Mr. Destro added, “the secretary of state will prevent any records from being destroyed for at least several months while this matter is studied more closely.”

Steven Rosenfeld, a freelance reporter formerly with National Public Radio, said the investigative team analyzed three types of sources. They are poll books used by officials to record the names of voters casting ballots, signature books signed by voters and used to verify that signatures match registration records, and optical scan and punch card ballots, used by 85 percent of the voters in the state. The rest used touch-screen machines.

“We’re not claiming that what we found reveals a huge conspiracy,” Mr. Rosenfeld said. “What we’re claiming is that what we found at least reveals extremely shoddy handling of ballots, and there are some initial indications of local-level ballot stuffing.”

In Miami County, Mr. Rosenfeld said, the team found discrepancies of 5 percent or more in some precincts between the people in the signature books and the certified results.

In 10 southwestern counties, he said, the team found thousands of punch card ballots that lacked codes identifying the precinct where the ballot was cast. The codes are typically necessary for the machines processing the ballots to “know’’ to record which candidate receives the votes.

Mr. Rosenfeld is a co-author of a book that The New Press is to publish next month, “What Happened in Ohio?: A Documentary Record of Theft and Fraud in the 2004 Election.” The other co-authors are Harvey Wasserman, an election rights advocate and an adjunct professor of history at Columbus State Community College, and Robert J. Fitrakis, a lawyer who is running for governor as an independent.

Robert F. Bauer, a lawyer from Washington who represented Mr. Kerry and the Democratic National Committee on voting issues before the 2004 election, was skeptical about the critics’ case.

“The major discrepancies that they are identifying are not materially different than what has already been highlighted,” Mr. Bauer said.

On Tuesday, Mr. Kerry sent a fund-raising e-mail message calling for support for Representative Ted Strickland, the Democrat who is running for governor. Mr. Kerry wrote that Mr. Blackwell “used his office to abuse our democracy and threaten basic voting rights” in 2004.

Multiple suits failed in challenging the 2004 election in Ohio, and most studies after the election concluded that irregularities existed, but that they would not have changed the outcome.

In January 2005, the Democratic members of the House Judiciary Committee issued a report finding “massive and unprecedented voter irregularities and anomalies” in the election.

In March 2005, the Democratic National Committee issued a report that said 2 percent of the Ohio electorate, or “approximately 129,543 voters,” had intended to vote but did not do so because of long lines and other problems at polling stations.

But the report said those and other frustrated voters “would not have erased Bush’s 118,000 vote margin in the state.”