Result of presidential vote cannot be verified
COLUMBUS - Despite a federal judge's order to preserve all ballots from the 2004 presidential election - in which Ohio provided President Bush's margin of victory - boards of elections in 56 of Ohio's 88 counties lost, shredded or dumped nearly 1.6 million ballots and election records.
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In 39 letters of explanation sent to newly elected Secretary of State Jennifer Brunner, a Democrat, county election officials offered a litany of excuses for the missing and destroyed ballots - including spilled coffee, a flooded storage areaand miscommunication with a county "Green Team" assigned to pick up recyclables. About half the lost ballots were unused, but even those are important for double-checking election results.
In Southwest Ohio, some unused ballots were shredded. Others were lost during a remodeling. Pages that verify punch-card ballot counts and the rotation of candidates' names ended up in Mount Rumpke landfill, according to letters from four elections boards.
The loss of the ballots is important because, since the 2004 election, critics - on blogs, in Congress and in lawsuits - have questioned whether the election was conducted fairly. While many of those questions eased after several investigations and the Democratic election sweep in 2006 in Ohio, elections officials still worry about anything that leaves the perception that elections aren't legitimate.
The more transparent the election process, the less room there is to question the results, Brunner told The Enquirer on Friday. And the more election officials open up the process, the more the results will be trusted.
"If I had evidence of a cover-up, I would investigate," Brunner said. "For me, the bigger question in 2004 was, 'How many people were prevented from voting,' (something) you can't quantify."
Brunner was referring to hours-long lines due to a record turnout, inadequate distribution of voting machines, equipment failures and the disenfranchisement of voters whose registrations were challenged in the weeks leading up to the election.
Brunner said she has found no evidence that ballots - which the boards were supposed to keep until last Friday - were intentionally destroyed. And, she said, it's unlikely the result would have been reversed if the election had been run differently.
"It would have been very difficult to prove that any outcome would have been changed," she said.
In a federal civil rights lawsuit, six groups representing mostly African-American, elderly, college-age and homeless voters alleged elections officials allowed fraudulent votes to be cast for Bush, double-counted some absentee ballots, suppressed votes that likely would have been for U.S. Sen. John Kerry and failed to conduct a proper recount. They insist they've identified enough cumulative problems to reverse the outcome of the presidential race, and possibly the race for Ohio Supreme Court chief justice.
Clifford O. Arnebeck Jr., their Columbus attorney, began to learn of the widespread missing ballots last month, and held a news conference last week.
Federal law requires all ballots to be preserved for 22 months after a election. That would have been until Sept. 2, 2006. So that month, acting on a request from the groups, U.S. District Judge Algenon L. Marbley issued the order to keep all ballots, used and unused, until Aug. 10, 2007.
Marbley did not return a call for comment Friday, but a court spokeswoman said a lawsuit seeking to preserve the ballots remains active. It's unclear what penalty, if any, county boards of election could face for violating Marbley's order. Arnebeck has asked Attorney General Marc Dann, a Democrat, to pursue criminal action. Dann's press secretary, Jennifer Brindisi, said Friday they had no immediate comment on the case.
Federal law and Marbley's order, however, were ignored:
Seven counties told Brunner they are missing all of their voted and unvoted 2004 ballots: Ashtabula, Marion, Medina, Montgomery, Preble, Sandusky and Seneca.
Three other counties - Allen, Holmes and Jackson - reported destroying most of their used and unused ballots, while 10 counties reported discarding other types of 2004 election records used to verify vote tallies or procedures. One of them was Butler County.
Butler County Board of Elections Director Betty L. McGary said her county preserved 64 boxes of used and unused ballots, but unintentionally discarded some ballot records from the 2004 election. "I can't imagine, honestly, having an order from a federal judge, a court order, and you just simply saying, 'Well, we don't have space, so I'm just pitching these.' "
McGary, a Democrat, said she was horrified to discover ballot pages - used to verify the rotation of candidates' names on the ballot - were accidentally discarded in a Rumpke Dumpster in March, six months after Marbley's order.
"I just absolutely couldn't believe it," McGary said.