Status Report of the House Judiciary Committee Democratic Staff

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Status Report of the House Judiciary Committee Democratic Staff

   Wednesday 05 January 2005

   Executive Summary

   Representative John Conyers, Jr., the Ranking Democrat on the House
Judiciary Committee, asked the Democratic staff to conduct an
investigation into irregularities reported in the Ohio presidential
election and to prepare a Status Report concerning the same prior to the
Joint Meeting of Congress scheduled for January 6, 2005, to receive and
consider the votes of the electoral college for president.

   The following Report includes a brief chronology of the events;
summarizes the relevant background law; provides detailed findings
(including factual findings and legal analysis); and describes various
recommendations for acting on this Report going forward.

   "We have found numerous, serious election irregularities in the Ohio
presidential election, which resulted in a significant disenfranchisement
of voters. Cumulatively, these irregularities, which affected hundreds of
thousand of votes and voters in Ohio, raise grave doubts regarding whether
it can be said the Ohio electors selected on December 13, 2004, were
chosen in a manner that conforms to Ohio law, let alone federal
requirements and constitutional standards.

   This report, therefore, makes three recommendations: (1) consistent
with the requirements of the United States Constitution concerning the
counting
of electoral votes by Congress and Federal law implementing these
requirements, there are ample grounds for challenging the electors from
the State of Ohio; (2) Congress should engage in further hearings into the

widespread irregularities reported in Ohio; we believe the problems are
serious enough to warrant the appointment of a joint select Committee of
the House and Senate to investigate and report back to the Members; and
(3) Congress needs to enact election reform to restore our people's trust
in our democracy. These changes should include putting in place more
specific federal protections for federal elections, particularly in the
areas of audit capability for electronic voting machines and casting and
counting of provisional ballots, as well as other needed changes to
federal and state election laws.

   With regards to our factual finding, in brief, we find that there were
massive and unprecedented voter irregularities and anomalies in Ohio. In
many cases these irregularities were caused by intentional misconduct and
illegal behavior, much of it involving Secretary of State J. Kenneth
Blackwell, the co-chair of the Bush-Cheney campaign in Ohio.

   First, in the run up to election day, the following actions by Mr.
Blackwell, the Republican Party and election officials disenfranchised
hundreds of thousands of Ohio citizens, predominantly minority and
Democratic voters:

The misallocation of voting machines led to unprecedented long lines that
disenfranchised scores, if not hundreds of thousands, of predominantly
minority and Democratic voters. This was illustrated by the fact that the

Washington Post reported that in Franklin County, "27 of the 30 wards with
the most machines per registered voter showed majorities for Bush. At the
other end of the spectrum, six of the seven wards with the fewest machines
delivered large margins for Kerry." (See Powell and Slevin, supra). Among
other things, the conscious failure to provide sufficient voting machinery
violates the Ohio Revised Code which requires the Boards of Elections to
"provide adequate facilities at each polling place for conducting the
election."

Mr. Blackwell's decision to restrict provisional ballots resulted in the
disenfranchisement of tens, if not hundreds, of thousands of voters, again
predominantly minority and Democratic voters. Mr. Blackwell's decision
departed from past Ohio law on provisional ballots, and there is no
evidence that a broader construction would have led to any significant
disruption at the polling places, and did not do so in other states.

Mr. Blackwell's widely reviled decision to reject voter registration
applications based on paper weight may have resulted in thousands of new
voters not being registered in time for the 2004 election.

The Ohio Republican Party's decision to engage in preelection "caging"
tactics, selectively targeting 35,000 predominantly minority voters for
intimidation had a negative impact on voter turnout. The Third Circuit
found these activities to be illegal and in direct violation of consent
decrees barring the Republican Party from targeting minority voters for
poll challenges.

The Ohio Republican Party's decision to utilize thousands of partisan
challengers concentrated in minority and Democratic areas likely
disenfranchised tens of thousands of legal voters, who were not only
intimidated, but became discouraged by the long lines. Shockingly, these
disruptions were publicly predicted and acknowledged by Republican
officials: Mark Weaver, a lawyer for the Ohio Republican Party, admitted
the challenges "can't help but create chaos, longer lines and
frustration."

Mr. Blackwell's decision to prevent voters who requested absentee ballots
but did not receive them on a timely basis from being able to receive
provisional ballots 6 likely disenfranchised thousands, if not tens of
thousands, of voters, particularly seniors. A federal court found Mr.
Blackwell's order to be illegal and in violation of HAVA.

   Second, on election day, there were numerous unexplained anomalies and
irregularities involving hundreds of thousands of votes that have yet to
be accounted for:

There were widespread instances of intimidation and misinformation in
violation of the Voting Rights Act, the Civil Rights Act of 1968, Equal
Protection, Due Process and the Ohio right to vote. Mr. Blackwell's
apparent failure to institute a single investigation into these many
serious allegations represents a violation of his statutory duty under
Ohio law to investigate election irregularities.

We learned of improper purging and other registration errors by election
officials that likely disenfranchised tens of thousands of voters
statewide. The Greater Cleveland Voter Registration Coalition projects
that in Cuyahoga County alone over 10,000 Ohio citizens lost their right
to vote as a result of official registration errors.

There were 93,000 spoiled ballots where no vote was cast for president,
the vast majority of which have yet to be inspected. The problem was
particularly acute in two precincts in Montgomery County which had an
undervote rate of over 25% each - accounting for nearly 6,000 voters who
stood in line to vote, but purportedly declined to vote for president.

There were numerous, significant unexplained irregularities in other
counties throughout the state: (i) in Mahoning county at least 25
electronic machines transferred an unknown number of Kerry votes to the
Bush column; (ii) Warren County locked out public observers from vote
counting citing an FBI warning about a potential terrorist threat, yet the
FBI states that it issued no such warning; (iii) the voting records of
Perry county show significantly more votes than voters in some precincts,
significantly less ballots than voters in other precincts, and voters
casting more than one ballot; (iv) in Butler county a down ballot and
underfunded Democratic State Supreme Court candidate implausibly received
more votes than the best funded Democratic Presidential candidate in
history; (v) in Cuyahoga county, poll worker error may have led to little
known thirdparty candidates receiving twenty times more votes than such
candidates had ever received in otherwise reliably Democratic leaning
areas; (vi) in Miami county, voter turnout was an improbable and highly
suspect 98.55 percent, and after 100 percent of the precincts were
reported, an additional 19,000 extra votes were recorded for President
Bush.

   Third, in the post-election period we learned of numerous
irregularities
in tallying provisional ballots and conducting and completing the recount
that disenfanchised thousands of voters and call the entire recount
procedure into question (as of this date the recount is still not
complete):

Mr. Blackwell's failure to articulate clear and consistent standards for
the counting of provisional ballots resulted in the loss of thousands of
predominantly minority votes. In Cuyahoga County alone, the lack of
guidance and the ultimate narrow and arbitrary review standards
significantly contributed to the fact that 8,099 out of 24,472 provisional
ballots were ruled invalid, the highest proportion in the state.

Mr. Blackwell's failure to issue specific standards for the recount
contributed to a lack of uniformity in violation of both the Due Process
Clause and the Equal Protection Clauses. We found innumerable
irregularities in the recount in violation of Ohio law, including (i)
counties which did not randomly select the precinct samples; (ii) counties
which did not conduct a full hand court after the 3% hand and machine
counts did not match; (iii) counties which allowed for irregular marking
of ballots and failed to secure and store ballots and machinery; and (iv)
counties which prevented witnesses for candidates from observing the
various aspects of the recount.

The voting computer company Triad has essentially admitted that it engaged
in a course of behavior during the recount in numerous counties to provide
"cheat sheets" to those counting the ballots. The cheat sheets informed
election officials how many votes they should find for each candidate, and
how many over and under votes they should calculate to match the machine
count. In that way, they could avoid doing a full county-wide hand recount
mandated by state law."

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