Stolen Election 2004: Thursday Update

Breaking: Ohio Election Challenge Thrown Out On Technicality

Ohio's chief justice on Thursday threw out a challenge to the state's presidential election results on a technicality, ruling that the request improperly challenged two separate election results.

Chief Justice Thomas Moyer ruled that state law does not allow voters to challenge the results of more than one race in a single complaint. The challenge likely could be refiled to the Ohio Supreme Court.

The challenge before Moyer, filed Monday on behalf of 40 voters who cast ballots Nov. 2, included the results of the presidential race and of Moyer's race against Cleveland Municipal Judge Ellen Connally.

This objection sounds trivial, so I expect the case to be refiled promptly. But it drags out the clock some more, and brings us closer to a court shutdown over Christmas, and before we know it January 6 will come and go. Clearly Karl Rove is dictating the timetable, as he always does...

Breaking: Kerry's lawyer demands full investigation of Hocking voting machine tampering.

Keith Olbermann has the scoop of the day, thanks to an excellent interview with Rep. John Conyers (video here).

Conyers "prepared" to contest Ohio Electoral Vote

The ranking Democrat on the House Judiciary Committee told us tonight on Countdown that he and others in Congress are considering formally challenging the slate of electors who cast Ohio’s votes, when those votes are opened and counted before a joint session of Congress on January 6th.

“We’re prepared to do that,” Conyers said. “And we understand the law as well as you.”

However, Olbermann's scoop was not rock-solid:

After the on-air interview ended, the Michigan representative added that he and his colleagues had not yet decided whether or not to take the extraordinary constitutional step, and he had not sought the support of a Senator who would have to co-sign the challenge.

Hey Keith, there are lots of Democratic activists who are seeking the support of a Senator. For example, here's an excellent report from the Vermont Guardian describing how members of Vermonters for Voting Integrity are lobbying Senators Jim Jeffords (I) and Pat Leahy (D). And there's a well-organized California-wide effort by Contest the Vote to persuade Barbara Boxer (D). Democratic Underground is lobbying every Senator they can. We'll try to keep track of thise whole effort in our "Just One Senator" campaign at http://democrats.com/senator

Conyers also rebuffed criticism that his “voting forums” in Washington, D.C., and Columbus, Ohio, had included formal participation only by Democratic congressmen and politicians. “The fact that Republicans didn’t join us isn’t our problem, it’s their fault.” Republican Congressman Bob Ney of Ohio last week announced plans to conduct an investigation into the 2004 vote under his auspices as Chairman of the House Administration Committee.

Notice the absence of any date associated with Ney's investigation. There is nothing on Ney's web site, but the AP says the investigation will begin "next year" - long after Bush takes the oath for a second stolen term. (Many of us remember similar promises from Attorney General John Ashcroft in 2001 about investigating the hundreds of serious complaints about Florida, which led to one insignificant reprimand about the lack of translators in immigrant-heavy precincts. There was no prosecution of Katherine Harris or Jeb Bush or anyone else for systematically and criminally disenfranchising tens of thousands of non-felons, a majority of whom were black and likely to vote Democratic, thus stealing the White House for W.)

Speaking of blacks, it dawned on me that the reason the Ohio recount story is being covered almost exclusively by a former sports reporter - Olbermann - is because professional sports coverage on cable TV is the only place in journalism where blacks are treated equally with whites. The Ohio recount story largely features black leaders - namely Ken Blackwell, John Conyers, and Jesse Jackson. (It also features black voters who were once again disenfranchised through extraordinarily long lines and provisional ballot rejections, but we haven't heard much from them. Memo to Olbermann: the lead plaintiffs in Moss v. Bush (petition and injunction) are Rev. Bill Moss and Ruth Carol Moss, distinguished community leaders who told their Election Day story at the Conyers forum in Washington on Dec. 8. Incidentally, Ray Beckerman says volunteer lawyers are desperately needed for the case.) Kudos for Olbermann for being the only political journalist who treats blacks like full American citizens.

Olbermann also asked Conyers about his letter to the FBI about recount tampering by tabulating machine vendor Triad in Hocking County. Olbermann tried to distinguish illegal "tampering" from routine "maintenance," which is the defense being offered by Triad's president, Brett Rapp.

Brett Rapp, president of Xenia, Ohio-based TRIAD, said it's standard procedure to prepare the machines for a recount so they only tally the presidential race. He said company representatives have worked on computers in every county that uses TRIAD software.

The only difference with Hocking was that when the TRIAD employee arrived, the computer's hard drive had to be repaired, he said. No vote tabulations were lost, he said.

"He had to fix the computer in order to continue the recount process," Rapp said, adding that he welcomes an investigation because his employees did nothing wrong.

Hocking County Prosecutor Larry Beal is buying this bogus story, according to the AP:

Beal also had not received the letter but said he had spoken to Eaton and no investigation was planned.

"She just kind of thought it was unusual," Beal said. "We have no other reason to believe that there was anything improper that did take place."

Well, two hugely improper things took place, as we reported yesterday.

First, the Triad employee asked election officials to identify the precincts they planned to recount. Even Rapp told the NY Times that "would be unusual."

Second, Triad employee Michael Barbian instructed Sherole Eaton and other election officials how to commit fraud by secretly posting the original election results on the wall, and citing them as the official results if the manual recount produced a different result!

If Larry Beal and the FBI fail to investigate and prosecute this conspiracy to commit election fraud by Barbian and Triad, then Conyers should investigate Beal and the FBI for covering up election fraud in a Presidential election!

Speaking of crimes, Fairfield County (an exurb of Columbus) broke the law when it suspended its recount after the manual count in the sample precincts did not match the original count. As mtnester of DemocraticUnderground reports,

At 4 pm today, after failing to get a match of hand counted ballots with punch card tabulator (ESS), two hand counts and two times through machine, after stating they were awaiting a call back from that company to have a new machine delivered, less than 30 seconds later convened a board meeting, voted to suspend recount, to await a new machine from ESS, and recount will be re-done Saturday, same exact precincts, the building is now closed, you are to exit the facility. BOE blaming issues on "machine failure" in order to avoid the now required entire county hand count. Precints were not random, they were selected by BOE, one from the Dem and one from the Repup.

This after their call to SOS Kathy Blackwell.

Greens will be going for a TRO. They are fully aware of entire circumstances of this report.

BOE's trying to get around mandatory handcounts of entire counties by calling it machine failure rather than follow clear statute. This will be breaking I am sure before long.

First hand witness to events above....myself

The National Voting Rights Institute reported additional problems with the recount:

 It remains disturbing that the manner of recounting varies from county to county. Depending on the whim of county officials, the standards vary. In Hocking County, officials initially told folks not to bother sending witnesses, because there's no space for them in the counting room. Allen County said that if there's a discrepancy in the first 3% of ballot recounts, they'll begin the full recount on January 10, after electors have been accepted by Congress. And there remains uncertainty how re-counting will be conducted in counties with electronic voting machines that have no paper trail.

On behalf of our clients - David Cobb and Michael Badnarik - we asked a federal judge to insist on one standard. That request was declined for now, though he will review more documents later. With the assistance of witnesses being provided by the David Cobb and Michael Badnarik campaigns, and the DNC, we will monitor the activities in the county recounts. To read John Bonifaz' affidavit about the many county variations, click here.

With all of these problems - and outright fraud - we must be getting close to the truth about the Stolen Election, because the rightwing media has launched a fierce counterattack. On Tuesday, Cliff Arnebeck was attacked by Sean Hannity. On Wednesday, Joe Scarborough attacked the recount. The Cleveland Plain Dealer wrote a long editorial attacking conspiracy theorists and "zealots."

MoveOn.Now
The zealots who refuse to accept Ohio's vote count risk undermining confidence in the system itself

Unfortunately, there is a small, but very vocal, group of Americans who refuse to accept this reality [that Bush won]. They argue that what appear to be routine technical glitches and human errors were in fact an elaborate conspiracy to skew the election results. They claim that long lines at a few polling places, the rather unsurprising result of high voter interest, were evidence of a systematic campaign to discourage participation. In short, having failed to get the outcome they wanted at the polls, they have decided to mount an irresponsible campaign aimed at undermining public confidence in the electoral system itself.

That's just libel. Our whole goal is to restore public confidence in an electoral system that cannot be trusted because the people who are in charge of it, like Katherine Harris and Ken Blackwell - and the companies that sell and maintain the voting machines, like Diebold and Triad - are partisan Republicans whose only interest is electing Republicans, not running honest elections.

For detail junkies, here is the most detailed account of the Triad story:

Hocking County voting investigation sought 
Michigan congressman wants FBI to check for possible tampering 
Thursday, December 16, 2004
Mark Niquette  THE COLUMBUS DISPATCH mniquette@dispatch.com

The ranking Democratic member of the House Judiciary Committee yesterday asked the FBI and Hocking County prosecutor to investigate "likely illegal election tampering," based primarily on the affidavit of a county elections worker.

But that worker, Sherole Eaton, the deputy director of the Hocking County Board of Elections and a Democrat, says she doesn't believe anything improper happened - and neither does the Democratic county prosecutor.

"I don't have any real reason to do an investigation unless something else comes to my attention," Hocking County Prosecutor Larry Beal said.

U.S. Rep. John Conyers, of Michigan, sent a letter to authorities seeking an investigation and suggesting that election equipment in Hocking County be impounded "to prevent any further tampering." A spokesman for the FBI's Cincinnati division said he was aware of the issue but declined to comment because the letter had not been received.

Conyers, who has conducted hearings in Columbus and Washington on election problems in Ohio, made the request after learning about Eaton's affidavit given to the Green and Ohio Democratic parties. It details a visit to the Hocking elections board on Friday by a computer technician from Triad Governmental Systems, of Xenia, in preparation for the presidential recount that started this week in Ohio.

The technician took apart one computer that had a bad battery and swapped parts from a spare computer, Eaton said. The computer is attached to the punchcard tabulator, which actually counts the ballots. The worker also suggested posting a "cheat sheet" so that when ballots that were handcounted were run through the tabulator, "the count would come out perfect and we wouldn't have to do a full hand recount of the county," Eaton said.

But Eaton says she doesn't suspect fraud, in large part because the recount was conducted Tuesday in Hocking County using a different precinct than the one told to the technician - and the tabulation matched the hand count, she said. "The reason I signed the affidavit was to have it documented that this is what happened," Eaton said. "I don't feel they've done anything wrong."

Triad President Brett Rapp said he doesn't know what the technician said - Hocking County Elections Board Director Lisa Schwartze said she thinks he was joking - but all that happened was a broken computer was fixed. "There's nothing a technician can do to tamper with the system to make it count improperly," Rapp said.

Triad provides the counting software for punch-card machines in 47 Ohio counties, Rapp said. Daniel Hoffheimer, Ohio counsel for Sen. John Kerry's campaign, has said the campaign is taking the incident seriously without jumping to conclusions. The federal Government Accountability Office and Democratic National Committee also are conducting separate investigations of Election Day problems in Ohio.

Meanwhile, 60 of Ohio's 88 counties have started their recounts, according to the Green Party, which requested and paid for the statewide recount along with the Libertarian Party presidential campaign. The Franklin County Board of Elections finished its recount yesterday, and Kerry and President Bush picked up one more vote each. Kerry won Franklin County, 285,801 to 237,253.

Bush defeated Kerry by 118,775 votes statewide, based on official certified results, and experts expect little change after the recount. But Green Party observers say election officials in some counties - including Fairfield - are resisting hand-counting all county ballots as required if an initial hand count of 3 percent of the ballots doesn't match a computer count.

Also, Green Party observers complain that some counties are not choosing the 3 percent of ballots to hand count by random as required, but rather picking precincts where they know there aren't problems.

Meanwhile, no action has been taken on a lawsuit filed this week seeking to overturn the outcome of the races in Ohio for president and state Supreme Court chief justice.

When Brett Rapp said "there's nothing a technician can do to tamper with the system to make it count improperly," he was of course speaking utter nonsense. The tabulating system is run by a computer, which runs programs. Those programs can be modified to "flip" votes (see Clint Curtis), add votes, or subtract votes. Everyone who uses a computer knows - or ought to know - this basic fact.

A recount volunteer in Montgomery County actually got the opportunity to challenge Rapp in person on Tuesday (courtesy of Ray Beckerman):

I called to Mr. Rapp's attention Congressman Conyer's previous concerns, and asked him if, hypothetically, a program could be developed that would change a program's vote totals and be undetectable. He acknowledged it could, but pointed out that it took two keys to access the software in the server, one held by a D and one by an R. He also said the programmer must sign in each time a change is made in the program and indicate the purpose of the change, and then sign out when the change is complete.

That may be how the program was originally written (and certified). But when a technician has access to the hard disk, and can replace the certified program with an uncertified program, the "safeguards" are meaningless.

And just for the record, Triad machines are not mechanical marvels, as this June 21 report from South Carolina makes clear.

"Fear is a great motivator. And I'm always afraid something will go wrong," Morgan said as he lightly pounded the top of the Triad Model EX-1 card reader with his fist to keep the ballots from jamming.

Morgan said the card reader easily jams under humid conditions or when ballots are printed on different thicknesses of cardboard or are dyed different colors. On June 8, he regularly had to rerun the Democratic primary ballots printed on blue cardboard.

"Blues are usually the difficult ones," Morgan said. "I always expect there will be some problems with the cards. Sometimes they will curl up in the box."

The problems in Kershaw County paled compared to the labors that officials faced in Sumter County. Scott Vandyke, pastor of the East Dayton, Ohio, Church of Christ and a part-time elections assistant for Triad Governmental Systems of Xenia, Ohio, nearly half of the time had to repeat a run of computer cards because of bent ballots or tallies that didn't agree with precinct reports.

Sumter County voters cast 33,433 ballots in the 2000 general election, but only 30,671 registered a vote for president, an apparent undervote of 8.3 percent.

"I'm sure the problem is not with the cards. And, generally, people will vote correctly," said Vandyke.

Only 91.4 percent of the 7,486 Democratic primary ballots registered a vote for U.S. Senate this month, while 96.3 percent recorded a vote for the local sheriff's race and 94.6 percent registered for state auditor.

Why the difference?

"That is something I just don't usually look at," conceded Sumter County Elections Director Patricia Jefferson. "I don't know. I just don't know. These are good questions."