Like Déjà Vu, Sour Stew Starting to Brew over Voting in Ohio

OhioNews Bureau

ONB COLUMBUS: Just when you thought the confab and controversy over Ohio’s problem-plagued system of voting was over, a new stew is brewing pitting election-law experts and voting-rights advocates against Ohio’s new chief elections officer, who recently decided to scrap expensive, hackable touch-screen machines in favor of expensive, temperamental optical scanners in the hotspot of Ohio election failures just a few short months before the Buckeye State’s March primary.

A fortnight after Ohio’s new Democratic Secretary of State Jennifer Brunner released her much-awaited – and now much criticized – review of Ohio’s system of voting detailing a frightful array of voting-machine vulnerabilities, and less than a week following her heavy-handed tie-breaking vote to force the Cuyahoga County Board of Elections (CCBOE) to scrap its $21 million Diebold-made, touch-screen vote machines in favor of fussy optical scanners made by ES&S, teams are forming to challenge the wisdom and efficacy of Brunner’s rush to reform voting.


In a news release Thursday from the Ohio chapter of the American Civil Liberties Union (ACLU) alleging Brunner, an attorney and former common court pleas judge, will be violating Ohio election law if she proceeds with her decision to change voting technology, the group said such a pell-mell move would result in many voters being unfairly disenfranchised because the new machines, which operate from paper ballots, do not preclude a voter from overvoting or casting more votes than they are eligible to cast.

Central to its argument to not change to a new technology, which it delivered to Brunner in a letter and in testimony before the CCBOE a week ago delivered by its staff attorney, Carrie L. Davis, the ACLU of Ohio said switching to new machines, especially models recently found to be untrustworthy by the Secretary of State of Colorado, would be a violation of Ohio law that “expressly prohibits voting machines unless they preclude an elector from overvoting, or casting more votes than the elector is eligible to cast.”

Pointing to a challenge lawsuit (Stewart v. Blackwell) the Sixth Circuit panel upheld based on the argument that Ohio’s use of non-notice punch card and optical can voting systems was illegal under the Fourteenth Amendment to the US Constitution and the Voting Rights Act of 1965, Carrie strongly urged the CCBOE to reject changing to non-notice Central Count Optical Scan voting machines that present a range of problems.

”…moving to a central-count optical scan system would represent a major step backward for Cuyahoga County. It would deny voters the benefits of currently available notice technology, which has been proven to reduce errors and to prevent lost votes. The predictable result of a switch to non-notice technology is that a larger number of citizens’ votes ‘would not be counted.’ In the 2008 election, it is predictable that tens of thousands of citizens will not have their votes counted, if Cuyahoga County moves to a non-notice system. Given Ohio’s pivotal role in national politics, it is quite possible that switching to this equipment would affect the results of the election. It is certain that a non-notice system would have an especially harmful effect on racial minorities and those of limited education levels.” [ACLU of Ohio, letter to Brunner]

Brunner’s response to this concern, as recorded in a recent recorded phone interview with Brad Friedman of The Brad Blog, was evasive, saying only that a pencil or a pen will be used to mark an optical scan ballot, in addition to an AutoMARK if the voter has a disability.

In a Friday article in The (Cleveland) Plain Dealer that reported that election results may not be known until the next morning at the earliest, votes cast in the 583 voting places in Ohio’s most populous county to a central-vote location, like the board of elections, will be counted by 15 scanners.

Adding more mystery about whether voters will have a chance to correct any ballot errors before they are packed up and swept away to another location to be counted, a Brunner communication bodyguard said “it's possible for precinct-based scanners…to scan ballots for voters to determine whether they contain any errors.” Many things are possible; certainty is what’s needed now with the clock ticking down to March 4th.

Why Brunner wasn’t present herself or have one of her many agency staffers, including the platoon of lawyers she hired, present at the meeting of the CCBOE last Friday, especially when others from Columbus and beyond showed up to provide verbal testimony on issues central to the board’s consideration of the weighty matters before it, is unknown, unprofessional and smacks of an calculated air of arrogance she’s famous for.

Given the absence of her agency at the hotspot of Ohio election meltdowns at such a pivotal point in decision making, it comes as little surprise that Brunner communication bodyguard would tell the PD that “the secretary was unaware that Cuyahoga County election officials anticipate the March count could take so long.”

"She'll want to engage the board in a discussion about why they feel it will take until the next day."[Brunner spokesperson], PD]

Really? Actually take the time to “engage” the board in discussion? What a novel idea. How can be unaware when her assistant participates in regular conference calls with the board and she lunches with them each week?

The PD reported that leasing scanners would cost about $1 million, while buying them would cost another $3 million. The CCBOE seems to be on the same page as the ACLU of Ohio and others who say that as a version of checks and balances for voting, ballots should be scanned at each polling place and again at central-vote centers. This will, of course, depend on the receptiveness of the Ohio Legislature, which makes election law, to this concept.


Many election professionals, from the Election Law @ Moritz to the Voting Technology Assessment Project at the Brennan Center for Justice at New York University School of Law, have said the risks with central-based counting far outweighed those of precinct-based counting because if computer viruses are introduced through inappropriate access, it's far more decentralized. Additionally, in addition to the likelihood of the kind of meltdown that happened in Denver in 2006, various kinds of “chicanery” can happen when ballots are transported back to a county board of elections.

The concern is not only for the chain of custody, but for the possibility that some unscrupulous local election officials, who some say are still involved with Ohio boards of elections despite their association with questionable practices in 2004 (Warren County is one point of concern), could again cause trouble.

In a letter published Friday in The Dayton Daily News about the importance voting accountability, Jennifer Alexander, a primary source to the problems that plague voting in Ohio, took Brunner and new Democratic Attorney General Dann to the woodshed for failing to follow up on promises they made when running for office that they would “resuscitate our ailing election process.”

From her observation point as a county poll worker, she witnessed first-hand problems with voting machines and poorly trained poll workers and board of elections’ staff, Alexander said its time for Ohio “to look into the darkness that chokes democracy and allow light and truth to begin to heal us all” because “the perfect storm is brewing again in Ohio for November 2008.”

”If Mark Dann can close charter schools in Ohio for lack of improvement and therefore misuse of public funding, then why can't our most important act as American citizens, voting, be protected as well? Should our taxpayers continue to carry the burden of electronic voting machine vendors' faulty equipment, and the additional expense of $1.8 million for Brunner's Project EVEREST to test these machines?” [Jennifer Alexander, DDN]

Brunner said she could have decertified all of Ohio’s touch-screen machines, which her report revealed as totally vulnerable to even the simplest of techniques, but didn’t because she would have had to work through the board of voting machine examiners, which she appoints. She indicated that doing so would have chewed up valuable time and produced lots of partisan political flak at a time when she wants the choir to sing her song of collaboration.

So in lieu of doing what California’s Secretary of State had no problem doing, Brunner said what she’s been doing is “working hard to get people to understand that I'm not proposing a permanent solution. I'm proposing a way to deal with the limitations in the equipment that we have now. It's all that's available to us.”

She says she wants to “push the industry to improve their standards and to better engineer equipment that will meet the security standards that we are used to and that we expect in everything else that we do that involves a computer, whether it's banking or communications or driving around in our car using the GPS.”

What really pleased her, if seems, was a compliant media, which obligingly reported but did not critique the report findings she delivered to them on December 14th at the Ohio Statehouse. “They asked questions, they understood it, and no one asked hostile questions like they didn't believe the results of the study.”

John Michael Spinelli is a former Ohio Statehouse government and political reporter and business columnist. He now serves as the OhioNews Bureau Chief for ePluribus Media Journal. Find ONB archives here.

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