Ohio County, ACLU Sue Brunner Over Ballots, Voting Machines for March Primary

OhioNews Bureau

ONB COLUMBUS: Even though Ohio is not among the 24 states whose collective primaries are called Super Tuesday, which some say constitute a national primary, voting news related to the Buckeye State’s primary on March 4th is in the headlines.

While revelers in New Orleans see today as Fat Tuesday, the start of its Marti Gras season, the ACLU of Ohio sees it as a day to argue in federal court that the decision by Ohio’s secretary of state to scrap touch screen voting machines in Cuyahoga County and replace them with paper ballots optically scanned at a central vote counting center will only lead to voter disenfranchisement due to voters not being able to fix mistakes, such as under- or over-voting on their ballot.


The ACLU’s argument, based on equal treatment under the law, says Cuyahoga County voters will not be able to fix a ballot should they make a mistake like other voters in other counties who use a different voting system, like a touch screen system, will be so informed, giving them the chance to correct it before casting their ballot.

The Ohio Attorney General, representing the secretary of state, said the system is the same kind that’s used to count absentee ballots in all 88 counties, and “was the most reliable system that could be implemented in such a tight deadline.”

Testifying by phone from Columbus, Matt Damschroder, the executive director of the Franklin County Board of Elections, responded to the question of whether Cuyahoga County could conduct its primary election using touch screen voting machines at this late date, saying it would be "a difficult task, but election officials are often called on to do the nearly impossible,” the AP reported.

Following a study on voting systems in Ohio that concluded touch screen machines were vulnerable and unreliable, Secretary of State Jennifer Brunner broke a tie vote in Cuyahoga County that set the stage for Ohio’s most populous county being the testing zone for a plan she wants to used across the state in November that would use paper ballots scanned by optical machines and then tabulated and counted in central-vote locations, like a board of elections.


But late in the day the news was that U.S. District Judge Kathleen O'Malley sided with Brunner.

An ACLU spokesman said there was just too little time left before March 4th, but they will move forward with their effort for the November elections.


Adding to the drama of the day was this report from The (Cleveland) Plain Dealer newspaper that revealed that elections officials fired one of their printers because optical scanners leased from Election Systems & Software, based in Omaha, Nebraska, couldn’t accurately count the printed ballots.

The report said that after six tests failed, the elections director said she lost confidence with the printer and hopes a second one will do a better job of printing ballots.

But while the report didn’t make mention of it, John Gideon of VotersUnite, an independent, nonpartisan group that follows voting and election issues nationwide, said it was his understanding that ES&S has control of all aspects of the ballots its machines, which Cuyahoga County has leased 15 of for the March primary, from stipulations about paper used and size to which printer will be approved for the job.

“Any county that uses their (ES&S) equipment must secure approval from them and those printers must use ES&S paper for their ballots,” Gideon said from his office in Seattle, Washington. He said the State of Arkansas, which uses ES&S equipment exclusively, must have the company’s approval before printing the paper ballots its machines will scan.


The battle between Secretary of State Brunner and county commissioners over the need and the cost to print enough ballots so that any voters who wants to use one will have one, has been simmering for weeks. A couple counties have confronted Brunner, the state’s chief elections official, saying that not only do they not have the funds to spend on printing paper ballots when their touch screen machines are widely accepted by voters in their county, but that the secretary doesn’t have the authority to force them to march to the beat of her drummer.

As recently as today, Union County commissioners filed a lawsuit, the first among Ohio counties, asking a judge to stop Brunner from forcing counties to use paper ballots and that she also be prevented from removing any board of election official from office who refuses to follow her election directives on this issue.

Brunner, who said she would make Ohio elections “free, fair, open and honest” again if elected, has decided, in light of recommendations from an expensive study she conducted last fall into the accuracy and reliability of Ohio voting machines, to force the 56 of Ohio’s 88 counties that currently use touch screen machines to acquire optical scan machines for the November general elections, where turnout is expected to be the highest ever, given the massive turnouts to date in several primary states.

But while that change is still months away, the 56 counties planning to use touch screen machines on March 4th are upset that she is forcing them to have paper ballots available for any voter who requests one.

The tussle between Brunner, a former judge and the first woman to hold the office, is exacerbated by the limited time she’s given counties to adjust to her directives and the costs, some of which are unknown, and that may not be reimbursed to them because Brunner didn’t have a solid source of funding to look to before she made her decision. She has said she’ll look for funds to help out counties, be they state or federal. But unless federal dollars come pouring from the sky if voting machine legislation sponsored by Rush Holt, D-New Jersey, is signed into law, or she can convince the Ohio legislature to dip into its rainy day fund, counties may be on their own.

As Ohio’s economy worsens due to shrinking tax revenues, county budgets will also be impacted, and their ire towards Brunner for forcing them to make costly changes in equipment, ballots and logistics will only ramp up, fueling further contentious standoffs between them and her.

The Ohio County Commissioners Association did not return ONB’s phone call today.


Meanwhile, in Pennsylvania, Ohio’s neighbor to the east, it seems at least one county was ready to file a lawsuit as recently as last December against its voting machine manufacturer, Advanced Voting Solutions (AVS), for failure to deliver the quality of product it purchased in 2006 using money from the Help American Vote Act.

“It didn’t go well.” That was the bottom line of Lackawanna County’s first experience with using optical scanners in last year’s general election, according to Lynne Shedlock, the new spokesperson for Lackawanna County, located in northeastern Pennsylvania, about 132 miles north of Philadelphia.

The former reporter turned government communications director said the vote count went slower than had been anticipated and that it wasn’t until the next day that election outcomes were known.

Shedlock, who worked for the Times Tribune before coming to her new duties about six months ago, told ONB that the paper covered the counties run up to a lawsuit, which didn’t go forward after Pennsylvania first decertified the machines, because the company failed to complete necessary federal and state testing, then agreed to give the county up to $1.7 million to buy a new voting system.

When two Democratic commissioners formed a majority after last November’s election, they were poised to sue AVS for breach of contract in federal court. Along with two other counties, Lackawanna officials wanted the lawsuit to make then “completely whole financially,” but when the state stepped with funding, the cause for the filing became moot.

Pennsylvania’s primary arrives late in April, giving the three disgruntled counties time have a new system in place. The three counties – Lackawanna, Wayne and North Hampton – could pool their money to leverage a better deal, or not. Either way, county officials says the “paramount concern for each of the counties is getting a system that will instill confidence in the election process among voters and poll workers.”

The Times Tribune reported that Lackawanna and Wayne are “likely to be using their fourth different voting system since 2005 in the April primary; Northampton voters will be on their third system.”

With money in hand to buy a new voting system, Shedlock said the county has hundreds of machines it purchased now sitting idle. “We’re out our HAVA money,” she said of the machines that seem worthless now. “We can’t use them for elections and there’s no option, as far as I know, to turn them back in.”

Shedlock also mentioned that, according to her understanding, a request was made from Hancock County, Illinois, to the US Department of Justice to conduct an investigation of ES&S based on allegations of deceptive business practices that stem from its severe tardiness in providing paper ballots there.

Alysoun McLaughlin of the National Association of Counties said in a phone interview that “until somebody blazes a trail with a county lawsuit” it is unlikely much will happen because counties are taken up with so much other work and legal resources are just not there to carry it through.


In separate voting news in Ohio, Brunner has found a Republican Cincinnati Senator, Gary Cates, who is willing to introduce a bill she needs passed to make changes for the March 4th primary. Cates’ bill would permit Cuyahoga and Van Wert counties, which are switching completely to paper ballots in the primary, to have midday pickup of ballots from precincts so they can be scanned early to save time.

The bill would also prohibit central counting of paper ballots after the primary and would clarify the law to say that if voters mistakenly cast too many votes in a race, the rest of their ballots still could be counted, according to published reports. Cates’ bill would expire on May 1st.

Gideon, at VotersUnite, said Brunner’s idea for a midday pickup may not be such good idea. Where counties have been allowed to tabulate votes early, he said, even when everything has been kept secret, “political parties have been given information so they know where they need to go to get out the vote or put poll challengers in place.” Gideon said “it’s really dangerous if you have unscrupulous election workers, like the two women who were rigging the hand count in Cuyahoga County in 2004.”

Peg Rosenfield, director of legislative affairs for the Ohio League of Women Voters said in a radio interview on the Cates bill that she didn’t like the idea of the midday pick up, as Brunner wants, because it would mean voting would be interrupted. She was concerned that work to prepare the ballots for pick up would become a drag on normal voting.

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.

If readers have a news tip or story idea about Ohio politics or government, contact the OhioNews Bureau at: ohionews@epluribusmedia.org

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