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US Elections
Preserving Democracy: What Went Wrong in Ohio a Status Report of the House Judiciary Committee Democratic Staff 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 is the first three pages of the Report. 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; Disenfranchisement of Democratic Voters by the Republican Party 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.” 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 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. Chronology of Events The Lead Up to the 2004 Ohio Presidential Election In Ohio – In the days leading up to election day 2004, a consensus appeared to have emerged among observers that the state of Ohio would be one of the battleground states that would decide who would be elected the Forty-fourth President of the United States. Both the Democratic and Republican Presidential campaigns, as well as outside groups, had spent considerable time and resources to win the state, but the day before the election, the Democratic candidate, Senator John Kerry, appeared to have the edge. The Democratic Party also had vastly outperformed its Republican counterparts in registering voters in this key state. Election Day – Numerous irregularities were reported throughout Ohio. In particular, in predominately Democratic and African-American areas, the voting process was chaotic, taxing and ultimately fruitless for many. The repeated and suspicious challenges of voter eligibility and a lack of inadequate number of voting machines in these areas worked in concert to slow voting to a crawl, with voting lines as long as ten hours. Voters reported bizarre “glitches” in voting machines where votes for Senator Kerry were registered as votes for the President. The counting process was similarly chaotic and suspect. The Aftermath – On November 5, after receiving preliminary reports of election irregularities in the 2004 General Election, Congressman John Conyers, Jr., the Ranking Member of the House Judiciary Committee, and 14 Members of Congress wrote to the Government Accountability Office (GAO) to request an investigation of such irregularities. On November 22, at the request of the GAO, the House Judiciary Committee Democratic staff met with GAO officials. In this meeting, GAO officials advised that, on its own authority, the GAO was prepared to move forward with a wide ranging analysis of systemic problems in the 2004 elections. GAO officials also advised Judiciary staff that they would be unable to examine each and every specific election complaint, but would look at some such complaints as exemplars of broader deficiencies. At the same time, the offices of Democratic Staff and of Democratic Judiciary Committee Members were deluged with e-mails and complaints about the election. While such complaints are still being processed, close to 100,000 such complaints were received. As of this writing, the Judiciary Democratic office alone is receiving approximately 4,000 such e-mails a day. More than half of these complaints were from one state: Ohio. The Election Protection Coalition has testified that it received more complaints on election day concerning irregularities in Ohio than any other state. On December 2, 2004, Members of the Judiciary Committee wrote to Ohio Secretary of State Kenneth Blackwell that these complaints appear collectively to constitute a troubled portrait of a one-two punch that may well have altered and suppressed votes, particularly minority and Democratic votes. The Members posed 36 questions to Secretary Blackwell about a combination of official actions and corresponding actions by non-official persons, whether in concert or not, worked hand-in-glove to depress the vote among constituencies deemed by Republican campaign officials to be disadvantageous. Through his spokesman, Secretary Blackwell assured the public and the press that he would be happy “to fill in the blanks” for the Committee and asserted that many questions were easily answered. In fact, Secretary Blackwell belatedly replied to the letter with a refusal to answer any of the questions. Ranking Member Conyers wrote back to Blackwell the same day requesting that he remain true to his promise to answer the questions. Congressman Conyers has yet to receive a reply. At the same time, officials from the Green Party and Libertarian Party have been investigating allegations of voter disenfranchisement in Ohio and other states. Eventually, the Presidential Candidates for those parties, David Cobb and Michael Badnarik, filed requests for recounts to all 88 Ohio Counties. However, it appears their efforts too are being stonewalled and thwarted by nonstandard and highly selective recounts, unnecessary delays, and blatant deviations from long accepted Ohio law and procedure. Recently, Senator Kerry, a party to the recount action, joined the Green Party and Libertarian Party in requesting immediate action to halt these irregularities and potential fraud in the recount. The recount is still pending before the federal court, and valid votes have yet to be counted. In addition, a challenge has been filed to the Ohio results asserting, to a level of sworn proof beyond a reasonable doubt, that Senator Kerry, not President Bush, was the actual victor of the Presidential race in Ohio. Kenneth Blackwell is adamantly refusing to answer any questions under oath in regard to election irregularities or results. He is apparently counting upon Congress accepting the votes of the electors and, as an immediate consequence, the Ohio Supreme Court dismissing the citizens' election contest. Committee Members and other interested Members have gone to substantial lengths to ascertain the facts of this matter. The investigation by Congressman Conyers and the Democratic staff of the House Judiciary Committee into the irregularities reported in the Ohio presidential election has also included the following efforts. (See the full report for details). Citizen groups have played a substantial role in acquiring relevant information. Citizens Alliance for Secure Elections in Ohio has organized hearings that have provided valuable leads for this report. We have been contacted by thousands of concerned citizens: they want a full and fair count of all of the votes and confidence in the electoral system, and they find both of these to be sorely lacking in this election. Many have investigated these matters themselves and have made considerable sacrifices to do so. The events surrounding the Presidential election in Ohio must be viewed in two important contexts. First, there is the 2000 Election debacle in Florida. In that election, advocates for a full and fair count were asked to “move on” after Vice President Al Gore conceded the election to then-Governor George W. Bush. Months later, it was found that a full and fair count would have resulted in Gore, not Bush, being elected the Forty-third President of the United States. Subsequent investigations also uncovered rampant disenfranchisement in Florida, particularly of African-American voters. Second, as events have unfolded in Ohio, telling events have taken place within the United States, in the State of Washington, and across the globe, in the Ukraine. In Washington State, after the Republican Gubernatorial Candidate, Dino Rossi, declared victory after a partial recount, it was later found – after a full and fair recount – that the Democratic candidate, Christine Gregoire, was the victor. While national and state Republican leaders in Ohio have derided attempts to ascertain the Ohio Presidential election result and resolve the questions described herein, after the Washington recount, Mr. Rossi has now asked for a re-vote in the State of Washington, saying it is needed for the election to be “legitimate.” In the Ukraine, after the apparent defeat of the opposition leader, Viktor Yushchenko, in that nation’s Presidential election, amid allegations of fraud and public protests, a new election was held, and Yushchenko won by a significant margin. In fact, in the first, seemingly flawed election, Yushchenko appeared to lose by three percentage points. However, he won by eight percentage points in the subsequent revote. United States officials called the original vote rife with “fraud and abuse,” largely relying on anecdotal evidence and deviations between exit polls and reported results. A simple lesson may be drawn from these two contexts: elections are imperfect. They are subject to manipulation and mistake. It is, therefore, critical that elections be investigated and audited to assure the accuracy of results. As Senator Kerry’s attorney recently noted, only with uniformity in the procedures for such an investigation and audit “can the integrity of the entire electoral process and the election of Bush-Cheney warrant the public trust.” Regardless of the outcome of the election, and that outcome cannot be certain as long as legitimate questions remain and valid ballots are being counted, it is imperative that we examine any and all factors that may have led to voting irregularities and any failure of votes to be properly counted. Election Laws Used to Argue Case A. Federal Constitutional Law Safeguards The right to vote is our most cherished democratic right and, as such, is strongly protected under the Constitution. Both the Equal Protection and Due Process Clauses of the 14th Amendment operate to protect our citizens’ right to vote for the candidate of their choice. In the seminal voting rights case of Reynolds v. Sims, the Supreme Court held that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” The Court observed that, “undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote, . . . and to have their votes counted.” Under the Equal Protection Clause of the Fourteenth Amendment, Reynolds and its progeny require that votes that are cast must actually be counted. The Equal Protection Clause also requires that all methods the “legislature has prescribed” to preserve the right to vote be effected, not thwarted. Courts have held that the Due Process Clause implemented in the context of voting rights requires “fundamental fairness” — the idea that the state official cannot conduct an election or apply vote-counting procedures that are so flawed as to amount to a denial of voters’ rights to have their voices heard and their votes count. As a result, under the Constitution, citizens have a fundamental right to vote and to have their vote counted by way of election procedures that are fundamentally fair. Where “organic failures in a state or local election process threaten to work patent and fundamental unfairness, a . . . claim lies for a violation of substantive due process.” Importantly, protections for the right to vote extend to and include the right to a full and fair recounting of those votes. A recount is fundamental to ensure a full and effective counting of all votes. Ohio courts have held that “[a] recount ... is the only fair and equitable procedure to ensure the correct tally of all the votes.” As the Oklahoma Supreme Court recently emphasized, “[a] timely recount is an integral part of an election.” The West Virginia Supreme Court, construing a recount statute similar to Ohio’s recount provisions, stressed the importance of an election recount to the fairness and integrity of the election itself. Indeed, courts in states which provide a statutory right to a recount uniformly have held that an election cannot be deemed over and final until a recount provided under state law has been completed. B. Federal Statutory Election Safeguards There are numerous federal statutes that protect the right to vote. First and foremost, the Voting Rights Act prohibits any person, whether acting under color of law or otherwise, from: (1) failing or refusing to permit any qualified person from voting in ... federal elections; In addition, the Civil Rights Act of 1968 provides criminal penalties for violations of civil rights, including interference with the right to vote. Specifically, section 245 of title 18 makes it a crime for any person who “by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from voting or qualifying to vote....”. In 1993, Congress enacted the National Voter Registration Act29 (NVRA), which requires that, for federal elections, states establish fair and expeditious procedures so that eligible citizens may register to vote.30 Pursuant to the NVRA, section 1974a of title 42 makes it a crime for any person to willfully steal, destroy, conceal, mutilate, or alter any voting records, including those having to do with voter registration.31 After the widespread problems that occurred in the November 2000 election, Congress enacted the Help America Vote Act (HAVA),32 thereby creating a new federal agency with election administration responsibilities, setting requirements for voting and voter-registration systems and certain other aspects of election administration, and providing federal funding. Perhaps the central requirement of HAVA was that, beginning January 1, 2004, any voter not listed as registered must be offered and permitted to cast a provisional ballot. HAVA included a variety of additional new requirements, including a provision that beginning January 1, 2004 (extendable to 2006), states using voter registration must employ computerized, statewide voter registration systems that are accurately maintained. C. Ohio Election Safeguards Ohio has enacted numerous provisions designed to protect the integrity of the voting and tabulation process. 1. The Right to Vote in Ohio Under the Ohio Constitution, “Every citizen of the United States, of the age of eighteen years, who has been a resident of the state, county, township, or ward, such time as may be provided by law, and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections.” This includes the right to vote directly for Presidential electors. The protection of this right is placed squarely on the Secretary of State, who has the affirmative duty to “investigate the administration of election laws, frauds, and irregularities in elections in any county, and report violations of election laws to the attorney general or prosecuting attorney, or both, for prosecution.” To complete this task, the legislature has given the Secretary the power to “issue subpoenas, summon witnesses, compel the production of books, papers, records and other evidence.” Many specific provisions in the Ohio Revised Code help protect one’s right to vote: • Polls must be open from 6:30 in the morning until 7:30 at night, and everyone in line at that time must be allowed to vote. 2. Declaring Results Ohio law requires that, before the Secretary of State can declare the initial results of the Presidential election in Ohio, each of the 88 county boards of elections ("county boards") must (1) canvass the results in the county, (2) certify abstracts of those results, and (3) send the certified abstracts to the Secretary of State. Only after the Secretary of State receives the certified abstracts from the county boards is the Secretary able to canvass the abstracts to "determine and declare" the initial results of the Presidential election in Ohio. Under Ohio law, the Secretary of State is required to fix the calendar by which the state's Presidential election results initially are declared and by which a recount of those initial results can occur. Specifically, the Secretary is to set the date by which Ohio's 88 county boards must complete their canvass of election returns and send the certified abstracts of the results to the Secretary. Any statutorily mandated recount of the votes cast in Ohio for President cannot occur before the Secretary declares the initial results. 3. Security of Ballots and Machinery In addition, Ohio law prohibits election machinery from being serviced, modified, or altered in any way subsequent to an election, unless it is done so in the presence of the full board of elections and other observers. Any handling of ballots for a subsequent recount must be done in the presence of the entire Board and any qualified witnesses. Containers in which ballots are kept may not be opened before all of the required participants in are attendance. The Ohio Revised Code defines a ballot as “the official election presentation of offices and candidates . . . and the means by which votes are recorded.” Therefore, for purposes of Ohio law, electronic records stored in the Board of Election computers are to be considered “ballots.” Our Recommendations A. Electoral College Challenge We believe there are ample grounds for challenging the electors from Ohio as being unlawfully appointed. We say this for several reasons. First, there is considerable doubt that all controversies regarding the appointment of the electors were lawfully resolved six days prior to the meeting of the electors (on December 7) in order for the state’s electors to be binding on Congress as required by 3 U.S.C. Sec. 5. This is because, among other things, the Secretary of State appears to have intentionally delayed the initial certification of the electors until December 6, making it impossible for the recount (of which he was fully aware of) to be completed by December 7, let alone the December 13 meeting of the electors. Second, there are numerous irrefutable instances where Ohio election law has been violated by the Secretary of State and others such that the election cannot be said to comply with Ohio law, and the electors cannot be considered lawfully certified under state law within the meaning of 3 U.S.C. Sec. 15. These violations of law are highlighted throughout this Report. • The failure to provide adequate voting machinery would appear to violate both Ohio’s Constitution, that provides all eligible adults the right to vote, and the Ohio Revised Code which requires the Boards of Elections to provide “for each precinct a polling place and provide adequate facilities at each polling place for conducting the election.” Secretary of State Blackwell’s failure to initiate any investigation into this pivotal irregularity notwithstanding his statutory duty to do so under Ohio Revised Code Sec. 3501.05, represents another likely violation of Ohio law. • The “caging” tactics targeting 35,000 new voters by the Ohio Republican Party for preelection legal challenge were found by three federal courts to be illegal as being politically and racially charged, and burdening the fundamental right to vote. The tactic would also appear to violate Ohioans’ right to vote under the Ohio Constitution. • Mr. Blackwell’s decision to prevent news media and exit polls from interviewing Ohio citizens after they voted was found by a federal court of appeals to have violated the First Amendment's guarantee that state conduct shall not abridge "freedom...of the press". His decision also likely violated Ohio’s Constitution that provides: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.” • Mr. Blackwell’s decision to prevent those voters who requested absentee ballots, but did not receive them on a timely basis from being able to vote, was found by a federal court to violate HAVA. This restrictive directive also likely violated Article 5, Section 1 of the Ohio Constitution, granting every Ohio citizen the right to vote if he or she is otherwise qualified. • Numerous incidents of voter intimidation and misinformation engaged in Ohio on election day likely violate the Voting Rights Act, the Civil Rights Act of 1968, and the Ohio right to vote. Mr. Blackwell’s apparent failure to institute a single investigation into these acts likely represents a violation of his statutory duty to investigate election misconduct. • 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. By insuring that election boards were in a position to conform their test recount results with the election night results, Triad’s actions may well have prevented scores of counties from conducting a full and fair recount. Triad’s action appears to violate Ohio law prohibiting election machinery from being serviced, modified, or altered in any way subsequent to an election, unless it is done so in the presence of the full board of elections and other observers. • Numerous Ohio laws appear to have been broken in Greene County, where after initially being granted access to poll books to conduct an audit, election observers had this access abruptly revoked under the orders of Secretary Blackwell, and arbitrary and capricious practices and counting procedures that disenfranchised hundreds of voters were identified. These practices violate Ohio law requirements preventing the denial of public access to election records; requiring that ballots and machinery be kept absolutely secure; and protecting the right to vote. • The Secretary of State’s failure to issue specific standards appears inconsistent with Ohio state law which charges the secretary of state with “[issuing] instructions by directives and advisories to members of the boards [of elections] as to the proper methods of conducting elections” and “[preparing] rules and instructions for the conduct of elections.” • There were numerous specific irregularities in the recount that are inconsistent with several aspects of Ohio’s recount law. Those counties which did not randomly select the precinct samples violated the Secretary of State’s directive on this point. Those counties which did not conduct a full hand court after the 3% hand and machine counts violated Ohio’s statutory right to have inconsistent results rechecked. Those counties which allowed for irregular marking of ballots and which failed to secure and store ballots and 100 machinery appear to have violated provisions of Ohio law mandating that candidates have the right to ensure that ballots are secure between the election and the official recount, that ballots may not be handled by anyone besides Board members and their staff, and may not be handled outside of the presence of the Board and qualifying witnesses. Finally, those counties which prevented witnesses for candidates from observing the various aspects of the recount violated provisions of Ohio law providing that candidates have the right to observe all ballots. Whether the cumulative effect of these legal violations would have altered the actual outcome is not known at this time. However, we do know that there are many serious and intentional violations which violate Ohio’s own law, that the Secretary of State has done everything in his power to avoid accounting for such violations, and it is incumbent on Congress to protect the integrity of its own laws by recognizing the seriousness of these legal violations. B. Need for Further Congressional Hearings It is also clear the U.S. Congress needs to conduct additional and more vigorous hearings into the irregularities in the Ohio presidential election and around the country. While we have conducted our own Democratic hearings and investigation, we have been handicapped by the fact that key participants in the election, such as Secretary of State Blackwell, have refused to cooperate in our hearings or respond to Mr. Conyers questions. While GAO officials are prepared to move forward with a wide ranging analysis of systemic problems in the 2004 elections, they are not planning to conduct the kind of specific investigation needed to get to the bottom of the range of problems evident in Ohio. As a result, it appears that the only means of obtaining his cooperation in any congressional investigation is under the threat of subpoena, which only the Majority may require. Given the seriousness of the irregularities we have uncovered, and the importance of the federal elections, we recommend that the House and Senate form a joint, select committee to investigate the full gamut of irregularities across the board. Among the issues which require further attention at Congressional hearings are the following: • The misallocation of voting machines. Congress should examine the extent to which the lack of machines in certain areas led to unprecedented long lines that disenfranchised predominantly minority and Democratic voters. • The decisions to restrict provisional ballots to actual precincts and to deny them to voters who did not receive absentee ballots. Congress should examine the extent to which the decisions departed from past Ohio law on provisional ballots, how many voters were impacted, and whether a broader construction would have led to any significant disruption at polling places. • The use of partisan, pre-election “caging” tactics. Congress should examine to what extent caging is used and to what degree minority voters were targeted for intimidation and suppression. • The use of voter suppression and intimidation tactics. Congress should investigate reports 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. • The use of partisan challengers. Congress should examine whether the use of such challengers is disruptive and intimidating to voters. Further, Congress should investigate whether the precinct judges, which are required by law, are sufficient to regulate voting practices. • Voter purging and other registration errors. Congress should look at what methods of voter purging are used and whether they target minority groups. • The prevalence of undervotes, in which ballots are cast but lack votes for president. Congress should further investigate whether undervotes are principally caused by punchcards and what reforms can be made to prevent them. • The need for greater accountability in ballot counting. Congress should examine whether an audit capability for voting machines would enhance the ability to verify voter choices. • The lack of national standards for issuing provisional ballots and conducting recounts. Congress should examine areas in which national standards would promote the guaranteed right to vote and would ensure that every vote counts. • Restrictions on the use of government-granted power for political or personal gain. Congress should investigate the need for restricting the ability of state contractors and public officials involved in the administration of elections to participate in campaign activities. C. Legislation Our investigation has made it abundantly clear that Congress and the States must reform the election laws to address the many inequities that have come to light. At the very least, we must – • Develop a fair and uniform system of processing provisional ballots, including training of poll workers and counting votes. • Ensure that every voting machine has a verifiable audit trail, guidelines for which could be established by the Election Assistance Commission. • Consider an Amendment to the Constitution of the United States to reaffirm the right to vote. • Facilitate voter turnout through the establishment of a national election day holiday, the expansion of early voting, and the re-enfranchisement of former felons. • Ensure full enforcement by the Justice Department of anti-voter intimidation laws, including prohibitions on voter suppression and caging. • Establish national standards for voter registration, polling place opening hours, and ballot recounts. • Establish an explicit private right of action for voter rights in the Help America Vote Act. • Ensure that state and local election officials involved in the administration of elections do not use their offices for political gain. • Ensure enough accessible voting machines and poll workers are available at all precincts such that waiting times are reasonable, including in lower-income and minority communities. • Consistent with the First Amendment, restrict state contractors from participating in campaign activities. • Develop and fund public campaigns to educate voters on voting rights, anti-voter intimidation laws, etc.. • Fully fund the Help America Vote Act. • Clarify that provisional ballots are available to all citizens who request them, as long as they are in the appropriate County. We recommend that House and Senate Members join together in reforming these laws and preserving our democracy. References The 100 page report can be found at Truthout.org. Democratic Representative John Conyers Jr. House Judiciary Committee Hearings and Reports About the Author(s): See under Our Contributors to find out about the Author(s) of this article. |
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