2004 Ballot Recount: Observer Report

• December 17, 2004:
  Addendum by Green Party Observer
• December 15, 2004:
  Remarks by Green Party Coordinator
• December 15, 2004:
  Report by Green Party Observer A
• December 14, 2004:
  Report by Green Party Observer B

December 17, 2004:
Addendum by Green Party Observer

The sample precincts to be used for the recount were not chosen in the presence of the observers, but had been chosen prior to our arrival. The ballots were in place on the counting tables when observer teams were allowed to enter the counting room (this seems to be in violation of ORC 3515.04 which states 'At the time and place fixed for making a recount, the board of elections, in the presence of all witnesses who may be in atendance, shall open the sealed containers containing the ballots to be recounted, and shall recount them.'

I subsequently followed up on this and I was told by the Asst. Director (Dem.) that the ballots were never removed from the vault prior to the morning of December 14th. As stated in the original report, the observers from the Green and Democratic party questioned how those particular precincts were chosen 'at random' for the recount and one Board member said the numbers for those precincts were chosen 'out of a hat'.

Subsequently, this was found out not to be how those precincts were chosen. These ballots were actually chosen by the Director and the Asst Director of the BoE by 'randomly selecting' precinct ballot stacks inside the vault until the required number to accomodate the 3% sample had been chosen. This was done late in the day on Friday Dec.10, 2004. After the selection of the precincts, the ballots were again locked in the vault.

I have been told by the Asst. Director of the BoE (Dem.) that until they were retrieved for the recount on the morning of the 14th, they were under double lock and key, meaning that it takes both the Director and the Asst. Director to gain access to the ballots.

On the morning of the 14th, they were opened in the presence of the Board of Directors at the start of the Board meeting just prior to start of the recount/arrival of the observers.

Why the board member stated that these precincts were 'selected from a hat' when knowing otherwise, and considering that the selection was seemingly random and could be explained as such, does not make good sense to me and creates an air of suspicion as to why it was necessary to not tell the truth about how they were chosen.

I have checked into, and was assured by the Asst. Director of the BoE, that the card reader technician did not have access to the machine prior to the recount and was never unaccompanied when he did have access.

Additional information about the test desk: it was run per the procedure with 55 ballots having a valid vote recorded for president, one ballot recorded with an overvote and one ballot with an undervote. As previously noted, no discrepancies found.

This information was reported in error: 'Director Johnson reported that an additional test of 10% of the total vote from 17 precincts chosen at random, one from each township or municipality was conducted. No documentation was requested or provided. The Board was reassuring that such test did occur.'

The correct information is as follows: A pre-test (also referred to by the Asst. Director as a '0 verification test' to verify the correct reading of the header cards was done with 17 header cards selected at random by the 4 Board members prior to the arrival of the observation teams. Observers did not witness this test of the machine's accuracy. Per the Asst. Director, prior to our arrival, all the header cards were removed from the safe and were brought to the recount room where each of the Board members took turns randomly selecting header cards from the deck (like picking cards from a deck of cards). These cards were then given to the processed thru the card reader with no discrepancies found. I have requested the pertinent test documentation from the BoE.

Contrary to what we expected (or wanted), observers did confirm via their inspection of ballots during the hand count that there were indeed ballots with NO choice for president.

Again, we are still awaiting a response from the BoE (who is waiting on a ruling from the Asst. Prosecutor) regarding our request for access to the poll books, rejected provisional and absentee ballots, and ballot accounting sheets. The review of these documents is necessary to make sure all the records are in order and legitimate votes haven't been rejected or that duplicate or prohibited votes have been counted. This is one area where we felt that the Republican Board members and the SoS representative, Christian Lobb, who had previously concurred with our request during a 'casual' conversation (until, it seems, the local Republican observers had some words with him), were particularly obstructionist, dismissive and condescending, as if what we were asking to do was both unnecessary and ridiculous, even though it is spelled out in the SoS Directive.

At least it seems to us to be clearly spelled out in the Directive. The SoS representative had told us that (between our first conversation with him and our 'official request') he had called the SoS's office for clarification and was told that the Directive was an 'outline', a 'guideline', and was 'optional'. It seemed to some of us (Greens and Dems) that the SoS rep. and Board (the strong personalities seemed to be the Republicans) inconsistently applied the SoS Directive, stating (or inferring) it was binding when it furthered their end and that it was 'optional' when it was something that we requested that they didn't want to do.

Report of the post-recount retest has also been requested from the BoE.

To the best of our knowledge, (and that of the Asst. Director), the result of the recount was not certified. We do not believe this was motioned or voted upon by the Board.

As I've stated, many things could have been done better. Many things could have been done worse, as well. We wish we could have known all the facets of this process much sooner and had more time with the proper documents to prepare and become more proficient with election processes and procedures. If this is to be something that will be done for future elections, a structured, proactive training process needs to be established. Under the circumstances, I feel that all the observers did a very good job juggling the interpersonal, organizational, bureaucratic and technical challenges with which they were confronted. Hindsight is 20/20 and Monday morning quarterbacking is MUCH easier than doing it on Sunday afternoon!

Submitted by BG.

December 15, 2004:
Introductory Remarks by Green Party Coordinator

Here's our report of today's effort. As you will see, the 3% sample hand recount was reconciled to the machine count (after some initial difficulties (manual error) with reconciling precinct 151). Because the 3% sample was properly reconciled, the remainder of the ballots were processed through the computer and the results were tabulated electronically per the recount procedures. The *final* result tabulated was the same for *ballots cast*, but differed by 3 votes for ballots *counted* from the *certified* vote count. The final vote total *counted* was: Badnarik 193 (no change), Bush 68,037 (+2), Kerry 24,044 (+1), Peroutka 144 (no change).

The question of the review of disqualified provisional and absentee ballots and of poll books (signatures, # of voters) and the 'precinct tally' sheets is still pending. Our interpretation of the 'Provisions for Recounts' (R.C. 3515) allows for review of these documents (F.1.b.). The Board was not sure and not inclined to let us do this and motioned to refer this to the Asst. Prosecuting Atty's office. We are 'on hold' awaiting this decision. If we are permitted to do this, I will contact some of you for help. The recount proceedings did have some media presence in the form of the Cincinnati Enquirer, Western Star (Lebanon), and WCPO at some point during the day (mostly the Enquirer).

Below are also listed the notes by Witness A., who was scheduled as a 'floater' today, but was not permitted to remain in the room where the recount took place; Witness A. stood in the doorway and made these observations for about 1 1/4 hours. From the recount report, you will be able to tie these two accounts together.

I will keep you advised as I am made aware of the decision of the Prosecutor's office about whether or not we will be able to complete our efforts to validate the election results and to make sure the process was transparent, fair and accurate. Thanks for all your commitment, dedication and hard work!!

December 15, 2004:
Observations by Green Party Observer A

1. I observed from the BoE lobby doorway into the recount room, the third party contractor and who I believe was a BoE employee (Bev Moore, former Director of the Warren County BoE) running two precincts each of ballots through two different counting machines to obtain the machine count from each machine.
2. The decision was made to only allow 1 witness per recount team for the entire day — no relief/floater witness and no coordinator present in the room (voted on by the Board).
3. Once the machine counts were obtained, I heard that the precincts were selected randomly from a "pull from a hat".
4. The precincts used for the 3% recount were Warren County precincts numbers 150-151-33-21.
5. The ballots were hand counted and placed into 4 different stacks.
6. I heard the Green Party witness, Witness J., ask Susan Johnson about the provisional ballots. Susan indicated that there was no way to verify the rejected provisional ballots because there was no longer a name or address associated with each prov. ballot — they were simply in a stack.
7. A democratic witness asked to view the provisional ballots. A republican witness said "We should stick with what Ohio law allows". The democratic witness stated that Ohio law DOES allow for viewing of provisional ballots.
8. On ballot from precinct 151 was an overvote. The voter had attempted to cross out one of the votes with a pencil. It was laid to the side.
9. A member of the BoE, a male and a republican recount representative of the BoE stated that they needed to make a decision on the partial chads protruding on a few ballots. A democratic witness stated that Ohio law states that it is accepted as a valid ballot if 2 sides of the chad are still attached.
10. The same BoE member was belligerent at times when addressing the Green Party (and Democratic Party) team members.

December 14, 2004:
Observations by Green Party Observer B

The Board of Elections informed all those who appeared to witness that only two witnesses per party would be allowed, and substitutions would not be permitted during the day. The Test Deck was run per procedure and results shared with witnesses. No discrepancies found.

Director Johnson reported that an additional test of 10% of the total vote from 17 precincts chosen at random, one from each township or municipality was conducted. No documentation was requested or provided. The Board was reassuring that such test did occur.

Prior to arrival of the witnesses, the Board chose 3% of the vote by random drawing. Four precincts were selected, with 3602 total votes, more than the required 3%. (3.8%)

#21 Mason City East B (826 total votes)
#33 Clear Creek Twp East B (1,143 votes)
#150 Deerfield Twp West A (789 votes)
#151 Mason City NE B (844 votes)

Manual counts were problematic, but not in significant numbers. Eventually all precincts were reconciled with both the machine count taken today, and with the certified result reported to the State.

Director Johnson asked the witnesses if they were satisfied and would waive the machine count of all votes. The witnesses requested that the full machine count proceed according to the law.

The machine tally of all precincts was completed at 4:00 p.m. Two minor differences were identified. Two additional votes moved from the under/over vote column to the Bush total. Board member Spaeth suggested that during the handling of the ballots, two may have lost chads and this would account for that difference. The Kerry column gained one vote; this was as a result of a decision during the manual count to move one ballot from over-vote to Kerry, since the intent of the voter was discernable.

The witnesses requested that the Board provide access to the records on the following day to accomplish the following tasks. These items were derived from the Democratic Party recount manual:

We indicated that the Secretary of State's "Outline of Recount Procedures" states that these tasks could be performed "in the presence of at least two election officials of different political parties", (F.1.b) so that the presence of the full Board would not be required.

Our request to perform these tasks was not accepted by the Board. Member Spaeth moved that our request should be reviewed by the County Prosecutor. His motion was seconded and passed unanimously by polling the members. Mr. Lobb said that the Secretary of State's "Outline of Recount Procedures" was optional and that local Boards of Election could follow them or not.

We now await a decision by the County Prosecutor. Green Party Coordinator Bethe Goldenfield, Democratic Party Coordinator Jeff Ruppert and Republican Party representative David Fornshell will be contacted about the decision, and arrangements for further proceedings, if Prosecutor rules to allow them.

In general, the recount was conducted in a cordial and cooperative atmosphere, despite obvious resentment by some about the recount, resistance by many involved about the prospect of a full hand recount, and opinions by some that this was a waste of time and taxpayers' money.

The witnesses and coordinators of the Green and Democratic Parties agree that the events of Tuesday were a valued expression of democracy. They went part of the way toward restoring our faith in the transparency of Warren County's election process, which was clouded by the lock-down of the vote count on November 2nd.