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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Thursday, January 25
 
Convictions in Ohio Recount Tampering Case
Two Cuyahoga County election officials were convicted today on felony counts of negligent misconduct in connection with Ohio's 2004 presidential recount. The AP has this report.

The convictions stem from the recount that was requested not by the John Kerry, but by Green Party candidate David Cobb and Libertarian candidate Michael Badnarik. State law at the time allowed candidates to obtain a recount for only $10 a precinct, and these candidates asked for one statewide. At the time, Cuyahoga County, like most other counties in Ohio, was using "hanging chad" punch card voting equipment. Under a directive issued by former Secretary of State Ken Blackwell, 3% of randomly selected precincts were to be recounted manually. If the manual recount in those precincts matched the machine count, then the remaining 97% could be recounted by machine. If they didn't, then those ballots would have to be recounted by hand.

So what happened? According to prosecutors, and it appears the jury agreed, Cuyahoga County election officials fudged the recount by not selecting the 3% of precincts randomly. Instead, prior to the official manual recount, they did a pre-count to find precincts where the hand and machine counts would match.

Why would they do such a thing? Does this mean that the election really was stolen after all?

No.

The prosecutor in the case didn't allege that the recount was rigged for political reasons. Rather, it appears that the officials did so in order to avoid having to manually recount over 600,000 punch card ballots. Had they really selected the 3% of ballots at random, it's likely that the hand and machine counts wouldn't have matched. Remember that Cuyahoga was using punch card ballots. An inherent problem with this equipment is that hanging chad can get pressed back into place when put through the machine. Sometimes, chad can actually come out during the recounting process. A truly random recount would likely have meant that all the ballots in Cuyahoga County would have to have been recounted. As I mentioned at the time the indictment came down, I wouldn't be surprised if the allegations are true. In fact, I suspect that officials in Ohio's other counties did the same thing.

To be clear, this isn't at all to excuse the conduct in which these officials engaged, or to deny that they deserve to have been convicted. Where the law prescribes a particular procedure, it's critically important that those procedures be followed -- even when it's certain that the outcome won't be affected. The failure to follow prescribed procedures will only contribute to public distrust of the integrity of our election system, something that nobody wants (except that small cadre of pundits who have made a career out of spinning conspiracy theories about stolen elections). The crimes of which these officials have now been convicted are therefore serious ones ... even though they didn't affect the outcome of the 2004 election.

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Moritz College of Law The Ohio State University