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Commentary

Running Elections in Cuyahoga County Next Year

Jennifer Brunner, Ohio Secretary of State, is justified in seeking removal of all four members of the Cuyahoga County elections board, who ultimately hold responsibility for the egregious mismanagement of the voting process there in 2006 (which followed on the heels of serious failings that occurred in 2004).

But Brunner needs quickly to put in place a new bipartisan board, two Democrats and two Republicans, who will be able to exercise all the normal responsibilities of the board in 2008, so that she herself—an elected Democrat—does not displace the board’s authority for making all the local decisions that will arise regarding the casting and counting of ballots in Cuyahoga County in the upcoming presidential election.

Brunner is right to be concerned about preparations for the presidential election in this most-troubled, and most-populous, county. Cuyahoga County’s inability to conduct elections properly—with serious implications for the nation’s ability to pick a President—go back at least as far as 1972, when a systemic failure to deliver voting equipment to polling locations caused, among other problems, 16 precincts never to open on the Tuesday designated for the presidential primary. Consequently, in addition to keeping the polls open until midnight countywide, a federal court ordered a whole new day of voting in those precincts on the following Tuesday.

Having largely forgotten that fiasco, the nation was reminded of Cuyahoga County’s perennial trouble in administering elections when two of its officials were criminally convicted of having rigged the recount of the presidential vote in the 2004 general election. The fact that their motive apparently was laziness, rather than partisanship, does not sufficiently allay concerns about the integrity of vote counting in that county.

The severe problems of the May 2006 primary are too numerous to detail here, but among the most serious are the loss of memory cards electronically recording vote totals from fourteen percent of the county’s precincts and spoiled paper records for ten percent of the county’s electronic votes. Even after all the attention devoted to fixing problems of this sort before the November 2006 general election, major problems persisted. According to a Plain Dealer report, almost 12,000 ballots were cast in Cuyahoga County on November 7 by individuals who did not sign the poll books and whose eligibility to vote apparently was never properly verified by precinct officials, despite the requirements of state law that mandate these procedures. The most likely explanation for this breach of the rules is that substantial confusion occurred at these polling places, and poll workers allowed the individuals in question to bypass the check-in line and go straight to voting machines. Just imagine the nightmare, however, if one of the prominent statewide races last year—for example, the one between Mark Dann and Betty Montgomery for Attorney General—had turned out close enough that these 12,000 ballots provided a basis for contesting the result.

No wonder, then, that Secretary of State Brunner is being aggressive in an effort to prepare Cuyahoga County for 2008. Aggressive steps are necessary, including replacement of the old board with entirely new leadership. Three of the four have appropriately resigned at her request, but the one remaining holdout, Bob Bennett—who also chairs the Republican Party statewide—refuses to leave without a fight. Trying to accuse Brunner of attempting to control the voting process for partisan advantage, Bennett himself looks like he is putting partisan (or perhaps personal) motives before the public interest. (On Capitol Square, the Ohio News Network program, he said that he did not want his reputation tarnished at the end of his career. But prolonging this battle can hardly improve his reputation: the past mismanagement of elections in Cuyahoga County cannot be undone, and while no one thinks he is exclusively to blame for all the administrative errors that occurred there in 2004 and 2006, he surely shares responsibility as a member of the board, just as does the member of a corporate board that fails to prevent financial ineptitude perpetrated by the company’s management.) Rather than clinging to his board position, Bennett should step aside magnanimously—and immediately—so that a different Republican can take his seat, and the newly constituted board can begin tackling the difficult challenge of recruiting and training poll workers as well as all the other steps necessary to make the voting process work properly in May and November 2008.

Still, for her part, Brunner needs to do more to dispel any appearance of partisanship in her own actions. Among the moves she has made is announcing that she is putting the Cuyahoga County elections board under her “administrative oversight” that she says may last until December 31, 2008—after the presidential ballots are cast and counted, the Electoral College has met, and presumably all that is left is for Congress to officially pronounce the winner on January 6, 2009. Although Brunner claims that she is imposing this administrative oversight only to assist the new board in getting ready for 2008 (on the same Capitol Square program she said, “I’m not trying to run this Board. I’m not trying to tell this Board what to do.”), the fear is that she will make decisions for Cuyahoga County designed to favor the Democratic presidential candidate in next November’s voting.

Brunner should announce that, if Bennett resigns and local Republicans nominate a suitable replacement by May 1 (three weeks from today), then she will plan to terminate administrative oversight of the new board by December 31 of this year, rather than next. That timetable gives her, as Secretary of State, eight months to get the new bipartisan board ready to manage its own operations in 2008 in the same way that the local boards in other counties will. If serious problems occur in the May 2008 presidential primary, then Brunner can revisit whether some more drastic arrangement is needed to assure that the voting process works properly in November 2008. But even then the more drastic measure should have a built-in bipartisan structure, so that it is never possible to claim that Democrats control the process of casting and counting presidential ballots in Cuyahoga County.

The requirement of state law that county election boards be bipartisan in their membership is a salutary feature of election administration in Ohio, one that it is often mentioned when comparing our state’s electoral system favorably to others (for example, Florida’s). Some think that it would be even better to have the statewide authority for administering elections be vested in a similarly bipartisan board, rather than a single Secretary of State elected as a partisan candidate. These folks point to Brunner’s predecessor, Ken Blackwell, as Exhibit B to make their case (Exhibit A being Florida’s Katherine Harris). Whatever one’s position on that point, Ohio should not backslide by injecting more partisanship—or even just the appearance of partisanship—into the operation of voting procedures, including the counting and recounting of ballots, at the local level.

The 2008 presidential election in Ohio shows every sign of being an intensely fought campaign. We risk accusations and counter-accusations concerning alleged manipulations of process to give one side or the other an unfair or improper advantage. There should be sufficient statesmanship in this state for political leaders on both sides, while the November 2008 election is still 18 months away, to create a bipartisan mechanism to handle the controversies that inevitably will arise.

That statesmanship should start with Brunner and Bennett engaging in enough diplomacy so that an entirely new bipartisan board in Cuyahoga County can get to work right away and, having had at least half a year of Brunner’s tutelage, be in a position to operate the November 2008 election on the ground in that county as one would expect a local elections board to do.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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