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-------- Original Message --------
Subject: The Coming Ballot Meltdown
Date: 7 Jul 2006 19:12:52 -0500
From: "Mark 

The Coming Ballot Meltdown
by ANDREW GUMBEL

[from the July 17, 2006 issue]

Columbus

Anyone wondering where America's next electoral meltdown will take place--and
it can only be a matter of time--might do well to turn back to the scene of
the last one. Ohio was, of course, ground zero of the 2004 presidential
election, and now it's the battleground of one of the most hotly contested
governor's races in the country. The Republican candidate this November is
none other than Kenneth Blackwell, Ohio's Secretary of State, a man vilified
by voting rights activists for a string of baffling and, to all appearances,
nakedly partisan rulings in the 2004 presidential race, when he also doubled
as co-chair of George Bush's state re-election campaign. Now he's at it
again--issuing draconian guidelines on voter registration that carry the
threat of felony prosecutions against grassroots get-out-the-vote groups,
especially in Democratic-leaning urban areas, for even the slightest
procedural irregularity. Despite denials from Blackwell's office of any
malicious political intent, the guidelines have had an immediate chilling
effect on groups like the activist community organization ACORN, which has
suspended registration efforts pending urgent consultations with its lawyers.
Several leading Democrats have urged Blackwell to step aside from all
election-supervising responsibilities, a proposal his staff has greeted with
near-derision.

It would be bad enough if Blackwell were acting merely to benefit his party,
as he did in 2004. But in this case he's taking advantage of his office to act
on behalf of his own ambitions. Unless something changes between now and
November, he will remain in charge of counting the votes--his own and everyone
else's. In a pivotal election in a pivotal state, this is far from reassuring.
As Peg Rosenfield, an elections specialist with the League of Women Voters of
Ohio who spent twelve years working in the secretary of state's office in the
pre-Blackwell era, put it, "If you think '04 was a mess, just wait. I
anticipate a debacle."

Blackwell and his Democratic challenger, Ted Strickland, are locked in a tough
fight over the succession to Bob Taft, the scandal-tainted, widely reviled
incumbent governor, whose approval ratings are lower even than Dick Cheney's.
Early polls have put Strickland modestly ahead, but Blackwell has several
built-in advantages, particularly his ability to lean on an entrenched
Republican establishment and tap into its broad fundraising powers. Blackwell
has largely escaped the stench of corruption dragging down the rest of the
state party, thanks to his reputation as a maverick and a lone operator. As a
social conservative, he appeals to much the same exurban demographic that
turned out for George W. Bush to express their disapproval of abortion rights
and gay marriage. And, as an African-American, he is bound to peel away at
least a percentage of the urban black vote that Strickland might otherwise
regard as his for the taking. So it's not inconceivable, as the nation awakes
on November 8, that the Ohio governor's race will be too close to call. And if
that happens, all hell will break loose.

"If we have a recount, I see no way anyone is going to have any faith in it.
It's a poisonous atmosphere," Rosenfield said. Never, she added, has she seen
the elections process subject to as much politicization as now. Previous
secretaries of state, conscious of their status as partisan elected officials,
would have gone out of their way to keep their names off election-related
directives that risked being interpreted as attempts to help one party over
the other. Blackwell, by contrast, has if anything gone out of his way to be
identified with his office's most controversial rules. (In 2004 he happily put
his name on a now-notorious directive that late voter-registration
applications--the kind encouraged by Democratic grassroots groups--be
submitted on specially weighted, unwaxed paper, which disqualified
applications printed in Ohio newspapers. He also made it unusually hard for
voters casting provisional ballots--again, more likely to be Democrats--to
have their votes accepted and counted.)

On top of that, Rosenfield added, Blackwell's office has shown a wanton
disregard for the needs of Ohio's eighty-eight counties as they make the
Congressionally mandated transition from punch-card and lever machines to
new-generation electronic voting systems. Rather than answer technical
questions posed by the counties--which is how Rosenfield spent much of her
time when she worked for the secretary of state's office in the
1980s--Blackwell's staff has a habit of referring county boards of elections
to other local officials not remotely qualified to help.

The technicalities of the voting process were already a huge problem in 2004,
when everything from the updating of voter registration lists to the number of
voting machines made available in each precinct to the opening hours of
polling stations was subject to undue political influence and rank
bureaucratic incompetence, prompting an avalanche of complaints. (Blackwell's
office rejected every last one of them.) That election, though, was held
predominantly with the old machinery, which may have lost an unacceptable
number of honestly cast votes but at least had the virtue of familiarity. Now
the advent of e-voting has opened up a whole new world of pain for election
officials and their woefully undertrained precinct volunteers. The first big
test of the new machines, in the May primary election, resulted in a
multiplicity of problems, especially in Cuyahoga County in and around
Cleveland, where poll workers lost seventy memory cards recording the votes
from electronic touch-screen terminals (the votes had to be retrieved through
back-up data systems inside the terminals) and more than 15,000 paper absentee
ballots had to be counted by hand, delaying the results by six days, because
of a system failure in the automated tabulation system. And that was on a
turnout rate of only 23 percent.

"Our turnout in the fall is bound to be over 50 percent," Rosenfield said.
"That'll include a lot of less sophisticated voters struggling with new
machines and new rules. The poll workers still won't be trained well enough.
The boards won't know how to get the equipment ready.... The secretary of
state's office isn't providing resources to the counties--no money to attend
training sessions, no expertise to answer questions or provide technical
support.... We've made this so complex, I'm not sure we're capable of
administering it."

The story of Ohio's adoption of new voting technology and the mess it is
creating is in many ways typical of the overhasty and shockingly
underregulated rush across the country to comply with the 2002 Help America
Vote Act (HAVA). But Ohio has also followed its own peculiar trajectory,
teaching us above all how difficult it is to prevent the elemental viciousness
of two-party politics from compromising the integrity and safety of our voting
systems.

Back in 2003 Ohio was admirably skeptical about the lure of computer
voting--even though the parent company of Diebold Election Systems was based
in Ohio and its chief executive, Wally O'Dell, was a prominent campaign
contributor to the state and national Republican Party. O'Dell notoriously
wrote a fundraising letter in August 2003 declaring himself "committed to
helping Ohio deliver its electoral votes to the president next year." If this
was some dark hint that Diebold intended to collude with the Republicans in
stealing the 2004 election--something that, in retrospect, seems a lot more
doubtful than many voting rights activists feared at the time--Ohio's
Republican establishment was not especially inclined to play ball. The source
code for Diebold's AccuVote-TS touch-screen system had been left lying around
on an open Internet site and was scrutinized by a team of top-flight computer
scientists from Rice and Johns Hopkins universities, who found it to be
riddled with security flaws and basic programming errors. Ken Blackwell
decided to order a comprehensive technical review of all touch-screen voting
systems and subsequently decided to postpone a major statewide buy of
electronic machines until after the 2004 election. The Republican-dominated
state legislature, meanwhile, proved remarkably receptive to arguments in
favor of fitting the touch screens with a voter-verified paper audit trail so
their results could be independently verified in a close or contested
election. A state law mandating a paper trail was passed in early 2004.

That cautious, consensus-oriented approach evaporated, however, in the heat of
the 2004 campaign season. A state planning committee on HAVA implementation
that had met several times was never invited to convene again, despite a
barrage of new questions raised across the country about the integrity of
electronic touch-screen and tabulation systems being sold by Diebold and its
principal rivals, Election Systems and Software (ES&S) and Sequoia. Right
after the 2004 election, Governor Taft signed a law increasing the limit on
campaign contributions by individuals or political action committees from
$2,500 to $10,000--a move widely seen as benefiting Republicans more than
Democrats. Around the same time, Blackwell compounded the conflict-of-interest
issue by buying himself just under $10,000 of Diebold stock. (He later sold,
at a loss, after his shareholding became public.) For several months last year
and stretching into this, the Republican state legislature expended its
energies on mandating an ID requirement at polling stations. At best this was
an unnecessary solution to a nonexistent problem, since there was no evidence
of significant ballot fraud at the individual voter level; at worst it was
another baldly partisan maneuver, because the 12 percent of the adult
population without driver's licenses, the most readily available form of
government ID, tend to be poor, elderly or both, and thus likely to lean
Democrat.

The law that finally enshrined the voter-ID requirement, House Bill 3,
contained another couple of nasty surprises: a big jump in the cost of
petitioning for a manual recount, from $100 per precinct to $500 per precinct,
and the lifting of a previous requirement that counties use the independent
paper trail to conduct random audits of their touch-screen machinery after
every election. In other words, Ohio--like many other states--has now become a
recount-hostile environment with greatly diminished accountability all around.
Since paperless electronic system votes are almost impossible to verify
without recourse to the paper trail, this is a truly chilling development.

What the Republicans have created is, in effect, a system where they have
multiple tools to deter their opponents from casting ballots in the first
place--through the voter-ID requirement, the strict rules on provisional
balloting and so on--and then making the vote count itself so opaque as to be
beyond redress. The lack of transparency is a matter of bureaucratic
convenience as well as political conniving: County boards of elections are
generally delighted to be able to spend state and federal dollars on shiny new
computer systems that do all the tricky work of vote tabulation by themselves,
that don't entail large paper orders or long-term ballot storage requirements
and that obviate the pain, inconvenience and extra cost of conducting
recounts. Under the HAVA rules counties have the option of purchasing much
cheaper, manually recountable paper-based systems, tabulated by optical
scanners. Many Ohio counties have shied away from this alternative, however,
because they think it is trickier to operate and requires more intensive
poll-worker training. HAVA also requires at least one terminal per precinct
for the use of disabled voters, which basically means a touch-screen machine.
Rather than buy two separate systems, many counties prefer to go with just
one.

If counties think that touch screens are somehow the easier option, though,
they're kidding themselves. Poll workers may find it easy to show voters how
to use the machines when they're working, but if anything goes wrong workers
are likely to be several orders of magnitude more clueless about fixing the
problem. Computerized systems also entail huge hidden costs, from maintenance
to security (even when the terminals are in storage) to software upgrades.
Several Ohio counties have been appalled at the budget overruns they are
already facing, and there is a naoveti all around, from Congress on down,
about the kind of commitment these machines entail. "If the federal government
thinks it can give onetime-only grants, it is wrong," said Dan Tokaji, an
election law specialist at Ohio State University's Moritz Law School, who is a
cautious supporter of electronic systems, at least in principle. "There needs
to be ongoing federal attention." Based on the government's behavior so
far--its failure to fund HAVA fully or to meet its own deadline, its failure
to establish a federal regulatory body with any teeth, its failure to
streamline rules on any aspect of conducting elections, leaving everything up
to states and counties--nobody should hold their breath.

Another reason to regard Ohio as a bellwether of the nation's electoral health
is the fact that its political complexion is changing fast--perhaps faster
than any other state's. For twelve years the Republicans have had the run of
the place, a length of tenure more or less guaranteed to spawn corruption,
regardless of the party in power. The ethical violations, insalubrious
associations and compromised integrity of Governor Taft, Representative Bob
Ney and others have received widespread attention in the national press.
Perhaps less well understood is that, historically speaking, there is no
climate more susceptible to electoral malfeasance than one where a single
party is in power and in a position to manipulate the rules to its advantage.
If a race is also close and the stakes are high, as they were in 2004, then
dirty electioneering is more or less a given.

Granted, there are those who have insisted since election day that John Kerry
was robbed of Ohio's twenty Electoral College votes, and with them the
presidency. That argument, though, is almost certainly a stretch, since Bush's
official margin of victory of 120,000-odd votes is just too big to be
explained away with any confidence. Certainly, most seasoned election
observers in Ohio, as well as veterans of the earnest but disorganized Kerry
field campaign, tend to dismiss it. (A 30,000 vote margin, given the
multiplicity of the reported problems, might have been a very different
story.) The problem, in the end, with many of the stolen-election theories is
not that they are wrong to assume that Ohio is corrupt; it is that they have
misunderstood the nature of that corruption. Many--including Robert Kennedy
Jr. writing in the June 1 Rolling Stone--imagine Ken Blackwell as the
mastermind of some coordinated Republican Party conspiracy to re-elect Bush,
in which the counties fell magically in line with his or the party's
directives. The reality, though, is that Blackwell's influence only went so
far, and the counties--partly because of the lack of support from the
secretary of state's office--acted largely on their own. The county boards of
elections were, in turn, stuffed with political appointees from both parties
who engaged in struggles of varying degrees of intensity. (The stereotypical
image of boards of elections, which may not be that far from the truth, is one
where the Democrats are sweet, well-meaning old ladies, and the Republicans
are razor-sharp lawyers.) The autonomy and complexity of the counties cannot
be overstressed. As Catherine Turcer, legislative director of the
anticorruption group Ohio Citizen Action, put it sardonically: "Every county
has its own party structure, so you can launder money eighty-eight ways."

In Cuyahoga County--which has been an election management nightmare for
decades--one of the two Republican members of the board of elections is Bob
Bennett, who also happens to be the state party chair. In Lucas County, in and
around Toledo, the chair of the board of elections until early 2005 was
Bernadette Noe, the head of the county Republican Party and the wife of Tom
Noe, the man who invested $50 million of the state workers' comp fund in a
rare coin fund with which he was affiliated, and lost $13 million of it. Noe
has also pleaded guilty to laundering $45,000 in Bush re-election funds.
Bernadette Noe, meanwhile, behaved so egregiously in the November 2004
election that Blackwell's office launched a rare investigation. It charged her
with a panoply of offenses involving Republican Party volunteers under her
direction who, before the election, were caught tampering with voter
confirmation postcards and, on election night itself, tried to barge into the
vote-counting area without authorization. Bernadette Noe was forced to resign
shortly afterward, one more in a succession of prominent Ohio Republicans to
be disgraced, indicted or hounded from office.

The echo of so many recent scandals makes this a fascinating, pivotal moment
in Ohio politics. The Republicans risk losing just about every statewide
office this November, from the governorship to Mike DeWine's Senate seat. Some
reform-minded members of both parties have seen this moment of transition as a
unique opportunity to try to talk their colleagues into thinking beyond
short-term party interest and considering some key voting rights issues from a
more broadly public point of view. The biggest push has been toward
redistricting reform: taking the process of drawing legislative and
Congressional boundaries out of the hands of the politicians and handing it to
a more independent, or at least bipartisan, panel so elections can become more
competitive and more reflective of public opinion. Sadly, the vicious logic of
the two-party system has made the prospects for such reform well-nigh
impossible.

A year ago it was the Democrats, on the thin end of a 60-to-39 party balance
in the Ohio house, who were pushing for a fairer way of carving up districts.
Then it was the turn of a citizens' group called Reform Ohio Now, which made
the redistricting question the centerpiece of a quartet of campaign-related
initiatives it sponsored on last November's ballot. Those initiatives went
down in flames, largely because of a concerted effort by Republicans to depict
them as partisan Democratic maneuvers in disguise. Most recently it has been a
handful of Republicans, notably House Speaker Jon Husted and State
Representative Kevin DeWine (Mike's second cousin), who have been pushing
their own version of redistricting reform. They argue that they are acting
from only the noblest motives. (As DeWine told me, "If you're going to make
changes, you do it when you don't know who the players might be.")

The Democrats, however, smell a rat. They reckon they will be able to win a
majority of the seats on the state apportionment board--which includes the
governor, the secretary of state and the state auditor--ahead of the next
round of redistricting, in 2011, and suspect the initiative to be a Republican
attempt to salvage something before the tables are turned against them. The
Republican proposal was voted down at the end of May, and now appears to be
dead. In the end, partisan rancor is prevailing over any kind of rationality.
Ed Jerse, campaign manager of the Reform Ohio Now initiatives and a former
Democratic state legislator, summarized the prevailing mood among Ohio
Democrats this way: "You stuck it to us for twelve years and now that you are
about to lose, you invite us into the room and want to be buddy-buddy? Screw
that."

The losers in this whole process are, of course, the voters. Where they don't
have reason to fear out-and-out political interference in the electoral vote,
they can expect incompetence and chaos. Toledo, for example, may have rid
itself of Bernadette Noe, but it still had a major meltdown in last November's
off-season elections, which it subsequently blamed on the incompetence, lousy
software and missed deadlines of its vendor, Diebold. Across the country,
alarm bells have been sounded about major security flaws in electronic voting
software--one such, in Diebold's TSX system, was described by Pennsylvania's
leading voting-machine inspector as "the most severe security flaw ever
discovered"--but Ohio appears blissfully unaware of them because of the
inattention, bordering on negligence, of its secretary of state's office. Peg
Rosenfield, for one, sees things as worse now than at any time in her memory.
"It's not that anyone will be out to steal the election necessarily," she
remarked. "They don't need to--we can screw it up all by ourselves."

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