2004 Ballot Recount: Observer Report

• December 16, 2004:
  Report by Green Party Observer
• December 15, 2004:
  Report by Independent Observer
• Attachment: Legal Authorities

December 16, 2004:
Report by Green Party Observer

The recount process started out very smoothly. Our witnesses were instructed to arrive by 8am, when the mandatory BoE orientation would take place for all witnesses. There was a bit of a line, which I was near the end of at 8am.

We were all directed to the media room, and at about 8:15am everyone was seated and the orientation began. We were each given a schedule with a brief description of what the recount would look like. The witness instructions were given with a description of the schedule, and then there was a question and answer period.

They explained that we would be following standard procedure for all county recounts. These rules had been signed off on by the County Prosecutor's Office, of which a representative was present. Some of the important rules were the following:

• Witnesses could not use cell phones, video or audio recording devices. Any witness found with recording devices would be immediately escorted out, with the ability to be replaced by a different witness. (of the same candidate).
• All witnesses would receive a copy of the sheet stating the hand recount vote totals for each candidate in their precinct, as well as the computer count.
• In the computer/tabulation room, we were allowed to have 2 groups of the five candidate witnesses. One group could watch the computer screen, while the other could witness the remakes of any ballots.
• At the time of the orientation, Jacqui Maiden stated that there will be no visual inspection of the remaining 600,000-some ballots in the county.
• Only ballots with holes punched through, with 2 or less chads remaining would be counted. Dimpled chads would not be counted, even if the entire ballot was dimpled chads.
• Backward ballots should have already been remade but there were teams available to remake them if any additional were found.

Precinct selection was done on the basis of only choosing precincts with 550 or more votes, and a cross-section of areas — one East side, one West side, one affluent, one non-affluent.

In response to the question "How are the ballots in order?" Jacqui Maiden's response was "How they come out of the machine."

The staff allowed questioning until there were no more questions, and then they gave us a few minutes to organize our volunteers before the recount started.

At the recount on Thursday, witnesses were able to observe the hand recount of 3% of all ballots cast. Observers were present to watch that computer counts matched totals determined by the hand recount. Witnesses were then able to look at the signature books of 60 different precincts, including those of the 3% selected and 26 other precincts of concern. They were looking to make sure that the number of signatures in a precinct matched the number of ballots cast in that precinct. In many cases they did not.

At the beginning of the day, reports were heard that the process was going more smoothly and faster than expected. People arrived at our meeting room starting around 11am because they had finished counting their precincts at that time.

The actual 3% hand recount was finished by around 3pm, in my estimation. I can double-check this time. When this was completed, a Bush-Cheney representative (coordinator or attorney?) announced that all the Bush-Cheney witnesses were free to leave, as there was nothing left to be discovered in the precinct log books. The precinct log books were then distributed, in alphabetical order, for the witnesses to check.

Anomalies were found. Almost all of the witnesses that I spoke with felt that the ballots were not in random order, that they had been previously sorted. There would be long runs of votes for only one candidate and then long runs for another, which seemed statistically improbable to most.

From what they were able to get through, witnesses found that signature counts were very much different from the official recorded number of ballots.

There was some confusion around 4pm, as volunteers started to wonder about the importance of going through the signature log books of every single precinct. At this time, Attorney and Democrat Coordinator Dora Rose was back and forth on the phone with Don McTigue and apparently submitting specific precincts of the log books that we wanted to check. After some confusion and then apparently a decision made by Michael Vu (the director of our BoE), per Dora Rose's request, the alphabetical log books were taken away from witnesses, and replaced with only the log books of the 3% hand-recounted precincts, in addition to about 30 of the specifically-requested precincts. The volunteers began examining these log books.

Around 5:30pm, Dora Rose, Attorney and Green/Libertarian reps. G. and C., the Bush Cheney attorney and Coordinator, and the Board of Directors met to discuss the process and what they were allowing for tomorrow.

When I returned to the security desk, Rosie Grier, a BoE staff person came up to me, in a frustrated voice, and told me that "The volunteers are done looking through the logbooks, and they want to go home. Can they leave now?" In my observation, the volunteers looked idle, but I foolishly did not go into the room and consult with each of them to definitively ascertain this.

I was concerned for the morale of the volunteers, in addition to the fact that many of them had been there for hours and were very tired. I didn't want them to have to stay any longer, wasting their time and the Board of Elections time and money, if they were in fact done looking at the logbooks, since there was no further task they were instructed to do after that.

I interrupted the meeting with the attorneys and the Board, stating that our volunteers had completed their task and had nothing left to do. I asked if there was anything else the Board was allowing them to look at at that point. Gwen told me that there was nothing else, and that they would "release them" as soon as the meeting was done. I asked if our volunteers were free to leave, and she said yes. I returned to the room and asked Turo Dexter to make the announcement that if they were finished, any volunteers were free to leave, but before he and I could finish speaking, the board and attorneys returned to the room and made the announcement that they were finished for the day, instructing everyone to go home. I did not find out until conversation later that night that in fact many of the tables were NOT actually finished looking through the logbooks.

On Friday, witnesses were able to observe the examination of each transfer case for the 1458 precincts in Cuyahoga County. They were looking to make sure that the rotation (meaning the order the candidates are listed) in the booklet matched that of the actual ballot. In at least one instance, it did not. In another instance, the page listing the Presidential candidates was missing completely from the booklet. An examination of both the transfer case and the black grip did not turn up the missing page. Witnesses were also looking to make sure that the booklets were in the right transfer case for their designated precinct, and that the number of booklets that were assigned to each precinct was the same as the number of booklets that were actually in the transfer case (and/or black box grip, the suitcase that assemblies are placed in when they do not all fit in a transfer case). In some cases, there were more or less booklets found in the cases than there should have been.

Other observations:

I was disappointed with the way many of the Board of Elections staff were treating the entire process. I instructed my volunteers, in emails and in person, to be nothing but cordial and respectful to the BoE staff. In our training that we made mandatory for any witnesses, Attorney and Law Professor C. explained that the BoE staff are very tired — they have been working too long hours for too long, and haven't had a break. She emphasized that we need to be conscientious and unflinching in our scrutinization, but also very understanding that these people are tired and probably stressed out. I was proud to see that our volunteers were being respectful. Unfortunately, as the day progressed I cannot say the same for all of the BoE staff.

For a good portion of the afternoon, I was stationed outside of the security desk, where I could see the entire room. I didn't want to be confined to one witness table, and am not an attorney. We were instructed that only the candidate (if he or she chooses to show up) and the candidate's attorney are allowed to circulate around the room, while the 20 witnesses must stay seated at the tables. I did not realize at this time that I could act as the candidate's representative and circulate. Dora Rose explained this to me later.

At or around the security desk, there were about 2-3 security guards in this area at all times, and probably 1-2 BoE staff as well. The officer from the Sherriff's Department and I struck up a friendly conversation. The BoE staff "gatekeepers" were often too busy to talk. As the afternoon progressed into late afternoon, I started hearing (firsthand) the negative comments. A staff person who had been observing for awhile said something like "This is madness — why can't they get over it?" and "we need to stop working on this election and move on."

After I started circulating around the room, I heard firsthand the questions and comments to our witnesses. "Why are you looking at the signature books? You aren't going to find anything in them."

I am very young and un-official looking, so I don't think any of them realized that I was the coordinator. They were making these comments in a loud voice, as if to no one at all, but in my impression with the definite intention for me (and anyone in the general vicinity) to hear their disgust). This is unacceptable behavior. I understand that all the staff are tired and overworked. However, this is no excuse to be continually making derogatory comments to those citizens and taxpayers who are exercising their legal rights. If it is their personal opinion that the recount is unnecessary and somehow wasteful, then they have the right to express it, in a personal setting. But when they are making these comments in public, acting as an employee of the BoE, these statements become nothing short of intimidation.

December 15, 2004:
Report by Independent Observer

[Note: This report is by an independent witness not affiliated with any party or group.]

Update: At the Cuyhoga BOE [Board of Elections] public meeting today, speaking strictly as a law professor with some expertise in election law and not representing any party or candidate, I raised all 4 issues.

On the public record, the Director said that he had requested legal guidance from the County Prosecutor (their attorney), and were told that they should follow their standard procedure as to 3 of the 4 issues; the full visual inspection decision was unclear.

Full visual inspection decision: [Board of Elections Director Michael] Vu seemed to say, but was unclear, that the "full visual inspection" of all ballots cast, not just the 3%, is still under advisement in the County Prosecutor's office. Yet another time he seemed to say that the City Attorney had directed the full inspection for only the 3%. So we can't be sure what the outcome is. An attorney should check it.

As to the randomness of precinct selection: until the Democrat on the BOE spoke up and said "let's change for the future recounts but not for this election," the BOE had almost decided to go with an approach requiring many more types of precincts and rescinding what the staff had done. The staff complained that it would take them many hours into the night to redo the selection, but of course that shows yet again that there was no randomness to it whatsoever. Both Republicans said they agreed with me, on not using a threshold of 550 votes cast in this election as the cut off. I presented data analysis from a PhD physicist at Case Western Reserve University, as to the lack of randomness in the precinct selection. I am placing info from him at the bottom here.

Not counting the rejected provisional ballots and uncounted absentee ballots even if upon inspection by the witnesses errors are found and can be demonstrated. Vu says the City Prosecutor says the approach of not adding these votes into the recount totals is fine.

Attachment: Legal Authorities

(We have full copies of all references and can fax them as needed).

1. Full visual inspection

   a) Secretary of State (SOS)2001-10 Directive 4(Recount)(a): Ballot cards must be inspected for hanging chad.

   b) SOS Conference Call with Statewide BOEs of 12/8/04: Question 7 asks whether the language in subsection (a) above discussing the inspection of each ballot card refers to the 3% manual count or all ballots. The answer the SOS gives is: All ballots must be inspected."

   c) SOS Conference Call with Statewide BOEs of 12/8/04 at question 8: "Is ballot inspection a required step of the recount?" Answer: Yes. We have copies of all SOS conference call minutes to which we refer. Can fax them over.
2. Precinct Requests: Concerns whether parties to the recount have a right to request hand count of specific precincts within the 3% hand out.

   a) Cuyahoga County Board of Elections (CCBOE): Recount: Standard Operating Procedures Guide: F4: "Any requests for specific precincts must be made, in writing, 24 hours before the recount procedures begin."

   b) Guide clearly contemplates submission by parties of specific precinct requests (thought BOE is not required to accept them all).

   c) Greens, Dems and Libertarians all submitted specific precinct requests yesterday, well before 24[-hour] period.
3. Rejected provisionals and uncounted absentees: recount includes not just observation but correction of rejections as warranted:

   a) Ohio Statute: R.C. [Revised Code] 3505.27: Counting of Votes: "Unless otherwise ordered by the secretary of state or the board of elections, the counting and tallying of ballots shall be conducted according to procedures prescribed by the board of elections that assure an accurate count of all votes cast . . . . The board shall prescribe additional procedures as necessary to assure an accurate count of all votes cast."

   b) Section should apply to counting of votes at any point during election process, initial tallies or recounts.

   c) Vote count will not be accurate if recount does not include revision of inaccurate rejected provisionals and uncounted absentees. Many challenges of inaccuracies here will come from witnesses.
4. Precincts for hand count:

   a) SOS Directive 2001-10 requires under 4(Recount)(d): "The board must randomly select whole precincts whose total equals at least 3% of the total vote."

   b) See also Cuyahoga County Board of Elections (CCBOE): Recount: Standard Operating Procedures Guide F3 (3% recount must be "randomly selected").

   c) This entails a scientifically random sample, including precincts of varying sizes.

   d) Statement on selecting a "random" sample by Professor Cyrus Taylor, Case Western Reserve University (CWRU): There are at least three problems with the rule that precincts will be chosen for a hand count from those in which at least 550 ballots were cast:

   (1) The small fraction of precincts (only 8% of all precincts qualify for their ballots being closely examined in the hand recount) are not reflective of the county as a whole. Overall, the qualifying precincts have significantly higher proportion of votes for Bush than for Kerry, yet the county voted for Kerry by a 2:1 margin.

   (2) Precincts that have significant problems on Election Day are that much less likely to reach the 550 minimum, and will thus not be rechecked in the recount.

   (3) The vast majority of precincts have less than 550 ballots cast. It is thus possible in principle to fiddle with the returns from most of the county without fear that they would be checked in the hand recount of 3% of the returns.