ProgressOhio

Two-thirds of Ohio counties have destroyed or lost their 2004 presidential ballots and related election records, according to letters from county election officials to the Ohio Secretary of State, Jennifer Brunner.

The lost records violate Ohio law, which states federal election records must be kept for 22 months after Election Day, and a U.S. District Court order issued last September that the 2004 ballots be preserved while the court hears a civil rights lawsuit alleging voter suppression of African-American voters in Columbus.

The destruction of the election records also frustrates efforts by the media and historians to determine the accuracy of Ohio's 2004 vote count, because in county after county the key evidence needed to understand vote count anomalies apparently no longer exists.

"The extent of the destruction of records is consistent with the covering up of the fraud that we believe occurred in the presidential election," said Cliff Arnebeck, a Columbus attorney representing the King Lincoln Bronzeville Neighborhood Association, which filed voter suppression suit. "We're in the process of addressing where to go from here with the Ohio Attorney General's office."

"On the one hand, people will now say you can't prove the fraud," he said, "but the rule of law says that when evidence is destroyed it creates a presumption that the people who destroyed evidence did so because it would have proved the contention of the other side."

Brunner's office confirmed the 2004 ballots were missing, but declined to comment.

"Because this case is still pending, Secretary of State Jennifer Brunner is unable to comment on this," said Jeff Ortega, a spokesperson. "Ultimately, whether the boards of elections are in violation of a federal court order is a matter for the court to decide."

The missing presidential election records were discovered this past spring by Brunner, a Democrat and former judge who was elected Secretary of State in 2006. Her predecessor, Republican J. Kenneth Blackwell, was sued in August 2006 by a Columbus community organization that alleged the former Secretary of State and other "unnamed" officials "selectively and discriminatorily designed and implemented procedures for the allocation of voting machines in a manner to create a shortage. For certain urban precincts where large numbers of African-Americans resided," according to the complaint.

Under federal and Ohio law, all ballots and election records from federal races must be preserved for 22 months after Election Day, which fell on Sept. 2, 2006. While election integrity activists and reporters from a Columbus website, FreePress.org, had sought the ballots and other election records soon after the presidential election, Blackwell would not allow county boards to release the ballots, citing court challenges to the 2004 results and a 2005 suit from the League of Women Voters alleging the state was not following the newest federal election law, the Help America Vote Act. By spring 2006, after the League's lawyers stipulated they were not challenging the 2004 election results, some counties began to release their 2004 election records. Scrutiny of those records raised questions about the conduct of the election and some county vote totals.

On Aug. 23, 2006, lawyers for the King Lincoln Bronzeville Neighborhood Association notified the Secretary of State's office of their voter suppression suit. The following day Blackwell's office sent letters to all 88 of Ohio's county Boards of Election, notifying them of the suit. It is customary for public officials to preserve potential evidence when notified of pending litigation. Blackwell negotiated with opposing attorneys and agree to send a directive to election boards saying the ballots should be retained. Ian Urbina, a New York Times reporter working on the story, reported that Blackwell said he would be creating a process whereby county election officials could eventually review and dispose of the 2004 ballots.

On Sept. 11, 2006, U.S. District Judge Algenon Marbley ordered the election boards "to preserve all ballots from the 2004 Presidential election, on paper and in any other format, including electronic data, unless and until such time otherwise instructed by this Court."

Two months after Marbley's order, Blackwell lost the race for governor to Democrat Ted Strickland and Brunner was elected Secretary of State. During the following winter and spring, Brunner and the state's attorneys began negotiating a settlement for the voter suppression suit, according to lawyers involved in those talks. Part of that agreement, which has not yet been brought before the federal district court, was the creation of a statewide repository of the 2004 presidential ballots. When conducting an inventory and attempting to collect those records, Brunner's office learned that seven counties had no ballots to turn over and 56 counties only had partial records from the 2004 vote.

"This is not just a violation of a 22-month ballot retention law. It is a violation of a court order," Arnebeck said. "Blackwell told the New York Times that he would create a clearance procedure before destroying any ballots. The combination of Blackwell's directive and my letter should have been enough to give the counties notice."

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