Was Ohio Stolen in 2004 or Wasn't It?

by Mark Hertsgaard
Mother Jones, Nov 1, 2005

Book Reviews by Mark Hertsgaard

Did George W. Bush Steal Americas 2004 Election?: 
Essential Documents 
 By Bob Fitrakis, Harvey Wasserman, 
 and Steve Rosenfeld. 
 CICJ Books. 767 pages. $40.

What Went Wrong in Ohio: 
The Conyers Report on the 
2004 Presidential Election
 Academy Chicago Publishers. 142 pages. $10.95.

Fooled Again: How the Right Stole 
the 2004 Election & Why They'll 
Steal the Next One Too (Unless We Stop Them).
 By Mark Crispin Miller.
 Basic Books. 224 pages. $24.95.

In the year that has passed since the 2004 election, not a single major American news outlet has published a serious investigation of whether the victory was properly awarded to George W. Bush. Is that because Bush won fair and square and, as Republican House Speaker Dennis Hastert put it, only the "loony left" claims otherwise? Or is it because, as some on the left argue, there is proof that Bush stole the election and the U.S. media are afraid to say so?

Certainly the election had its share of irregularities, especially in Ohio, the battleground state each side had to win to prevail nationwide. For example, thousands of voters in and around Columbus, the state capital, had to stand in line for hours before casting ballots. It turns out the Franklin County board of elections had reduced the number of voting machines in urban precincts—which held more African-American voters and were likely to favor Democrat John Kerry—and increased the number of machines in white suburban precincts, which tended to favor Bush. As a result, at least 15,000 voters in Franklin County left without casting ballots, the Post estimated—a significant amount in an election Bush won by only 118,775 votes (out of 5.6 million cast). But except for one-day stories in the Post and New York Times, these revelations triggered no broader investigations, or if they did, the results went unpublished.

It didn't help that Kerry conceded immediately, despite questions about Ohio. The American press is less an independent truth-seeker than a transmission belt for the opinions of movers and shakers in Washington. If the Democratic candidate wasn't going to cry foul, the press wasn't going to do it for him.

Thus the job of raising questions was left to mavericks, most of them from the left wing of the Democratic party and beyond. For a year now, they have been probing, analyzing and agitating on the Internet, and several books based on their research are being published in time for the election's first anniversary this November.

The source for much of the skeptics' case is The Free Press, an online news service based in Columbus. Unabashedly left wing and happy to meld journalism with activism, The Free Press was the first to expose the voting machine scandal later reported in the Post and Times. Its editors, Bob Fitrakis and Harvey Wasserman, along with journalist Steve Rosenfeld, have co-authored two books: Did George W. Bush Steal the 2004 Election?: Essential Documents, self-published in 2005, and How the GOP Stole the 2004 Election and Is Rigging 2008, due in 2006 from The New Press.

One prominent skeptic who relied on their work is John Conyers, the veteran liberal from Detroit and ranking minority member of the House Judiciary Committee. In December 2004, Conyers launched an investigation whose findings were forwarded to all members of Congress and published as a paperback, What Went Wrong In Ohio. Critic Mark Crispin Miller draws heavily on the Conyers report in his new book, Fooled Again: How the Right Stole the 2004 Election & Why They'll Steal the Next One Too (Unless We Stop Them).

If you take what the skeptics say at face value, it sure sounds like Bush stole the election. One Ohio county cited a non-existent FBI terrorist warning to justify counting votes in secret. Another added 19,000 votes to its tally after all precincts had reported while claiming that 98.55 percent of the electorate had voted, "a Saddam Hussein-like turnout," hooted Vanity Fair columnist Christopher Hitchens. As in Florida in 2000, the official in charge of Ohio's voting rules and tabulation, Secretary of State Kenneth Blackwell, was also a co-chair of the Bush-Cheney campaign. And he acted like it, even barring international observers from polling places, a move that would discredit any Third World election in the eyes of the world.

There is more—lots more—to the skeptics' case. But how well does it check out in the real world? To find out, I did some reporting of my own, starting with one of their star witnesses.

The Tragic Tale of the Dead Computer

Sherole Eaton is a 65 year old mother of five and a lifelong Democrat. In 2004, she was serving as the deputy director of the board of elections in Ohio's Hocking County. Her path to controversy began on December 9, when a technician from Triad, a company that supplied electronic voting machines used in Hocking and 40 other Ohio counties, arrived at her office to help Eaton and her staff prepare for the upcoming statewide recount of presidential ballots. According to Eaton's subsequent affidavit, the tech, Michael Barbian, found that the computer the county used to store and count votes wouldn't boot up. So he took it apart, connected it to a spare computer in the office, worked on both machines, and then pronounced the original computer ready for the recount. He then instructed Eaton and the board of elections director, Republican Lisa Schwartz, on how to construct a "cheat sheet" so the hand-recount would match the official tally. Barbian allegedly said he made similar service calls in five other Ohio counties.

To skeptics, this episode highlights one of the main ways the election was stolen: manipulation of the computers that recorded and tabulated ballots. According to the Free Press, 15 percent of Ohio's ballots—an amount seven times greater than Bush's victory margin—were cast on electronic machines provided by companies with ties to the Republican party, including Triad. True, a limited hand recount was held, but it was a sham, skeptics say. They point to the indictment in September of two Cuyahoga County election officials for offenses including a failure to select the recount precincts randomly. Eaton made the same accusation and, as if to clinch the argument, was later fired.

When Eaton's affidavit was posted at one of the websites claiming that Bush stole Ohio, one blogger commented, "This speaks for itself." Except it doesn't. Talk with Eaton and she is quick to volunteer that Barbian never used the phrase "cheat sheet"—those were Eaton's words, dashed down in a rush after a lawyer advised her she had witnessed illegal activity and should testify at the Conyers hearings. Eaton says that no one took Barbian's cheat sheet seriously and adds that, "I still don't know if there was fraud," though she does find his visit suspicious. And although Eaton is angry that she was fired—and has retained legal counsel in the matter—she does not believe her whistleblowing was the only cause. She says Schwartz had long wanted to get rid of her "because I stood up to her." Schwartz refused to comment.

None of the skeptics hint at this more nuanced version of Eaton's story. What's more, the Conyers report says the Triad company "essentially admitted" to providing cheat sheets to Ohio counties. That's news to Triad. Barbian didn't respond to my phone messages, but Triad CEO Brett Rapp insists that "no tampering whatsoever took place" and that Triad proved it to authorities by re-running the exercise for them.

Skeptics note that Rapp is a contributor to the Republican party. But figures listed in the Conyers report show his donations averaged about $400 a year since 1998—hardly a high roller.

The Terrorist Threat That Never Was

Now to Warren County, where a non-existent terrorist threat allegedly covered up secret counting of ballots. The skeptics are right that the FBI denied issuing any warning. But it's not true that votes were counted in secret, say both Susan Johnson, the Republican board of elections director, and Sharon Fisher, the Democratic deputy director. Not only were Johnson and Fisher present, so were the four elections board members (two Democrats, two Republicans) and an additional observer from each party. "What brought this to a head," said Johnson, "was a complaint by a reporter from the Cincinnati Enquirer, who wrote that she wasn't allowed to observe the vote. But reporters have never been allowed into our counting room before."

Fitrakis responds that the goal of the lockdown was not to prevent Democrats from observing the count, "it was to divert ballots to an unauthorized warehouse where [Republicans] could manipulate the vote." He claims to have witnesses who, if subpoenaed, will reveal where that warehouse is. But what exactly would that prove?

The Weirdness of the Wayward Votes

What about Miami County, site of the Hussein-like voter turnout and 19,000 mystery votes? Roger Kearney, a contract employee who manages the Miami County website, says he understands what aroused the skeptics suspicion. The problem is that Miami County considers a precinct to be "reporting" as soon as a single vote is reported. Thus, when Kearney was posting results on election night, both his next-to-last and his last post of the night said that 100 percent of precincts were reporting. "The reason the last report had 19,000 more votes," he says, "is that those votes hadn't been counted yet but they were there in the system."

Kearney adds that he tried, twice, to explain this error to Fitrakis, who had published the allegation in the Free Press. "I'm a Democrat, by the way," says Kearney, "and I told him I'd be glad to find fraud here and turn the election around, but that didn't happen."

The county's board of elections director Steve Quillen says he had a similar experience with a Vanity Fair fact checker who called him about the Hitchens article. Yes, Quillen acknowledges, 98.55 and 94.27 percent turnouts were reported, but only in two of the county's 82 precincts. What's more, Quillen caught the errors on Election Night and corrected them before the official tally was announced a week later. "I explained all that to a fact checker at Vanity Fair and was ignored," says Quillen, adding that Hitchens himself never called him.

Other dubious results also appear to have been caught and corrected, including 4,258 votes cast in a precinct near Columbus that had only 638 registered voters and a negative 25 million votes initially reported in Mahoning County. Mahoning County's board of elections tech specialist, Chris Rakocy, also offered an innocent explanation for the problem of "vote hopping," in which electronic voting machines mistakenly registered a vote cast for Kerry as a vote for Bush. "We had that calibration problem on 18 of the 1,148 machines [used] on Election Day," says Rakocky, adding that the problems were quickly corrected. He says that even on faulty machines, voters could check their ballots and correct any mistaken entries, just like when withdrawing money from an ATM.

The Pro-Gay Judge and Her Republican Fans

If voting machines were hacked, skeptics argue, that could explain some improbable results in three Bush strongholds near Cincinnati. In Warren, Butler and Clermont counties, Kerry got 132,685 less votes than Bush did. But Kerry also got 5,000 votes less than C. Ellen Connolly, the Democratic candidate for Ohio chief justice. It is "beyond plausible," argues the Free Press, that Connolly, an African-American supporter of gay rights, would do better than the top of the Democratic ticket did, especially in three Bible Belt counties that overwhelmingly rejected a gay rights proposition on the same ballot. Kerry's true count must have been suppressed. "Take Ohio without those three counties and Kerry would have carried the state," argues attorney Cliff Arnebeck, a Fitrakis ally.

Not so fast, replies Mike O'Grady, the general counsel to the Ohio Democratic party. O'Grady, who helped run Connolly's campaign, agrees that her results in those counties do "stand out." But he credits instead the common eight to ten percentage boost that unknown female candidates get from voters simply because they are female. And, he adds, many Ohioans didn't know that Connolly supported gay rights or even that she was black—the campaign deliberately downplayed those facts.

Exit Poll Enigmas

The discrepancy between exit polls and the official results is a key pillar in the skeptics' argument: Kerry was projected to win nationwide by a close but comfortable three percent. But the skeptics betray a poor grasp of exit polling, starting with their claim that exit polls are invariably accurate within tenths of a percentage point. In truth, the exit polls were wrong by much more than that in the 1988, 1992 and 2000 U.S. presidential elections.

Warren Mitofsky and Joe Lenski, the pollsters who oversaw the 2004 exit polls, concluded that the source of their error was an apparent tendency for some pro-Bush voters to shun exit pollsters' questions. "Preposterous," sneers Mark Crispin Miller, who also sees trickery in the adjusting of exit polls after the election to match the official tally, though that is utterly routine. And is it really so strange to imagine that Bush supporters—who tend to distrust the supposedly liberal news media—might not answer questions from pollsters bearing the logos of CBS, CNN, and the other news organizations financing the polling operation?

And how do skeptics explain New Hampshire? The state conducted a hand recount of precincts that skeptics found suspicious; the recount confirmed the official tally, as Ralph Nader's campaign, which paid for the exercise, admitted. Apparently one reason Bush did better than expected in those precincts was an influx of conservative Catholics who re-located from neighboring Massachusetts to avoid paying taxes—the kind of electoral anomaly that can confound even the most persuasive sounding assumptions.

The Mysteriously Misallocated Machines

Other parts of the skeptics' case are solid, starting with the long lines that plagued voters in Franklin County (and elsewhere). As the Washington Post reported, a shortage of voting machines was the exception in strongly pro-Bush areas but the rule in strongly pro-Kerry districts. The Conyers report calls that an apparent violation of the Voting Rights Act and the Constitution's equal protection safeguards.

Matt Damschroeder, the county's Republican elections director, admits he didn't have enough machines in the field; he says he told his staff to deploy more, "and I believed it had been done, but I heard [on election] night that it hadn't." Fitrakis doesn't buy that honest-mistake argument, and he points out that the law doesn't care either. "It doesn't matter if those machines were held back by design or not, the effect is the same," he says. "It led to long lines that caused people to give up on voting."

Also indisputable is that Damschroeder accepted a $10,000 check for the Republican party from Diebold, one of the nation's largest voting machine manufacturers. Skeptics have distrusted Diebold ever since Walden O'Dell, the company's CEO and a major donor for the Bush-Cheney campaign, pledged in a 2003 fundraising letter "to deliver the state of Ohio" for Bush. Damschroeder admits the wrongdoing. "I did something unethical and I'm paying an appropriate penance for it," he says, referring to the board of elections' ruling in July 2005 that he work without pay for a month. He says he has not recommended Diebold for any product purchased by Franklin County. Indeed, Diebold machines were used in only a tiny fraction of Ohio counties.

Paper Weight, Purges and Purloined Votes

But Damschroeder's transgressions pale beside those of his boss, Secretary of State Blackwell. Blackwell made national news before the election by trying to disqualify any voter registrations not written on 80-pound stock paper. It was a directive so ludicrous, and so obviously intended to lower turnout, that anonymous state officials alerted newspapers that Blackwell's own office was supplying forms on 60-pound stock paper. The bad publicity forced him to back down.

Even prominent Ohio Republicans distanced themselves from other manifestly unfair directives. Take provisional ballots, which by law must be offered to any voter turned away at the polls (say, because the voter's name doesn't appear on registration rolls). Blackwell directed that a provisional ballot would count only if cast in the proper precinct—not just the proper county, as before. It was a recipe for chaos, given that some polling places included numerous different precincts, not to mention the fact that Blackwell had re-organized precincts throughout the state, leaving many voters confused (intentionally?) about where to appear on election day. Some election officials made it clear they would disregard the ruling, including Robert Bennett, who chaired both the Cuyahoga County elections board and the Ohio Republican Party. Blackwell threatened to remove Bennett from the board and his directive stood. In the end, an estimated 16,000 provisional ballots went uncounted.

Blackwell's two most potent acts of disenfranchisement, skeptics say, were the purging of 133,000 mostly Democratic voters from the rolls and the non-counting of 92,000 ballots rejected by voting machines as unreadable. "It's clear to me that somebody thought long and hard back in 2001 how to win this thing," says Fitrakis. "Somebody had the foresight to check an obscure statute that allows you to cancel people's voter registrations if they haven't voted in two [consecutive] presidential elections." Fitrakis notes that newspapers reported the purging of 105,000 voters in Cincinnati and another 28,000 in Toledo. But because the purging was conducted gradually between 2001 and 2004, no one saw the big picture until the Free Press connected the dots.

O' Grady, the Democrats' general counsel, agrees that Blackwell purged voter rolls, especially in large urban counties that figured to lean Democratic. But he points out that the purging was done legally and he says it wasn't necessarily underhanded. The Democratic base, he says, is more transient, so a voter may accumulate three different addresses on state voting rolls. "Is it a big conspiracy if Republicans want to eliminate the first two of those three records?" he asks.

Why Was Election 2004 Even Close?

In the end, reasonable people may differ about the strength of the skeptics' case. As for me, I come away persuaded that, at the very least, Ohio 2004 was not a fair election. Whether by intent, negligence, or both, Ohio authorities took actions that deprived many thousands of citizens from casting votes and having them counted. The irregularities were sufficiently widespread to call into question Bush's margin of victory. Thus the election deserves the scrutiny skeptics brought to it. They shouldered a task that the mainstream media and government agencies should have assumed—and still should, especially since some key questions can only be settled by invoking subpoena power.

Yet it remains far from clear that Bush stole the election, and I say that as someone who has written that Bush did steal Florida and the White House in 2000 (and who—full disclosure—is friendly with skeptics Miller and Wasserman). First, some of the most far-reaching acts of potential disenfranchisement, such as the purging of voter rolls, were legal—which is why one lesson of Ohio 2004 is that voting procedures throughout the nation need fundamental reform. Second, even if Kerry had won Ohio, the national vote went to Bush by three million votes. Ohio would have given Kerry the presidency by the same unholy route that Bush traveled in 2000 and that led so many Democrats to urge—correctly, in my view—the abolishment of the Electoral College. Third, the skeptics' position is weakened by the one-sidedness of their arguments, TOO MANY ERRORS OF FACT and their frequently know-it-all tone. They have a plausible case to make, but they act like it's a slam-dunk and imply that anyone who doesn't agree with them is either stupid, bought or on the other side—not the best way to win people over.

Meanwhile, the focus on theft distracts from other explanations for the 2004 outcome and, more importantly, what Democrats need to do differently in the future. Paul Hackett, the Iraq combat veteran, suggests an answer. Hackett's unrestrained criticisms of Bush and the war nearly won him a district that in 2004 chose Bush over Kerry 64 to 36 percent. Lesson: Democrats can do well, even in staunchly Republican districts, if they give people a reason to vote for them—an unapologetic alternative.

Do that in 2008, and the vote won't be close enough to steal.