23 September 2014

It is a very odd spectacle. Ohio's Democratic secretary of state, Jennifer
Brunner, who was elected on a pledge to clean up voting problems in her
presidential battleground state, is now under attack by would-be progressive
allies for her solutions.

And her critics, who on Tuesday said her remedies could disenfranchise tens
of thousands of likely Democratic voters in Ohio's primary in March and in
next fall's presidential election, are not even aware of the biggest irony
of all: Brunner could have solved the same problems months ago if she would
have settled a federal voting rights suit from the 2004 election. Instead of
working through the federal courts, she is now fighting in Ohio's
notoriously partisan political arena.

"All the critics' concerns are valid. But they are confirming stuff that was
known months ago and was in the (proposed court) consent decree," said
Robert Fitrakis, an attorney, political scientist and journalist from
Columbus, Ohio, who -- at the request of Ohio's attorney general -- was part
of a legal team that drafted a proposed settlement that contained 50 legal
reforms to make Ohio elections more transparent, accurate and accountable.
"They have had a rational blueprint in their hands since April."

Instead, Brunner this fall conducted an extensive $1.9 million study of
vulnerabilities in Ohio's electronic voting systems and predictably found
major problems, and then late last week announced a series of solutions for
2008. Those suggestions were criticized in a teleconference on Tuesday by
the New York University Law School's Brennan Center for Justice, the
Verified Voting Foundation, Cleveland State University's Center for Election
Integrity and a member of Brunner's own advisory voting rights council.

"No matter what happens, there will be no good answer," said Larry Norden,
chair of the Brennan Center Task Force on Voting System Security, speaking
of voting in the March presidential primary in the state's largest county,
where Cleveland is located.

"We are aware there is a lot of criticism," said Patrick Gallaway, Brunner's
spokesman. "These are all truly recommendations right now. Jennifer Brunner
as secretary of state is not going to dictate at this point what she thinks
the solutions should be for a fix in Ohio. We want to work in a bipartisan
fashion with the Ohio legislature and governor, and figure out what the best
solution should be for the state."

Gallaway was not aware of the consent decree that raised -- and would have
settled - most of the issues Brunner is now grappling with.

The criticism from voting rights advocates does not come from Brunner's
analysis of Ohio's voting problems, but her recommendations to fix those
problems. As in a handful of states, Brunner commissioned a major study to
evaluate Ohio's voting systems before next year's presidential election. Her
evaluation found that Ohio's new paperless voting systems, which were first
widely used in 2006, had security and accuracy problems. The study revealed
many ways votes and vote counts could be altered.

In response, Brunner made a series of suggestions for 2008. In general, she
wants the state to move from using paperless electronic machines to voting
systems where people mark paper ballots that are then counted by electronic
scanners. That proposal has been adopted in other states and is generally
regarded as sound, because using paper ballots means audits and recounts can
occur where voter intent can be discerned. New federal legislation to fund
that transition will be introduced in Washington this week.

Instead of counting paper ballots at local precincts, however, Brunner said
she wanted to create a system of centralized counting locations. She also
wants to move to vote-by-mail for special elections. And she urged Cuyahoga
County, where Cleveland is located, to adopt a new optical scan paper voting
system for the March primary election. That suggestion came after the
county's paperless system broke down while counting votes last November in
an election with only 15 percent voter turnout.

Moving to centralized counting and pushing Cleveland to adopt a new
paper-based system drew the heaviest criticism from the Tuesday
teleconference. Norman Robbins, who is a Case Western Reserve University
professor emeritus of neurosciences and longtime Cleveland voting rights
activist -- and a member of Brunner's Voting Rights Advisory Council
executive committee -- said centralized counting would prevent voters from
correcting mistakes made when voting.

In 2004, he said more then 90,000 Ohio ballots were not counted because of
uncorrected mistakes. George W. Bush won Ohio by less than 119,000 votes. In
2004, Robbins said Cleveland's inner city -- where African-Americans and
other minorities live -- had twice the error rate of ballots with mistakes
as the city's white-majority suburbs. Centralized counting would prevent
people from correcting mistakes and could end up disqualifying thousands of
ballots, Robbins said. "There is a terrible disenfranchisement when you
don't have second chance voting," he said.

The Brennan Center's Larry Norden said the same potential for
disenfranchisement could occur with a fast transition to voting by mail. He
said studies by voter registration groups have shown minority voters tend to
fall off when first establishing vote-by-mail systems. "You change who is
voting," he said, saying low-income, minority and elderly voters are
disproportionately impacted.

The other major criticism concerned Brunner's suggestion Cleveland adopt an
optical-scan voting system for the March primary. Cuyahoga County's board of
elections had a day-long meeting on Monday and rejected that idea, saying
there was not enough time to acquire the new machinery and train poll
workers and election officials. "There wasn't support among the strongest
proponents of moving to scanning," said Candace Hoke, director of the Center
for Election Integrity at Cleveland State University.

"What we will do in the short term, we will try to help Cuyahoga County find
a solution," said Patrick Gallaway, Brunner's spokesman. "For the rest of
the state, we have to work with the equipment we have. We will try to put in
place some of the safety precautions and safeguards. We will help poll
workers with their training."

He said that the critics were ignoring a key point in Brunner's
recommendations that poll workers at local precincts would scan ballots to
see if there were are mistakes such as voting for more than one candidate.
However, at the teleconference both Norman Robbins and the Brennan Center's
Norden said that was not a practical idea, mostly because once voters leave
the voting booth and turn in their ballots they tend to quickly leave the

Gallaway said it was somewhat unfair that "groups that we thought were
advocating for us are now being critical." He said, "Why are they not
talking to us. It's unfair to do this ... Our first goal that was
established when we came into office was to ensure trust for every Ohio

However, Columbus attorney Robert Fitrakis has another view. After the 2004
election, he, Columbus attorney Cliff Arnebeck and others compiled evidence
of problems with that presidential election. That record was used in reports
by the House Judiciary Committee, cited by Democrats who unsuccessfully
challenged Ohio's 2004 Electoral College votes and became the basis for a
federal voting rights lawsuit that alleged intentional voter suppression of

That suit, which was filed in August 2006 -- before Brunner was elected --
resulted in a federal court order to preserve the 2004 ballots as evidence.
When Brunner came into office, she asked all 88 Ohio counties to preserve
those records and found that 56 counties had destroyed part or all of their
2004 ballots -- violating the court order.

During the spring of 2007, Ohio's attorney general's office -- representing
the secretary of state -- asked Arnebeck and Fitrakis to draft a settlement
document, called a consent decree. Their submission contained 50 legal and
policy solutions that, if adopted, would have dealt with most of the
problems uncovered by Brunner's recent study of Ohio's voting systems.
However, Fitrakis said Brunner never took the lawsuit or proposed settlement
seriously. In September, he published the draft decree on his website,

"She is making 101-level mistakes that everyone in the voting integrity
movement has been talking about for years," he said. "She chooses optical
scans, but goes to central counting. That is not an improvement. In Miami
County in 2004, 16,000 votes were added at the close of voting in central
counting. She comes to the right conclusion on DREs (direct recording
electronic or paperless voting machines), but not the right implementation."

"They cut off negotiation," Fitrakis said, speaking of settling the federal
voting right case. "They never acknowledged they had the solution in their
hands. They have done nothing but stall. We warned the attorney general ...
They could settle a federal case and take it out of the state political
realm. The judge could monitor it. What they are doing by delaying is
running out of time and opening themselves up to new lawsuits."

Steven Rosenfeld is a senior fellow at Alternet.org and co-author of What
Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004
Election, with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).

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