Problems persist with Ohio’s election system and the Buckeye State is in desperate need of reform.

Mary Jo Kilroy squeaked out a 2,311 vote victory in Ohio’s U.S. 15th district, but only after a monumental struggle over counting provisional ballots.

A shocking 10% of all Ohio voters on Election Day 2008 were forced to vote provisionally. This was the most provocative statement made at Ohio Secretary of State Jennifer Brunner’s Ohio Elections Summit 2008 on December 2 at the Ohio Historical Society.

The location was telling. Lawrence Norden, legal counsel for the Brennan Center for Justice at the New York University School of Law, informed Ohio Elections Summit attendees that they were at a “first of its kind” historical summit.

Professor Ned Foley, Director of Election Law at OSU’s Moritz College of Law, documented Ohio’s ‘over-reliance” on provisional ballots in the 2008 presidential election. Ohio had 181,000 provisional voters, a shocking 3.2% of all voters in the state and an even more startling 10% of all voters on Election Day. He noted the contrast to Missouri, where only .02% voted provisionally (7,000 voters) and the .01% in Virginia (4,500 voters). Foley stressed that an Ohio voter was 16 times more likely than a Missouri voter to be forced to cast a provisional ballot, and 32 times more likely than a Virginia voter.

In other key battleground states, the results were similar. In Indiana and Michigan, only .01% of voters were provisional, in Florida it was .04%. Ohio is a bizarre statistical “outlier.” Foley stated that the Help America Vote Act (HAVA), intended provisional voting to be for “isolated mistakes, not a systematic, routine process.”

Both Donita Judge, staff attorney for the Advancement Project, and Dr. Norm Robbins of the Greater Cleveland Voter Coalition, attempted to put a human face, with pigment, on the provisional voter problem. Judge reminded the audience that most of the provisional voters were at the right polling location, but simply at the wrong precinct. Robbins cited detailed evidence collected by his coalition that found up to 50% of provisional voters are forced to vote the second-class ballot simply because they moved between elections.

Only 20,000 Ohio voters were given provisional ballots because they weren’t registered, putting us in line with Missouri, Virginia, Indiana, Michigan and Florida. The remaining 160,000 or so provisional voters were registered to vote, but in the wrong precinct or flagged because they moved.

The Columbus Free Press reported that up to an estimated 35,000 voters had been incorrectly flagged in Franklin County poll books because of returned mail from the Board of Elections. With proof of address these voters should have voted a regular ballot. Some of these voters will have their ballots thrown out after signing an affidavit and being verified as a registered voter because of technicalities such as not printing their name on the outside of the ballot envelope, as a result of the Ohio Supreme Court ruling.

Donita Judge vigorously defended Judge Algernon Marbley’s rule to count 1,000 disputed provisional ballots in Ohio’s 15th district Congressional race. Marbley ruled that since there was no allegations of fraud and that the ballots weren’t being counted because of “poll worker error,” that votes should be counted since the voters were known and eligible to vote.

The Federal 6th Circuit Court of Appeals overturned Marbley’s decision and sent the case to the Ohio Supreme Court, a court stacked 7-0 with Republicans after the U. S. Chamber of Commerce laundered anonymous illegal money into the high court races.

On December 5 the Ohio Supreme Court ruled that the 1,000 provisional ballots marred by poll worker technical errors could not be counted.

The convener of this historical Summit, Ohio Secretary of State Jennifer Brunner, was cautious in her opening remarks, endorsing “citizen-run elections” in Ohio and the “smooth and even” application of Ohio law.

Brunner pointed out that any reforms discussed at the Summit would have to be funded by county commissioners.

Brunner made a brief call for easier voting by various means, advocating both the increased use of mail-in and early voting. She noted that there were “one-hour wait times” in Ohio on Election Day and that “back-up paper ballots” played a positive role in reducing even longer lines. Brunner conceded that “poll worker training” proved inadequate and that many counties were plagued by “lack of a high-speed scanner” in counting their early votes.

In a revealing statement, Brunner noted that the national patterns of litigation and challenges brought primarily by the GOP, “all took place in battleground states” only.

Brunner’s Summit consciously included election officials who differed sharply with her assessments. Jeff Wilkinson, Deputy Director of the Richland County Board of Elections (BOE), led the first panel on Election Administration by attacking paper ballots and Brunner’s “two-line system” which allowed for Ohio voters to choose paper ballots over the plastic and highly fallible e-voting machines. Wilkinson claimed that voters in Richland were “willing to wait for machines” rather than vote on paper and claimed Brunner’s two-line system cost his county $24,000 in administrative costs. He stated that only 708 out of 14,700 voters chose paper over the machines.

Al Siegal, a presiding judge from Delaware County, criticized Franklin County’s “two-line system” by pointing out that many more voters could be accommodate din voting on paper by simply adding long tables instead of the existing system of one clipboard in a cubicle.

Deputy Assistant Secretary of State David Farrell defended Brunner’s two-line system, pointing out that the Secretary of State’s office reimbursed county BOE’s for the cost of printing paper ballots and that the “two lines come in handy” if there’s a misallocation of voting machines. Farrell said the BOEs were directed to publicly vote on the e-voting machine allocation to avoid the infamous Franklin County 2004 race-based allocation that caused inner city voters to wait up to seven hours in line.

Dr. Ted Allen, an Associate Professor at the Ohio State University, proved the highlight of the first panel. Allen, an expert in “waiting line analysis theory,” said that voters using machines, on average, took two minutes longer to vote than those on paper. Also, had there been no early voting and had Franklin County used the same number of machines as in 2004, the lines would have been as long as 30 hours. Even with the new machines, had there been no early voting, there would have been lines up to 15 hours long. Allen concluded that paper “pushes down waiting times.”

Leading advocates of non-transparent e-voting machines, like the Columbus Dispatch and Dan Tokaji of the ACLU, argued that there are higher rates of undervotes on paper ballots. Rosenfield and others countered by saying that scanners at the precincts could alert voters who are using paper that there’s been an undervote. The vote could be scanned, as it is in many places, immediately after voting and the undervote would be flagged allowing the voter to cast a vote in the race in question.

Peg Rosenfield, Election Specialist for the League of Women Voters, started off by demanding that Ohio “go back to the signature.” She argued that the signature is the gold standard of verification of voter identity, not the often privately-controlled electronic poll books that cause record numbers of provisional voters in the Buckeye State. Rosenfield also strongly advocated “random audits” after the election.

Cuyahoga County, famous for its elections disasters in 2004 and 2006, is now under the direction of Director Jane Platten. Unlike past Cuyahoga County BOE directors, Platten advocates full transparency and outlined how her county set up “hotlines” for stakeholders including all the minor parties on the ballot so they could directly access BOE officials on Election Day.

The large red elephant in the room was tiptoed around in the afternoon session on technology and security. Candace Hoke, Director of the Center for Election Excellence, said that “Brunner made security front and center” with the Everest Report. Brunner commissioned the Everest Report to study the vulnerability of electronic and computer voting and poll registration in the Ohio election system. The Everest Report noted that while the e-voting machines are vulnerable to hacking and manipulation, the voter registration databases, in the hands of private partisan vendors like Triad in more than half the counties in Ohio lack any security measures or standards.

When asked early on by this Free Press reporter why private partisan for-profit vendors would be allowed to secretly write the source code for the machines and control the poll books, the panelists on administration looked puzzled, although Wilkinson did point out that people could observe the accuracy and logic test. He failed to mention that the accuracy and logic test does not test for security.

Bob Fitrakis attended the Ohio Election Summit as an election attorney for the Green Party and head of the Election Protection Project for the Columbus Institute for Contemporary Journalism, funded by the Threshold Foundation.