The last US House seat has been filled by a Democratic County Commissioner in a vote count defined by the ghosts of 2004.

And the provisional ballot system installed by former Secretary of State J. Kenneth Blackwell---now a candidate for chair of the Republican National Committee---continues to haunt the electoral process in the nation’s premier swing state, a legacy underscored by a landmark election protection conference held just as this final House race was being decided.

Mary Jo Kilroy of Columbus will be the first Democrat to represent any part of Franklin County in Congress since 1982, and the first to represent her 15th Congressional District since the 1960s.

In 2006 Kilroy barely lost to incumbent Deb Pryce as thousands of contested provisional ballots went uncounted. Under then-Secretary Blackwell, voters in Democratic precincts were routinely challenged on minor details and forced to cast provisional ballots to allegedly be counted at a later time.

But thousands were merely pitched in the trash or otherwise negated. Some 16,000 provisionals and 93,000 machine-rejected ballots have never been counted from a 2004 election decided by an official margin of less than 119,000 votes. Independent observers believe a fair vote count would have given Kilroy her House seat in 2006. Also in that election, e-voting machines had statistically unlikely high rates of undervotes in central city polls.

This year the Ohio Secretary of State is Democrat Jennifer Brunner. Publicly committed to a full and fair voting process, Brunner repeatedly went to court to defend an expanded right to vote and have as many votes counted as possible. Various Republican maneuvers would have eliminated some 800,000 voters and given Ohio to John McCain, had Brunner not fought for voter’s rights.

As part of Blackwell’s legacy, a shocking 10% of the state was forced to vote provisionally on Election Day, more than 16 times the percentage in Missouri, and 30 times the percentage in Virginia. (Our next article will focus on Blackwell and his candidacy for RNC Chair).

This year, as Pryce retired, Kilroy ran against State Senator Steve Stivers, who successfully petitioned the Ohio Supreme Court to trash some 1,000 provisional ballots, allowing poll worker error to disenfranchise known registered voters. But the bulk survived, giving Kilroy her belated 2,311 vote victory.

Overwhelmingly Democratic, Franklin County has been gerrymandered into three separate Congressional Districts, each including heavily Republican rural areas that have kept the seats in GOP hands. With a Democratic Governor and a 3-2 edge on Ohio’s Apportionment Board, the districts are scheduled to be redrawn in 2010.

Fittingly, the Kilroy victory came less than a week after Brunner hosted a historic Election Summit at the Ohio Historical Society.

Deemed the “first of its kind” by Attorney Lawrence Norden of the Brennan Center for Justice at the New York University School of Law, the conference examined Ohio’s provisional ballot aberration. Prof. Ned Foley of Ohio State’s Moritz College of Law decried the “over-reliance” that produced 181,000 provisional ballots, including one out of every ten cast on Election Day.  

Brunner convened the conference by endorsing “citizen-run elections” where application of the law is “smooth and even.”

Noting that GOP challenges to voting rights “all took place in battleground states,” she endorsed mail-in and early voting expansion, which in 2008 enabled some 40% of Ohio’s 2008 votes to come in before Election Day.

As a result, Election Day waits rarely exceeded one hour. Brunner fought the GOP to provide paper ballots to be used when voting machines malfunctioned, which further reduced waiting times. Nonetheless poor poll worker training and a “lack of high-speed scanners” sometimes slowed things down.

Brunner gave speaking time to Board of Election officials who disliked her positions, including Richland County’s Deputy Director Jeff Wilkinson, who said her insistence on providing paper ballots cost $24,000 in unneeded administrative costs. Wilkinson said only 708 of 14,700 Richland’s voters chose paper over the machines.

Delaware County presiding Judge Al Siegal said Franklin County’s “two-line system”—one for paper, one for machines---could be improved by providing long tables with ballots instead of having one clipboard in a cubicle. E-voting advocate Dan Tokaji, of the American Civil Liberties Union, said paper ballots produced higher rates of under-voting than machines, an assertion repeated by the Columbus Dispatch.

But when Free Press editor and this article’s co-author Bob Fitrakis asked a panel why partisan for-profit vendors were allowed to conduct elections and manage poll books on secret, proprietary software, Wilkinson replied that the machines could be observed for accuracy and logic. He failed to mention that accuracy and logic tests do not confirm security.

Meanwhile, Deputy Assistant Secretary of State David Farrell said the SOS office reimbursed counties for the paper ballots, and that “two lines come in handy” if the e-voting machines fail. Brunner required BOE’s to vote in public this year on how machines would be allocated, avoiding 2004’s infamous race-based mis-allocations that forced voters to wait up to seven hours in Columbus.

Dr. Ted Allen, an OSU Associate Professor, said voters using machines took two minutes longer to vote on average than those using paper ballots. An expert in “waiting line analysis theory,” Allen said that without early voting this year, voters in Franklin County using the same number of machines as in 2004 might have waited as long as 30 hours to vote. Paper, he said, “pushes down waiting times.” Allen also stated that without Brunner’s early voting reform, waits would have been up to 15 hours on Election Day in Franklin County even with the newly added voting machines.

Peg Rosenfield of the League of Women Voters demanded that Ohio “go back to the signature” in verifying voter registration. Computerized poll books, she said, open the door to provisional ballots and disenfranchisement of the kind that may have cost Kilroy her 2006 race. Rosenfield advocated random audits after each election and scanners that could immediately spot undervotes that would immediately alert voters of their potential omissions.

A major shift at the conference came with Cuyahoga Director Jane Platten, who has taken over a county plagued by irregularities in 2004 and 2006. Platten advocates full transparency and has established “hotlines” for stakeholders including all minor parties on the ballot so they could directly access BOE officials on Election Day.

The big red elephant in the room was underscored by Candace Hoke, Director of the Center for Election Excellence, who complimented Brunner on making “security front and center.” The $1.5 million Everest Report commissioned by Brunner has shown that e-voting machines are vulnerable to manipulation. With registration lists in the hands of private partisan vendors like Triad in half of Ohio’s counties, without reliable security checks, potential mass disenfranchisement remains a major problem.

The conference underscored the fact that the legacy of J. Kenneth Blackwell and 2004's stolen vote continues to permeate Ohio’s electoral process. But the Kilroy outcome and the conference that accompanied it underscored the change that has come to the Buckeye State, and that is likely to push even further toward secure, reliable elections.

Bob Fitrakis and Harvey Wasserman have co-authored four books on election protection, including AS GOES OHIO: ELECTION THEFT SINCE 2004, available at, where this article first appeared. Their radio shows are broadcast at WVKO-AM 1580, Air America in Columbus.