The criminal cover-up of Ohio's stolen 2004 election sinks to the fraudulent, the absurd, the pathetic

by Bob Fitrakis and Harvey Wasserman
August 2, 2007

The illegal destruction of federally protected 2004 election materials by 56 of 88 Ohio counties has become a fraudulent "dog ate my homework" farce of absurd justifications and criminal coverups.

The mass elimination of the critical evidence that could definitively prove or disprove the presumption that the 2004 election was stolen has all the markings of a Rovian crime perpetrated to hide another one. Indeed, under Ohio law, that's precisely what must be presumed here.

But what makes the situation downright pathetic is that Ohio's new Democratic Secretary of State, Jennifer Brunner, has publicly stated she sees "no evidence" of intentional destruction in the disappearance in more than 60% of the state's counties of the ballots from the 2004 presidential election.

So once again, as did Al Gore in 2000 and John Kerry in 2004, the Democrats seem poised to cave to the on-going GOP coup that has redefined America, and that now involves the criminal destruction of contested evidence in one of the most controversial vote counts in US history.

Ironically, in Florida, under Jeb Bush, the ballot records from the 2000 election in all but one of the state's counties were successfully preserved. They are now stored in a state repository in Tallahassee. An unofficial recount conducted by the national media concluded that Al Gore rightfully carried Florida, and thus the presidency, in 2000.

A parallel preservation was ordained by federal and state law for the election records from Ohio 2004, where a similar examination has been viewed as inevitable.

But a series of excuses that range from the lame to the pathetic to the obviously criminal have left us shocked---shocked!---to learn that despite the protection of established federal law, a federal court order, long-standing Ohio laws, two directives from the Ohio Secretary of State's office, and legal notification letters from plaintiff's attorneys to hold the evidence, a precise recount of Ohio's stolen 2004 election may no longer be possible.

In short, Brunner has informed us that 56 of Ohio's 88 counties have mostly "inadvertently" destroyed all or some of their records from the 2004 presidential election.

Are we surprised?

Wait 'til you hear how these mostly Republican directors say it happened!

The materials were under legal protection "from birth" on November 4, 2004, shielded by national law, acknowledged by Brunner, by Ohio Revised Coded 3505.31, then by a federal court decision in the now-legendary King-Lincoln-Bronzeville lawsuit (in which we are attorney and plaintiff).

The Ohio Revised Code specifically states that in presidential elections "the board shall carefully preserve all ballots prepared and provided by it for use in that election, whether used or unused, for twenty-two months after the day of the election." In this case, that would have been through September 2, 2006.

These records were also essential to reconstructing a credible recount that was most pointedly stifled by then-Secretary of State J. Kenneth Blackwell. Brunner blamed the destruction of documents on Blackwell, "…for not giving counties clear instructions and for not notifying them quickly enough about U.S. District Judge Algenon L. Marbley's September 7, 2006 order," according to the conservative Columbus Dispatch.

But many of the ballots were destroyed soon after the election in a series of events whose descriptions grow stranger and more implausible by the day.

In October 25, 2004, just prior to the election, Blackwell issued directive 2004-43, reminding all county election officials of the federal 22-month holding period for presidential ballots. That meant all election-related materials would be under federal protection until September 2, 2006.

On August 23, 2006, plaintiff's attorneys in the King-Lincoln-Bronzeville case hand-delivered a letter to the Secretary of State's office and faxed notices to all 88 county Board of Elections offices that the ballots were to be evidence in the forthcoming civil rights suit against Blackwell.

On August 31, 2006 that suit was filed in Marbley's federal court in Columbus. The AP reported that same day that Blackwell "has signaled his willingness to keep ballots from the contentious 2004 election beyond their scheduled September 3 destruction date in response to activists who plan to sue him in federal court today."

Ohio laws also require that noticed---for election-related materials and other public records---be offered to the Ohio Historical Society and other public repositories before they are destroyed. Public record forms must be filed and Ohio law requires a Certificate of Destruction. Nonetheless, Blackwell erroneously told the Dispatch the next day that he was "willing to ask the boards not to destroy ballots, but the decision ultimately is a local one."

But under applicable law, the decision was definitely not "a local one." Indeed, Judge Marbley ordered all of Ohio's 88 counties to "…preserve all ballots from the 2004 presidential election on paper or in any other format, including electronic data, unless and until such time otherwise instructed by this court." Thus anyone destroying such records, from Election Day until the time you read this, may have broken various federal or state laws, and be in contempt of a federal court order.

King-Lincoln alleges a wide range of civil rights violations perpetrated by Blackwell and many of Ohio's 88 county boards of elections based on race, economic status, political inclination, wrongful denial of absentee ballots (as in Harvey's case) and more.

Here are some of the stories the counties are telling about the destruction of their ballots: (View the original state documents in a 19.5MB PDF)

Hancock County says it "received verbal directions" from Secretary of State Blackwell's office that unused and soiled ballots "did not have to be retained and these items were destroyed."

But any election audit requires a complete set of used and unused ballots to ensure that the unused ballots weren't stuffed illegally into the ballot box. The law refers specifically to "all" ballots.

Putnam County apparently understood this all too clearly. That's why they informed Brunner that "all unused ballots were destroyed for security purposes."

In Warren County, on Election Day, the board of elections declared a Level 10 Homeland Security alert for which neither the Homeland Security Agency nor the FBI has any documentation or explanation. The alert served as cover for moving the vote count to an isolated warehouse, away from the media. Bush emerged from Warren County with a huge majority, far in excess of what he received in 2000.

Some twenty-two thousand officially unused ballots from Warren County are now mysteriously missing.

Warren County Board of Elections Director Michael E. Moore has written Brunner, stating that, in complete defiance of the law, "They were not accidentally destroyed. They were destroyed pursuant to standard practices that had been used by the Board of Elections for many years in Warren County regarding unused punch card ballots." Moore notes that "The unused ballots were destroyed 60 days after the 2004 election."

Warren, along with neighboring Clermont and Butler counties, provided Bush with more than his entire 118,775 winning margin in Ohio 2004. Thus these three counties were singled out for allegations of fraud in the election contest case Moss v. Bush (though only after surviving the first-ever Congressional challenge to a state's entire Electoral College delegation). The allegations of fraud on a level that could have decided the presidency were thus never tested in court…and now the evidence has been destroyed.

Clermont County "could not locate" the unused ballots, according to Mike Keeley, Board of Elections Director.

Butler County cannot provide the "2004 General Election Ballot Pages." Director Betty McGary says that "at no time was anyone specifically instructed to discard these items. Our staff unintentionally discarded boxes containing Ballot Pages as requested in Directive 2007-07 due to unclear and misinterpreted instructions." For complex reasons having to do with Ohio's precinct ballot rotation law, the ballots from Butler County cannot be recounted with the "Ballot Pages" missing. The pages match the punches to the candidates.

Holmes County BOE Director Lisa Welch wrote Brunner that "a shelving unit collapsed in the Board of Elections storeroom on the morning of Friday, April 7, 2006. That shelving unit held the voted ballots, stubs, soiled and defaced ballot envelopes, and ballot accounting charts from the 2004 General Election. The shelves and stored items collapsed onto a side table holding a working coffee maker. The carafe on the coffee maker was full at the time of the incident. Many of the stored items had to be destroyed due to the broken glass and hot coffee. The ballot pages and unused ballots were stored on a neighboring shelf and were not damaged."

Holmes County was rendered infamous by Karl Rove's legendary spin claiming there was an unprecedented massive turnout of homophobic old order Amish voted for Bush and against gay marriage. (It is well-known that the Amish as a community rarely vote).

Allen County "labeled all voted ballots and placed [them] in our vault for the required 22 months of storage," according to Keith Cunningham, Director. Cunningham distinguished himself as a pro-Bush and Rove mouthpiece when he testified at then-Congressman (now-felon) Bob Ney's cursory March 2005 hearing into the 2004 Ohio election.

Cunningham told the Secretary of State that in the "…latter part of 2004 and into 2005… [we] began to experience problems with storm water migrating and subsequently penetrating our primary storage areas including our vault." He told Free Press reporter Paddy Shaffer that the vault had been flooding for "six years," and he had to put the 2004 presidential ballots on the floor because he needed the shelf space.

Cunningham added that: "As a result of these events, much of what was stored in our vault, including the 2004 general election ballots, were compromised by water damage and subsequently destroyed on or about August 20, 2006. Pursuant to the recommendations of the Allen County Health Department the boxes displaying mold or mildew were set aside to be discarded. Unfortunately, the contractor hired to remove the damaged boxes also accidentally removed the undamaged boxes as well," stated Cunningham, who did manage to save 498 write-in ballots.

The Health Department records recommended destruction or isolation as a solution.

Guernsey County's ballots suffered a similar twisted fate. According to BOE Director Jacqueline Newhart, "The unused ballots as well as the punch card ballot pages were destroyed in error" because "the county maintenance worker, when collecting trash, picked up the boxes" that contained them.

In allegedly mobbed up Mahoning County, the board of elections has blamed environmentalists for inadvertently destroying the ballots. Apparently the "Mahoning County Green Team picked up all recyclables in the storage room for disposal pursuant to the retention schedule," according to Director Thomas McCabe. As a result, some 115, 936 ballots "were accidentally disposed of on Friday, March 23 of 2007."

Down in Hamilton County (Cincinnati), home of the Taft family dynasty, the unvoted and soiled ballots were "inadvertently shredded between January 19th and 26th of '06."

Perhaps the most egregious case of ballot destruction, and easiest to criminally prosecute, is Director Steve Harsman's in Montgomery County. Researcher Richard Hayes Phillips reported in the Free Press that, "…the Board was eager to destroy them [the ballots]. The employees who handled the ballots for me brought up the subject themselves."

Harsman conceded that the "Ohio Revised Code" required a 22-month "retention schedule." Yet, he argues that since the "Certificate of Destruction" had already been "prepared" prior to his receiving the order from Judge Marbley that he had the right to destroy the ballots.

"We literally ran out of space to prepare, stage, and retain material for these elections. It was imperative that we process the 2004 materials for destruction under the guidelines of the 22-month retention. Therefore, all materials were properly destroyed in a timely manner and we were unable to comply due to these circumstances. We did not receive formal notice from the courts prior to preparing the certification of destruction," Harman wrote.

Thus Harman admits to openly defying a federal court order and destroying evidence because he wasn't notified "prior to preparing the certification of destruction."

But Judge Marbley pointed out in his opinion and order of September 11, 2006 in support of his order of September 7, that the Ohio Revised Code 3501.16 makes it a fourth degree felony for, among other things, willfully or negligently violating election laws as a director of a board of elections.

The original story of the ballots being saved for litigation and history made the pages of the New York Times. But the blatant and bizarre destruction of Ohio's 2004 ballots has been relegated to the back page of the Columbus Dispatch Metro & State section. The brief article by Mark Niquette ran below the fold and the weather map, and above an ad for Window World and the Ohio State Medical Center.

Matt Damschroder, the Franklin County (Columbus) Board of Election Director and former Chair of the Republican Party, assured the Dispatch that the "counties did nothing intentionally wrong." Damschroder is the President of the Ohio Association of Election Officials and was suspended without pay for a month after he accepted a $10,000 check from a Diebold representative in his office, made out to the GOP on the day the bidding for e-voting machines opened.

His job was in jeopardy until Board of Elections President Bill Anthony, Chair of the Franklin County Democratic Party, intervened to save Damschroder from firing.

King-Lincoln-Bronzeville Attorney Cliff Arnebeck stated that "The nature and scope of the cover-up can tell a lot about the nature and scope of the crime. Destruction of relevant documents can create a presumption that such evidence would have helped the other side in litigation."

Arnebeck also said White House advisor Karl Rove "has had the keys to the US Justice Department for some time. No wonder FBI investigations requested by US Rep. John Conyers of the House Judiciary Committee went nowhere. He also used those keys to scuttle two years of work by the IRS and FBI of financial corruption at the Ohio Statehouse."

Overall this blatant destruction of evidence only reinforces the widespread belief that the 2004 election was stolen. The loss of ballot materials in a few isolated counties might be an understandable random event. But for more than 60% of the state's BOEs to have destroyed ballots or ballot materials amidst a series of bizarre, absurd explanations is a joke.

America has been robbed of its history here. The public has a right to know the true outcome of the 2004 election, and to have its laws about preservation of critical records honored.

Under evidence laws, the destruction of material that serves as evidence in a lawsuit is presumed to be fraudulent action by the destroyer.

But the Bush-Rove-Blackwell regime is about nothing if not contempt for the law. And its assault on the documents that could show what really happened in Ohio's contested 2004 election seems yet another obvious confirmation that it was, in fact, stolen.

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Bob Fitrakis and Harvey Wasserman's HOW THE GOP STOLE AMERICA'S 2004 ELECTION & IS RIGGING 2008, available at freepress.org (where this article first appeared) along with the FITRAKIS FILES. HARVEY WASSERMAN'S HISTORY OF THE US is at www.solartopia.org.