The Coming Ballot Meltdown

This column was written by Andrew Gumbel.

Ohio was, of course, ground zero of the 2004 presidential election, and now it's the battleground of one of the most hotly contested governor's races in the country. The Republican candidate this November is none other than Kenneth Blackwell, Ohio's Secretary of State, a man vilified by voting rights activists for a string of baffling and, to all appearances, nakedly partisan rulings in the 2004 presidential race, when he also doubled as co-chair of George Bush's state re-election campaign. Now he's at it again — issuing draconian guidelines on voter registration that carry the threat of felony prosecutions against grassroots get-out-the-vote groups, especially in Democratic-leaning urban areas, for even the slightest procedural irregularity. Despite denials from Blackwell's office of any malicious political intent, the guidelines have had an immediate chilling effect on groups like the activist community organization ACORN, which has suspended registration efforts pending urgent consultations with its lawyers. Several leading Democrats have urged Blackwell to step aside from all election-supervising responsibilities, a proposal his staff has greeted with near-derision.

It would be bad enough if Blackwell were acting merely to benefit his party, as he did in 2004. But in this case he's taking advantage of his office to act on behalf of his own ambitions. Unless something changes between now and November, he will remain in charge of counting the votes — his own and everyone else's. In a pivotal election in a pivotal state, this is far from reassuring. As Peg Rosenfield, an elections specialist with the League of Women Voters of Ohio who spent twelve years working in the secretary of state's office in the pre-Blackwell era, put it, "If you think '04 was a mess, just wait. I anticipate a debacle."

Blackwell and his Democratic challenger, Ted Strickland, are locked in a tough fight over the succession to Bob Taft, the scandal-tainted, widely reviled incumbent governor, whose approval ratings are lower even than Dick Cheney's. Early polls have put Strickland modestly ahead, but Blackwell has several built-in advantages, particularly his ability to lean on an entrenched Republican establishment and tap into its broad fundraising powers. Blackwell has largely escaped the stench of corruption dragging down the rest of the state party, thanks to his reputation as a maverick and a lone operator. As a social conservative, he appeals to much the same exurban demographic that turned out for George W. Bush to express their disapproval of abortion rights and gay marriage. And, as an African-American, he is bound to peel away at least a percentage of the urban black vote that Strickland might otherwise regard as his for the taking. So it's not inconceivable, as the nation awakes on November 8, that the Ohio governor's race will be too close to call. And if that happens, all hell will break loose.

"If we have a recount, I see no way anyone is going to have any faith in it. It's a poisonous atmosphere," Rosenfield said. Never, she added, has she seen the elections process subject to as much politicization as now. Previous secretaries of state, conscious of their status as partisan elected officials, would have gone out of their way to keep their names off election-related directives that risked being interpreted as attempts to help one party over the other. Blackwell, by contrast, has if anything gone out of his way to be identified with his office's most controversial rules. (In 2004 he happily put his name on a now-notorious directive that late voter-registration applications — the kind encouraged by Democratic grassroots groups — be submitted on specially weighted, unwaxed paper, which disqualified applications printed in Ohio newspapers. He also made it unusually hard for voters casting provisional ballots — again, more likely to be Democrats — to have their votes accepted and counted.)

On top of that, Rosenfield added, Blackwell's office has shown a wanton disregard for the needs of Ohio's eighty-eight counties as they make the Congressionally mandated transition from punch-card and lever machines to new-generation electronic voting systems. Rather than answer technical questions posed by the counties — which is how Rosenfield spent much of her time when she worked for the secretary of state's office in the 1980s — Blackwell's staff has a habit of referring county boards of elections to other local officials not remotely qualified to help.

The technicalities of the voting process were already a huge problem in 2004, when everything from the updating of voter registration lists to the number of voting machines made available in each precinct to the opening hours of polling stations was subject to undue political influence and rank bureaucratic incompetence, prompting an avalanche of complaints. (Blackwell's office rejected every last one of them.) That election, though, was held predominantly with the old machinery, which may have lost an unacceptable number of honestly cast votes but at least had the virtue of familiarity. Now the advent of e-voting has opened up a whole new world of pain for election officials and their woefully undertrained precinct volunteers. The first big test of the new machines, in the May primary election, resulted in a multiplicity of problems, especially in Cuyahoga County in and around Cleveland, where poll workers lost seventy memory cards recording the votes from electronic touch-screen terminals (the votes had to be retrieved through back-up data systems inside the terminals) and more than 15,000 paper absentee ballots had to be counted by hand, delaying the results by six days, because of a system failure in the automated tabulation system. And that was on a turnout rate of only 23 percent.

"Our turnout in the fall is bound to be over 50 percent," Rosenfield said. "That'll include a lot of less sophisticated voters struggling with new machines and new rules. The poll workers still won't be trained well enough. The boards won't know how to get the equipment ready.... The secretary of state's office isn't providing resources to the counties — no money to attend training sessions, no expertise to answer questions or provide technical support.... We've made this so complex, I'm not sure we're capable of administering it."

The story of Ohio's adoption of new voting technology and the mess it is creating is in many ways typical of the overhasty and shockingly underregulated rush across the country to comply with the 2002 Help America Vote Act (HAVA). But Ohio has also followed its own peculiar trajectory, teaching us above all how difficult it is to prevent the elemental viciousness of two-party politics from compromising the integrity and safety of our voting systems.

Back in 2003 Ohio was admirably skeptical about the lure of computer voting — even though the parent company of Diebold Election Systems was based in Ohio and its chief executive, Wally O'Dell, was a prominent campaign contributor to the state and national Republican Party. O'Dell notoriously wrote a fundraising letter in August 2003 declaring himself "committed to helping Ohio deliver its electoral votes to the president next year." If this was some dark hint that Diebold intended to collude with the Republicans in stealing the 2004 election — something that, in retrospect, seems a lot more doubtful than many voting rights activists feared at the time — Ohio's Republican establishment was not especially inclined to play ball. The source code for Diebold's AccuVote-TS touch-screen system had been left lying around on an open Internet site and was scrutinized by a team of top-flight computer scientists from Rice and Johns Hopkins universities, who found it to be riddled with security flaws and basic programming errors. Ken Blackwell decided to order a comprehensive technical review of all touch-screen voting systems and subsequently decided to postpone a major statewide buy of electronic machines until after the 2004 election. The Republican-dominated state legislature, meanwhile, proved remarkably receptive to arguments in favor of fitting the touch screens with a voter-verified paper audit trail so their results could be independently verified in a close or contested election. A state law mandating a paper trail was passed in early 2004.

That cautious, consensus-oriented approach evaporated, however, in the heat of the 2004 campaign season. A state planning committee on HAVA implementation that had met several times was never invited to convene again, despite a barrage of new questions raised across the country about the integrity of electronic touch-screen and tabulation systems being sold by Diebold and its principal rivals, Election Systems and Software (ES&S) and Sequoia. Right after the 2004 election, Governor Taft signed a law increasing the limit on campaign contributions by individuals or political action committees from $2,500 to $10,000 — a move widely seen as benefiting Republicans more than Democrats. Around the same time, Blackwell compounded the conflict-of-interest issue by buying himself just under $10,000 of Diebold stock. (He later sold, at a loss, after his shareholding became public.) For several months last year and stretching into this, the Republican state legislature expended its energies on mandating an ID requirement at polling stations. At best this was an unnecessary solution to a nonexistent problem, since there was no evidence of significant ballot fraud at the individual voter level; at worst it was another baldly partisan maneuver, because the 12 percent of the adult population without driver's licenses, the most readily available form of government ID, tend to be poor, elderly or both, and thus likely to lean Democrat.

The law that finally enshrined the voter-ID requirement, House Bill 3, contained another couple of nasty surprises: a big jump in the cost of petitioning for a manual recount, from $100 per precinct to $500 per precinct, and the lifting of a previous requirement that counties use the independent paper trail to conduct random audits of their touch-screen machinery after every election. In other words, Ohio — like many other states — has now become a recount-hostile environment with greatly diminished accountability all around. Since paperless electronic system votes are almost impossible to verify without recourse to the paper trail, this is a truly chilling development.

What the Republicans have created is, in effect, a system where they have multiple tools to deter their opponents from casting ballots in the first place — through the voter-ID requirement, the strict rules on provisional balloting and so on — and then making the vote count itself so opaque as to be beyond redress. The lack of transparency is a matter of bureaucratic convenience as well as political conniving: County boards of elections are generally delighted to be able to spend state and federal dollars on shiny new computer systems that do all the tricky work of vote tabulation by themselves, that don't entail large paper orders or long-term ballot storage requirements and that obviate the pain, inconvenience and extra cost of conducting recounts. Under the HAVA rules counties have the option of purchasing much cheaper, manually recountable paper-based systems, tabulated by optical scanners. Many Ohio counties have shied away from this alternative, however, because they think it is trickier to operate and requires more intensive poll-worker training. HAVA also requires at least one terminal per precinct for the use of disabled voters, which basically means a touch-screen machine. Rather than buy two separate systems, many counties prefer to go with just one.

If counties think that touch screens are somehow the easier option, though, they're kidding themselves. Poll workers may find it easy to show voters how to use the machines when they're working, but if anything goes wrong workers are likely to be several orders of magnitude more clueless about fixing the problem. Computerized systems also entail huge hidden costs, from maintenance to security (even when the terminals are in storage) to software upgrades. Several Ohio counties have been appalled at the budget overruns they are already facing, and there is a naïveté all around, from Congress on down, about the kind of commitment these machines entail. "If the federal government thinks it can give onetime-only grants, it is wrong," said Dan Tokaji, an election law specialist at Ohio State University's Moritz Law School, who is a cautious supporter of electronic systems, at least in principle. "There needs to be ongoing federal attention." Based on the government's behavior so far — its failure to fund HAVA fully or to meet its own deadline, its failure to establish a federal regulatory body with any teeth, its failure to streamline rules on any aspect of conducting elections, leaving everything up to states and counties — nobody should hold their breath.

Another reason to regard Ohio as a bellwether of the nation's electoral health is the fact that its political complexion is changing fast — perhaps faster than any other state's. For twelve years the Republicans have had the run of the place, a length of tenure more or less guaranteed to spawn corruption, regardless of the party in power. The ethical violations, insalubrious associations and compromised integrity of Governor Taft, Representative Bob Ney and others have received widespread attention in the national press. Perhaps less well understood is that, historically speaking, there is no climate more susceptible to electoral malfeasance than one where a single party is in power and in a position to manipulate the rules to its advantage. If a race is also close and the stakes are high, as they were in 2004, then dirty electioneering is more or less a given.

Granted, there are those who have insisted since Election Day that John Kerry was robbed of Ohio's twenty Electoral College votes, and with them the presidency. That argument, though, is almost certainly a stretch, since Bush's official margin of victory of 120,000-odd votes is just too big to be explained away with any confidence. Certainly, most seasoned election observers in Ohio, as well as veterans of the earnest but disorganized Kerry field campaign, tend to dismiss it. (A 30,000 vote margin, given the multiplicity of the reported problems, might have been a very different story.) The problem, in the end, with many of the stolen-election theories is not that they are wrong to assume that Ohio is corrupt; it is that they have misunderstood the nature of that corruption. Many — including Robert Kennedy Jr. writing in the June 1 Rolling Stone — imagine Ken Blackwell as the mastermind of some coordinated Republican Party conspiracy to re-elect Bush, in which the counties fell magically in line with his or the party's directives. The reality, though, is that Blackwell's influence only went so far, and the counties — partly because of the lack of support from the secretary of state's office — acted largely on their own. The county boards of elections were, in turn, stuffed with political appointees from both parties who engaged in struggles of varying degrees of intensity. (The stereotypical image of boards of elections, which may not be that far from the truth, is one where the Democrats are sweet, well-meaning old ladies, and the Republicans are razor-sharp lawyers.) The autonomy and complexity of the counties cannot be overstressed. As Catherine Turcer, legislative director of the anticorruption group Ohio Citizen Action, put it sardonically: "Every county has its own party structure, so you can launder money eighty-eight ways."

In Cuyahoga County — which has been an election management nightmare for decades — one of the two Republican members of the board of elections is Bob Bennett, who also happens to be the state party chair. In Lucas County, in and around Toledo, the chair of the board of elections until early 2005 was Bernadette Noe, the head of the county Republican Party and the wife of Tom Noe, the man who invested $50 million of the state workers' comp fund in a rare coin fund with which he was affiliated, and lost $13 million of it. Noe has also pleaded guilty to laundering $45,000 in Bush re-election funds. Bernadette Noe, meanwhile, behaved so egregiously in the November 2004 election that Blackwell's office launched a rare investigation. It charged her with a panoply of offenses involving Republican Party volunteers under her direction who, before the election, were caught tampering with voter confirmation postcards and, on election night itself, tried to barge into the vote-counting area without authorization. Bernadette Noe was forced to resign shortly afterward, one more in a succession of prominent Ohio Republicans to be disgraced, indicted or hounded from office.

The echo of so many recent scandals makes this a fascinating, pivotal moment in Ohio politics. The Republicans risk losing just about every statewide office this November, from the governorship to Mike DeWine's Senate seat. Some reform-minded members of both parties have seen this moment of transition as a unique opportunity to try to talk their colleagues into thinking beyond short-term party interest and considering some key voting rights issues from a more broadly public point of view. The biggest push has been toward redistricting reform: taking the process of drawing legislative and Congressional boundaries out of the hands of the politicians and handing it to a more independent, or at least bipartisan, panel so elections can become more competitive and more reflective of public opinion. Sadly, the vicious logic of the two-party system has made the prospects for such reform well-nigh impossible.

A year ago it was the Democrats, on the thin end of a 60-to-39 party balance in the Ohio house, who were pushing for a fairer way of carving up districts. Then it was the turn of a citizens' group called Reform Ohio Now, which made the redistricting question the centerpiece of a quartet of campaign-related initiatives it sponsored on last November's ballot. Those initiatives went down in flames, largely because of a concerted effort by Republicans to depict them as partisan Democratic maneuvers in disguise. Most recently it has been a handful of Republicans, notably House Speaker Jon Husted and State Representative Kevin DeWine (Mike's second cousin), who have been pushing their own version of redistricting reform. They argue that they are acting from only the noblest motives. (As DeWine told me, "If you're going to make changes, you do it when you don't know who the players might be.")

The Democrats, however, smell a rat. They reckon they will be able to win a majority of the seats on the state apportionment board — which includes the governor, the secretary of state and the state auditor — ahead of the next round of redistricting, in 2011, and suspect the initiative to be a Republican attempt to salvage something before the tables are turned against them. The Republican proposal was voted down at the end of May, and now appears to be dead. In the end, partisan rancor is prevailing over any kind of rationality. Ed Jerse, campaign manager of the Reform Ohio Now initiatives and a former Democratic state legislator, summarized the prevailing mood among Ohio Democrats this way: "You stuck it to us for twelve years and now that you are about to lose, you invite us into the room and want to be buddy-buddy? Screw that."

The losers in this whole process are, of course, the voters. Where they don't have reason to fear out-and-out political interference in the electoral vote, they can expect incompetence and chaos. Toledo, for example, may have rid itself of Bernadette Noe, but it still had a major meltdown in last November's off-season elections, which it subsequently blamed on the incompetence, lousy software and missed deadlines of its vendor, Diebold. Across the country, alarm bells have been sounded about major security flaws in electronic voting software — one such, in Diebold's TSX system, was described by Pennsylvania's leading voting-machine inspector as "the most severe security flaw ever discovered" — but Ohio appears blissfully unaware of them because of the inattention, bordering on negligence, of its secretary of state's office. Peg Rosenfield, for one, sees things as worse now than at any time in her memory. "It's not that anyone will be out to steal the election necessarily," she remarked. "They don't need to — we can screw it up all by ourselves."

Andrew Gumbel is the author of "Steal This Vote: Dirty Elections and the Rotten History of Democracy in America" and a U.S. correspondent for The Independent of London.
By Andrew Gumbel
Reprinted with permission from The Nation