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Issue Date: June 2007 Issue


Voters Win! Voters Win!

In a shocking upset, Cuyahoga County elections officials are held accountable for bungling our right to vote.

Erick Trickey
trickey@clevelandmagazine.com
Elections have consequences — that’s a favorite line of Washington Democrats this year as they use their new power to challenge the president and change Congress’ agenda. And it’s becoming true in Cleveland as well. Thanks to new Ohio Secretary of State Jennifer Brunner and a Cuyahoga County jury, our botched elections have consequences too.

Brunner forced all four members of the Cuyahoga County Board of Elections to resign in March and April, ending three years of incompetence, arrogance, excuses and broken laws. Four other elections officials who did a shoddy job of protecting our right to vote have also been fired or forced to resign, including two supervisors convicted of tampering with the 2004 presidential recount.

No one who cares about democracy should feel bad for them. Until Brunner stepped in, they were still insisting they’d done a good job. The May 2006 election’s long lines, badly trained poll workers, absentee ballots that wouldn’t scan and mutilated recount paper trails were one-time mistakes, they said, the natural growing pains of a county adjusting to electronic voting. “The May election was an anomaly,” board chairman Bob Bennett said in February, right after accepting elections director Michael Vu’s resignation.

Never mind the 2004 presidential election, when, with the whole world watching swing-state Ohio, our elections agency made mistakes that shook the country’s confidence in our ability to hold a clean vote. Never mind that the board of elections lost about 3,600 county residents’ votes to screw-ups that year (see “Your Vote Counts ... Or Does It?”, October 2006), from people being allowed to vote in the wrong line to voter registrations disappearing because a hard-to-use software system made data-entry errors easy.

Never mind that citizens groups warned the board of elections about those mistakes, but the board certified the 2004 election anyway. Never mind that two law professors warned, beforehand and afterward, that the recount procedures were illegal.

Bennett and Vu never admitted making any mistakes in that election. “I thought we had an amazingly smooth election in 2004,” Bennett told me last August. “As far as 2004 goes, I think for the most part, everything went well,” Vu told me then.

The board treated the voting activists who warned otherwise as special pleaders and meddlers. “Activists have only one purpose: to embarrass,” Bennett told The Plain Dealer in December.

Actually, the activists were trying to save Bennett and Co. from embarrassment. But our elections officials would not be denied.
After so much imperiousness and bumbling, Brunner’s 18-page complaint, filed against Bennett and the other board member who resisted resigning, reads like a moment of clarity. It notes that the board ignored citizens’ complaints about the cancelled voter registrations for a year and a half — and still hadn’t fixed the problem in time for the 2006 elections. And although our elections officials congratulated themselves for running a better election in November 2006 than in May, our fall vote was still marred by thousands of people voting without signing the poll books, poor security for ballots and vote-counting machines, and thousands of ballots printed with errors on them.

••••••••••••••••••••••

In December 2004, witnesses at Cuyahoga County’s official presidential recount were alarmed to see long stretches of Kerry ballots and long stretches of Bush ballots go by — a sure sign the votes had been counted and sorted beforehand. George Taylor, a law professor representing the Kerry campaign, went to the next board of elections meeting and complained. Jacqui Maiden, a midlevel supervisor, admitted that the ballots had been presorted. She said elections workers had done so before recounts for years.

“It raises the possibility, the suspicion there’s been some manipulation,” Taylor argued. The board certified the recount anyway. Another Kerry lawyer complained to the board and Cuyahoga County prosecutor Bill Mason, who passed the complaint to Kevin Baxter, a special prosecutor.

Baxter investigated and charged Maiden and another supervisor, Kathy Dreamer, with rigging the recount. Not only had elections workers illegally counted the ballots before the official recount, Baxter said, they had set aside precincts that didn’t match the official count and replaced them with those that did. Their motive, Baxter suggested, was laziness. If the 3 percent hand-counted sample hadn’t matched a machine recount, elections workers would have had to count all 687,000 ballots by hand, which might have taken weeks or months.

For two years, the board of elections members insisted that Maiden and Dreamer had done nothing wrong. “These allegations are based on interpretation of procedures, not on any suggestion of fraud,” the board said in a 2006 statement. “We are confident that no employee of the Board of Elections would knowingly or negligently engage in any unlawful conduct.”

Maiden and Dreamer’s lawyers argued that presorting recounts had been an unofficial, unwritten procedure at the elections office for 20 years. They denied that their clients had rigged the recount.

But at trial, three elections workers testified that some precincts were taken out and replaced with other precincts during the presorting and precounting that Maiden and Dreamer supervised.

Why? Kevin Baxter asked. “Because they didn’t match our official count,” said ballot counter James Santora.

The jury found Maiden and Dreamer guilty on two counts, negligent misconduct and failure to perform their duties — a felony and a misdemeanor. They were acquitted on five other counts, including willful misconduct. (A third defendant was acquitted of all charges.)

Roger Synenberg, Dreamer’s lawyer, argued that the verdict meant his client and Maiden hadn’t rigged the recount. “Rigging implies intentional conduct, which they were not convicted of,” he said at the March sentencing.

Judge Peter Corrigan didn’t buy it. “It was a charade, when you did the official recount in front of witnesses — it was predetermined, it wasn’t random,” he told Maiden and Dreamer. “You had to know that this was wrong. It was a fraud on those witnesses. It was a fraud on the public.”

Furious, he sentenced them to 18 months in prison. Yes, elections have
consequences.

••••••••••••••••••••••

After Brunner asked the Board of Elections to resign, an enraged Bennett led off the next board meeting with a vindictive, character-assassinating tirade. He blamed Dreamer and Maiden’s convictions on everyone except Dreamer, Maiden and the board. Outrageously, Bennett blamed the whistle-blower — Fran Lally, Vu’s executive assistant — for telling the board’s lawyer, Reno Oradini from the prosecutor’s office, about the precounting but not informing the board. “I can tell Mr. Lally that his days of landing at the Board of Elections whenever he is laid off [from] his other public employment are over, as long as I have anything to say about the matter,” Bennett threatened. He also blamed Oradini for not passing on Lally’s news until just after the recount was certified.

Bennett apparently thought a vast left-wing conspiracy was the source of his troubles. He even tore into the law professors who’d warned the board it was approving an illegal recount, noting darkly that they had worked for the Kerry campaign. For weeks afterward, until he resigned, Bennett complained that Brunner’s house-cleaning was a partisan attack on him — a ludicrous charge, since Brunner also asked the Democratic board members to resign.

As for Bennett’s attack on Oradini, it’s true that the attorney didn’t serve the board well. He should have told the board what he’d heard about the precounting right away. He’s also partly to blame for the election workers’ most ridiculous illegal act: He told them they could continue to hand-select precincts for sample recounts, even though the law says they have to be chosen randomly. To complete the clean sweep at the elections office, Mason should send the board a new attorney.

But Bennett’s nasty strategy of blaming his lawyer and a whistle-blower was really a poor excuse. The board shouldn’t have needed a lawyer to tell them that “random” doesn’t mean “hand-picked.”

There’s no evidence that the board knew everything Maiden and Dreamer were doing, but by letting employees hand-pick precincts to recount, the board members opened the door to fraud. They should have heeded George Taylor’s warning that the recount appeared to be illegal instead of certifying it. But even if they had ordered a new recount then, Maiden and Dreamer had already committed their crimes and still deserved to be investigated.

Maiden and Dreamer have been portrayed as either victims of bad legal advice or poor innocents taking the fall for their bosses. Before the trial, Bennett claimed that Oradini had signed off on all the board’s recount procedures, and the defense attorneys tried to use that argument in court. But Oradini testified that no one asked him about presorting and precounting.

Oradini, on the other hand, suspected Vu was in charge of the precounting. “There is suspicion that others, higher in management, were involved in this miscarriage of an election recount,” Baxter wrote in a court filing before trial. But when the judge asked the two women at their sentencing if anyone else had directed them to precount, both said no. One witness testified the precount didn’t start until after Dreamer got “direction from upstairs,” but who was upstairs was never established. That’s not enough for an indictment, but it’s a reminder that the botched recount was a failure at every level.

None of that excuses Maiden and Dreamer. Corrigan could have made his point about the seriousness of violating election law with a shorter sentence. But people who tamper with a presidential recount should go to jail.

••••••••••••••••••••••

On May 7, Brunner swore in the new board members. “I don’t want any questions in our state, nationally or around the world about our elections, and it seems that many of the questions that have arisen have centered or started right here in Cuyahoga County,” Brunner told them. “You’re in a perfect position to change that. I have great confidence in all of you.”

At that meeting, our new elections officials set a completely different tone. The board members asked commonsense questions about some of our biggest, simplest Election Day problems. Jeff Hastings, a former county judge, asked how to make sure no one votes without signing in first. Inajo Davis Chappell, an attorney involved with several nonprofits, asked what more can be done to show voters which precinct line to stand in at their polling place. Interim director Jane Platten listed all the improvements she’s made since Vu resigned, including better ballot proofing, voting security and voting-machine testing, plus — for the first time — documenting all the office’s procedures in writing. Competence had replaced confusion.

So why look back on the old, fallen regime? Because remembering the past three years of denials, excuses and half-hearted efforts will also remind us what we must demand of our new elections officials, and how the 2008 presidential vote could end in catastrophe — for Cuyahoga County and the whole country — if our elections system fails again. The activists who critiqued the board of elections’ many mistakes aren’t meddlers. They’re alarmed citizens protecting their right to vote. If the board members had listened to their critics, they could have avoided embarrassing themselves — and Greater Cleveland.

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