1/7/05 - 4:30pm

Yesterday's unprecedented action by congressional Democrats may not have changed the ultimate outcome of the Electoral College, but it halted the process for four hours and forced the spotlight on glaring issues with the vote in Ohio and perhaps throughout the nation. “We’re here today, not as partisans for one presidential candidate or another, but because we want to do our duty under the Constitution to protect our Democracy,” Rep. John Conyers (D-Mich.) said before the House Judiciary committee. Conyers seemed to sum up well the overall position of Democrats, whether or not they voted to object to Ohio's electoral votes, they all agree that the process of voting in this country has a long way to go before it can stand up to scrutiny. Conyers went on to discuss “numerous, serious election irregularities in the Ohio presidential election” particularly voter disenfranchisement in predominantly Black areas, the transfer of voting machines from Black neighborhoods to suburban neighborhoods, and many instances where voters spent as much as 10 hours in the rain.

Wednesday, I spoke for some time on the phone with Daniel Tokaji, an Assistant Professor of Law at the Ohio State University's Moritz College of Law and an oft cited expert on Ohio election law. His areas of expertise include civil rights, freedom of speech, voting rights, disability rights, and civil procedure. He graduated summa cum laude from Harvard University and went on to Yale Law School where he obtained his J.D. Asked for some general comments regarding the vote in Ohio, Dan said there were 'clearly a lot of problems' but Dan added quickly that it was 'unlikely that any were large enough to swing the election. The only one that possibly could have was the long lines.' The long lines to which Tokaji was referring were the same ones discussed by Rep. Conyers. Dan continued, 'There were...some improprieties, the biggest were:

'1 - Provisional Voting, who got them and how they were counted.' As mentioned by the Chair of the Franklin County board of elections in a previous article, a few weeks before the election, Secretary of State Blackwell issued an order requiring voters voting by provisional ballot to be at the correct polling place and in some cases the correct table within the correct polling place. This had never been the case before in Ohio and caused many provisional ballots to be rejected.

'2 - Improper rejection of [voter] Registration Forms. Blackwell initially issued an order saying that registration forms had to be printed on 80 pound paper weight.” This is a problem because these forms are available on the internet and people print them out and send them in on regular paper. “Blackwell then issued an order that forms with certain items missing, such as Social Security Number and/or Drivers License number, were to be rejected. A few weeks later both orders were rescinded, but, in the interim, an untold amount of forms were rejected.'

'3 - The ‘inexcusable’ continued use of unreliable punch card systems.' Republicans and Democrats both deserve blame for this. The law that Democrats recently (around December of 2003) helped pass in the Ohio state legislature that required all new electronic voting systems to have a paper trail caused a delay in the movement away from punch card systems. The intent was good, but it hurt the voters in this election.

'4 - The Absence of a recount procedure that can be completed in time to matter for the Electoral College.' Dan later added that any recount should require a complete manual count of all ballots.'

Beyond those top four issues, Tokaji said there was “anecdotal evidence that Democratic Precincts and Counties were given fewer voting machines than Republican precincts and counties.' Dan said that he 'doubted there was a sinister motive' behind this.

Speaking specifically regarding the Ohio recount process, Dan said that the fact that few counties chose the 3% of ballots by randomly selecting precinct as specifically required by Ohio state law “was troubling” but reiterated both that “if you are going to have a recount, you should have it be entirely manual” and that “[a] Fundamental problem is that Ohio recount law does not allow a recount to happen in time to choose electors.” Dan’s last point is particularly compelling. All of the good thought and detail behind Ohio’s recount law is useless if it specifies a timeline that takes it beyond the December 6th deadline to choose Ohio’s electors.

I then asked Dan to comment on what may happen with the law suits currently going on in Ohio state courts regarding the election. Dan said it was “unlikely that the judge will rule in favor [of those objecting to the election or recount].” This could result in an appeal to a federal court. If it goes that far, Dan said, “Federal courts might intervene on Equal Protection.” Feeling adventurous, even though I have no background in law, I asked Dan if the appeal could be made on the grounds that the states (through their legislatures) have the right to decide how their electors are chosen, Ohio has chosen a process that includes a recount that is supposed to be performed a certain way, and that process was not followed, all according to Article 2, Section 1 of the Constitution. Dan said that was an interesting point, an appeal could be made on the grounds that “State law was not followed” regarding the appointment of electors.

I was going to conduct an interview with Daniel Hoffheimer, the head counsel for the Kerry-Edwards campaign in Ohio, but I received the following statement from them and I suspect they will want to leave it at this:

'Notwithstanding the serious irregularities and problems in the Presidential election in Ohio, including the recount, there is no proof of a sufficient source of additional votes for Kerry-Edwards to change the outcome of the election.

'Senator Kerry has firmly called upon the Republican leadership in Congress for election reform, and he will continue to lead the effort to improve the law so that every American can be assured of the right to vote and to have that vote counted. Ohio Democrats are making similar demands on the Republican-controlled legislature in Ohio.'

'The Democratic Party is undertaking a thorough study of voting irregularities in Ohio, based upon non-partisan, academic analysis. While this will take some time to complete, it is unfortunate that Ohio's Secretary of State is uninterested in understanding or correcting the widely-reported problems. Instead, he says that Ohio's Presidential election has vindicated his job as Ohio's chief elections officer.

'Long lines at the polls, inaccurate and unreliable machines, inequitable distribution of voting equipment, and fallible vote counting techniques--just like Jim Crow laws--must all be made part of ancient American history; they have no place in the future of a 21st century democracy.'

The statements coming from the Kerry campaign are very similar to what Tokaji said when I asked him to comment on where we should go from here. “There were serious problems in this election. We need to stop talking about who won and address the problems.” It seems that Senator Barbara Boxer had this very thing in mind with her objection to the Electoral College count. In her letter to Congress member Stephanie Tubbs of Ohio, Senator Boxer wrote, “I have concluded that objecting to the electoral votes from Ohio is the only immediate way to bring these issues to light by allowing you to have a two-hour debate to let the American people know the facts surrounding Ohio’s election.”

Asked for any last comments, Professor Tokaji’s finished our conversation by letting me know that he thought “The Kerry campaign handled this in a good and rational way.”