2004 U.s. Presidential Election Recounts And Legal Challenges

This article details the vote recount effort and related legal challenges that took place after the 2004 U.S. election with a focus on states that had a high discrepancy between unadjusted exit poll results and official results in the US presidential race. For the main article detailing irregularities in the 2004 election, please see 2004 U.S. presidential election controversy and irregularities.

New Hampshire: Ralph Nader recount

A partial recount of New Hampshire optical scan ballots requested by Nader has begun and is progressing slowly. So far, 2 precincts have been recounted, turning up 3 additional votes for Bush and 6 additional votes for Kerry, out of slightly more than 10,000 votes recounted. http://www.thenation.com/doc.mhtml%3Fi=20041206&s=baker http://www.truthout.org/docs_04/112204A.shtml With all 11 wards in the partial recount now completed, no significant discrepancies were found. http://votenader.com/media_press/index.php?cid=413

New Mexico: Cobb/Badnarik/NVRI recount

Recount requests were filed on November 29, 2004 by David Cobb (Green) and Michael Badnarik (Libertarian) for all presidential ballots cast in New Mexico and Nevada http://72.3.133.32/press/2004/nov/pr2004-11-29.php. On December 2nd, the recount request in Nevada was cancelled. http://www.votecobb.org/press/2004/dec/pr2004-12-02b.php
For a chronology of related events on auditthevotes.org, go here.

Ohio: Cobb/Badnarik/Kerry/NVRI recount

After the 2004 election, Mr. Cobb and the Libertarian nominee (Mr. Badnarik) sought a recount of the Ohio vote and announced that they would challenge the 2004 presidential voting results in Ohio, even though neither challenger was claiming to have won the election, and even though Mr. Cobb had not even been on the ballot in Ohio. The challengers explained that it was an important matter of principle, to make sure all the votes were counted, and counted accurately. They pointed to alleged irregularities of various kinds. On December 6, 2004, Ohio Secretary of State Kenneth Blackwell certified that George W. Bush had won Ohio by about 119,000 votes over John Kerry. This was a considerably lower difference than earlier unofficial counts had reported, but it still amounted to a margin of about two percentage points. A formal legal challenge to the certified vote could not be filed until the official Ohio certification, which made it official that George W. Bush could expect 286 electoral votes, to John Kerry's 252 electoral votes. If, hypothetically, the recount were ultimately to show that Ohio's 20 electoral votes should actually have been awarded to Mr. Kerry instead of going to Mr. Bush, this would mean that Mr. Kerry (with 272 electoral votes) and not Mr. Bush (with 266 electoral votes) should be the winner of the 2004 presidential election. Few observers believed that a recount in Ohio could result in a John Kerry victory over George W. Bush; indeed, it appeared as of December 6, 2004, that the electoral college would be required to meet before the results of a recount in Ohio could be tallied. After statements by Dennis White of the Ohio Democratic Party indicating that John Kerry would "participate" in the Ohio recount effort http://www.msnbc.msn.com/id/6533008/#041122b, the Kerry/Edwards campaign has filed a brief to formally join in legal proceedings to seek a recount of all Ohio votes for President http://www.washingtonpost.com/wp-dyn/articles/A23344-2004Nov30.html, http://72.3.133.32/press/2004/nov/pr2004-11-30b.php, initiated by David Cobb (Green) and Michael Badnarik (Libertarian). This was necessary for the recount to have any practical effect since a federal judge had ruled the recount need not be expedited since the original plaintiffs (Cobb and Bardnarik) could not be positively affected by its outcome.
For a chronology of related events on auditthevotes.org, go here.
For court documents, go here.
According to Ohio recount rules, 3 percent of a county's votes are tallied by hand, and typically one or more whole precincts are selected and combined to get the 3 percent sample. The 3% must be randomly selected, and all hand counts are to be performed in public (with observers). After the hand count, the sample is fed into the tabulator. If there is no discrepancy, the remaining ballots can be counted by the machine. Otherwise, a hand recount must be done for the whole county. Ohio's official recount procedures mandate the following:
  1. Boards of Elections must notify all candidates in the race of the time and place by certified mail not later than five days before an automatic or requested recount is held.
  2. Each candidate in the race is entitled to one witness for each counting team or tabulating unit.
  3. The board must randomly select whole precincts whose total equals at least 3% of the total vote. These precincts' ballots must be manually counted.
  4. If the computer count does not match the hand count, and after rechecking the manual count, the results are still not equal, all ballots must be hand counted.
The following map and reports refer to the initial 3 percent hand count. Counties map Primary source: Green Party volunteer observer reports Dec. 15 Dec. 16 Cuyahoga County Observers, including both Democratic and Republican observers, have reported that the precincts were not randomly selected and the ballots were pre-sorted. It has been suggested that this indicates that precincts were selected that would match the machine count, in order to prevent a county-wide hand count, i.e. that it was "staged". There is video recording of the recount currently being prepared for the internet. http://bellaciao.org/en/article.php3?id_article=4815 Dec. 18 Systemic Problems
The Cobb campaign reports: "As the reports of our county observers and coordinators come in, a pattern is emerging: very few of the counties conducted recounts that could be called "random" in the statistical sense." http://www.votecobb.org/recount/daily_update/

Recount conducted improperly

On December 30, 2004, Cobb And Badnarik asked a federal court in Columbus to force a second recount of the Ohio vote, alleging county election boards altered votes and didn't follow proper procedures in the recount that ended this week. http://www.nytimes.com/aponline/national/AP-Ohio-Vote.html?oref=login
  • There were at lease six (6) instances of confirmed tampering with tabulating machines:
    1. Hocking County (Triad technician)
    2. Greene County (Triad technician)
    3. Monroe County (Triad technician)
    4. Mercer County (Triad technician)
    5. Lucas County (Diebold technician)
    6. Union County (Triad technician)
  • There were at least seventeen (17) violations of Ohio law, where the selection of the "3%" to be recounted was not random, as required by law, but pre-selected or was selected for a specific criterion:
    1. Monroe County
    2. Mercer County
    3. Allen County
    4. Fayette County
    5. Cuyahoga County
    6. Huron County
    7. Lucas County
    8. Morgan County
    9. Morrow County
    10. Medina County
    11. Fairfield County
    12. Clermont County
    13. Washington County
    14. Hocking County
    15. Mahoning County
    16. Holmes County
    17. Jefferson County
  • In at least six (6) counties, Ohio law was violated when there was a discrepancy between the 3% hand count and machine recount, but the Board of Elections refused to conduct an full-county recount:
    1. Monroe County
    2. Tuscarawas County
    3. Fairfield County
    4. Clermont County
    5. Summit County
    6. Mahoning County
  • Cuyahoga County has admitted that they hand counted the ballots in private before they brought them out to hand count them in public, in violation of the law.

House Committee on the Judiciary - Democratic Staff hearings

Dec. 8 committee hearing excerpts

"If you look at who was here," said rights advocate Arnebeck, "you had leaders from the generally white political reform movement, and leaders from the black civil rights movement. This is a powerful coalition. We are not talking about one group having dominance over the other, but a real partnership of the traditional political reform community with the traditional civil rights community ... Jesse Jackson, as you could see today, is giving tremendous moral leadership to this. He has tremendous credibility. This is a man who walked with Dr. Martin Luther King in the long civil rights struggle that we honor so much in our history now. This is the man who was holding Dr. King when he died. I was sitting right next to him when he talked about the fact that there aren't members of Congress with children dying in Iraq, and tears were in his eyes. This is a man who feels this stuff deeply, and when he talks about what is at stake, he means it in the deepest part of his being." http://www.yubanet.com/artman/publish/article_16045.shtml

Dec. 13 committee hearing excerpts

In Warren County, where election officers declared a homeland security emergency on Election Day, and barred reporters and others from watching the vote count, it now has been revealed that county employees were told the previous Thursday they should prepare for the Election Day lockdown. That disclosure suggests the lockdown was a political decision, not a true security risk. Moreover, statements also describe how ballots were left unguarded and unprotected in a warehouse on Election Day, and they were hastily moved after county officials received complaints.
In Franklin County, where Columbus is located, the election director, Matt Damschroder, misinformed a federal court on Election Day when he testified the county had no additional voting machines in response to a Voting Rights Act lawsuit brought by the state Democratic Party that minority precincts were intentionally deprived of machines. It now appears as many as 81 voting machines were being held back, out of 2,866 available, according to recent statements by Damschroder and Bill Anthony, the chairman of the Franklin County Board of Elections. The shortage of machines in Democratic-leaning districts lead to long lines and thousands of people leaving in frustration and not voting. Damschroder's contradictory statements raise the possibility of perjury.
Also in Franklin County, a worker at the Holiday Inn observed a team of 25 people who called themselves the "Texas Strike Force" using payphones to make intimidating calls to likely voters, targeting people recently in the prison system. The "Texas Strike Force" members paid their way to Ohio, but their hotel accommodations were paid for by the Ohio Republican Party, whose headquarters is across the street. The hotel worker heard one caller threaten a likely voter with being reported to the FBI and returning to jail if he voted. Another hotel worker called the police, who came but did nothing.
In Knox County, students at Kenyon College, a liberal arts school, stood in line for up to 11 hours, because only one voting machine was in use. However, at nearby Mt. Vernon Nazarene University, there were ample voting machines and no lines. This suggests the GOP shorting of voting machines was a more widespread tactic than just targeting inner-city neighborhoods.
Reports in sworn affadavits affirm numerous instances of direct official interference with the right to vote. In Warren County, Democrats were being targeted and forced to use provisional ballots, even if they had proper identification. These ballots were then subjected to more rigorous standards to be counted than were other ballots. In a half-dozen precincts in Franklin County, people who were not inside polling places by 7:30 PM were told to leave - even if they had waited in line for hours. This is a violation of the Voting Rights Act. Sworn affidavits also confirmed reports of old voter rolls being used, meaning that new voters were not on the list and would be given provisional ballots, if allowed to vote at all. http://www.freepress.org/departments/display/19/2004/985 (video, wmv) (video, wmv)
Sworn testimony of David Cobb to House Judiciary http://www.breakfornews.com/articles/OhioForumDec13Report1.htm http://www.votecobb.org/press/2004/dec/pr2004-12-13b.php
"Triad GSI employee had told staff at the Columbus County Board of Elections office to inconspicuously create a pre-prepared recount result, then report this data irrespective of the actual recount. The Triad GSI representative had also tampered with Triad voting equipment in the offices."
"This is going on, all over the state," Cobb told the hearing. (emphasis added)
Sworn testimony of Clint Curtis to House Judiciary (partial transcript)
Q: "So one person putting in bad code in a central tabulation machine could affect thousands and thousands or tens of thousands of votes?" A: Right. Q: "And if you had a recount and no paper trail, would that be ... reversible by seeing the discrepancy between the tabulator, the central tabulator code, and what the individual machines which had not been tampered with code?" A: Not if I wrote it. Q: "Why not? In other words..." A: In other words I could make it match.

Ohio: Moss v. Bush (Arnebeck Case)

Main article: Moss v. Bush
A parallel legal suit is being headed by Cliff Arnebeck of the Alliance for Democracy, representing a group of thirty-seven voters. According to statements made by Mr. Arnebeck, he will ask the courts to set aside the results and possibly declare John Kerry the winner of Ohio, on the basis of widespread systematic election fraud that altered the outcome of the election. He claims to have sufficient evidence to prove the allegations. Ohio law permits the state Supreme Court to review elections in such cases. http://www.marionstar.com/news/stories/20041206/localnews/1705172.html On 13 December, 2004, the case was filed as "Verified Election Contest Petition in the Supreme Court of Ohio Case No. (R. C. 3515.08)", a.k.a. "Moss v. Bush". http://abcnews.go.com/US/wireStory?id=326111&CMP=OTC-RSSFeeds0312 (First filing, pdf, 82KB) On 16 December, 2004, the case was thrown out on a technicality http://www.nbc4i.com/news/4003666/detail.html The technicality is that two races were disputed in one challenge. One race was the presidential. The other was the election of the judge himself; Ohio Supreme Court Justice Thomas Moyer. The judge threw out the case against himself and the president, instead of recusing himself. http://www.bluelemur.com/index.php?p=501 (dismissal, pdf) On 17 December, 2004, the case was refilled. (Second filing, pdf, 1.2MB) On 22 December, 2004, the judge asked if the case should be dismissed for being filed late. (Order denying expediation and asking two questions, pdf) On 23 December, 2004, attorneys for Plaintiffs successfully filed Motion to disqualify Justice Moyer from sitting as the Judge on the Moss v. Bush matter based on the fact that he has an apparent conflict of interest. On 27 December, 2004, Kenneth Blackwell refused to appear at a deposition. (AP) (AP) (freepress)
"Richard Conglianese, Ohio Assistant Attorney General, is seeking a court order to protect Blackwell from testifying under oath about how the election was run. James R. Dicks, Miami County Assistant Prosecuting Attorney, filed a motion to block a subpoena in his county while Conglianese filed to block subpoenas in ten key Ohio counties.
President George Bush, Vice-President Richard Cheney and White House Political Advisor Karl Rove received notice that they will be deposed Tuesday and Wednesday, December 28 and 29. The trio’s Ohio attorney, Kurt Tunnell, so far claims his clients have not been properly served. Under Ohio law, the Republican-dominated Ohio Supreme Court is responsible for serving the three with subpoenas."
"...The challengers are seeking a January 4th hearing before the Ohio Supreme Court." http://www.pej.org/html/modules.php?op=modload&name=News&file=article&sid=1325&mode=thread&order=0&thold=0
For legal documents and information, go here.
Google web query - Moss v. Bush

Ohio: U.S. Congress electoral contest

On January 6, 2005, for the first time since 1877 the Electoral vote certification in Congress was interrupted by a formal challenge to an entire state's Electoral votes. The challenge of Ohio's Electoral votes, brought by U.S. Representative Stephanie Tubbs Jones and U.S. Senator Barbara Boxer, lead to a 2-hour debate. The challenge was rejected by a vote of 1-74 (Yea-Nay) by the Senate and by a vote of 31-267 in the House. The objection reads as follows: 
        We, a Member of the House of Representatives and a United       States Senator, object to the counting of the electoral votes       of the State of Ohio on the ground that they were not, under       all of the known circumstances, regularly given.      Stephanie Tubbs Jones,        Representative, State of Ohio.      Barbara Boxer,        Senator, State of California.
A transcript of the counting of electoral votes, the objection, and the House debate is available here.
A transcript of the Senate debate is available here.
Sources for information
  • The first part of the proceedings (including the objection to Ohios votes):
rtsp://video.c-span.org/60days/wh010605_joint.rm?end=24:32.0
  • Debate in the House:
rtsp://video.c-span.org/60days/wh010605_house.rm
  • Debate in the Senate:
rtsp://video.c-span.org/60days/wh010605_house2.rm
  • Final certification of the vote:
rtsp://video.c-span.org/60days/wh010605_house2.rm

Arguments for

In general all those supporting the objection were Democrats, and argued:
  • We are not supporting the objection to overturn the result of the election, we are doing it to call attention to serious problems with the election process which must not be ignored. Thomas Paine was quoted: "The right of voting for representatives is the primary right by which all other rights are protected. To take away this right is to reduce a man to slavery."
  • There were problems with voting machines.
    • Logical from of argument: Statement of relevant fact
  • There were problems with vote supression.
    • Logical from of argument: Statement of relevant fact
  • High-ranking election officials gave orders that were in violation of both State and Federal law.
    • Logical from of argument: Statement of relevant fact
  • Voting rights should, by law and by philosophy of law, be equitably protected.
    • Logical from of argument: Statement of fact, and appeal to philosophy.
  • A 100-page report was submitted to the record.
    • Logical from of argument: Evidence and analysis

Arguments against

While all those opposing the objection were Republicans, and argued:

Congressional Black Caucus

Immediately after the event, the congessional black caucus gave a statement and answered questions.

Links

Editorials, news reports

See also

 

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