Kerry Files Motion to Protect Ohio Vote Evidence
    By William Rivers Pitt
    t r u t h o u t | Report

    Monday 27 December 2004

    This afternoon, an attorney representing the Kerry/Edwards presidential campaign filed two important motions to preserve and augment evidence of alleged election fraud in the November election. The motions were filed in the matter titled Yost et al. v. Delaware County Board of Elections and J. Kenneth Blackwell (Civil Action No. C2-04-1139) with the U.S. District Court for the Southern District of Ohio. The document is titled "Motion Of Intervenor-Defendant Kerry-Edwards 2004, Inc. For A Preservation Order And For A Leave To Take Limited Expedited Discovery."

    The purpose of the motions is twofold: A) To preserve all ballots and voting machines pertaining to the Yost matter for investigation and analysis; and B) To make available for sworn deposition testimony a technician for Triad Systems, the company that produced and maintained many of the voting machines used in the Ohio election. The technician has been accused of tampering with the recount process in Hocking County, Ohio, though other counties are believed to have also been involved. Any officers of Triad Systems who have information pertaining to said tampering are likewise subject to subpoena for sworn deposition testimony.

    If the judge in this case allows these motions, and these individuals are served with subpoenas for deposition, the information disclosed under oath could have a major effect on the case. Likewise, judicial approval of these motions will open the door to forensic analysis of both the ballots cast and the machines they were counted on. If tampering took place, such an analysis could reveal it.

    The document filed in Ohio reads as follows:
Pursuant to Federal Rule of Civil Procedure 26, Intervenor-Defendant Kerry-Edwards 2004, Inc. hereby moves this Court for an order preserving materials from the 2004 presidential election and for leave to take a limited number of depositions on an expedited schedule. The depositions and preservation order sought by Intervenor- Defendant Kerry-Edwards 2004, Inc. are the same as those sought in the motion filed on December 23, 2004 by Defendants NVRI, Cobb and Badnarik. Intervenor-Defendant Kerry-Edwads 2004, Inc. hereby adopts the memorandum and proposed order filed by the Defendants in support of its own motion.

    As has been previously reported on truthout, this filing for the preservation and augmentation of evidence is centered on Hocking County, Ohio. According to a sworn affidavit by Sherole Eaton, Hocking County deputy director of elections, a technician for Triad Systems entered the county elections office on December 10 and dismantled one of the vote tabulation computers.

    Green Party presidential candidate David Cobb, a central figure in the Yost matter, described the incident as related to him by Eaton during a hearing on the matter chaired by Rep. John Conyers. "A representative from Triad Systems came into a county board of elections office un-announced," said Cobb. "He said he was just stopping by to see if they had any questions about the upcoming recount. He then headed into the back room where the Triad supplied Tabulator (a card reader and older PC with custom software) is kept. He told them there was a problem and the system had a bad battery and had 'lost all of its data.' He then took the computer apart and started swapping parts in and out of it and another 'spare' tower type PC also in the room.

    "He may have had spare parts in his coat," continued Cobb, "as one of the BOE people moved it and remarked as to how very heavy it was. He finally re-assembled everything and said it was working but to not turn it off. He then asked which precinct would be counted for the 3% recount test, and the one which had been ed as it had the right number of votes, was relayed to him. He then went back and did something else to the tabulator computer. The Triad Systems representative suggested that since the hand count had to match the machine count exactly, and since it would be hard to memorize the several numbers which would be needed to get the count to come out exactly right, that they should post this series of numbers on the wall where they would not be noticed by observers."

    Responding to Eaton's allegations, Rep. Conyers dispatched a letter of complaint to Brett Rapp, President of Triad. In it, Conyers wrote, "I am concerned that your company has operated - either intentionally or negligently - in a manner which will thwart the recount law in Ohio by preventing validly cast ballots in the presidential election from being counted. You have done this by preparing 'cheat sheets' providing county election officials with information such that they would more easily be able to ignore valid ballots that were thrown out by the machines during the initial count. The purpose of the Ohio recount law is to randomly check vote counts to see if they match machine counts. By attempting to ascertain the precinct to be recounted in advance, and then informing the election officials of the number of votes they need to count by hand to make sure it matches the machine count, is an invitation to completely ignore the purpose of the recount law."

    The filing by the Kerry/Edwards campaign is significant. The Yost matter deals with a recount of the votes cast in Ohio during the election. In order for a judge to consider such a motion, the plaintiff must be able to prove irreparable harm in the matter at hand, and must also be able to prove a significant chance that the case will succeed on the merits. The stumbling point for the Green Party and Libertarian Party in this matter has been the ability to prove that potential for success, because no recount would deliver an Ohio victory to them. A recount could very well deliver Ohio to Kerry, thus fulfilling the success on the merits requirement.

    In the end, this filing amounts to a "Me, too" from the Kerry/Edwards campaign. This case would not exist in any form without the dedicated efforts of Green Party candidate David Cobb and Libertarian Party candidate Michael Badnarik. Though the inclusion of Kerry into this matter strengthens the case significantly, Cobb and Badnarik deserve the lion's share of credit for carrying the matter to this point.

    Attorney John Bonifaz serves as general counsel for the National Voting Rights Institute, and is co-counsel for Cobb and Badnarik in this matter. Reached for comment on this Kerry filing, Bonifaz said, "We are pleased that the Kerry Edwards campaign has joined our motion to preserve all of the ballots and election machinery in the presidential election in Ohio and to investigate the potential tampering of voting machines by Triad Governmental Systems, Inc, prior to the start of the recount. We welcome the Bush Cheney campaign joining our motion as well. The integrity of this recount is at stake. All candidates ought to join together in ensuring the proper counting of every citizen's vote."