Prosecutor to probe Cuyahoga County recount

2 written complaints allege problems in '04 presidential election

By Stephen Dyer   Akron Beacon Journal   09 April 2005

CLEVELAND - Erie County Prosecutor Kevin J. Baxter is investigating whether the Cuyahoga County Board of Elections broke the law in its recount of ballots from the November presidential election.

Cuyahoga County Prosecutor William Mason appointed Baxter as a special prosecutor in the case because the board of elections is Mason's client, which could pose a conflict of interest, said Mason spokeswoman Jamie Dalton.

Baxter said he didn't know yet whether the allegations have any validity. He said his investigators will begin interviewing people in the next several weeks.

``If it goes nowhere, it goes nowhere,'' Baxter said. ``We'll just start from the beginning... This is rather preliminary.''

The probe stems from two requests written to Mason: one from minor-party presidential candidates David Cobb and Michael Badnarik, and another from entrepreneurial consultant Edward Michael Caner.

Dalton said Mason turned over the papers March 2.

The complaints allege that the board violated state law because the precincts it recounted were neither randomly ed nor was the opening of ballots properly witnessed.

In addition, Cobb and Badnarik allege that there were problems with the board's ballot-transfer cases, which can reveal whether the precinct used the ballots assigned to it or whether ballots from other precincts were used.

Finally, they contend that the county's vote-tabulation machines were used improperly and that discrepancies exist between the certified recount and the certified original vote.

All this was done to cover up problems in the November vote and ensure that no hand-recount would have to be done around the county, the letter from Cobb and Badnarik alleges.

Board's response

Michael Vu, director of the Cuyahoga County Board of Elections, declined to comment on specifics of the case but said ``we will cooperate fully with the Erie County prosecutor.''

Vu said the elections procedure ``needs to be a transparent process.''

The board's elections coordinator, Jacqui Maiden, told the board in its Feb. 8 meeting that the recount was handled based on a recount of a Garfield Heights Municipal Court judge election from 1981 and that the procedures used in November ``are the same that has been used in the past.''

The procedure Maiden cited included picking 3 percent of the precincts for a hand count, but the meeting minutes didn't indicate whether the board picked the 3 percent at random.

According to the complaint filed by both the candidates and their lawyer, Richard Kerger of Toledo, the board did not randomly 3 percent of the county's precincts to recount, as required by state law. Instead, the county ed recount precincts only from among those with 550 voters or more, which eliminated 90 percent of the county's precincts, according to the letter.

As Caner put it in his shorter e-mail: ``This is similar to randomly drawing a card out of a deck, but before doing so, eliminating all suits but hearts.''

In addition, the candidates' letter contends that the way the precincts were chosen seems ``to be of a special sort: those in which (U.S. Sen. John) Kerry received either his largest or second largest number of votes in the ward. This meant that precincts in which (President) Bush received an unusually high number of votes could not be examined, nor could the precincts in which the third-party candidates received unusually high vote totals.''

The letter said there is no way this phenomenon happened at random.

More allegations

The letter alleges that Maiden admitted in a Dec. 22 meeting that ``ballots in ed precincts had been opened without the presence of witnesses and had been sorted and hand counted in advance of the original recount'' setting up a test-run to assure that the recount would comport closely with the original count so that a full hand count wouldn't have to be conducted.

As for the transfer-case problem, the letter alleges that on Dec. 17, a number of precincts were found to have had problems namely some ballots assigned to one precinct were used in another, or too many or too few ballots were used.

The letter suggested that ``the (election) staff had been assigned to clean-up the tell-tale evidence of election irregularities within the cases.''

Kerger said Thursday that Cuyahoga County was the only county to receive a letter like the one he referred to Mason's office. He said generally he understands that county boards of elections, mostly made up of volunteers, aren't going to run perfect elections. ``If we hold the Super Bowl every four years, we wouldn't expect the referees to be perfect,'' he said.

However, what he found in Cuyahoga County was different. There ``it seemed to be more than just a mistake,'' he said.