Jan 5

Page 65. Machine Irregularities - Facts

In the course of our hearings we learned:

• In Auglaize County, there were voting machine errors. In a letter dated October 21, 2004, Ken Nuss, former deputy director of the County Board of Elections, claimed that Joe McGinnis, a former employee of ES&S, the company that provides the voting systems in Auglaize County, had access to and used the main computer that is used to create the ballot and compile election results. Mr. McGinnis’s access to and use of the main computer was a violation of county board of election protocol. After calling attention to this irregularity in the voting system, Mr. Nuss was suspended and then resigned.

• In Cuyahoga County and Franklin County, there were voting machine errors with respect to absentee ballots. The arrows on the absentee ballots did not align with the correct punch hole. This likely led to voters casting a vote for a candidate other than the candidate they intended to support.

• In Mahoning County, one precinct in Youngstown recorded a negative 25 million votes.303

• In Mercer County, one voting machine showed that 289 people cast punch card ballots, but only 51 votes were recorded for president. The county’s website appeared to show a similar anomaly, reporting that 51,818 people cast ballots but only 47,768 ballots were recorded in the presidential race, including 61 write-ins, meaning that approximately 4,000 votes, or nearly 7%, were not counted for a presidential candidate.

• At our Washington, D.C. hearing, investigative journalist Bob Fitrakis highlighted malfunctions in Lucas County: “When the machines in Lucas County, which is a heavily Democratic county, when they are locked in the principal’s office and nobody may vote at that site; when they’re going wrong all day, and the [Lucas County Election Director Paula Hicks-Hudson] admits the test failed prior to that, and the software is provided, of course, by Diebold, whose CEO, Walden O’Dell, is a member of President Bush’s Pioneer and Ranger team, has visited the Crawford ranch and wrote a letter promising to deliver the electoral votes of Ohio, one has to be somewhat suspect.

• In Hamilton County, the Washington Post learned many absentee ballots did not include Kerry’s name because workers accidentally removed Kerry when removing Ralph Nader’s name from the ballots.

Analysis - There is no doubt that there were a number of machine irregularities and glitches in the election, beyond the major discrepancies highlighted earlier in our report. However, it is difficult for us to quantify the number of votes that were altered or affected by these irregularities. Given the lack of cooperation we have received from the Secretary of State’s office, it is difficult for us to ascertain whether the glitches were the result of mistake, negligence, or constitute violations of the Voting Rights Act, Equal Protection and Due Process, and Ohio’s right to vote. Morever, it would appear that Secretary Blackwell’s apparent failure to followup on these machine errors by way of an investigation would violate his duty to investigate election law irregularities. The role of voting machines and computers in our election represents an increasingly serious issue in our democracy. Our concerns are exacerbated by the fact that there are very few companies who manufacture and operate voting machines, and they tend to be controlled by executives who donate largely, if not exclusively, to the Republican Party and Republican candidates. Issues such as the need for verifiable paper trails and greater accountability all warrant further investigation and possibly legislation.

Page 81. Triad GSI – Using a “Cheat Sheet” to Cheat the Voters in Hocking and Other

Counties

Facts

Perhaps the most disturbing irregularity that we have learned of in connection with the recount concerns the activities and operations of Triad GSI, a voting machine company. On December 13, 2004, House Judiciary Committee Democratic-staff met with Ms. Sherole Eaton, Deputy Director of Elections for Hocking County. She explained that on Friday, December 10, 2004, Michael Barbian, Jr., a representative of Triad GSI, unilaterally sought and obtained access to the voting machinery and records in Hocking County, Ohio.

Ms. Eaton witnessed Mr. Barbian modify the Hocking County computer vote tabulator before the announcement of the Ohio recount. She further witnessed Barbian, upon the announcement that the Hocking County precinct was planned to be the subject of the initial Ohio test recount, make further alterations based on his knowledge of that information. She also has firsthand knowledge that Barbian advised election officials how to manipulate voting machinery to ensure that a preliminary hand recount matched the machine count.386

According to the affidavit, the Triad official sought access to the voting machinery based on the apparent pretext that he wanted to review some “legal questions” Ohio voting officials might receive as part of the recount process. At several times during his interaction with Hocking County voting machines, Mr. Barbian telephoned into Triad’s offices to obtain programming information relating to the machinery and the precinct in question. It is now known that Triad officials have intervened in other counties in Ohio - Greene and Monroe, and perhaps others.

In fact, Mr. Barbian himself has admitted to altering tabulating software in Hocking, Lorain, Muskingum, Clark, Harrison and Guernsey counties.387 Todd Rapp, President of Triad, also has confirmed that these sorts of changes are standard procedure for his company.388 First, during an interview, film maker Lynda Byrket asked Barbian, “you were just trying to help them so that they wouldn’t have to do a full recount of the county, to try to avoid that?” Mr. Barbian answered, “Right.” She further inquired: “did any of your counties have to do a full recount?” Mr. Barbian replied, “Not that I’m aware of.”

Second, it appears that Mr. Barbian’s activities were not the actions of a rogue computer programmer but the official policy of Triad. Rapp explained during a Hocking County Board of Elections meeting: “The purpose was to train people on how to conduct their jobs and to help them identify problems when they conducted the recount. If they could not hand count the ballots correctly, they would know what they needed to look for in that hand count.”389

Barbian noted that he had “provided [other counties] reports so they could review the information on their own.”390 As one observer asked, “Why do you feel it was necessary to point out to a team counting ballots the number of overvotes and undervotes when the purpose of the team is to in fact locate those votes and judge them?”391

Barbian’s response was, “...it’s just human error. The machine count is right...We’re trying to give them as much information to help them out.”392 In addition, Douglas W. Jones, a computer election expert from the University of Iowa, reviewed the Eaton Affidavit and concluded that it described behavior that was dangerous and unnecessary: I have reviewed the Affidavit of Sherole L. Eaton (“the Eaton Affidavit”), the Deputy Director of the Hocking County Board of Election, as well as the letter of Congressman John Conyers to Kevin Brock, Special Agent in Charge with the FBI in Cincinnati, Ohio. In light of this information, and given my expertise and research on voting technology issues and the integrity of ballot counting systems, it is my professional opinion that the incident in Hocking County, Ohio, threatens the ability of the presidential candidates, their witnesses, and the counter-plaintiffs in the above-captioned action, to properly analyze, inspect, and assess the ballots and the related voting data from the 2004 presidential election in Ohio. It is my understanding that 41 of Ohio’s 88 counties use Triad voting machines. As a result, the incident in Hocking County could compromise the statewide recount, and undermine the public’s trust in the credibility and accuracy of the recount.393

We have received several additional reports of machine irregularities involving several other counties serviced by Triad,394 including a report that Triad was able to alter election software by remote access:

• In Union County, the hard drive on the vote tabulation machine, a Triad machine, had failed after the election and had been replaced. The old hard drive was returned to the Union County Board of Elections in response to a subpoena.

• The Directors of the Board of Elections in both Fulton and Henry County stated that the Triad company had reprogrammed the computer by remote dial-up to count only the presidential votes prior to the start of the recount.395

• In Monroe County, the 3% hand-count failed to match the machine count twice. Subsequent runs on that machine did not match each other nor the hand count. The Monroe County Board of Elections summoned a repairman from Triad to bring a new machine and the recount was suspended and reconvened for the following day. On the following day, a new machine was present at the Board of Elections office and the old machine was gone. The Board conducted a test run followed by the 3% hand-counted ballots. The results matched this time and the Board conducted the remainder of the recount by machine.

• In Harrison County, a representative of the Triad company reprogrammed and retestedthe tabulator machine and software prior to the start of the recount. The Harrison County tabulating computer is connected to a second computer which is linked to the Secretary of State’s Office in Columbus. The Triad technician handled all ballots during the machine recount and performed all tabulation functions. The Harrison County Board of Elections kept voted ballots and unused ballots in a room open to direct public access during daytime hours when the courthouse is open. The Board had placed voted ballots in lockable and, at another point, was said to be unlockable.

On December 15, 2004, Rep. Conyers forwarded information concerning the irregularities alleged in the Eaton Affidavit to the FBI and local prosecutors in Ohio.396 He has not received a response to that letter. On December 22, 2004, Rep. Conyers forwarded a series of questions concerning this course of events to the President of Triad GSI and to Mr. Barbian.397 Counsel for Triad GSI has indicated that a response would be forthcoming later this week or shortly thereafter.

Analysis

Based on the above, including actual admissions and statements by Triad employees, it strongly appears that Triad and its employees engaged in a course of behavior to provide “cheat sheets” to those counting the ballots. The cheat sheets told them how many votes they should find for each candidate, and how many over and under votes they should calculate to match the machine count. In that way, they could avoid doing a full county-wide hand recount mandated by state law. If true, this would frustrate the entire purpose of the recount law – to randomly ascertain if the vote counting apparatus is operating fairly and effectively, and if not to conduct a full hand recount. By ensuring that election boards are in a position to conform their test recount results with the election night results, Triad’s actions may well have prevented scores of counties from conducting a full and fair recount in compliance with equal protection, due process, and the first amendment. In addition, the course of conduct outlined above would appear to violate numerous provisions of federal and state law. As noted above, 42 U.S.C. §1973 provides for criminal penalties for any person who, in any election for federal office, “knowingly and willfully deprives, defrauds, or attempts to defraud the residents of a State of a fair and impartially conducted election process, by . . . the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.” Section 1974 requires the retention and preservation of all voting records and papers for a period of 22 months from the date of a federal election and makes it a felony for any person to “willfully steal, destroy, conceal, mutilate, or alter” any such record.398 Ohio law further prohibits election machinery from being serviced, modified, or altered in any way subsequent to an election, unless it is so done in the presence of the full board of elections and other observers. Any handling of ballots for a subsequent recount must be done in the presence of the entire Board and any qualified witnesses.399 This would seem to operate as a de facto bar against altering voting machines by remote access. Containers in which ballots are kept may not be opened before all of the required participants in are attendance.400 It is critical to note that the fact that these “ballots” were not papers in a box is of no consequence in the inquiry as to whether state and federal laws were violated by Barbian’s conduct: Ohio Revised Code defines a ballot as “the official election presentation of offices and candidates...and the means by which votes are recorded.” OHIO REV. CODE § 3506.01(B) (West 2004). Therefore, for purposes of Ohio law, electronic records stored in the Board’s computer are to be considered “ballots.” Triad’s interference with the computers and their software would seem to violate these requirements.

Further, any modification of the election machinery may only be done after full notice to the Secretary of State. Ohio Code and related regulations require that after the state certifies a voting system, changes that affect “(a) the method of recording voter intent; (b) voter privacy; (c) retention of the vote; or the (d) communication of voting records,”401 must be done only after full notice to the Secretary of State. We are not aware that any such notice was given to the Secretary. Finally, Secretary Blackwell’s own directive, coupled with Ohio Revised Code § 3505.32, prohibits any handling of these ballots without bipartisan witnesses present. That section of the code provides that during a period of official canvassing, all interaction with ballots must be “in the presence of all of the members of the board and any other persons who are entitled to witness the official canvass.” The Ohio Secretary of State issued orders that election officials are to treat all election materials as if the State were in a period of canvassing,402 and that, “teams of one Democrat and one Republican must be present with ballots at all times of processing.”403

Triad has sought to respond to these charges by arguing that Ohio law requires a Board of Elections to prevent the counting or tabulation of other races during a recount and limit these activities to those offices or issues for which a formal recount request has been filed.404 However, this requirement does not supercede the above requirements that election machinery only be serviced or otherwise altered in the presence of the full elections board and observers. There are at least two ways this recount process could have been conducted legally. First, recounters could have been given the full ballot and been simply instructed not to count the other races recorded. Second, the service company employees could have waited to alter the software program until the official recount began in the presence of the board and qualifying witnesses. Neither of these scenarios occurred in the present case.

In addition to these provisions imposing duties on the Board of Elections, there are numerous criminal penalties that can be incurred by those who actually tampered with the machines. These apply to persons who “tamper or attempt to tamper with ... or otherwise change or injure in any manner any marking device, automatic tabulating equipment or any appurtenances or accessories thereof;”405 “destroy any property used in the conduct of elections; ”406 “unlawfully destroy or attempt to destroy the ballots, or permit such ballots or a ballot box or pollbook used at an election to be destroyed; or destroy [or] falsify;”407 and “willfully and with fraudulent intent make any mark or alteration on any ballot.”408 It is noteworthy that the companies implicated in the misconduct outlined above, Triad and its affiliates, are the leading suppliers of voting machines involved in the counting of paper ballots and punch cards in the critical states of Ohio and Florida. Triad is controlled by the Rapp family, and its founder Brett A. Rapp has been a consistent contributor to Republican causes.409 In addition, a Triad affiliate, Psephos Corporation, supplied the notorious butterfly ballot used in Palm Beach County, Florida, in the 2000 presidential election.