A handful of Democrats in Congress objected Thursday to
certifying the 2004 election. They were unsuccessful, and
Congress ultimately ratified Bush's electoral victory. Many
involved in the challenge, however, made it clear they weren't
alleging fraud, but trying to shine a light on massive
electoral problems. As time passes and allegations of
fraud are investigated, it seems clearer that the story of the
2004 election is more about incompetence and dysfunction than
intentional misconduct. Russ Baker explains.
Baker is a regular contributor to TomPaine.com. Support was
provided by the Investigative Fund of The Nation
Many of us fear that the Ohio election was
stolen, because people—like talk show sleuths, blogger
number-crunchers, forensic attorneys, crusading professors and
partisan activists—keep telling us so. We don't even know most
of these people, yet we gladly forward their e-mails and Web
links, their pronouncements, analyses, essays and statistical
exercises. While their credentials may not be that impressive,
we listen to their conspiracy theories because—frightened by
the direction our country has taken—we want to believe
As an old-style investigative reporter, I, too, was alarmed
by charges that outright fraud might have changed the outcome
of the most important presidential election in recent times.
So I recently traveled to Ohio—where I connected with a group
of attorneys who were fighting to have the Ohio presidential
results overturned, and the state—and, by extension, the
presidency—awarded to Kerry. In legal pleadings known
collectively as the "Contest" these attorneys are not shy
about using the F-word:
"While a variety of methods were used to
perpetrate the election fraud of which there is clear and
convincing evidence in the form of the exit polls, …it is
likely that traditional easily detectable means were one of
the principal methods of the election fraud."
Strong words indeed. Among the evidence supporting
- Specific instances in which strange or troubling things
happened when people voted or while votes were being
- The discrepancy between exit polls and the final result.
This week, Rep. John Conyers, D-Mich., released a
report that catalogues widespread problems in the Ohio vote.
[To see the report, click here .] The report concludes that
the "massive and unprecedented" voting irregularities in Ohio
were in many cases caused by "intentional misconduct and
illegal behavior." Sounds like fraud to me.
Conyers' report is considerably tamer and more cautious
than earlier pronouncements out of his office, and certainly
more so than many of the allegations being circulated on the
Internet. Much of his report, however, is based on charges
emerging from the Contest. Let's see how such charges hold up
under close scrutiny.
Charge: Misallocation of voting
The Contest petition lists specific counties where voting
irregularities occurred, including Franklin and Trumbull: "In
Franklin County there was a discriminatory assignment of more
voting machines per registered voter to precincts with more
white voters than African-American voters…."
William Anthony is the chairman of the Franklin County
board of elections. As an African-American and a Democrat
himself (in fact, he is the county chairman and works as a
union representative). Anthony resents the suggestion that
Franklin County authorities somehow worked to help Bush. "I
worked my ass off in those precincts," he says of
African-American areas of the county.
A precinct-by-precinct historical comparison of registered
and actual voters, and of voting machine assignments, does
show that some precincts with a large African-American
population ended up with fewer machines per person than some
mostly white precincts. But Anthony points out that Franklin
County faced a number of challenges. For one thing, it was
using very old electronic voting machines that under new state
law will be defunct by the next presidential election, when
every county will be required to have a paper trail for
recounts. Given the short lifespan of the machines, it didn't
make economic sense to buy more of them. So it was a matter of
allocating a scarce resource. That resource was stretched
thinner by an increasing population. Franklin County had a
spurt of growth in outlying areas, with blocks of apartments
sprouting recently where cornfields had been. Suddenly,
authorities had 29 additional precincts to consider—requiring
approximately 200 more machines.
Also, although incoming voter registration figures showed
surges in certain areas, that didn't mean the newly registered
would necessarily vote. And certainly not in greater numbers
than in many established precincts where a high percentage of
registered voters typically went to the polls.
When the county elections director recently explained the
machine assignment process as "a little bit art, a little bit
science," he was ridiculed by the critics. But in fact, what
he meant was that a whole multiplicity of factors had to be
considered—it wasn't a simple formula.
Significantly, the people making these decisions aren't
necessarily Bush partisans. Every county in Ohio, by law,
divides its elections personnel evenly between the Democrats
and Republicans. This means that where the chief administrator
of elections is, say, a Republican, the chairperson of the
elections board is a Democrat. In the case of Franklin County,
two individuals shared the task of allocating machines—and one
was a Democrat.
Charge: Miscounting of absentee
A Contest attorney who asked that his name not be used told
me that he considered irregularities in Trumbull County
perhaps the most damning of all. Here are the specifics: Dr.
Werner Lange, a Trumbull County resident, examined poll books
in county offices, looked at 106 precincts and calculated
that, in all, "580 absentee votes were cast for which there
was no notation of absentee voting in the poll books."
Extrapolated statewide, this pattern—if it existed—could
translate into 62,513 fraudulent votes, or, more than half of
Dr. Lange, who—according to his affidavit—holds a Ph.D. in
political science and is an ordained Minister of Word and
Sacrament, told me that he had suspicions because the area was
heavily Democratic, but that Bush had done surprisingly
Then I checked in at the Trumbull County offices. "Mr.
Lange came in here looking for problems and he didn't want to
ask us anything," says Rokey Suleman, the deputy director of
the Trumbull County Board of Elections. Suleman explains that
the poll books Lange looked at had been printed before
absentee voting ended—including those who voted in the final
days before the election at the Board's offices. The books
would—according to practice—be updated to include everyone.
Like Anthony in Franklin County, Suleman is a Democrat.
Charge: Tampering with voting
There were a number of anecdotal claims that personnel from
voting machine companies came into several counties and seemed
to do something improper with the machines before the
recount began. I had the opportunity to listen to an audio
tape of a film crew interviewing an official of Triad, a
ballot counting contractor accused on the Internet of various
indiscretions—in which the man appears to be very patiently
and logically explaining the exact role of company personnel
in preparing machines for recounts. I asked Contest attorneys
if they wanted to listen to the tape, but they were too busy
rushing out filings—which included allegations involving
In a couple of precincts in Cuyahoga County (Cleveland),
third party candidates did inexplicably well. In one precinct
located in a predominantly African-American area, Kerry got
290 votes, Bush 21 and Michael Peroutka—candidate of the
anti-immigrant Constitutional Party—got 215. In another
precinct that voted at the same high school, the tally was
Kerry 318, Bush 21, and Libertarian Michael Badnarik 163.
These are, for the moment, mysteries, but they are not
indications of widespread fraud.
"I think incompetence is the most likely explanation in
most of these cases," says Mark Griffin, who ran the legal
team for Kerry that oversaw the provisional ballot count and
recount in Cuyahoga. "If there's fraud, it's in the
tabulation. But it wouldn't be in Cuyahoga, where we got a big
Challengers May Have Good Intentions But Bad
The lawyers on the Contest team are well-meaning,
intelligent people. However, like all lawyers, they're about
arguing their side, not getting to the bottom of things. Each
time I checked in, one of them (always the same person, always
insisting that our conversations were "off the record") would
introduce a new operative theory of what had happened, of what
"evidence" was the most meaningful indicator of the
shenanigans that had gone on.
By the day I left, my "source" was telling me that the
legal discovery process was not going well, and so they could
not, in a timely fashion, get the information needed to show
how the "fraud" was perpetrated.
Attorney Don McTigue, a senior official in the Ohio
Secretary of State's office when a Democrat held the office,
now devotes his entire legal practice to elections. "We don't
have evidence of fraud," says McTigue, who represented the
Kerry campaign for the recount, an entirely separate
proceeding from the Contest, which resulted in almost no
change in the vote totals, and left Bush with a hefty
You wouldn't have much of a case for conspiracy if you
didn't have Secretary of State J. Kenneth Blackwell. As Ohio's
chief elections official and the Bush state campaign chairman,
he was already juggling a couple of hats that should have been
nowhere near each other. Furthermore, Bush traveled to Ohio on
election day to meet with Blackwell. There's no doubt that
Blackwell consistently ruled in a manner that seemed to favor
Bush. But the impact of these rulings on the election was
probably minimal. For example, Blackwell ruled that Ohio
voters could not cast provisional ballots outside their
designated precinct. Local officials had hoped to alleviate
confusion over polling places by letting people come to
"zones"—regional locations where they could cast a ballot when
their assigned precinct was in doubt. When Blackwell blocked
this option, a number of counties, including Franklin ,
went ahead and accepted provisional ballots at polling places
from people who signed a statement explaining why they were in
the wrong place, why they didn't have time to go to their
designated precinct, etc.
Blackwell's attempt to disqualify voter registration cards
that didn't meet an 80-lb paper test also failed, as did his
push to get counties to switch from punch cards to "black box"
balloting [using Direct Recording Electronic machines, or
DREs]. Paradoxically, if he had prevailed on DREs, the election
would likely have been closer, because punchcards generate
more spoilage. Electronic voting, i.e. "black box" balloting
where there is no paper trail, existed only in a handful of
counties. Franklin is the largest of these—and Kerry did
better than expected there, even with the long
Charge: Voting company
As for Diebold and other vilified companies, in all
probability, they didn't, and wouldn't, risk the ignominy and
consequences of fixing an election. The primary reason so many
people are suspicious of Diebold in the first place is because
of the CEO's ill-advised promise, in a GOP fundraising letter,
to do everything he could to see Ohio's electors awarded to
Bush. That was an outrageous thing to say, but even on its
face more likely a sign of cluelessness than of hidden plans
to alter the outcome.
Charge: Exit poll results were more
accurate than actual ballots
Explanation of Problem:
Imperfect nature of polls
Now to the central issue: the claim that exit polls, which
never lie, showed Kerry winning. Our understanding of
this—and the argumentation in the Contest—is based largely on
an analysis by Steven F. Freeman, Ph.D. But
Freeman is not an expert in polling. According to his
affidavit, he is a visiting scholar in the Graduate Division,
School of Arts and Sciences, University of Pennsylvania Center
for Organizational Dynamics.
To get some insight into this issue, I spoke with a source
who, in the common parlance, is "familiar with the thinking
of" Warren Mitofsky, the "father" of the exit poll.
Asked about Freeman's analysis, my source told me that it
is "all wrong." We spent several hours going through Freeman's
specific claims, and reviewed how exit polls—and Mitofsky's in
Much of the belief that the election was stolen was based
on "screen shots" of raw numbers provided by CNN. In exit
polling, raw numbers mean almost nothing—since the essence of
a successful exit poll is to interview a sampling of voters,
and then apply a variety of methods in order to adjust to the
most probable accurate assessment. "To say you want the
raw data is ludicrous," said the source. "You can't use it
until you do something with it. You're talking about a bunch
of naïve people that had [only] the first course in
Bill Leonard, a former CBS News VP who was a polling
pioneer, has called exit polls "blunt instruments." The widely
circulated notion that they are always right is dead
The notion that a single definitive number showing Kerry
winning ever existed is also wrong. "We never had unadjusted
unofficial totals," said the source. "As we get more data,
we're always adjusting."
In this case, what most likely happened was that more Bush
supporters failed to complete exit poll surveys than Kerry
backers. The reason for that can be as trivial as a sampler
skipping someone who looks unfriendly or voters not liking the
race or demeanor of the sampler.
(For what it is worth, I learned that Mitofsky is a
lifelong liberal and apparently holds no brief for Bush. But a
job's a job, and a professional is a professional.)
While it's appallingly easy to mess around with a computer,
it's a lot more difficult to rig an election.
To have a conspiracy of this magnitude, you'd need more
than a bunch of individual mishaps—you need a plan and
coordination. And you'd need a large number of collaborators
willing to commit felonious and treasonous behavior of the
None of this is to say that election fraud could not,
theoretically, happen—particularly in a truly opaque system
that produces no paper trail. Indeed, with 88 counties, a
bewildering variety of voting systems, and often-conflicting
decisions by courts and state and local officials, it's a
wonder that elections work at all.
More allegations of fraud in the 2004 election will be
floated. The problem is that those who float these claims
don't bother to perform any measure of due diligence. So far,
every claim of fraud that I have examined has turned out to
have a credible alternate explanation.
Legitimate avenues of inquiry remain. Exploring how
particular companies get contracts is one; the appropriate
role and behavior of top state elections officials is another.
Then there are the kinds of bad administrative decisions made
at the county level.
Certainly, there were many instances of small-scale
cheating and intimidation—as there probably always are.
Limited numbers of voters received phone calls and letters on
bogus official letterheads, telling them they could not
vote; in one egregious instance, elderly Democrats were
"informed" that it might be more comfortable for them to vote
on Wednesday, when lines were shorter. But there's no evidence
or even likelihood that this was authorized from on high; it's
far more likely that such amateurish interventions were locally
Technical and administrative failings were certainly
apparent. The inadequate distribution of machines was just
one. Another was the fact that poll workers couldn't get
through continuously busy phone lines to county
"Overall, Ohio has a good system," said Democratic election
lawyer McTigue. "Like any system, if you scrutinize it enough,
you're going to find weaknesses."
One conclusion seems obvious: Because of the growing
partisan animus and attendant suspicions, everyone connected
with the electoral process is going to have to be a whole lot
more careful and a whole lot more forthcoming. That goes,
especially, for those responsible for creating the system,
installing and maintaining it, making the decisions.
"Times have changed," says Chris Wilson, Franklin County's
Election Technology Administrator, and a "Republican" hire who
is well-regarded and insists on his independence. "You
can't go in and do maintenance without everybody knowing
what's going on. You can't talk gobbledygook anymore."
Sadly, it appears that much of the blame for the Bush
victory rests with those who wished it were otherwise. In
Cuyahoga County, for example, Republicans worked very
aggressively to get out their voters, while Democrats often
did not. Mark Griffin, the former Kerry campaign attorney,
recalls being told by colleagues that, according to the
numbers, a county with 1.4 million people had only a couple of
dozen swing voters.
"I don't think the evidence shows a conspiracy," says
Griffin. "It doesn't show the Republicans stole the election.
It shows we are continuing to have mechanical and systemic
failures that, in a closer election, could have flipped the
Half-baked conspiracy theories are damaging to the public
confidence in democracy. We could use a few less conspiracy
theorists, and a few more Griffins. It takes a pretty big
person to admit that one's own side screwed up, or was simply
bested in a fight (even a nasty one), or to accept, and
tackle, the growing alienation of potential voters in
America. And the unexciting, labor-intensive process of
analyzing and fixing the machinery of the people's