Review casts doubt on outcome of race

Data suggest Sarantou may have won post

3/27/2011
BY TOM TROY
BLADE POLITICS WRITER

Lucas County Commissioner George Sarantou?

That was the wish of some 69,580 Lucas County residents who voted for the Toledo Republican in the Nov. 2 election. But Carol Contrada, the Democrat, was declared the winner after the Lucas County Board of Elections said she received 193 more votes than Mr. Sarantou.

But did she?

A review by The Blade over the last six weeks of the 4,157 validated provisional ballots cast in the Nov. 2 election suggests at least 527 votes were erroneously included in the total vote count. And hundreds more that were counted are suspect based on Ohio law and regulations.

Some of the paper's findings from the review of 4,157 provisional ballots:

-In 403 cases, a box was checked requiring voters to bring more ID before their votes could be counted. The Lucas County Board of Elections has provided no evidence that those voters came forward, yet the votes were counted.

-In 128 instances, voters cast their ballots in the wrong precinct in violation of state law and directives from the Ohio secretary of state. The secretary of state's office found 114 ballots, but The Blade found 14 more that were marked "correct location, wrong precinct."

-In 14 cases, the voter's signature or printed name is missing from the front of the provisional ballot envelope, an apparent violation of a state law requiring both.

Flaws abound

Elections Board Director Linda Howe and Deputy Director Jeremy Demagall were terminated Friday on the orders of Ohio’s secretary of state.
Elections Board Director Linda Howe and Deputy Director Jeremy Demagall were terminated Friday on the orders of Ohio’s secretary of state.
Nearly one-half of the 4,157 validated provisional ballot envelopes had some flaw, or alleged flaw, such as missing election worker signatures, missing ID, and corrections of the addresses voters wrote on their envelope. In some instances, a board official scratched out words such as "not reg[istered]" and wrote on the envelope, "Valid."

"With approximately 2,000 ballots having missing signatures or having faulty IDs, blank spaces, and questionable modifications by the staff, it makes things worse than anything I have ever seen or heard of in any other parts of Ohio," said Terry Casey, a Republican operative who has participated in election investigations across the state and formerly was on the Franklin County Board of Elections. Mr. Casey was brought in by Mr. Sarantou to investigate the provisional vote count in the Nov. 2 election.

He said there are important legal reasons state law requires these envelopes to have signatures, addresses, and verifications — "to protect against any illegal voting and to ensure equal legal treatment to candidates on both sides."

The fallout
The Blade's review coincided with a review by Republican Secretary of State Jon Husted's office that began in February. Although Mr. Husted, who took office in January, has promised to continue his review, he stunned Lucas County on Thursday by ordering the immediate termination of the two top board officials — Director Linda Howe, a Democrat, and Deputy Director Jeremy Demagall, a Republican — after finding 114 ballots that he said the board's director was explicitly advised not to count.

According to Mr. Husted, the board of elections counted 114 provisional votes in direct violation of the direction of the former secretary of state, Democrat Jennifer Brunner.

In that instance, the voters had cast their ballots at the wrong precinct table but in the correct polling location. Ohio law says only votes cast in the voter's precinct of residence can be counted.

Repeatedly over the last four months, Ms. Howe, Mr. Demagall, Board Chairman Patrick Kriner, and the board's lawyer, Lucas County Assistant Prosecutor John Borell, defended the counting of the 114 "correct location wrong precinct ballots."

But Friday, after terminating Ms. Howe and Mr. Demagall, Mr. Kriner did not dispute the secretary of state's conclusion, although he said he did not agree that Ms. Howe and Mr. Demagall should have been fired.

"The directive was quite clear. The supporting court case was quite clear: The four digits of the Social Security number needed to be on those ballots," Mr. Kriner said.

In addition to the 527 ballots with arguably fatal flaws, hundreds of envelopes had incomplete information or conflicting ID information. Some 137 envelopes were missing the poll worker's signature. The signature is the official record that a board employee saw the voter's identification.

Jon Husted
Jon Husted
Mishandled ballots were found in almost every voting ward in the county. But the ward with the most fatal flaws seen by The Blade was the Toledo 10th, which is in the central city just west of the Old West End.
The outcome

No one can know for sure how the votes of those 527 ballots were distributed between Mrs. Contrada and Mr. Sarantou because elections board workers separated the ballots from the envelopes.

But if those votes were distributed in the same proportion as the total 4,081 provisional ballots that were counted in the race for county commissioner, Democrat Carol Contrada's lead of 193 evaporates and Mr. Sarantou emerges the winner by 11 votes.

Mr. Borell, who repeatedly has backed Ms. Howe and Mr. Demagall, scoffed at those conclusions.

He said the Ohio Supreme Court has three times rejected efforts to revise an election outcome using statistical methods.

A widely respected election-law expert contacted by The Blade, Daniel Tokaji of the Ohio State University Moritz College of Law, said: "It seems to me there were some interesting questions of law that could have reasonably been decided both ways."

Still, he said Ohio courts have a history of erring on the side of the voter when the flaw can be blamed on a mistake by an election worker.

"I think the lesson for candidates in the future is if you've got a strong case for not counting certain ballots, get judicial action before the ballots are counted. It's hard to put the genie back in the bottle," Mr. Tokaji said.
Court precedents

In the cases cited by The Blade, Mr. Sarantou's lawyer, Fritz Byers of Toledo, pointed to court precedents for saying all three sets of flaws are fatal errors.

He said courts have ruled that a provisional ballot cannot be counted if the envelope does not have both the name and the signature of the provisional voter and that Ohio law does not permit the counting of a ballot cast in the wrong precinct.

In cases where the poll worker has indicated the voter must present more information, Mr. Byers said, "The statute is clear that a provisional voter who does not present appropriate ID at the polling place and is told to do so within 10 days must in fact do so to have that vote counted."

Fritz Byers, George Sarantou's attorney, called the ballot errors 'fatal.'
Fritz Byers, George Sarantou's attorney, called the ballot errors 'fatal.'
Mr. Borell did not disagree with the need for a voter's signature and printed name. One election official said that if the voter's printed name appeared on the back rather than the front, they counted the ballot. And he did not disagree with the Ohio secretary of state's finding that the 114 ballots filed in the wrong precinct should not have been counted.

But he said he did not agree that the 409 ballots requiring more information had to be tossed out as well based on the opinion of a poll worker.

"The board cannot rely on that. They must do their own independent determination to see if that's true. If you put all the statutes together the board of elections cannot rely on what the poll worker puts on there," Mr. Borell said.

Standing her ground
Ms. Howe, just before her firing last week, defended all the board's decisions to count provisional ballots, and she justified the many mistakes of her part-time poll workers in the field.

She said the ballot envelopes require too much information and the poll workers are putting in 14-hour days for $135 — not counting a three-hour training session — and are expected to master an increasingly complex set of regulations, while only working on elections twice a year.

Ms. Howe maintained that a review of the ballot envelopes in the other 87 counties would turn up similar shortcomings and decisions about which votes to count.

Indeed, Terry Burton, the director of the Wood County Board of Elections, said his board made the decision to count ballots that were cast in the right polling place but the wrong precinct.

And Mr. Borell said Erie County also counted provisional ballots that were cast in the wrong precinct as a result of poll worker error.

Poll worker error
There is little question that poll worker error was a big factor throughout general Election Day last year in Lucas County.

Quintina Hardy, 32, a student and part-time caregiver, said she had to vote provisionally because she had moved into a new precinct within Ward 12, which is in West Toledo. She said she told poll workers her new address and they handed her a ballot envelope with the precinct preprinted on the top right corner to fill out.

"I don't feel like I made a mistake. I asked them, ‘Was this the place I was supposed to go?' And they told me this was the right location," Ms. Hardy said. "I was at the right location and I am a registered voter. I think it should have been counted."

Wrong precinct
Mr. Husted's interpretation of the law on the right-location-wrong-precinct question zeroed in on the 2006 case involving homeless advocates that he said created one exception to the law requiring a voter to cast his or her vote in the precinct where that person resides.

John Borrell, counsel for the Board of Elections, said he did not support the firings.
John Borrell, counsel for the Board of Elections, said he did not support the firings.
That exception was expressed in a consent decree in a case brought against Ms. Brunner by the Northeast Ohio Coalition for the Homeless.

A person who can recite only the last four digits of his or her Social Security number as ID and can claim as his address only "a street corner, alley, or highway overpass located in the precinct" must still be allowed to vote, the consent decree said.

A question-and-answer sheet supplied by the secretary of state's office in May, 2010, appeared to give election officials free rein to approve any provisional ballot that they felt they had verified, usually by comparing signatures with those on file.

"The directives also say that if the board [of elections] can determine that that is the voter, that that's their signature, and that they're registered to vote, we count them," Ms. Howe said. "We go by what we're told. We're not lawyers."

"While electors are required to provide ID, the law only requires that a provisional voter complete the prescribed affirmation statement [the front of the envelope]. If the board of elections can verify the identity of the voter based on information provided in the statement, the ballot should be counted," the advice from Ms. Brunner's office said.

"We are not going to disenfranchise a voter through an error that a poll worker makes," Ms. Howe said.

Criticism of the board
Jon Stainbrook, the Lucas County Republican chairman who supported Mr. Sarantou's criticism of the elections board, said the secretary of state, a Democrat, and the director of the elections board, also a Democrat, were together trying to make sure as many provisional votes as possible got counted, while Republicans on the election board and election staff failed to speak up.

He said the board's lenient approval of misvoted provisional ballots contrasts with its strict enforcement of the rules when it comes to absentee ballots, which lean more Republican.

After the firings of Ms. Howe and Mr. Demagall, Mr. Stainbrook suggested there was more wrongdoing to root out and that the board members themselves were the ultimately responsible parties.

Terry Casey, left, a GOP operative who has participated in other elections investigations; George Sarantou, and Lucas County Republican Chairman Jon Stainbrook gathered Nov. 30 at the Board of Elections for the commissioner’s race ballot recount.
Terry Casey, left, a GOP operative who has participated in other elections investigations; George Sarantou, and Lucas County Republican Chairman Jon Stainbrook gathered Nov. 30 at the Board of Elections for the commissioner’s race ballot recount.
"We're still here with Republicans on the board who did not research [the provisional ballot issue] and also didn't question a Democrat director or do their job. This is the board. They cannot delegate that part of their authority," Mr. Stainbrook said.

Of the terminations of Ms. Howe and Mr. Demagall, Mr. Stainbrook said, "This is the first step in the right direction, but it does not right the wrongs that have been done, one of them being that George Sarantou was clearly the winner and should be sitting on the county commissioner's seat, which he's not.

"They never thought that George would do anything about it, all the illegal stuff that they did," the GOP chairman said.

Before they were fired, Mr. Demagall and Ms. Howe denied that any votes were decided based on partisan considerations or that they are even allowed to interject partisan considerations.

How boards work
All boards of election are headed by four locally selected directors — two Democrats and two Republicans — with the Ohio secretary of state to break any tie votes that would occur if the Republicans and Democrats split over whether to allow a ballot.

Ohio allows provisional ballots to be used when voters move or change names without updating their registration. Voters also can relocate from other counties in the state and vote provisionally.

Indeed, 197 people are listed as having voted provisionally after moving from another county.

The provisional ballot envelope has spaces for the type of ID and the number of the ID to be recorded. The voter is also required to print his or her name and sign the name. There are spaces for the voter's old address and new address, phone number, date of birth, and e-mail address.

The poll worker also is supposed to sign the envelope and record information about the voter on the back, known as the "verification document," and sign it again.

Once the envelope is completed, the voter fills out a paper ballot and sticks it in the envelope. Ten days after the election — to allow for provisional voters to supply more information where required — the board of elections staff begins evaluating the ballots and verifying the voters' identity and registration.

In the Nov. 2 election, the board validated 4,157 ballots and threw out 392 ballots. Of the ballots that were rejected, most were cast in the wrong precinct or the voter was not registered. In a few instances votes were tossed out because the voter had voted twice.

Mr. Borell said the Sarantou legal team told him they folded their tent before showing any of their evidence because they had fewer than 193 bad ballots on which to base their case. "What he told the judge was there was less than 193."

A ‘sloppy' election
Mr. Byers said that was "absolutely not true."

He said that "because of the sloppy, unlawful manner in which the election was administered, it was not possible to determine exactly how many provisional ballots had these fatal flaws." Mr. Byers said Mr. Sarantou would have had to call actual voters to testify.

"He declined to do so out of respect for the right to vote anonymously," Mr. Byers said. He noted that Mr. Sarantou felt certain that a "comprehensive and detailed examination of the provisional envelopes" would have proved he won the election.

Mrs. Contrada, who did not return a telephone call for this story, said after the suit was dismissed that the failed case proved that Lucas County's election had been fairly and accurately conducted.

Contract Tom Troy at: tomtroy@theblade.com or 419-724-6058.