John Conyers

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I am pleased to yield 4 minutes to my good friend, the gentleman from Massachusetts (Mr. Markey) from the Committee on Energy and Commerce. He has worked with us on many of these issues.

Mr. CONYERS. Mr. Speaker, I yield myself 1 minute. I would like to respond to my good friend, the gentleman from Virginia (Mr. Moran). First of all, I think the NAACP and the civil rights groups will be eager to find out that his wisdom is superior to their experience in the civil rights movement. What the gentleman was suggesting may have been correct a number of years ago, but I would point out to the gentleman that the Federal courts more recently have not been as desirable a forum for civil rights activities. The Bank of Boston case, that was 10 years ago and an anomaly. There are not other examples of class actions where class members lost money. No other court has made the same mistake. I would urge that neither the gentleman nor any of us rewrite class action rules because of one mistake. Mr. Speaker, I yield 3 minutes to the gentleman from Washington (Mr. Inslee). (Mr. INSLEE asked and was given permission to revise and extend his remarks.)

Mr. CONYERS

Mr. CONYERS. I thank the gentleman.

Mr. CONYERS. Mr. Chairman, what I would like to find out, if the gentleman knows, has this ever occurred in the history of Federal legislation before that for a given instance all laws, local, State, national, will be waived all at one time for one specific purpose?

Mr. CONYERS. Mr. Chairman, I want to thank the gentleman from Florida (Mr. Meek) for his work on this. It is credibly important. This is perhaps the most objectionable part of the bill. I rise in support of the Nadler/Meeks/Jackson-Lee Amendment to strike section 101 of H.R. 418 which imposes evidentiary requirements on asylum-seekers fleeing persecution and all immigrants who seek withholding of removal from deportation. Without a doubt, if this section passes into law, genuine bona fide refugees who have fled horrible persecution that qualifies them for protection from our government will be returned to face more terror, torture and death at the hands of their persecutors. Chairmen Sensenbrenner is using the public's fear of terrorism to radically change asylum law for all asylees, not just those with some connection to terrorism. Section 101 will not make us one bit safer from terrorist attack. Since we tightened some loopholes in asylum law in 1996, terrorists have not been ``abusing our asylum system'' as the proponents of this bill allege. Terrorists are already barred from receiving the benefit of asylum protection in the United States. Those who support placing these new insurmountable hurdles on asylum- seekers have used examples of known terrorists to allegedly show that the asylum system makes us vulnerable to terrorist attack. But none of the people they talk about were granted asylum. Ramzi Yousef and Sheik Omar Abdel Rahman, who were both involved in the first World Trade Center bombing in 1993, were never granted asylum. They filed applications for asylum that had not been adjudicated at the time of the bombing. Mir Aimal Kansi, who killed two CIA employees in 1993, was never granted asylum. He had an asylum application pending at the time of the attack. Gazi Ibrahim Abu Mezer, known as ``the Brooklyn bomber'' for his involvement in a planned attack on the New York City subway in 1997, was never granted asylum. He applied for asylum but withdrew his application before it was reviewed. Ahmad Ajaj, who was involved in the first World Trade Center bombing, was never granted asylum His initial application for asylum was abandoned when he left the country, and his second application was denied. Abdel Hakim Tizegha, who was involved in the planned Millennium attack in 1999, was never granted asylum. His application was denied in 1997 and his appeal was denied in 1999. Hesham Mohamed Ali Hedayet, who killed two people at the El Al counter at Los Angeles International Airport in 2002, was never granted asylum. His application was denied in 1995. Shahawar Matin Siraj, who has been accused of plotting to bomb the Harold Square subway station in New York City in August 2004, was never granted asylum. He asserts that he entered the United States legally as a teen, and he later filed an application for asylum that was suspended upon his arrest. Immigrants cannot apply for asylum unless they are already in the United States. So it is not the fault of the asylum system that these terrorists, and terrorist suspects, entered the United States and section 101 of H.R. 418 would not have prevented their entry. In addition, filing an application for asylum should not be equated with actually receiving asylum protection and the right to remain in the United States that it grants. Many asylum applications are rejected, just as many tourist visas to enter the United States are rejected. For people applying for asylum in 2005, under current law, extensive security checks are now done through the FBI, CIA, Homeland Security and State Department databases. Now, expedited removal rules mandate detention for people arriving without proper documents, and grant DHS authority to detain asylum-seekers throughout the adjudication of their application. Expedited processing of asylum claims now exists, and applicants are denied work authorizations that may have been a magnet for false applications before asylum reform. People who are already in the United States, who become terrorists while they are here, must be identified by intelligence and law enforcement. If they are, asylum or any other immigration benefit will be revoked under current law. For that vast majority of asylum applicants who have no nexus to terrorism, other than being victims of it, section 101 will create high, new legal standards of evidence, and will severely limit judicial review of their cases. First, the bill requires that refugees prove that one of the five grounds for asylum protection--race, nationality, membership in a social group, political opinion, or religion--is the ``central reason'' why they were persecuted. With little access to the documents and witnesses they left behind when fleeing their country, they must prove what was in the mind of their persecutor during the persecution. This would require an asylum-seeker from Darfur, Sudan to prove that the janjaweed attacked them and ran them off their land because they were black, and not because the militia wanted to steal the immigrant's cows, for example. Second, the bill requires asylum-seekers to show evidence corroborating their testimony, and it would bar judicial review of decisions regarding that evidence. Yet many refugees are unable to flee with the people or paperwork that could back up their stories under evidentiary standards. Third, the bill allows judges to deny applications if they find inconsistencies between the applicant's testimony and any statement they have made to a U.S. official, or inconsistencies in witness and documentary evidence that is provided. In addition, it allows denials on the basis of subjective assessments of an applicant's demeanor, a factor that is frequently misinterpreted by U.S. judges due to cultural differences. Thus, a person could be denied asylum due to an immaterial inconsistency in the evidence they present. Finally, the bill strips courts from the power to review immigration judge's discretionary judgments in asylum and removal cases. Unfortunately, this bill takes a significant step in turning our country away from its proud history as a nation of refuge for those fleeing persecution. For these reasons, I urge my colleagues to support the Nadler/Meeks/ Jackson-Lee amendment to strike section 101 of this bill.

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. Mr. Chairman, I thank the manager on the Democratic side for yielding me this time. Mr. Chairman, this amendment was brought to our attention yesterday evening, and at first blush, this is a shocking correlative point to be made and a comparison to the Fugitive Slave Act of 1850, in which agents were given the broad powers to return freed slaves in free States and return them back to slavery. What we are doing here with bail bondsmen is giving them the ability to enforce immigration laws by summarily rounding up and deporting people and also gaining access to incredible private and secret material in data files. And I just wanted to briefly ask the gentleman from Texas (Mr. Sessions) what inspired him to add this to a bill that we already had a considerable number of problems about and have never had any hearings on a provision such as this.

Mr. CONYERS. I yield to the gentleman from Texas.

Mr. CONYERS. Mr. Chairman, I need my friend to know that they are in the process of having the claim heard. It has not been terminated or it is not all over. But we are arguing the substance. What I was trying to figure out is, what inspired the gentleman at this late point in the proceedings, since we had hearings last year, we had no hearings this year, and we just found out about this yesterday.

Mr. CONYERS. Mr. Chairman, will the gentlewoman yield?

Mr. CONYERS. Mr. Chairman, I just wanted to ask the author of the amendment, would he have objected to having hearings on his amendment?

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I rise, regrettably in opposition to this anti- immigrant legislation. Mr. Chairman, if we truly believe in all we have heard about the importance of freedom and liberty from our President and others, then we have no other choice but to vote down this bill which denies so much freedom and liberty to the immigrants in our own country. H.R. 418 includes provision after provision limiting the rights of refugees, imposing onerous new driver's license requirements on the States, unfunded mandates, making it easier to deport legal immigrants, waiving all Federal laws concerning construction of barriers and fences anywhere within the United States and denying immigrants long-standing habeas corpus rights. This is a work of art that has to be examined very, very carefully and very critically. If this measure becomes law, this will close America's doors to Cubans fleeing from their country, religious minorities attempting to escape religious persecution, women fleeing from sex trafficking, rape or forced abortions. Unfortunately, in our history, there have been a number of examples of this overreaction in the past. For example, during the Civil War, General Ulysses Grant, no less, sought to expel the Jews from the South. The aftermath of World War I brought the notorious Red scare, and the very long remembered anti-immigrant Palmer raids from the attorney general of that era. Of course, World War II gave us the searing memory of the unconscionable internment of Japanese Americans. In the wake of the 9/11 tragedy, and even after the PATRIOT Act, which did its share of violating the rights of those who were in this country, this legislation would even further target immigrants for crimes they have not committed and for which they are not responsible. At some point we have to treat terrorism as a problem that requires intelligent response, as opposed to an excuse to scapegoat immigrants. For all these reasons, there are so many groups lined up behind the American Civil Liberties Union to oppose the bill: immigration rights groups, civil rights groups, civil liberty organizations, private rights groups, labor organizations, environmental groups, Native American rights, States' rights and international human rights groups. So, I urge us in good conscience and serious concern over the direct and the subtle import of this legislation, please, we cannot and should not close ourselves off to the most vulnerable members of our society. Mr. Chairman, I ask unanimous consent that the gentlewoman from Texas (Ms. Jackson-Lee) be permitted to manage the bill on this side of the floor.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, today I am introducing the ``No Oil Producing and Exporting Cartels (NOPEC)'' Act of 2005, legislation that subjects a group of competing oil producers, like the OPEC nations, to U.S. antitrust law when they act together to restrict supply or set prices. I am joined by Representatives Lofgren and McIntyre. For the past year, American consumers have paid exorbitant prices at the pump, as gas prices have hit their highest levels since the first Gulf War. For the past several months, oil prices have remained stubbornly high, sitting above $48 at the end of last week. Since last January, oil prices have climbed more than 15 percent, driving gasoline prices in the United States to record levels while producing budget surpluses in nations like Saudi Arabia. The group of 11 nations comprising OPEC are a classic definition of a cartel, and they hold all the cards when it comes to oil and gas prices. OPEC accounts for more than a third of global oil production, and OPEC's oil exports represent about 55 percent of the oil traded internationally. Its net oil export revenues should reach nearly $345 billion this year, and its influence on the oil market is dominant, especially when it decides to reduce or increase its levels of production. The OPEC nations have for years conspired to drive up prices of imported crude oil, gouging American consumers. Their price-fixing and supply-limiting conspiracy is a clear violation of U.S. antitrust laws, yet we have no recourse for action against these nations. The international oil cartel continues to avoid accountability, shielding itself behind the veil of sovereign immunity by claiming that its actions are ``governmental activity''--which is protected under the Foreign Sovereign Immunities Act (``FSIA''), 28 U.S.C. Sec. 1602 et seq.-- rather than ``commercial activity.'' This legislation, the ``No Oil Producing and Exporting Cartels Act'' (``NOPEC''), is simple and effective. It exempts OPEC and other nations from the provisions of FSIA to the extent those governments are engaged in price-fixing and other anticompetitive activities with regard to pricing, production and distribution of petroleum products. It makes clear that the so-called ``Act of State'' doctrine does not prevent courts from ruling on antitrust charges brought against foreign governments and that foreign governments are ``persons'' subject to suit under the antitrust laws. It authorizes lawsuits in U.S. federal court against oil cartel members by the Justice Department and the Federal Trade Commission. We do not have to stand by and watch OPEC dictate the price of our gas without any recourse; we can do something to combat this conspiracy among oil-rich nations. I am hopeful that Congress can move quickly to enact this worthwhile and timely legislation.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, today I am introducing the ``Domestic Violence Connections Campaign Act of 2005,'' legislation that ensures that the National Domestic Violence Hotline continues to provide the essential services it has been providing since it was created in 1996. I am joined by Representative Hart. The Hotline was created by the Violence Against Women Act and answered its first call on February 21, 1996. By August 2003 it answered its one millionth call, an increase of approximately 133 percent. This is due in large part to public awareness of domestic violence and public promotion of the Hotline. Today, on average the Hotline receives almost 16,000 calls a month. The Hotline is primarily funded by federal dollars that come from annual federal spending bills. However, as the Hotline's call volume continues to increase exponentially, funding has failed to keep pace. To keep up, the Hotline needs new equipment, new connection capability, and new data protection technology. Because its system is so outdated, over 26,000 calls last year went unanswered due to long hold times or busy signals. The Connection Campaign is a combination of public and private efforts to bring the Hotline up to speed. It teams up private telecommunication and technology companies with the federal government to solve the Hotline's crisis and guarantee that the Hotline can answer every call. Under the Connection Campaign, companies like Microsoft, Sony, BellSouth, Verizon Wireless, IBM, Dell and others, may donate hardware and software such as cell phones, home computers, mapping software, flat-screened monitors, and telephone airtime to the Hotline. On the public side of the partnership, Senator Biden will soon join Representative Hart and me in introducing legislation to bridge the digital divide. Our bill, the Domestic Violence Connections Campaign Act of 2005, which will also appear in the 2005 reauthorization of the Violence Against Women Act, has three components: It mandates that federal appropriations to the Hotline include technology training for Hotline advocates so that every new telephone, computer, and database will be used to its fullest capacity. It provides a new research grant program to be used to review and analyze data generated by the Hotline. Administered by the Attorney General, the grant program will study trends, gaps in service and geographical areas of need. The findings of this research will be reported to Congress within three years of its enactment. It provides a grant program for the Hotline to increase public awareness about the Hotline's services and domestic violence generally. The Connections Campaign and this legislation are important next steps in our fight to defeat domestic violence and assist victims. I am hopeful that Congress can move quickly to enact this worthwhile and timely legislation.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I thank the gentlewoman from Texas for yielding me this time. I would like to join in the point that is being made by the gentlewoman from Texas to remind all of our friends that when Republicans took power in 1994, they made a solemn promise to the States that they would make sure that there would be no imposition of unfunded mandates on those States, and today we have a chance to redeem that promise by voting ``no'' on consideration of this rule, which waives the unfunded mandate requirement. The majority may, if they have not already, attempt to argue that it is a minor mandate and show new and improved CBO estimates showing that the cost of this bill is only $125 million over the next 5 years; and, therefore, I think this warrants at minimum committee hearings in markups that has so far been denied this Congress. So we are not asking a lot this afternoon. And I am impressed by the Governors Association. Their letter points out that while they commend the gentleman from Michigan (Chairman Sensenbrenner) and the gentleman from Virginia (Mr. Tom Davis) for their commitment to driver's license integrity, they find that those bills would impose technological standards and verification procedures on States, many of which are beyond the current capacity of even the Federal Government. Moreover, the cost of implementing such standards and verification procedures for the 220 million driver's licenses issued by the States represents a massive unfunded mandate. So they close by urging us to allow the provisions of the Intelligence Reform Act of 2004 to work. So I commend the gentlewoman from Texas (Ms. Jackson-Lee) for making such a very timely and important point of order, and I support her in it.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, today I rise to introduce on behalf of myself and 25 colleagues the Voting Opportunity and Technology Enhancement Rights Act, or the VOTER Act of 2005, legislation that will help ensure that all voters who are eligible to vote are able to vote and have their vote properly counted in Federal elections. We have just experienced the second consecutive presidential election where issues were raised concerning irregularities and improprieties. For example, in Ohio we learned of the misallocation of voting machines, which led to lines of 10 hours or more and disenfranchised scores, if not hundreds of thousands, of predominantly minority voters. We also learned of numerous incidents of voter intimidation, as well as the dissemination of misleading information. Members on both sides of the aisle acknowledge that further reforms are needed to ensure that all of our citizens' rights to vote are protected. As a result, the VOTER Act will provide for a uniform Federal write- in/absentee ballot; require states to provide for a verifiable audit trail; ensure that provisional ballots cast anywhere in a state are counted; eliminate disparities in the allocation of voting machines and poll workers among a state's precincts; mandate early voting and election day registration procedures; protect against improper purging of registration lists in federal elections; provide for a study regarding making election day a public holiday; ease voter registration requirements; allow voter identification by written affidavit; study eliminating partisan election officials from administering federal elections; enhance training for election officials; require the use of publicly available open source software in voting machines; provide uniform standards for vote recounts; prohibit voting machine companies from engaging in political activities; and enhance legal protections against voter intimidation and threats. The legislation is supported by the NAACP, the NAACP Voter Fund, the Progressive Democrats of America, the UAW, the Black Leadership Forum, Rainbow Push, and the National Voting Rights Institute. The legislation is the House counterpart to S. 17, legislation introduced in the Senate by Senator Chris Dodd on behalf of the Senate Democratic Leadership. It is imperative that we have elections that count every vote of every eligible voter. A provisional ballot cast anywhere in the State of Ohio should count just as it does in the State of Iowa. There is no reason that voters in inner city areas should be forced to wait in long lines, while their counterparts in the suburbs are able to vote immediately. If voters in Oregon can vote early, why can't voters in Michigan; if citizens of Idaho enjoy same day registration, why can't voters in Florida; and if voters in Wisconsin can have their elections administered by nonpartisan boards, why can't the rest of us? If there is any issue that is central to our democracy, it is ensuring that eligible voters are able to participate in our elections. Enacting the VOTER Act of 2005 will help ensure that we restore trust in our election system. The following is a section-by-section of the VOTER Act: Section 1--Short Title and Table of Contents Section 2--Findings and Purposes Details a number of concerns regarding fairness of federal elections that justify a federal legislative response. Section 3--Enhanced Protections Against Voter Intimidation, Threats, Coercion, and Deception Creates new requirement that unfair or deceptive acts or practices in or affecting voting in Federal elections are prohibited and the Attorney General is empowered and directed to prevent persons, partnerships, or corporations from using unfair or deceptive acts or practices in or affecting Federal elections via civil or criminal remedy. Creates a corollary private right of action. Amends 42 USC 1971 and 18 USC 245 to specify that deceptive and coercive voter intimidation is unlawful. Provides for an enhanced system for DOJ to track, document, and monitor election irregularities. Section 4--National Federal Write-In Absentee Ballot Requires the Election Assistance Commission (EAC) to prescribe a national Federal write-in absentee ballot and that any person qualified to vote in a Federal election be permitted to cast a vote using that ballot. Provides that a federal write-in absentee ballot will be counted so long as the ballot is postmarked or signed before the close of the polls on election day and received by the appropriate State or election official on or before the date which is 10 days after the date of the election. Section 5--Verified Ballots Provides that voting systems shall have an independent means of voter verification which requires each voter to verify the ballot before it is cast and counted with a paper, audio, pictorial, or electronic record and that uniform and nondiscriminatory standards for such verified ballots be established by the EAC. Requires that any means of verification shall be preserved and made available for use in any audit. Requires that the EAC standards provide for partial audits of voting machines to ensure that the voting machines are properly functioning and accurate and in the event that voting machines' are not properly functioning and accurate, the record of the verified ballot will be used for the official vote count. Requires that the EAC and the states will produce reports on the implementation of the verified ballot. Section 6--Requirements for Counting Provisional Ballots Requires that each state shall count any provisional ballot which is cast at a polling place within the state if the individual who cast such a ballot is otherwise eligible under state law to vote. Section 7--Minimum Required Voting Systems and Poll Workers in Precincts Requires that each state shall provide for the minimum required number of functioning and accurate voting machines and poll workers for each precinct on the day of any Federal election or during early voting for any Federal election. Requires the EAC to issue standards regarding the minimum number of voting machines and poll workers. Section 8--Election Day Registration Permits any individual on the day of a Federal election to register to vote and to cast a vote in such election. Requires the EAC to develop an election day registration form for elections for Federal office. Section 9--Integrity of Voter Registration List Requires that not later than 45 days before any Federal election, each state shall provide public notice of all names that have been removed from the state voter registration list and that prior to the removal from such a list, a voter must receive proper notice that will be prescribed by the EAC. Section 10--Early Voting Requires that each state shall allow individuals to vote in an election for Federal office not less than 15 days prior to the day scheduled for such election in the same manner as voting is allowed on election day. Requires the EAC to issue standards for the administration of early voting. Provides that same day voter registration will occur during early voting. Section 11--Acceleration of Study on Election Day as Public Holiday Requires the completion of a study on Election Day as a public holiday by the EAC no later than 6 months after the enactment of this bill. Section 12--Improvements to Voting Systems Requires punch card systems to provide a means of verification and audit ability. Section 13--Voter Registration Requires voter registration forms to include an affidavit to be signed by the registrant attesting to both citizenship and age rather than having the registrant check boxes on the voter registration form attesting to both citizenship and age. Requires that any form developed or used by a State for voter registration in Federal elections must include an affidavit attesting citizenship and age instead of the questions and statements under HAVA sec. 303b4(A). Requires states to establish voter registration through the Internet with the standard established by the EAC. Section 14--Establishing Voter Identification Permits voter identification to be established through a written affidavit when a voter is voting in person or through the mail and eliminates the need for any other form of identification, which has the effect of overruling the HAVA requirement that first time voters who register by mail must provide a photo ID when voting. Requires the EAC to establish the standards for establishing voter identification. Section 15--Impartial Administration of Elections Requires that states issue a public notice concerning any changes to the administration of an election since the most recent prior election. Requires that states must provide access to any polling place to voting and civil rights groups, and nonpartisan domestic and international observers and that such access may be denied only through a public notice that will be issued not later than 24 hours after such denial. Requires that the EAC conduct a study on the administration of Federal elections in states by nonpartisan election boards, rather than Secretaries of State. Section 16--Strengthening the Election Assistance Commission Requires the EAC to submit any budget requests to the Congress and all relevant House and Senate Committees, in addition to the President or the Office of Budget and Management. Requires that the Director of the National Institute of Standards and Technology provide the EAC with the assistance needed to perform the duties required of it under this Act if such assistance is requested. Provides for the necessary appropriations to the EAC to perform its duties under this Act. Section 17--Additional Protections to Ensure Fair Administration of Federal Elections Provides that no individual may serve as an election official at any polling place used for Federal office unless the individual has been certified through the poll worker certification program established by the EAC. Requires that each state shall ensure that all voting machines used by the state for elections for federal office use open source software which may be accessible for inspection by the public and that the standard for public viewing of the open source code be established by the EAC. Requires that the EAC will establish a national standard for the conducting of a recount of the results of any election for Federal office. Prohibits states from entering into any agreement with an entity regarding the manufacture, distribution, installation, servicing, or other activity with respect to a voting machine if that entity contributes to a campaign for public office and standards on such conflicts of interest will be established by the EAC. Section 18--Authorization of Appropriations Provides for the necessary appropriations to the states to perform their duties under this Act, $2 billion in 2006 and thereafter, such sums as may be necessary. Section 19--Effective Date Requires operative provisions to take effect on January 1, 2007.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I want to thank all the Members of the House who have stayed here with us, who have participated in the debate, who have shared their views, as different as many of them are, because this is the way we work. This debate, I think we all know, will not change the outcome of the November election. But we do know that out of today's debate, the Congress will respond to the challenge that has been raised here in connection with a better system of voting, not just for Ohio but for everywhere. A challenge has been raised here this afternoon to hold true bipartisan hearings to get to the bottom of not just what went wrong in Ohio but around the Nation on Election Day. This day, the first time in our history, that since 1877 this law has been used in which the Senate and the House have come together to say that an objection has enough merit to keep us here in this discussion. Join us. Enact real election reform and give the citizens the right to an operative provisional ballot and give all voters a verifiable paper trail. We should never fear this debate in the Congress, and I hope that today we have a fair debate and that 4 years from now, Mr. Speaker, we have an election that all our citizens can be proud of.

Mr. CONYERS. Mr. Speaker, will the gentleman yield?

Mr. CONYERS. Mr. Speaker, I include for printing in the Congressional Record the staff report of the House Judiciary Committee Democratic staff entitled, ``Preserving Democracy: What Went Wrong in Ohio.'' Preserving Democracy: What Went Wrong in Ohio executive summary Representative John Conyers, Jr., the Ranking Democrat on the House Judiciary Committee, asked the Democratic staff to conduct an investigation into irregularities reported in the Ohio presidential election and to prepare a Status Report concerning the same prior to the Joint Meeting of Congress scheduled for January 6, 2005, to receive and consider the votes of the electoral college for president. The following Report includes a brief chronology of the events; summarizes the relevant background law; provides detailed findings (including factual findings and legal analysis); and describes various recommendations for acting on this Report going forward. We have found numerous, serious election irregularities in the Ohio presidential election, which resulted in a significant disenfranchisement of voters. Cumulatively, these irregularities, which affected hundreds of thousands of votes and voters in Ohio, raise grave doubts regarding whether it can be said the Ohio electors selected on December 13, 2004, were chosen in a manner that conforms to Ohio law, let alone federal requirements and constitutional standards. This report, therefore, makes three recommendations: (1) consistent with the requirements of the United States Constitution concerning the counting of electoral votes by Congress and Federal law implementing these requirements, there are ample grounds for challenging the electors from the State of Ohio; (2) Congress should engage in further hearings into the widespread irregularities reported in Ohio; we believe the problems are serious enough to warrant the appointment of a joint select Committee of the House and Senate to investigate and report back to the Members; and (3) Congress needs to enact election reform to restore our people's trust in our democracy. These changes should include putting in place more specific federal protections for federal elections, particularly in the areas of audit capability for electronic voting machines and casting and counting of provisional ballots, as well as other needed changes to federal and state election laws. With regards to our factual finding, in brief, we find that there were massive and unprecedented voter irregularities and anomalies in Ohio. In many cases these irregularities were caused by intentional misconduct and illegal behavior, much of it involving Secretary of State J. Kenneth Blackwell, the co-chair of the Bush-Cheney campaign in Ohio. First, in the run up to election day, the following actions by Mr. Blackwell, the Republican Party and election officials disenfranchised hundreds of thousands of Ohio citizens, predominantly minority and Democratic voters: The misallocation of voting machines led to unprecedented long lines that disenfranchised scores, if not hundreds of thousands, of predominantly minority and Democratic voters. This was illustrated by the fact that the Washington Post reported that in Franklin County, ``27 of the 30 wards with the most machines per registered voter showed majorities for Bush. At the other end of the spectrum, six of the seven wards with the fewest machines delivered large margins for Kerry.'' Among other things, the conscious failure to provide sufficient voting machinery violates the Ohio Revised Code which requires the Boards of Elections to ``provide adequate facilities at each polling place for conducting the election.'' Mr. Blackwell's decision to restrict provisional ballots resulted in the disenfranchisement of tens, if not hundreds, of thousands of voters, again predominantly minority and Democratic voters. Mr. Blackwell's decision departed from past Ohio law on provisional ballots, and there is no evidence that a broader construction would have led to any significant disruption at the polling places, and did not do so in other states. Mr. Blackwell's widely reviled decision to reject voter registration applications based on paper weight may have resulted in thousands of new voters not being registered in time for the 2004 election. The Ohio Republican Party's decision to engage in preelection ``caging'' tactics, selectively targeting 35,000 predominantly minority voters for intimidation had a negative impact on voter turnout. The Third Circuit found these activities to be illegal and in direct violation of consent decrees barring the Republican Party from targeting minority voters for poll challenges. The Ohio Republican Party's decision to utilize thousands of partisan challengers concentrated in minority and Democratic areas likely disenfranchised tens of thousands of legal voters, who were not only intimidated, but became discouraged the long lines. Shockingly, these disruptions were publicly predicted and acknowledged by Republican officials: Mark Weaver, a lawyer for the Ohio Republican Party, admitted the challenges ``can't help but create chaos, longer lines and frustration.'' Mr. Blackwell's decision to prevent voters who requested absentee ballots but did not receive them on a timely basis from being able to receive provisional ballots likely disenfranchised thousands, if not tens of thousands, of voters, particularly seniors. A federal court found Mr. Blackwell's order to be illegal and in violation of HAVA. Second, on election day, there were numerous unexplained anomalies and irregularities involving hundreds of thousands of votes that have yet to be accounted for: There were widespread instances of intimidation and misinformation in violation of the Voting Rights Act, the Civil Rights Act of 1968, Equal Protection, Due Process and the Ohio right to vote. Mr. Blackwell's apparent failure to institute a single investigation into these many serious allegations represents a violation of his statutory duty under Ohio law to investigate election irregularities. We learned of improper purging and other registration errors by election officials that likely disenfranchised tens of thousands of voters statewide. The Greater Cleveland Voter Registration Coalition projects that in Cuyahoga County alone over 10,000 Ohio citizens lost their right to vote as a result of official registration errors. There were 93,000 spoiled ballots where no vote was cast for president, the vast majority of which have yet to be inspected. The problem was particularly acute in two precincts in Montgomery County which had an undervote rate of over 25% each--accounting for nearly 6,000 voters who stood in line to vote, but purportedly declined to vote for president. There were numerous, significant unexplained irregularities in other counties throughout the state: (i) In Mahoning county at least 25 electronic machines transferred an unknown number of Kerry votes to the Bush column; (ii) Warren County locked out public observers from vote counting citing an FBI warning about a potential terrorist threat, yet the FBI states that it issued no such warning; (iii) the voting records of Perry county show significantly more votes than voters in some precincts, significantly less ballots than voters in other precincts, and voters casting more than one ballot; (iv) in Butler county a down ballot and underfunded Democratic State Supreme Court candidate implausibly received more votes than the best funded Democratic Presidential candidate in history; (v) in Cuyahoga county, poll worker error may have led to little known third party candidates receiving twenty times more votes than such candidates had ever received in otherwise reliably Democratic leaning areas; (vi) in Miami county, voter turnout was an improbable and highly suspect 98.55 percent, and after 100 percent of the precincts were reported, an additional 19,000 extra votes were recorded for President Bush. Third, in the post-election period we learned of numerous irregularities in tallying provisional ballots and conducting and completing the recount that disenfranchised thousands of voters and call the entire recount procedure into question (as of this date the recount is still not complete): Mr. Blackwell's failure to articulate clear and consistent standards for the counting of provisional ballots resulted in the loss of thousands of predominantly minority votes. In Cuyahoga County alone, the lack of guidance and the ultimate narrow and arbitrary review standards significantly contributed to the fact that 8,099 out of 24,472 provisional ballots were ruled invalid, the highest proportion in the state. Mr. Blackwell's failure to issue specific standards for the recount contributed to a lack of uniformity in violation of both the Due Process Clause and the Equal Protection Clauses. We found innumerable irregularities in the recount in violation of Ohio law, including (i) counties which did not randomly select the precinct samples; (ii) counties which did not conduct a full hand court after the 3% hand and machine counts did not match; (iii) counties which allowed for irregular marking of ballots and failed to secure and store ballots and machinery; and (iv) counties which prevented witnesses for candidates from observing the various aspects of the recount. The voting computer company Triad has essentially admitted that it engaged in a course of behavior during the recount in numerous counties to provide ``cheat sheets'' to those counting the ballots. The cheat sheets informed election officials 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. Chronology of Events The Lead Up to the 2004 Ohio Presidential Election In Ohio--In the days leading up to election day 2004, a consensus appeared to have emerged among observers that the state of Ohio would be one of the battleground states that would decide who would be elected the Forty-fourth President of the United States. Both the Democratic and Republican Presidential campaigns, as well as outside groups, had spent considerable time and resources to win the state, but the day before the election, the Democratic candidate, Senator John Kerry, appeared to have the edge. The Democratic Party also had vastly outperformed its Republican counterparts in registering voters in this key state. Election Day--Numerous irregularities were reported throughout Ohio. In particular, in predominately Democratic and African-American areas, the voting process was chaotic, taxing and ultimately fruitless for many. The repeated and suspicious challenges of voter eligibility and a lack of inadequate number of voting machines in these areas worked in concert to slow voting to a crawl, with voting lines as long as ten hours. Voters reported bizarre ``glitches'' in voting machines where votes for Senator Kerry were registered as votes for the President. The counting process was similarly chaotic and suspect. The Aftermath--On November 5, after receiving preliminary reports of election irregularities in the 2004 General Election, Congressman John Conyers, Jr., the Ranking Member of the House Judiciary Committee, and 14 Members of Congress wrote to the Government Accountability Office (GAO) to request an investigation of such irregularities. On November 22, at the request of the GAO, the House Judiciary Committee Democratic staff met with GAO officials. In this meeting, GAO officials advised that, on its own authority, the GAO was prepared to move forward with a wide ranging analysis of systemic problems in the 2004 elections. GAO officials also advised Judiciary staff that they would be unable to examine each and every specific election complaint, but would look at some such complaints as exemplars of broader deficiencies. At the same time, the offices of Democratic Staff and of Democratic Judiciary Committee Members were deluged with e- mails and complaints about the election. While such complaints are still being processed, close to 100,000 such complaints were received. As of this writing, the Judiciary Democratic office alone is receiving approximately 4,000 such e-mails a day. More than half of these complaints were from one state: Ohio. The Election Protection Coalition has testified that it received more complaints on election day concerning irregularities in Ohio than any other state. On December 2, 2004, Members of the Judiciary Committee wrote to Ohio Secretary of State Kenneth Blackwell that these complaints appear collectively to constitute a troubled portrait of a one-two punch that may well have altered and suppressed votes, particularly minority and Democratic votes. The Members posed 36 questions to Secretary Blackwell about a combination of official actions and corresponding actions by non-official persons, whether in concert or not, worked hand- in-glove to depress the vote among constituencies deemed by Republican campaign officials to be disadvantageous. Through his spokesman, Secretary Blackwell assured the public and the press that he would be happy ``to fill in the blanks'' for the Committee and asserted that many questions were easily answered. In fact, Secretary Blackwell belatedly replied to the letter with a refusal to answer any of the questions. Ranking Member Conyers wrote back to Blackwell the same day requesting that he remain true to his promise to answer the questions. Congressman Conyers has yet to receive a reply. At the same time, officials from the Green Party and Libertarian Party have been investigating allegations of voter disenfranchisement in Ohio and other states. Eventually, the Presidential Candidates for those parties, David Cobb and Michael Badnarik, filed requests for recounts to all 88 Ohio Counties. However, it appears their efforts too are being stonewalled and thwarted by nonstandard and highly selective recounts, unnecessary delays, and blatant deviations from long accepted Ohio law and procedure. Recently, Senator Kerry, a party to the recount action, joined the Green Party and Libertarian Party in requesting immediate action to halt these irregularities and potential fraud in the recount. The recount is still pending before the federal court, yet to be counted. In addition, a challenge has been filed to the Ohio results asserting, to a level of sworn proof beyond a reasonable doubt, that Senator Kerry, not President Bush, was the actual victor of the Presidential race in Ohio. Kenneth Blackwell is adamantly refusing to answer any questions under oath in regard to election irregularities or results. He is apparently counting upon Congress accepting the votes of the electors and, as an immediate consequence, the Ohio Supreme Court dismissing the citizens' election contest. Committee Members and other interested Members have gone to substantial lengths to ascertain the facts of this matter. The investigation by Congressman Conyers and the Democratic staff of the House Judiciary Committee into the irregularities reported in the Ohio presidential election has also included the following efforts: On November 5, 2004, Representatives Conyers, Nadler, and Wexler wrote to the GAO Comptroller David M. Walker requesting an investigation of the voting machines and technologies used in the 2004 election; On November 8, 2004, Representatives Conyers, Nadler, Wexler, Scott, Watt, and Holt wrote to GAO Comptroller Walker requesting that additional concerns surrounding the voting machines and technologies used in the 2004 election be investigated; On November 15, 2004, Representatives Lee, Filner, Olver, and Meeks joined in the request for a GAO investigation; On November 29, 2004, Representatives Weiner, Schakowsky, Farr, Sanders, and Cummings joined in the request for a GAO investigation; On December 2-3, 2004, Congressman Conyers and other Judiciary Democratic Members wrote to Ohio Secretary of State J. Kenneth Blackwell concerning Ohio election irregularities; On December 3, 2004, Representative Woolsey joined in the request for a GAO investigation; On December 3, 2004, Congressman Conyers wrote to Warren Mitofsky of Mitofsky International requesting the release of exit poll raw data from the 2004 presidential election as such data may evidence instances of voting irregularities; On December 8, 2004 in Washington, D.C., Congressman Conyers hosted a forum on voting irregularities in Ohio; On December 13, 2004 Congressman Conyers hosted a second forum on voting irregularities in Ohio in Columbus, Ohio; On December 13, 2004 Congressman Conyers and other Members wrote to Ohio Governor, Bob Taft, Speaker of Ohio State House, Larry Householder, and President of Ohio State Senate, Doug White, requesting a delay of the meeting of Ohio's presidential electors; On December 14, 2004, Congressman Conyers wrote to Ohio Secretary of State J. Kenneth Blackwell in regards to the Secretary's refusal to cooperate with the Judiciary Democratic Members investigating election irregularities in Ohio; On December 15, 2004, Congressman Conyers wrote to FBI Special Agent in Charge, Kevin R. Brock and Hocking County, Ohio Prosecutor, Larry Beal, requesting an investigation into alleged Ohio election problems; On December 21, 2004, Congressman Conyers wrote to Ohio candidates requesting that they report any incidences of irregularities or deviations from accepted law or practices during the recount in Ohio; On December 21, 2004, Congressman Conyers wrote to several major media outlets requesting the exit poll raw data from the 2004 presidential election; On December 22, 2004, Congressman Conyers wrote to Triad GSI President Brett Rapp and Triad GSI Ohio Field Representative Michael Barbian, Jr. regarding the voting machine company's involvement in the Presidential election and Ohio recount and allegations that it intentionally or negligently acted to prevent validly cast ballots in the presidential election from being counted; On December 23, 2004, as a follow-up letter to the December 22 letter, Congressman Conyers wrote to Triad's President Rapp and Ohio Field Representative Barbian upon learning that Triad had remote access to tabulating computers controlled by the Board of Elections; and On January 3, 2004, federal and Ohio state lawmakers joined Reverend Jesse Jackson in Columbus, Ohio for a rally calling attention to the need for national election reform and the January 6th joint session of Congress where election results will be certified. Citizen groups have played a substantial role in acquiring relevant information. Citizens Alliance for Secure Elections in Ohio has organized hearings that have provided valuable leads for this report. We have been contacted by thousands of concerned citizens: they want a full and fair count of all of the votes and confidence in the electoral system, and they find both of these to be sorely lacking in this election. Many have investigated these matters themselves and have made considerable sacrifices to do so. The events surrounding the Presidential election in Ohio must be viewed in two important contexts. First, there is the 2000 Election debacle in Florida. In that election, advocates for a full and fair count were asked to ``move on'' after Vice President Al Gore conceded the election to then-Governor George W. Bush. Months later, it was found that a full and fair count would have resulted in Gore, not Bush, being elected the Forty-third President of the United States. Subsequent investigations also uncovered rampant disenfranchisement in Florida, particularly of African- American voters. Second, as events have unfolded in Ohio, telling events have taken place within the United States, in the State of Washington, and across the globe, in the Ukraine. In Washington State, after the Republican Gubernatorial Candidate, Dino Rossi, declared victory after a partial recount, it was later found--after a full and fair recount-- that the Democratic candidate, Christine Gregoire, was the victor. While national and state Republican leaders in Ohio have derided attempts to ascertain the Ohio Presidential election result and resolve the questions described herein, after the Washington recount, Mr. Rossi has now asked for a re-vote in the State of Washington, saying it is needed for the election to be ``legitimate.'' In the Ukraine, after the apparent defeat of the opposition leader, Viktor Yushchenko, in that nation's Presidential election, amid allegations of fraud and public protests, a new election was held, and Yushchenko won by a significant margin. In fact, in the first, seemingly flawed election, Yushchenko appeared to lose by three percentage points. However, he won by eight percentage points in the subsequent revote. United States officials called the original vote rife with ``fraud and abuse,'' largely relying on anecdotal evidence and deviations between exit polls and reported results. A simple lesson may be drawn from these two contexts: elections are imperfect. They are subject to manipulation and mistake. It is, therefore, critical that elections be investigated and audited to assure the accuracy of results. As Senator Kerry's attorney recently noted, only with uniformity in the procedures for such an investigation and audit ``can the integrity of the entire electoral process and the election of Bush-Cheney warrant the public trust.'' Regardless of the outcome of the election, and that outcome cannot be certain as long as legitimate questions remain and valid ballots are being counted, it is imperative that we examine any and all factors that may have led to voting irregularities and any failure of votes to be properly counted. Relevant Background Law A. Federal Constitutional Law Safeguards The right to vote is our most cherished democratic right and, as such, is strongly protected under the Constitution. Both the Equal Protection and Due Process Clauses of the 14th Amendment operate to protect our citizens' right to vote for the candidate of their choice. In the seminal voting rights case of Reynolds v. Sims, the Supreme Court held that ``the right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.'' The Court observed that, ``undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote, . . . and to have their votes counted.'' Under the Equal Protection Clause of the Fourteenth Amendment, Reynolds and its progeny require that votes that are cast must actually be counted. The Equal Protection Clause also requires that all methods the ``legislature has prescribed'' to preserve the right to vote be effected, not thwarted. Courts have held that the Due Process Clause implemented in the context of voting rights requires ``fundamental fairness''--the idea that the state official cannot conduct an election or apply vote-counting procedures that are so flawed as to amount to a denial of voters' rights to have their voices heard and their votes count. As a result, under the Constitution, citizens have a fundamental right to vote and to have their vote counted by way of election procedures that are fundamentally fair. Where ``organic failures in a state or local election process threaten to work patent and fundamental unfairness, a . . . claim lies for a violation of substantive due process.'' Importantly, protections for the right to vote extend to and include the right to a full and fair recounting of those votes. A recount is fundamental to ensure a full and effective counting of all votes. Ohio courts have held that ``[a] recount . . . is the only fair and equitable procedure to ensure the correct tally of all the votes.'' As the Oklahoma Supreme Court recently emphasized, ``[a] timely recount is an integral part of an election.'' The West Virginia Supreme Court, construing a recount statute similar to Ohio's recount provisions, stressed the importance of an election recount to the fairness and integrity of the election itself. Indeed, courts in states which provide a statutory right to a recount uniformly have held that an election cannot be deemed over and final until a recount provided under state law has been completed. B. Federal Statutory Election Safeguards There are numerous federal statutes that protect the right to vote. First and foremost, the Voting Rights Act prohibits any person, whether acting under color of law or otherwise, from: (1) failing or refusing to permit any qualified person from voting in . . . federal elections; (2) refusing to count the vote of a qualified person; or (3) intimidating any one attempting to vote or any one who is assisting a person in voting. In addition, the Civil Rights Act of 1968 provides criminal penalties for violations of civil rights, including interference with the right to vote. Specifically, section 245 of title 18 makes it a crime for any person who ``by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from voting or qualifying to vote. . . .''. In 1993, Congress enacted the National Voter Registration Act (NVRA), which requires that, for federal elections, states establish fair and expeditious procedures so that eligible citizens may register to vote. Pursuant to the NVRA, section 1974a of title 42 makes it a crime for any person to willfully steal, destroy, conceal, mutilate, or alter any voting records, including those having to do with voter registration. After the widespread problems that occurred in the November 2000 election, Congress enacted the Help America Vote Act (HAVA), thereby creating a new federal agency with election administration responsibilities, setting requirements for voting and voter-registration systems and certain other aspects of election administration, and providing federal funding. Perhaps the central requirement of HAVA was that, beginning January 1, 2004, any voter not listed as registered must be offered and permitted to cast a provisional ballot. HAVA included a variety of additional new requirements, including a provision that beginning January 1, 2004 (extendable to 2006), states using voter registration must employ computerized, statewide voter registration systems that are accurately maintained. C. Ohio Election Safeguards Ohio has enacted numerous provisions designed to protect the integrity of the voting and tabulation process. 1. The Right to Vote in Ohio Under the Ohio Constitution, ``Every citizen of the United States, of the age of eighteen years, who has been a resident of the state, county, township, or ward, such time as may be provided by law, and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections.'' This includes the right to vote directly for Presidential electors. The protection of this right is placed squarely on the Secretary of State, who has the affirmative duty to ``investigate the administration of election laws, frauds, and irregularities in elections in any county, and report violations of election laws to the attorney general or prosecuting attorney, or both, for prosecution.'' To complete this task, the legislature has given the Secretary the power to ``issue subpoenas, summon witnesses, compel the production of books, papers, records and other evidence.'' Many specific provisions in the Ohio Revised Code help protect one's right to vote: Polls must be open from 6:30 in the morning until 7:30 at night, and everyone in line at that time must be allowed to vote. Loitering around the polling place is barred, and no one may ``hinder or delay'' a voter from reaching the polls or casting a vote. Alteration or destruction of ballots, machinery or election records is prohibited. Illegal voting is a felony. Those who cannot mark their own ballot due to illiteracy or disability are entitled to assistance. Election officials who do not enforce these provisions are criminally liable. 2. Declaring Results Ohio law requires that, before the Secretary of State can declare the initial results of the Presidential election in Ohio, each of the 88 county boards of elections (``county boards'') must (1) canvass the results in the county, (2) certify abstracts of those results, and (3) send the certified abstracts to the Secretary of State.'' Only after the Secretary of State receives the certified abstracts from the county boards is the Secretary able to canvass the abstracts to ``determine and declare'' the initial results of the Presidential election in Ohio. Under Ohio law, the Secretary of State is required to fix the calendar by which the state's Presidential election results initially are declared and by which a recount of those initial results can occur. Specifically, the Secretary is to set the date by which Ohio's 88 county boards must complete their canvass of election returns and send the certified abstracts of the results to the Secretary. Any statutorily mandated recount of the votes cast in Ohio for President cannot occur before the Secretary declares the initial results. 3. Security of Ballots and Machinery In addition, Ohio law prohibits election machinery from being serviced, modified, or altered in any way subsequent to an election, unless it is done so 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. Containers in which ballots are kept may not be opened before all of the required participants in are attendance. The Ohio Revised Code defines a ballot as ``the official election presentation of offices and candidates . . . and the means by which votes are recorded.'' Therefore, for purposes of Ohio law, electronic records stored in the Board of Election computers are to be considered ``ballots.'' Further, any modification of the election machinery may only be done after full notice to the Secretary of State. The 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 (d) the communication of voting records,'' must be done only after full notice to the Secretary of State. Secretary Blackwell's own directive, coupled with Ohio Revised Code Sec. 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.'' In this election, the Ohio Secretary of State has issued orders that election officials were to treat all election materials as if the State were in a period of canvassing,'' and that, ``teams of one Democrat and one Republican must be present with ballots at all times of processing.'' In addition to these provisions imposing duties on the Board of Elections, there are numerous criminal sanctions for tampering with votes and the machines that tabulate them: ``No person shall tamper or attempt to tamper with, deface impair the use of, destroy or otherwise injure in any manner any voting machine . . . No person shall tamper or attempt to tamper with, deface, impair the use of, destroy or otherwise change or injure in any manner any marking device, automatic tabulating equipment or any appurtenances or accessories thereof.'' ``No person shall-destroy any property used in the conduct of elections. ``No person, from the time ballots are cast or voted until the time has expired for using them in a recount or as evidence in a contest of election, shall 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, falsify, mark, or write in a name on any such ballot that has been voted. ``No person, from the time ballots are cast or counted until the time has expired for using them as evidence in a recount or contest of election, shall willfully and with fraudulent intent make any mark or alteration on any ballot; or inscribe, write, or cause to be inscribed or written in or upon a registration form or list, pollbook, tally sheet, or list, lawfully made or kept at an election, or in or upon a book or paper purporting to be such, or upon an election return, or upon a book or paper containing such return the name of a person not entitled to vote at such election or not voting thereat, or a fictitious name, or, within such time, wrongfully change, alter, erase, or tamper with a name, word, or figure contained in such pollbook, tally sheet, list, book, or paper; or falsify, mark, or write thereon with intent to defeat, hinder, or prevent a fair expression of the will of the people at such election. All of these are fifth degree felonies. 4. The Law of Recounts and Contests The Secretary of State's declaration of the initial results of a Presidential election in Ohio is not final. Under Ohio law, a recount of the initial results is required where the margin of victory is one-fourth of one percent or less, or where a candidate who is not declared elected applies for a recount within five days of the Secretary of State declaring the results of the election and remits the required bond. In either instance, the Secretary of State ``shall make an amended declaration of the results'' of the Presidential election after a full and complete recount of the initial results throughout the state is completed. Therefore, the Ohio legislature has determined that, in certain statutorily- defined circumstances, the Secretary's final declaration of the results of a Presidential election in Ohio shall not occur prior to a full and complete recount of the initial results. Once the recount applications have been filed, all affected county boards must notify the applicant and all others who received votes in the election of the time, method and place at which the recount will take place, such notice to be no later than five days prior to the start of the recounts. Nothing in Ohio law prohibits the notices from being mailed prior to the certification of results. The recount must be held no later than ten days after the day the recount application is filed or after the day the Secretary of State declares the results of the election. At the time and place fixed for making a recount, the Board of Elections, in the presence of all witnesses who may be in attendance, shall open the sealed containers containing the ballots to be recounted and shall recount them. Each candidate may ``attend and witness the recount and may have any person whom the candidate designates attend and witness the recount. Due to a directive issued by Secretary Blackwell, the recount does not automatically require a hand count of every vote cast in the election. Each county board of elections randomly takes a sample representing at least 3% of the votes cast and compares the machine count to a hand count. If there is a discrepancy, the entire county must be hand counted. If there is no discrepancy, the remainder of ballots may be recounted by machine. D. Determination of Ohio's Electoral College Votes Ohio and federal law intersect with regard to the issue of determining the extent to which Ohio's electoral votes are counted towards the election of the president through the electoral college. The 12th Amendment sets forth the requirements for casting electoral votes and counting those votes in Congress. The electors are required to meet, cast and certify their ballots and transmit them to the Vice President in his or her capacity as President of the Senate. In addition, the Electoral Count Act requires that the results be transmitted to the secretary of state of each state, the Archivist of the United States, and the federal judge in the district in which the electors met. Upon receipt of the ballots at a time designated by statute, the ``President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. Congress has specified that all controversies regarding the appointment of electors should be resolved six days prior to the meeting of electors (on December 7, 2004, for purposes of this year's presidential election) in order for a state's electors to be binding on Congress when Congress meets on January 6, 2005, to declare the results of the 2004 election. Specifically, 3 U.S.C. Sec. 5 provides, in pertinent part: ``If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.'' The joint session of the Senate and House is held on January, unless Congress determines otherwise, of the year following the presidential election at 1:00 p.m. No debate is allowed during the joint session. The President of the Senate opens the electoral vote certificates in alphabetical order from each state, passes them to four tellers (required by statute to be appointed two from each House) who announce the results. The votes are then counted and those results announced by the President of the Senate. The candidates for President and Vice President receiving a majority of the electoral votes, currently set at 270 of 538, are declared to have been ``elected President and Vice President of the States.'' Section 15 of title 3, United States Code, provides that, when the results from each of the states are announced, that ``the President of the Senate shall call for objections, if any.'' Any objection must be presented in writing and ``signed by at least one Senator and one Member of the House of Representatives before the same shall be received.'' The objection must ``state clearly and concisely, and without argument, the ground thereof.'' When an objection has been properly made in writing and endorsed by a member of each body the Senate withdraws from the House chamber, and each body meets separately to consider the objection. ``No votes . . . from any other State shall be acted upon until the [pending] objection . . . [is] finally disposed of.'' Section 17 of title 3 limits debate on the objections in each body to two hours, during which time no member may speak more than once and not for more than five minutes. Both the Senate and the House must separately agree to the objection; otherwise, the challenged vote or votes are counted. Historically, there appears to be three general grounds for objecting to the counting of electoral votes. The law suggests that an objection may be made on the grounds that (1) a vote was not ``regularly given'' by the challenged elector(s); (2) the elector(s) was not ``lawfully certified'' under state law; or (3) two slates of electors have been presented to Congress from the same State. Section 15 of title 3 specifically provides: ``[N]o electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified . . . from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only shall be counted which shall have been regularly given by the electors who are shown . . . to have been appointed.'' Since the Electoral Count Act of 1887, no objection meeting the requirements of the Act has been made against an entire slate of state electors. In the 2000 election several Members of the House of Representatives attempted to challenge the electoral votes from the State of Florida. However, no Senator joined in the objection, and, therefore, the objection was not ``received.'' In addition, there was no determination whether the objection constituted an appropriate basis under the 1887 Act. However, if a State has not followed its own procedures and met its obligation to conduct a free and fair election, a valid objection--if endorsed by at least one Senator and a Member of the House of Representatives--should be debated by each body separately until ``disposed of''. Detailed Findings A. Pre-Election 1. Machine Allocations--Why were there such long lines in Democratic leaning areas but not Republican leaning areas? Facts One of the critical reforms of HAVA was federal funding for states to acquire new and updated voting machines, and to fairly allocate the machines. Under HAVA, the Election Assistance Commission (EAC) provides payments to States to help them meet the uniform and nondiscriminatory election technology and administration requirements in title III of the law.'' In 2004, the EAC processed a payment of $32,562,331 for fiscal year 2003 and $58,430,186 for fiscal year 2004 for a total of $90,992,517. There is no information publicly available describing what, if any, Ohio HAVA funds were used and for what those funds were used. Nor are we aware how such funds were allocated within the state of Ohio and between counties. There was a wide discrepancy between the availability of voting machines in more minority, Democratic and urban areas as compared to more Republican, suburban and exurban areas. Even on election day, urban areas were hard pressed to receive the critical machines to respond to the ever lengthening lines. According to a Washington Post investigation, ``in Columbus, Cincinnati and Toledo, and on college campuses, election officials allocated far too few voting machines to busy precincts, with the result that voters stood on line as long as 10 hours--many leaving without voting.'' Moreover, the Election Protection Coalition testified that more than half of the complaints about long lines they received ``came from Columbus and Cleveland where a huge proportion of the state's Democratic voters live.'' Based upon various sources including complaints, sworn testimony, and communications with Ohio election officials, we have identified credible concerns regarding the allocation of machines on election day: Franklin County A New York Times investigation revealed that Franklin County election officials reduced the number of electronic voting machines assigned to downtown precincts and added them to the suburbs. ``They used a formula based not on the number of registered voters, but on past turnout in each precinct and on the number of so-called active voters--a smaller universe. . . . In the Columbus area, the result was that suburban precincts that supported Mr. Bush tended to have more machines per registered voter than center city precincts that supported Mr. Kerry.'' The Washington Post also found that in voter-rich Franklin County, which encompasses the state capital of Columbus, election officials decided to make do with 2,866 machines, even though their analysis showed that the county needed 5,000 machines. The Franklin County Board of Elections reported 81 voting machines were never placed on election day, and Board Director Matt Damschroder admitted that another 77 machines malfunctioned on Election Day.'' However, a county purchasing official who was on the line with Ward Moving and Storage Company, documented only 2,741 voting machines delivered through the November 2 election day.'' While Franklin County's records reveal that they had 2,866 ``machines available'' on election day. This would mean that the even larger number of at least 125 machines remained unused on Election Day. Mr. Damschroder misinformed a federal court on Election Day when he testified the county had no additional voting machines; this testimony was in connection with a Voting Rights Act lawsuit brought by the state Democratic Party that alleged minority precincts were intentionally deprived of machines. After the election the Washington Post also reported that in Franklin County, ``27 of the 30 wards with the most machines per registered voter showed majorities for Bush. At the other end of the spectrum, six of the seven wards with the fewest machines delivered large margins for Kerry.'' At seven of the eight polling places in Franklin County, a heavily populated urban community, there were only three voting machines per location; but there had been five machines at these locations during the 2004 primary. According to the presiding judge at one polling site located at the Columbus Model Neighborhood facility at 1393 E. Broad St., there had been five machines during the 2004 primary. Moreover, at Douglas Elementary School, there had been four machines during the spring primary. We have received additional information of hardship caused by the misallocation of machines based on emails and other transmissions, with waits of 4-5 hours or more being the order of the day. For example, we have learned of four hour waits at Precincts 35B and C in Columbus; seven hours waits for one voting machine per thousand voters, where the adjacent precinct had one station for 184 voters.'' Additionally, it appears that in a number of locations, polling places were moved from large locations, such as gyms, where voters could comfortably wait inside to vote, to smaller locations where voters were required to wait in the rain.'' Dr. Bob Fitrakis testified before the House Judiciary panel that Franklin County Board of Elections Chair, Bill Anthony, said that a truckload of 75 voting machines were held back on election day while people waited 5 to 6 hours to vote. Over 102,000 new voters were registered in Franklin County. A majority of them were African Americans. ``And so,'' said State Senator Ray Miller, ``only logic would say, we need more machines, particularly in the black community.'' Rev. William Moss testified that there were ``unprecedented long lines'' and noted that Secretary of State Blackwell did not provide sufficient numbers of voting machines to accommodate the augmented electorate in Columbus. Knox County At Kenyon College, a surge of late registrations promised a record vote. Nevertheless, Knox County officials allocated two machines, just as in past elections. Voter Matthew Segal, a student at Kenyon College, testified before the House Judiciary panel about conditions that amounted to voter disenfranchisement in Gambier, Ohio.'' The Gambier polling place had two machines for a population of 1,300 people, though nearby counties had one machine for every 100 people. He noted that voters were ``compelled to stand outside in the rain, through a hot gymnasium in crowded, narrow hallways, making voting extremely uncomfortable.'' According to his testimony, ``many voters became overheated and hungry'' and had to leave the long lines to eat. ``One girl actually fainted and was forced to leave the line,'' he said. ``Many others suffered headaches due to claustrophobic conditions and noise.'' In contrast, at nearby Mt. Vernon Nazarene University, which is considered more Republican leaning, there were ample voting machines and no lines. Other The NAACP testified that approximately ``thirty precincts did not have curbside voting machines for seniors and disabled voters.'' One entire polling place in Cuyahoga County had to ``shut down'' at 9:25 a.m. on Election Day because there were no working machines. We received an affidavit from Rhonda J. Frazier, a former employee of Secretary Blackwell, describing several irregularities concerning the use of HAVA money and the acquisition of election machinery by the state. She states that Secretary Blackwell's office failed to comply with the requirements of the voting reform grant that required all of the voting machines in Ohio to be inventoried and tagged for security reasons. Ms. Frazier also asserts that she ``was routinely told to violate the bidded contracts to order supplies from other companies for all 17 Secretary of State offices throughout the State which were cheaper vendors, leaving a cash surplus differential in the budget'' and that, when she inquired as to where the money differential was going, she was essentially told that this was not her concern and that she should not inquire about where that money went. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis Through intent or negligence, massive errors that led to long lines were made in the distribution and allocations of voting machines. The Washington Post reports that in Columbus alone, the misallocation of machines reduced the number of voters by up to 15,000 votes. Given what we have learned in our hearings, this is likely conservative estimate, and statewide, the shortage of machines could have resulted in the loss of hundreds of thousands of votes. The vast majority of this lost vote caused by lengthy lines in the midst of adverse weather was concentrated in urban, minority and Democratic leaning areas. As a result, this misallocation appears to be of the pivotal factors concerning the vote and outcome in the entire election in Ohio. On its face, the misallocation, shorting, and failure to timely deliver working machines would appear to violate a number of legal requirements. First, it would seem to constitute a violation of the Voting Rights Act and the constitutional safeguards of Equal Protection and Due Process, particularly given the racial disparities involved. Denying voters the means to vote in a reasonable and fair manner is no different than preventing them from voting outright. Second, the failure to provide enough voting machinery violates both Ohio's Constitution, that provides all eligible adults the right to vote, and the Ohio Revised Code which requires the Boards of Elections to provide ``for each precinct a polling place and provide adequate facilities at each polling place for conducting the election.'' Further, ``the board shall provide a sufficient number of screened or curtained voting compartments to which electors may retire and conveniently mark their ballots.'' These conclusions regarding Ohio legal violations are supported by several precedents, as well as common sense: The U.S. District Court for the Southern District of Ohio found such a serious threat to the voting right that it took the highly unorthodox step of ordering that those individuals waiting in line for longer than two hours receive paper ballots or some other mechanism. There is specific precedence for a legal violation due the fact that, under Ohio law in 1956, the courts were forced to intervene to enforce the then-applicable requirement of one machine per 100 voters. The court was highly critical of the previous practice of requiring only one machine for 800 voters or two for 1,400. Nearly 50 years later, we are unfortunately back to the antiquated practice of effectively disenfranchising those who are unable to spend an entire day voting. Evidence suggests that the Board of Elections' misallocation of machines went beyond urban/suburban discrepancies to specifically target Democratic areas. In particular, within the less urban county of Knox, the more Democratic leaning precincts near Kenyon College were massively shorted; the more Republican leaning precincts near Mt. Vernon Nazarene University were not. Third, it appears that a series of more localized legal violations have not been investigated. These include Mr. Damschroder's contradictory statements regarding the number and availability of machines on election day in Franklin County raise the possibility of perjury. The affidavit submitted by Rhonda Frazier would also appear to demonstrate a prima facie violation of the Help America Vote Act. Fourth, Secretary of State Blackwell's failure to initiate any investigation into this pivotal irregularity (which perhaps borders on fraud), notwithstanding his clear statutory duty to do so under Ohio Revised Code section 3501.05, represents a clear violation of Ohio law. The Secretary of State's most important obligation under the Ohio Constitution is to protect the right of every Ohio citizen who is eligible to vote and invesigate any and all irregularities concerning the same. Mr. Blackwell's failure to obey Ohio law on this point constitutes a clear instance where Ohio election law has been abrogated. 2. Cutting Back on the Right to Provisional Ballots Facts In a decision that Ohio Governor Bob Taft believed could affect over 100,000 voters, on September 17, 2004, Secretary Blackwell issued a directive restricting the ability of voters to use provisional ballots. The Election Protection Coalition testified that the narrow provisional ballot directive led to thousands of ballots from validly registered voters being thrown out because election officials with limited resources never told many of the voters in their jurisdictions where to cast a ballot on Election Day. While the Help America Vote Act provided that voters whose names do not appear on poll books are to sign affidavits certifying that they are in the correct jurisdiction and to be given provisional ballots, Secretary Blackwell considerably narrowed the definition of ``jurisdiction'' to mean ``precinct.'' Alleging that allowing voters to use provisional ballots outside their own precincts would be ``a recipe for Election Day chaos,'' Secretary Blackwell required such ballots to be cast in the actual precincts of voters otherwise they would be discarded entirely. Mr. Blackwell's rationalization appears to have ignored the fact that in prior elections, Ohio was able to grant far broader rights to provisional ballots, and that other states that permitted voters to cast them from anywhere within their county did not face the chaos he feared. Because of Secretary Blackwell's restrictive order, the Sandusky County Democratic Party filed a federal lawsuit to overturn it. The plaintiff's basis for the suit was that the order was discriminatory because lower-income people were more likely to move and, thus, appear at the wrong precinct. Furthermore, the order would have disenfranchised first- time voters, many of whom would not know where to vote. In his rulings in favor of the plaintiffs and against Secretary Blackwell, U.S. District Judge James Carr held that the blame lay squarely on Secretary Blackwell. The court was forced to issue two rulings ordering Secretary Blackwell to issue HAVA-compliant directives. Secretary Blackwell abided by neither judgment and instead proceeded with directives that would disenfranchise Ohio voters. With respect to the speed of the case, the court noted that its urgency was the result of Secretary Blackwell failing to issue provisional voting guidelines for almost two years after the enactment of HAVA: ``The exigencies requiring the relief being ordered herein are due to the failure of the defendant to fulfill his duty not only to this Court, as its injunction directed him to do, but more importantly, to his failure to do his duty as Secretary of State to ensure that the election laws are upheld and enforced. . . . The primary cause of the exigency is the defendant's failure to have issued Directive 2004-33 relating to provisional voting for nearly twenty-three months after HAVA's enactment. . . . Blackwell has never explained why he waited so long to do anything to bring Ohio's provisional election procedures into line with federal law.'' The court then turned its attention to the substance of Secretary Blackwell's original and amended directives. In these directives, ``Blackwell described not a single provision of federal law generally, much less HAVA in particular. . . . By failing to discuss HAVA, on the one hand, and describing only outmoded, no longer applicable procedures on the other, Blackwell . . . left Ohio's election officials more confused than they would have been if the directive had not issued.'' In addition, because the amended directive did not clearly state that persons who might not be eligible to vote must be informed of their right to vote provisionally, the court held that ``Blackwell's proposed directive would disenfranchise all such individuals.'' The court believed that, by seeming to deprive voters and county election officials of valuable information regarding HAVA and provisional ballots, ``Blackwell apparently seeks to accomplish the same result in Ohio in 2004 that occurred in Florida in 2000.'' Ultimately, the court was forced to require the Secretary, within a tight deadline, to issue specific guidelines pertaining to provisional ballots. Instead of complying with this federal court order, Secretary Blackwell entirely disregarded the ruling and questioned the motives of the judge. He referred to Judge Carr as ``a liberal judge . . . who wants to be co-secretary of state.'' At a speech before the Loveland Area Chamber of Commerce in Clermont County, Secretary Blackwell compared himself to Mohandas Gandhi, Martin Luther King, and the apostle Paul on the grounds that he would rather go to jail-- as they did--than issue an order he believed was illegal. He also claimed his office could not speak with Judge Carr about the case because the Judge was in Florida; Blackwell later admitted he did not mean the Judge actually was in Florida. Additionally, a journalist reported seeing Judge Carr in his chambers the day the ruling was issued. Secretary Blackwell appealed the judge's decision to the Sixth Circuit Court of Appeals, which overturned the lower court decision and authorized Mr. Blackwell's more restrictive legal interpretation. While Blackwell cited an October 12 resolution by the Election Assistance Commission as authority for his decision, EAC Chairman DeForest Soaries asked Blackwell in writing not to say that the resolution endorsed the Blackwell order. Chairman Soaries further stated that Secretary Blackwell was the only secretary of state who actually misread the EAC's ruling. The EAC did not ``agree that a person in the wrong precinct shouldn't be given a provisional ballot. . . . The purpose of provisional ballots is to not turn anyone away from the polls. . . . We want as many votes to count as possible.'' Many of Ohio's county boards of elections also disagreed with Blackwell's interpretation of the law and with his motivations. Franklin County Board Chairman William Anthony stated, ``For him to come out with that decision so close to Election Day . . . I'm suspect of his motivations.'' The Director of the Franklin County Board also disagreed with Blackwell and asserted that its precincts would have voters who insist they are in the correct precinct sign affidavits and submit provisional ballots. Cuyahoga County directed people to the right precincts but still accepted provisional ballots from anyone who insisted on voting. Cuyahoga County Board Chairman Bob Bennett, who also chairs the Ohio Republican Party, issued a statement saying the Board would not deny ballots to voters who wanted them: ``The Cuyahoga County Board of Elections will not turn voters away. . . . We are simply trying to avoid confrontation at the ballot box over the validity of each ballot. Those decisions will be made by the board of elections according to state law.'' In response, Mr. Blackwell's spokesperson threatened such election officials with removal from their positions. In Hamilton County, election officials implemented Mr. Blackwell's directive and refused to count provisional ballots cast at the correct polling place even if they were cast at the wrong table in that polling place. Some polling places contained multiple precincts that were located at different tables. As a result, 1,110 provisional ballots were deemed invalid because people voted in the wrong precinct. In about 40 percent of these cases, voters found the correct polling places, which contained multiple precincts, but workers directed them to the wrong table. In other areas, precinct workers refused to give any voter a provisional ballot. Also, in at least one precinct, election judges told voters that they may validly cast their ballot in any precinct, leading to any number of disqualified provisional ballots. Similarly, in Stark County, the Election Board rejected provisional ballots cast at the wrong precinct in the right polling place. In earlier elections, a vote cast in Stark County in the wrong precinct at the proper polling location was counted. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis Mr. Blackwell's decision to restrict the use of provisional ballots is one of the most critical in the election and could well have resulted in disenfranchisement of tens of thousands of voters. In a single polling place in Hamilton County, denying provisional ballots if a voter showed up at the wrong precinct cost more than 1,100 votes. Although Mr. Blackwell's narrow interpretation was ultimately upheld by the Sixth Circuit, this was not until after a lower court found: ``The Proposed Directive fails in many details to comply with HAVA by not instructing Ohio's election workers about their duties under HAVA. Among the crucial, but omitted details are: the mandatory obligation to inform voters of the right to vote provisionally and the duty to provide provisional ballots to all persons covered by the statute, and not just to persons whose names are not on the rolls.'' In our judgment, Mr. Blackwell's restrictive interpretation violates the spirit, if not the letter, of HAVA. The decision seems particularly unjust given that Ohio had not experienced any notable difficulties giving provisional ballots on a broader basis in past elections, and other states which adopted broader constructions did not report the chaos and confusion that Mr. Blackwell claimed to be the rationale for his decision. 3. Cutting Back on the Right of Citizens To Register To Vote Facts On September 7, 2004, Secretary Blackwell issued a directive to county boards of elections mandating rejection of voter registration forms based on their paper weight. Specifically, he instructed the boards to reject voter registration forms not ``printed on white, uncoated paper of not less than 80 lb. text weight.'' Then the counties were instructed to follow a confusing procedure, treating the voter registration forms not on this minimum paperweight as an application for a new registration form. Mr. Blackwell's issuance of this directive less than one month before Ohio's voter registration deadline resulted in confusion and chaos among the counties: The Lake County Board of Elections Director, Jan Clair, who happens to be a Republican, stated that the weight order would ``create more confusion than the paper's worth. . . . It's the weight of the vote I'm concerned about on Nov. 2-- that's the important thing.'' The Mahoning County Board of Elections Director, Michael Sciortino, said mailing high weight registration paper to voters was not a priority and might occur after the election because of how it might confuse voters. The Cuyahoga County Board of Elections Director, Michael Vu, said his Board would rather not comply with the weight order and asked state lawmakers to address it. Secretary Blackwell gave permission for the Board to accept registration forms that were printed in newsprint in the Cleveland Plain Dealer.''' As Director Vu pointed out, his office does not ``have a micrometer at each desk to check the weight of the paper.'' Other counties such as Madison County followed Mr. Blackwell's ruling and indicated that they sent letters and new forms to voters. The Franklin County Board of Elections was unlikely to comply with the weight directive, largely because it does not keep track of the weight of such forms. The Lorain County Board of Elections accepted voter registration on any weight of paper. The Montgomery County Board of Elections said the paper weight order was frustrating their ability to process registrations. They attempted to comply by mailing a new form to potential voters who sent forms of incorrect weight, but a processing backlog of 4,000 forms prevented them from sending new forms by the October 4 deadline, such that some voters could have been disenfranchised. Steve Harsman, the Deputy Director of the Board, says ``there is just no reason to use 80-pound paper.'' Finally, Secretary Blackwell was not following his own order. An Ohio lawyer, John Stopa, noted that voter registration forms obtained at Blackwell's office were printed on 60-pound paper. An election board official stated he obtained 70-pound weight forms from Blackwell's office. After several weeks of pressure from voting rights advocates, such as the League of Women Voters of Ohio and People for the American Way, Secretary Blackwell reversed his directive on September 28, 2004. Even his new order, however, was not drafted clearly enough. He did not withdraw the first directive, and the New York Times found the second directive to be ``worded so inartfully that it could create confusion. As a matter of fact, the Delaware County Board of Elections posted a notice on its website stating it could not accept its own Voter Registration Forms and directed voters to request a new one by calling a number. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis Secretary Blackwell's directive to reject registration applications based on paper weight, even though eventually rescinded, undoubtedly had a negative impact on registration figures. During the time period the directive was in place, it likely resulted in an untold number of voters not being registered in time for the 2004 election. In addition, even after the directive was reconsidered, it was done so in a confusing manner. For example, the directive continued to be posted on the Ohio Secretary of State's website, and at least one county, Delaware County, continued to post the directive on its website as well. Mr. Blackwell's initial directive appears to be inconsistent with the National Voter Registration Act, which put safeguards in place to ease voter registration, not impede it. There is perhaps no more certain indication of the disenfranchisement bias Secretary of State Blackwell brought to his job than this controversial ruling, which was widely reviled even by Republicans. 4. Targeting New Minority Voter Registrants--Caging Facts The Ohio Republican Party attempted to engage in ``caging,'' whereby it sent registered letters to newly registered voters in minority and urban areas, and then sought to challenge 35,000 individuals who refused to sign for the letters or the mail otherwise came back as undeliverable (this includes voters who were homeless, serving abroad, or simply did not want to sign for something concerning the Republican Party). Mark Weaver, an attorney for the Ohio Republican Party, acknowledged the Party used this technique. During a hearing before the Summit County Board of Elections, a challenger admitted that she had no knowledge to substantiate her claim that the voters she was challenging were out of compliance with Ohio's election law: Ms. Barbara MILLER (Republican Challenger): That was my impression that these items that I signed were for people whose mail had been undeliverable for several times, and that they did not live at the residence. Mr. Russell PRY (Member, Summit County Board of Elections): Did you personally send any mail to Ms. Herrold? Ms. MILLER: No, I did not. Mr. PRY: Have you seen any mail that was returned to Ms. Herrold? Ms. MILLER: No, I have not. Mr. PRY: Do you have any personal knowledge as we stand here today that Ms. Herrold does not live at the address at 238 30th Street Northwest? Ms. MILLER: Only that which was my impression; that their mail had not been able to be delivered. Mr. PRY: And who gave you that impression? Ms. MILLER: Attorney Jim Simon. Mr. PRY: And what did-- Ms. MILLER: He's an officer of the party. Mr. PRY: An officer of which party? Ms. MILLER: Republican party. Mr. PRY: Where did you complete this challenge form at? Ms. MILLER: My home. Mr. PRY: What did Mr. Simon tell you with respect to Ms. Herrold's residence? Ms. MILLER: That the mail had come back undeliverable several times from that residence. Mr. PRY: And you never saw the returned mail? Ms. MILLER: No, I did not. Mr. PRY: Now, you've indicated that you signed this based on some personal knowledge. Mr. HUTCHINSON: (Joseph F. Hutchinson, Jr. Summit County Board of Elections) No. Mr. ARSHINKOFF: (Alex R. Arshinkoff, Summit County Board of Elections) Reason to believe. It says, ``I have reason to believe.'' It says it on the form. Mr. JONES: It says, ``I hereby declare under penalty of election falsification, that the statements above are true as I verily believe.'' Mr. ARSHINKOFF: It says here, ``I have reason to believe.'' Mr. HUTCHINSON: It says what it says. Mr. ARSHINKOFF: You want her indicted, get her indicted. Mr. PRY: That may be where it goes next. Among other things, the Republican Party arranged for the Sandusky County sheriff to visit the residences of 67 voters with wrong or non-existent addresses. The caging tactics were so problematic that a federal district court in New Jersey and a panel of the Third Circuit found that the Republican Party was egregiously in violation of the 1982 and 1987 decrees that barred the party from targeting minority voters for challenges at the polls. They found sufficient evidence that the Ohio Republican Party and the RNC conspired to be ``disruptive'' in minority-majority districts and enjoined the party from using the list. The Third Circuit granted a hearing en banc and therefore stayed the order and vacated the opinion. The U.S. District Court for the Southern District of Ohio found the same activities to violate the Due Process Clause of the Constitution. Most importantly, notice of the Republican-intended challenge and subsequent hearing was sent to the 35,000 voters far too late to be of any use to the challengee. In fact, the notice was sent so late, that many did not receive it before the election at all, and the court found that ineffective notice must have been the intent: ``The Defendants' intended timing and manner of sending notice is not reasonably calculated to apprise Plaintiff Voters of the hearing regarding the challenge to their registrations, nor to give the them opportunity to present their objections, as demonstrated by the individual situations of Plaintiffs Miller and Haddix . . . it seems that Defendants intend to send the notice to an address which has already been demonstrated to be faulty.'' The court also found that the challenge statute in general was not narrowly tailored enough justify the ``severe'' burden on voters. While the state's interest in preventing fraudulent voting was compelling, there were other ways to do that besides allowing partisan groups to arbitrarily challenge voters. Analysis Although the ``caging'' tactics targeting 35,000 new voters by the Ohio Republican Party were eventually struck down, it is likely they had a negative impact on the inclination of minorities to vote, although, it is difficult to develop a specific estimate. The caging tactics were clearly both discriminatory and illegal. All three district court cases ruled in favor of the plaintiffs, finding the challenges to be politically and racially charged, and burdening the fundamental right to vote. As one court stated, ``This Court recognizes that the right to vote is one of our most fundamental rights. Potential voter intimidation would severely burden the right to vote. Therefore, the character and magnitude of Plaintiffs' asserted injury is substantial.'' It went on to note that the right to vote is paramount to any interest in challenging other people: ``. . . Plaintiff's right to cast votes on election day is a fundamental right. The challengers, however, do not have a fundamental right to challenge other voters. These decisions correctly overturned these caging and challenging activities because they violated the right to equal protection, due process, and Ohioans' fundamental right to vote. Ralph Neas, President of the People for the American Way Foundation, emphasized the seriousness of these tactics when he testified that ``the 35,000 people that were threatened with being challenged. That's not the spirit of democracy; that's the spirit of suppression. [The Republican Party] did everything to minimize the vote in the urban areas and to engage in voter suppression, and I hope the hearings really emphasize this. I think that prosecution is something that should be considered with respect to what happened in Ohio.'' 5. Targeting Minority and Urban Voters for Legal Challenges Facts The Ohio Republican Party, which Secretary Blackwell helped lead as Chair of the Bush-Cheney campaign in Ohio, engaged in a massive campaign to challenge minority voters at the polls. The Republican Party lined up poll challengers for 30 of Ohio's 88 counties, and the vast majority were focused in minority and urban areas. In addition to intimidating minority voters, this scheme helped lead to increased delays and longer waits in voting lines in these areas. This was a particularly damaging outcome on a day of severe adverse weather in Ohio. As a federal court looking at these issues concluded: if challenges are made with any frequency, the resultant distraction and delay could give rise to chaos and a level of voter frustration that would turn qualified electors away from the polls. Three separate courts issued opinions expressing serious concerns with Ohio's voter challenge processes. At the state level, Cuyahoga County Common Pleas Judge John O'Donnell found that Secretary Blackwell exceeded his authority in issuing a directive that let each political party have multiple challengers at each polling place. While the Democratic Party registered only one challenger per polling place, the Republican Party had registered one challenger for each precinct (there are multiple precincts in many polling places). Judge O'Donnell found the directive to be ``unlawful, arbitrary, unreasonable and unconscionable, coming four days after the deadline for partisan challengers to register with their county boards of elections.'' An attorney with the Ohio Attorney General's office, Jeffrey Hastings, admitted to Judge O'Donnell that Secretary Blackwell had changed his mind in first limiting challengers to one per polling place and then, after the October 22 challenger registration deadline, allowing multiple challengers. Two federal district court judges also found the challenge procedure to be problematic and tantamount to voter disenfranchisement. In one lawsuit, the plaintiffs were Donald and Marian Spencer, an elderly African-American couple who alleged the challenge statute harkened back to Jim Crow disenfranchisement. In her opinion rejecting the GOP challenger system, U.S. District Court Judge Susan Dlott wrote that ``there exists an enormous risk of chaos, delay, intimidation and pandemonium inside the polls and in the lines out the door.'' In the other district court case, Summit County Democratic Central and Executive Committee, et. al. v. Blackwell, Judge John R. Adams noted the risk that ``the integrity of the election may be irreparably harmed.'' ``If challenges are made with any frequency,'' he wrote, ``the resultant distraction and delay could give rise to chaos and a level of voter frustration that would turn qualified electors away from the polls.'' Judge Dlott also noted the racial disparity inherent in challenges, citing that only 14% of new voters in white areas would face challenges while up to 97% of new voters in black areas would face them. The Chair of the Hamilton County Board of Elections, Timothy Burke, was an official defendant in the lawsuit but testified the use of the challenges was unprecedented. Chairman Burke stated that the Republican Party had planned for challengers at 251 of Hamilton County's 1013 precincts; 250 of the challenged precincts have significant black populations. Both federal courts blocking the use of challengers highlighted that challengers were not needed because Ohio law already safeguarded elections from voter fraud by the use of election judges. In particular, Ohio law mandates that four election judges staff each polling place and provides that the presiding judge of each group can make decisions regarding voter qualifications. Although Secretary Blackwell reversed his position and issued a statement on October 29, 2004, excluding challengers from polling places, his position became less relevant when Jim Petro, Ohio's Attorney General, argued in favor of the challenges taking place and said the Secretary's new statement was unlawful. Seeing the irony in these conflicting opinions, Judge Dlott asked ``how can the average election official or inexperienced challenger be expected to understand the challenge process if the two top election officials cannot?'' These two lower court rulings did not stand. The Sixth Circuit Court of Appeals reversed the two lower court opinions on a 2-1 vote. The Supreme Court of the United States denied the applications to vacate the 6th Circuit's stays of the lower court rulings. While troubled about the ``undoubtedly serious'' accusation of voter intimidation, Justice John Paul Stevens said the full Court could not consider the case because there was insufficient time to properly review the filings and submissions. Analysis The decision by the Ohio Republican Party to utilize thousands of partisan challengers in the voting booths undoubtedly had an intimidating and negative impact on minority voters. While it is difficult to estimate how many voters were disenfranchised by the challenger program, given the adverse weather conditions and the lack of trained pollworkers, the disruptions caused by challengers could easily have reduced minority turnout by tens of thousands of voters, if not more. It is noteworthy that these disruptions were predicted by Republican officials: ``Mark Weaver, a lawyer for the Ohio Republican Party, acknowledged, `[the challenges] won't be resolved until [Election Day], when all of these people are trying to vote. It can't help but create chaos, longer lines and frustration.' He reiterated that `challengers at the polls] were bound to slow things down.' '' This will lead to long lines. While the program of challenging voters was ultimately upheld, after a series of back and forth decisions, clearly this is an issue which harkens back to the ``Jim Crow'' era. As U.S. District Court Judge John R. Adams wrote in his Summit County opinion: ``In light of these extraordinary circumstances, and the contentious nature of the imminent election, the Court cannot and must not turn a blind eye to the substantial likelihood that significant harm will result not only to voters, but also to the voting process itself, if appointed challengers are permitted at the polls on November 2. . . . The presence of appointed challengers at the polls could significantly impede the electoral process, and infringe on the rights of qualified voters.'' As a result, the Ohio challenger system deserves reconsideration by the legislature or further judicial appeal. 6. Denying Absentee Voters Who Never Got Their Ballots the Right to a Provisional Ballot Facts Secretary Blackwell also issued a ruling preventing the issuance of provisional ballots for voters who requested absentee ballots, even if they failed to receive them by the official deadline or did not receive them at all. Despite the fact that these errors occurred on the part of the Ohio government and not the voters, Secretary Blackwell determined they should not receive provisional ballots at the polls. A lawsuit filed by a college student, Sara White, who never received her absentee ballot and was denied a provisional one, led to a ruling that other similar voters must be issued provisional ballots. The court ordered Lucas County to start providing provisional ballots, and directed Secretary Blackwell to advise all Boards of Elections of the same within 30 minutes. The legal ruling overturning Mr. Blackwell's restrictive ruling on absentee ballots came late in the afternoon, and as a result, many voters intending to vote that day were prevented from doing so. Analysis Mr. Blackwell's decision to prevent those voters who requested absentee ballots, but did not receive them on a timely basis, from being able to vote, also likely disenfranchised many voters, particularly seniors who were turned away from the polls before the decision was known. The federal court found that Mr. Blackwell's decision clearly violated HAVA: ``HAVA is clear; that all those who appear at a polling place and assert their eligibility to vote irrespective of the fact that their eligibility may be subject to question by the people at the polling place or by the Board of Elections, shall be issued a provisional ballot.'' In addition, this restrictive directive also likely constituted violations of Article S, Section 1 of the Ohio Constitution, granting every Ohio citizen the right to vote if he or she is otherwise qualified. 7. Denying Access to the News Media Facts Secretary Blackwell also sought to prevent the news media and exit poll takers from locating themselves within 100 feet of polling places. This would have been the first time in thirty years in which reporters were prevented from monitoring polls. Media organizations challenged the barrier, leading to a U.S. Court of Appeals for the Sixth Circuit ruling that struck down Secretary Blackwell's decision. In its opinion, the court noted that ``democracies die behind closed doors'' and found that the district court's ruling had ``interpreted and applied the statute overly broadly in such a way that the statute would be violative of the first amendment''. Analysis Mr. Blackwell's decision to prevent news media and exit polls from interviewing Ohio citizens after they voted constitutes a clear violation of the First Amendment's guarantee that state conduct shall not abridge ``freedom . . . of the press.'' His decision also likely violated Ohio's own Constitution that provides: ``Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.'' His decision does not appear to have had any negative impact on the vote, but potentially made it more difficult for the media to uncover voting irregularities, discrepancies, and disenfranchisement. B. Election Day 1. County-Specific Issues Warren County--Counting in Secret Because of a Terrorist Threat? Facts On election night, Warren County, a traditional Republican stronghold, locked down its administration building and barred reporters from observing the counting. When that decision was questioned, County officials claimed they were responding to a terrorist threat that ranked a ``10'' on a scale of 1 to 10, and that this information was received from an FBI agent. Despite repeated requests, County officials have declined to name that agent, however, and the FBI has stated that it had no information about a terror threat in Warren County. Warren County officials have given conflicting accounts of when the decision was made to lock down the building. While the County Commissioner has stated that the decision to lock down the building was made during an October 28 closed-door meeting, e-mailed memos--dated October 25 and 26--indicate that preparations for the lockdown were already underway. Statements also describe how ballots were left unguarded and unprotected in a warehouse on Election Day, and they were hastily moved after county officials received complaints. It is important to view the lockdown in the context of the aberrant results in Warren County. An analyst who has received all the vote data for 2000 and 2004 by precinct in several Ohio counties did a detailed analysis of the greatest increase in votes for President Bush by precinct, and the Bush-Kerry margin in Warren County. The analyst revealed that Warren County first did a lockdown to count the votes, then apparently did another lockdown to recount the votes later, resulting in an even greater Bush margin and very unusual new patterns. Moreover, in the 2000 Presidential election, the Democratic Presidential candidate, Al Gore, stopped running television commercials and pulled resources out of Ohio weeks before the election. He won 28% of the vote in Warren County 223 In 2004, the Democratic Presidential candidate, John Kerry, fiercely contested Ohio and independent groups also put considerable resources into getting out the Democratic vote. Moreover, unlike in 2000, independent candidate Ralph Nader was not on the Ohio ballot in 2004. Yet, the tallies reflect John Kerry receiving exactly the same percentage, 28 percent, in Warren County as Gore received. In support of his assertion that there was no wrongdoing in Warren County, Secretary Blackwell has referred to a Democratic election observer in Warren County, Jeff Ruppert, who has said he observed nothing inappropriate at the County administration building. While we have no reason to doubt Mr. Ruppert's truthful account of what he actually observed, a complete review of his statements shows numerous problems at the building. At the outset, Mr. Ruppert acknowledges that he was subject to the lockout and had to present identification to even be admitted to the building. Once he gained admission, Mr. Ruppert said he did ``have concerns over how provisional ballots were handled at polling places--which he said seemed to be inconsistent.'' He also points to a number of areas he observed that were centers of activity (ballots being transferred from vehicles, precinct captains accompanying ballots in elevators, and ballots being stored), but it clearly would have been impossible for Mr. Ruppert to observe all of these activities at the same time. Finally, considering that he left before the ballot count was completed, it is inaccurate to state with certainty that there were no problems in Warren County. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis Given the total lack of explanation by Mr. Blackwell or Warren County officials, it is not implausible to assume that someone is hiding something. We do not know whether what happened is simply a miscommunication or mix up, where an election official misunderstood an FBI directive. If that were the case, it would seem to be an easy matter to dispel the confusion surrounding this episode. Given that no such explanation has been forthcoming and given the statistical anomalies in the Warren County results, it is impossible to rule out the possibility that some sort of manipulation of the tallies occurred on election night in the locked down facility. The disclosure that the decision to lock down the facility the Thursday before the election, rather than on election day would suggest the lockdown was a political decision, not a true security risk. If that was the case, it would be a violation of the constitutional guarantees of equal protection and due process, the Voting Rights Act, and Ohio right to vote. We believe it is the statutory duty for the Secretary of State to investigate irregularities of this nature. Mahoning County--Innumerable Flipped Votes and Extra Votes Facts We have received numerous reports of transfers of votes for Senator Kerry to votes for President Bush. Specifically, in Youngstown, the Washington Post reported that their investigation revealed 25 electronic machines transferred an unknown number of Kerry votes to the Bush column. Jeanne White, a veteran voter and manager at the Buckeye Review, an African American newspaper, stepped into the booth, pushed the button for Kerry--and watched her vote jump to the Bush column. ``I saw what happened; I started screaming: `They're cheating again and they're starting early!' '' The Election Protection Coalition also confirmed these voting ``glitches'' noting that a ``voter reported `Every time I tried to vote for the Democratic Party Presidential vote the machine went blank. I had to keep trying, it took 5 times.' '' The voting machine in Youngstown experienced what election officials called ``calibration problems.'' Thomas McCabe, Deputy Director of the Mahoning County Board of Elections, stated that the problem ``happens every election'' and ``[i]t's something we have to live with and we can fix it.'' There is also information, still being investigated, that in several precincts, there were more votes counted by machine than signatures in poll books (which includes absentee voters). This would mean that more people voted by machine at a precinct than actually appeared at that location. For example, in CMP 4C Precinct, there were 279 signatures and 280 machine votes. In BLV 1 Precinct, there were 396 signatures but 398 machine votes. In AUS 12 Precinct, there were 372 signatures but 376 machine votes. In POT 1 Precinct, there were 479 signatures but 482 machine votes, and in YGN 6F Precinct, there were 270 signatures but 273 machine votes. It would appear from these numbers that the machines counted more votes than voters. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis Evidence strongly suggests many individuals voting in Mahoning County for Senator Kerry had their votes recorded for President Bush. Due to lack of cooperation from Secretary of State Blackwell, we have not been able to ascertain the number of votes that were impacted or whether the machines malfunctioned due to intentional manipulation or error. This determination would help us determine if the Voting Rights Act was also violated. Ascertaining the precise cause and culprit could help ensure that the error does not occur in the future. Secretary of State Blackwell's apparent failure to initiate any investigation into this serious computer error would seem inconsistent with his statutory duty to review these matters. Butler County--The Strange Case of the Downballot Candidate Outperforming the Presidential Candidate In Butler County, a Democratic candidate for State Supreme Court, C. Ellen Connally, received 59,532 votes. In contrast, the Kerry-Edwards ticket received only 54,185 votes, 5,000 less than the State Supreme Court candidate. Additionally, the victorious Republican candidate for State Supreme Court received approximately 40,000 less votes than the Bush-Cheney ticket. Further, Connally received 10,000 or more votes in excess of Kerry's total number of votes in five counties and 5,000 more votes in excess of Kerry's total in ten others. According to media reports of Ohio judicial races, Republican judicial candidates were ``awash in cash,'' with more than $1.4 million in campaign funding, as well as additional independent expenditures made by the Ohio Chamber of Commerce. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis It appears implausible that 5,000 voters waited in line to cast votes for an underfunded Democratic Supreme Court candidate and then declined to cast a vote for the most well- funded Democratic Presidential campaign in history. We have been able to ascertain no answer to the question of how an underfunded Democratic State Supreme Court candidate could receive such a disproportionately large number of votes in Butler County over the Kerry Edwards ticket. This raises the possibility that thousands votes for Senator Kerry were lost, either through manipulation or mistake. The loss of these votes would likely violate constitutional protections of equal protection and due process; if manipulation is involved, that would also violate the Voting Rights Act and Ohio election law. This anomaly calls for an investigation, which Mr. Blackwell has failed to initiate. Cuyahoga County--Palm Beach County for Pat Buchanan-Redux? Facts It has been well documented that a flawed Palm Beach County ballot design in the 2000 Florida Presidential election may well have cost Al Gore thousands of votes, by misrecording such votes as votes for Pat Buchanan. A similar problem may well have occurred in Cleveland in 2004. Precincts in Cleveland have reported an incredibly high number of votes for third party candidates who have historically received only a handful of votes from these urban areas. For example, precinct 4F in the 4th Ward cast 290 votes for Kerry, 21 for Bush, and 215 for Constitution Party candidate Michael Peroutka. In 2000, the same precinct cast less than 8 voters for all third party candidates combined. This pattern is found in at least 10 precincts throughout Cleveland in 2004, awarding hundreds of unlikely votes to the third party candidate. Notably, these precincts share more than a strong Democratic history; they share the use of a punch card ballot. This problem was created by the combination of polling sites for multiple precincts, coupled with incorrect information provided by poll workers. In Cuyahoga County, each precinct rotates candidate ballot position. Therefore, each ballot must go into a machine calibrated for its own precinct in order for the voter's intent to be counted. In these anomalous precincts, ballots were fed into the wrong machine, switching Kerry votes into third party votes. This was done on the advice of poll workers who told voters that they could insert their ballots into any open machine--and machines were not clearly marked indicating that they would work only for their designated precinct. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis It appears that hundreds, if not thousands, of votes intended to be cast for Senator Kerry were recorded as being for a third party candidate. At this point it is unclear whether these voting errors resulted from worker negligence and error or intentional manipulation. While Cuyahoga County election official Michael Vu said he would investigate, there has been no further explanation about what will be done to remedy this situation, and Secretary of State Blackwell has refused to cooperate in our investigation or pursue his own inquiry. In any event, those voters whose votes were not properly counted suffered a violation of their constitutional protections of equal protection and due process; if intentional manipulation is involved, this would also implicate the Voting Rights Act and Ohio election law. Franklin County (Gahana)--How does a computer give George W. Bush nearly 4,000 extra votes? Facts On election day, a computerized voting machine in ward 1B in the Gahana precinct of Franklin County recorded a total of 4,258 votes for President Bush and 260 votes for Democratic challenger John Kerry. However, there are only 800 registered voters in that Gahana precinct, and only 638 people cast votes at the New Life Church polling site. It has since been discovered that a computer glitch resulted in the recording of 3,893 extra votes for President George W. Bush--the numbers were adjusted to show President Bush's true vote count at 365 votes and Senator Kerry's at 260 votes. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis At this point it is unclear whether the computer glitch was intentional or not, as we have received no cooperation from Secretary Blackwell or other authorities in resolving the question. In order to resolve this issue for future elections, it must be determined how it was initially discovered that such a computer glitch did and could occur and what procedures were employed to alert other counties upon the discovery of the malfunction. Further, a determination should be made as to whether we can be absolutely certain that this particular malfunction did not occur in other counties in Ohio during the 2004 Presidential election, and what actions have been taken to ensure that this type of malfunction does not happen in the future. Miami County--Where did nearly 20,000 extra votes for George W. Bush come from? Facts In Miami County, voter turnout was a highly suspect and improbable 98.55 percent. With 100% of the precincts reporting on Wednesday, November 3, 2004, President Bush received 20,807 votes, or 65.80% of the vote, and Senator Kerry received 10,724 votes, or 33.92% of the vote. Thus, Miami reported a total of 31,620 voters. Inexplicably, nearly 19,000 new ballots were added after all precincts reported, boosting President Bush's vote count to 33,039, or 65.77%, while Senator Kerry's vote percentage stayed exactly the same to three one-hundredths of a percentage point at 33.92 percent. Roger Kearney of Rhombus Technologies, Ltd., the reporting company responsible for vote results of Miami County, stated that the problem was not with his reporting and that the additional 19,000 votes were added before 100% of the precincts were in. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis Mr. Kearney's statement does not explain how the vote count could change for President Bush, but not for Senator Kerry, after 19,000 new votes were added to the roster. Thus, we are primarily concerned with identifying a valid explanation for the statistical anomaly that showed virtually identical ratios after the final 20-40% of the votes were counted. Specifically, we have received no explanation as to how the vote count in this particular county could have changed for President Bush, but not for Senator Kerry, after 19,000 new votes were added to the roster. The vote results in Miami constitute yet another significant anomaly in the tens of thousands range without any explanation or investigation by Secretary of State Blackwell, leading us to conclude that there is likely some vote error or vote manipulation. This could constitute a violation of constitutional guarantees of equal protection and due process and, if intentional, would likely violate the Voting Rights Act and Ohio election law. Perry County--Discrepancy in Number of Votes and Voters Facts The House Judiciary Committee Democratic staff has received information indicating discrepancies in vote tabulations in Perry County. Similar discrepancies have been found in other counties. For example, in Trumbull County there are apparently more absentee votes than absentee voters according to a recent study. For example, the sign-in book for the Reading S precinct indicates that approximately 360 voters cast ballots in that precinct. In the same precinct, the sign-in book indicates that there were 33 absentee votes cast. In sum, this would appear to mean that fewer than 400 total votes were cast in that precinct. Yet, the precinct's official tallies indicate that 489 votes were cast. In addition, some voters' names have two ballot stub numbers listed next to their entries, creating the appearance that voters were allowed to cast more than one ballot. In another precinct in Perry County, W Lexington G AB, 350 voters are registered according to the County's initial tallies. Yet, 434 voters cast ballots. As the tallies indicate, this would be an impossible 124% voter turnout. The breakdown on election night was initially reported to be 174 votes for Bush, and 246 votes for Kerry. We are advised that the Perry County Board of Elections has since issued a correction claiming that, due to a computer error, some votes were counted twice. We are advised that the new tallies state that only 224 people voted, and the tally is 90 votes for Bush and 127 votes for Kerry. This would make it appear that virtually every ballot was counted twice, which seems improbable. In Madison Township, Precinct AAS, a review of the poll books shows that 481 people signed in to vote on election day, yet the Perry County Board of Elections is reporting that 493 votes were cast in that precinct, a difference of 13 votes. The same discrepancy appears with respect to Monroe Township AAV. The poll books show that 384 people signed in on election day to vote, while the Perry County Board of Elections reports that 393 votes were cast, a difference of 9 votes. We have also received information that in at least three precincts, Pike West AAY, New Lexington I AB, and Redfield AAC, more signatures appear in the sign-in books than votes cast. This would indicate that votes may have been thrown out. In Perry County, there appears to be an extraordinarily high level of 91% voter registration; yet, a substantial number of these voters have never voted and have no signature on file. Of the voters that are registered in Perry County, an extraordinarily large number of voters are listed as having registered in 1977, a year in which there were no federal elections. Of these, an exceptional number are listed as having registered on the exact same day: in total, 3,100 voters apparently registered in Perry County on November 8, 1977. In addition, according to a Democratic staff count of the poll books, there are approximately 751 registered voters in Madison Township AAS, while the Perry County Board of Elections reports that there are 850 registered voters in that township. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis Clearly, there is an unexplained discrepancy between the actual vote tallies and the number of registered voters in various precincts as well as other statistical anomalies in the County. Given the lack of any explanation to date, and an absence of willingness by Secretary Blackwell or any other authorities to explain or investigate these irregularities, it is not inconceivable that some sort of vote tampering has occurred. If so, that would likely constitute a denial of the constitutional guarantees of equal protection and due process, the Voting Rights Act, and Ohio election law. Republicans in the State of Washington are currently citing such ``mystery voters'' as evidence of fraud. The State Republican Chairman has commented, ``people ask me what fraud would look like? It would look like this. 2. Myriad Other Problems and Irregularities We learned of literally thousands upon thousands of additional irregularities in Ohio. As a matter of fact, the Election Protection Commission has testified that to date, there have been over 3,300 incidents of voting irregularities entered for Ohio alone. The following is a brief highlight of some of the more egregious irregularities we have learned of during the course of our investigation: a. Intimidation and Misinformation Facts In the course of our hearings we learned: The NAACP testified that it received over 200 calls regarding incidents of suspected voter intimidation or unusual election related activities, particularly actions taken by challengers who intimidated poll workers and voters. Other specific incidents involved a caller who reported that someone was going door-to-door telling people they were not registered to vote. A voter in Franklin County received information in the mail identified as being from the state that said he would have to vote by provisional ballot because he had moved; in fact, the voter had not moved and had lived at the address for 10-15 years. One polling place worker was only asking African American voters for their address. A new voter was told that there were vote challengers at her precinct. When she was voting, she was confused by the punch cards. She was afraid to ask poll workers for help for fear that she would be challenged. Vote challengers were demanding that voters provide ID, leading many people to leave. This egregious behavior should be curtailed by the state. In Franklin County, a worker at the Holiday Inn observed a team of 25 people who called themselves the ``Texas Strike Force'' using payphones to make intimidating calls to likely voters, targeting people recently in the prison system. The ``Texas Strike Force'' members paid their way to Ohio, but their hotel accommodations were paid for by the Ohio Republican Party, whose headquarters is across the street. The hotel worker heard one caller threaten a likely voter with being reported to the FBI and returning to jail if he voted. Another hotel worker called the police, who came but did nothing. Phone calls incorrectly informed voters that their polling place had changed. The Cleveland Plain Dealer found that several Lake County residents received an official-looking letter on Board of Elections letterhead informing them that their polling place had changed or that they were not properly registered to vote. On election day, a fake voter bulletin from Franklin County Board of Elections was posted at polling locations, and fliers were distributed in the inner city, telling Republicans to vote on Tuesday and Democrats to vote on Wednesday due to unexpected heavy voter registration. In Cleveland, the Washington Post reported that unknown volunteers began showing up at voters' doors illegally offering to collect and deliver complete absentee ballots to the election office. The Election Protection Coalition testified that in Franklin County, voters received fliers informing them that they could cast a ballot on November 3. In Franklin County there were reports that about a dozen voters were contacted by someone claiming to be from the county board of elections, telling them their voting location was changed. ``Door-hangers'' telling African-American voters to go to the wrong precinct were distributed. Analysis The use of intimidation and misinformation in Ohio on election day was widespread and pervasive and clearly suppressed the vote. The NAACP testified that they received over 200 complaints of such acts in Ohio, so it is likely the actual number of incidents ranged in the thousands, if not higher. It is difficult to estimate how many of these incidents actually resulted in lost votes. These incidents of voter intimidation and misinformation clearly violate the Voting Rights Act, the Civil Rights Act of 1968, Equal Protection, Due Process and the Ohio right to vote. The fact that Secretary Blackwell did not initiate a single investigation into these many serious allegations may represent a violation of his statutory duty to investigate election irregularities. Cases of intimidation and misinformation such as we have seen in Ohio appear to have become a regular feature of our election landscape and would appear to warrant the development of a stronger investigative and law enforcement system than we have at present, at both the state and federal levels. b. 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. 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 intentional misconduct. Depending on the type of misconduct involved, these errors may 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 follow-up 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. c. Registration Irregularities and Official Misconduct and Errors Facts In the course of our hearings we learned: A Washington Post investigation found that many longtime voters discovered their registrations had been purged. Numerous voters were incorrectly listed on roster as felons, and thus not allowed to vote. The NAACP testified to receiving over 1,000 calls related to voter registration issues, generally from individuals who were not on the voter rolls even though they had voted in previous elections, individuals with questions on how to register, and individuals with concerns about not receiving a voter registration card. The Election Protection Coalition found that ``Individuals frequently reported having `disappeared' from the voter rolls . . . Many individuals expressed concerns that they had registered but never received confirmation or were not listed on the voter rolls at the precincts.'' At our Columbus, Ohio hearing, several documented problems in Cuyahoga County were brought to our attention by the Greater Cleveland Voter Registration Coalition (GCVRC). GCVRC registered approximately 10,000 voters before the 2004 elections, yet when they tracked the registrations, 3.5% were either not entered at all or entered incorrectly, completely disenfranchising the applicants. While the board of Cuyahoga County was alerted to this problem as early as September, no corrective measures were taken. Projected out county-wide, over 10,000 people were likely not correctly registered and lost their right to vote. These registration problems led to provisional ballots being thrown out. The NAACP reported that many voters complained they were asked to show ID when they thought it was unnecessary or were unable to vote because they lacked proper ID. At several locations in Cuyahoga County, all voters were being asked for ID, not just new voters. A voter called to say that all voters are being asked for ID. The poll workers were checking the address of the voter against the address on the registration and if they did not match, the voter was being turned away, often without casting a provisional ballot. In still another case, a voter was challenged because the address on the ID did not match the registration address (but was in the same precinct). There were numerous cases where election workers sent voters to the wrong precinct. A voter stated that a polling place in Cleveland ran out of ballots, and put in an emergency request for ballots but did not receive them. The Associated Press reported that officials ticketed lawfully parked cars at the polling stations. Election protection volunteers received complaints about provisional ballots from voters, many of whom reported being denied the opportunity to vote by provisional ballot. Some polling places either ran out of provisional ballots or never had any at their location. For example: a voter registered to vote in September. When she went to the polling place in Cuyahoga County on Election Day, they said she was not registered and they refused to give her a provisional ballot. In Franklin County, some voters, who were in line to vote, but outside of the doors to the polling place, were sent home at 7:30 p.m. when the polls closed. Analysis Just as we witnessed in the Florida presidential debacle four years ago, improper purging and other errors by election officials represent a very serious problem and have a particularly negative impact on minority voters. The fact that the Greater Cleveland Voter Registration Coalition projects that in Cuyahoga County alone over 10,000 Ohio citizens lost their right to vote as a result of official registration errors and that the NAACP received more than 1,000 purging complaints on election day indicate that the overall number of voters who may have been disenfranchised as a result of official mistakes and wrongful purging is in the scores of thousands, if not more. Congressional passage of HAVA's provisional ballot requirement was intended to mitigate errors such as this, but Secretary Blackwell's unduly narrow interpretation of this requirement, as well as weak rules for counting and checking provisional ballots, have made it far less likely that individuals whose registration was wrongfully purged or never entered would be able to receive a provisional ballot and have it counted. Given the information we have, it is unclear whether improper purging and other registration errors which appear so prevalent in Ohio were the result of human mistake or intentional misconduct. If it was intentional, a strong case can be made that it violated the Voting Rights Act, Equal Protection, Due Process, possibly the National Voter Registration Act, as well as Ohio's right to vote law. The Secretary of State's failure to investigate these registration errors and other irregularities may also violate his duties to do so under Ohio law. HAVA funds were supposed to be used to implement a fairer and more efficient registration system statewide. Unfortunately, full funding has been delayed, and most states, including Ohio, have received waivers from this federal requirement. 3. General Problems a. Spoiled Ballots--Hanging Chads Again? Facts Ohio had a significant number of spoiled votes-- approximately 93,000. These are ballots in which either no presidential vote was recorded or multiple votes were indicated and therefore ignored. For example, someone may not have filled in his presidential choice dark enough for an optical scan machine to read, but did fill it in clearly enough to be a valid selection in a hand count. In addition, a punch card voter may not have punched completely through his choice, leaving a ``chad'' attached that could not be read by the tabulator. However, that same chad could be read in a hand count because Ohio law provides that hanging chads may be considered valid votes as long as two corners are detached. According to a New York Times investigation, ``the problem [with spoiled ballots] was pronounced in minority areas, typically Kerry strongholds. In Cleveland ZIP codes where at least 85% of the population is black, precinct results show that one in 31 ballots registered no vote for president, more than twice the rate of largely white ZIP codes where one in 75 registered no vote for president. Election officials say that nearly 77,000 of the 96,000 [spoiled] ballots were punch cards.'' One of the principal purposes of the recount in Ohio was to ascertain the intent of these 93,000 ballots. However, by manipulation or otherwise every county in Ohio but Coshocton County avoided completing a full hand recount. This means that the vast majority of these spoiled ballots will never be reviewed. The problem was particularly acute in two precincts in Montgomery County which had an undervote rate of over 25% each--accounting for nearly 6,000 voters who stood in line to vote, but purportedly declined to vote for president. This is in stark contrast to the 2% of undervoting county- wide. Disturbingly, predominately Democratic precincts had 75% more undervotes than those that were predominately Republican. Secretary of State Blackwell has refused to answer any of the questions concerning these matters posed to him by Ranking Member Conyers and 11 other Members of the Judiciary Committee on December 2, 2004. Analysis Given the high level of interest in the presidential election in 2004, it is logical to assume that many of the persons casting spoiled ballots intended to cast a vote for president, so this irregularity alone could account for tens of thousands of disenfranchised votes, with a disproportionate amount being minority voters and Kerry voters. One of the reasons Ohio has such a large number of ballots is that the state relies so heavily on the outdated and antiquated punch card system that proved to be error prone in Florida. Sixty-eight of the 88 Ohio counties still rely on the outdated punch card machines. Thus, at least in the critical swing state of Ohio the promise of HAVA funding to help states acquire better equipment so that more votes could count has not been met. With regard to the severe undercount voting figures in Montgomery County, we have not received any cooperation from Secretary Blackwell in ascertaining how this occurred. This may have been due to some equipment or poll worker error or, in the worst case, manipulation. b. Exit Polls Bolster Claims of Irregularities and Fraud Facts An exit poll serves as a predictor of the final vote results in an election. It is conducted by interviewing voters about their vote selections as they are leaving the polls. The process for conducting reliable exit polls was largely created in 1967 by CBS News pollster and statistician, Warren Mitofsky, now known as ``a world recognized expert in exit polling in particular and public opinion polling in general.'' Former Mexican President Carlos Salinas credited Mr. Mitofsky's work for contributing to the prevention of fraud and an increase in credibility in the 1994 election in Mexico. The exit poll data taken on November 2, 2004, was compiled by two well-respected firms--Mitofsky International and Edison Media Research. Joseph Lenski, who conducted the exit polls for Edison Media Research, trained in the field of exit polling under Mr. Mitofsky before starting his own firm. They conducted in 2004 exit polls under a contract from the National Election Pool (NEP), a consortium of six news and media organizations: the Associated Press, ABC, CNN, CBS, NBC, and Fox. In this year's election, the National Election Pool conducted two types of exit polls: 73,000 voters were interviewed in statewide polls, and an additional 13,000 voters were interviewed for a national poll. The national poll's sample size was approximately six times larger than the sample normally used in high quality pre-election national polls. This poll size would normally yield a very small margin of error and would be very accurate. Furthermore, such a poll would normally result in a close congruence between exit poll and official results. The sample size for Ohio was 1,963 voters, which is quite large for statistical purposes and equivalent to the 2,000 person norm for most national polls. In addition, this year's poll numbers were designed to account for absentee votes after a large number of absentee votes contributed to the inaccurate projections of the Florida race in 2000. This year, Mitofsky and Edison began telephone surveys in key states before the election to screen for absentee voters and create an accurate estimate of their votes. While exit pollsters caution against using their results to predict election results, exit polls can be extremely accurate, with only small variations from the official outcomes in numerous elections. For example, in the three most recent national elections in Germany, exit polls differed from the final official vote counts by an average of only 0.26%. Their results have proven to be very accurate; correctly predicting the winner with no evidence of systematic skew of the data. United States exit polls have also been precise. Brigham Young University students' exit poll results for Utah in this election indicated 70.8% for Bush and 26.5% for Kerry. The official results were 71.1 % for Bush and 26.4% for Kerry. In the Ohio election for 2004, early exit polls that were released just after noon on November 2 showed that Senator Kerry was leading President Bush by three percentage points. Shortly after midnight on November 3, exit poll data continued to indicate that 52.1% of Ohio voters selected Senator Kerry and 47.9% selected President Bush. These numbers, however, differed greatly from the final results of the election; in the official results, President Bush led Senator Kerry by 2.5 percentage points in Ohio. National poll data showed a similar shift from a clear advantage for Senator Kerry on Election Day to a victory for President Bush on the day after the election. Data that was provided by Edison/Mitofsky to the National Election Pool members at 4 p.m. on Election Day showed Senator Kerry leading 51% to 48%. These percentages held the same in the data released at 7:30 p.m. that day. By the time Senator Kerry conceded the election on Wednesday, November 3, the Edison/Mitofsky poll numbers had been aligned with reported vote counts. For the first time the poll numbers showed an advantage for President Bush with 51% to Senator Kerry's 48%. On December 3, 2004, Rep. Conyers requested the raw exit poll data from Mitofsky International. Mr. Mitofsky replied ``The data are proprietary information gathered and held for the benefit of those news organizations, and I am not at liberty to release them.'' On December 21, 2004, as a follow- up, Rep. Conyers requested the data directly from the news wire and television companies that contracted with Mr. Mitofsky and Mr. Edison for the data. Though the Congressman has not received a response to his letter, Edie Emery, a spokesperson for the NEP and a CNN employee, said the exit poll data was still being analyzed and that the NEP's board would decide how to release a full report in early 2005. ``To release any information now would be incomplete,'' she said. Furthermore, Jack Stokes, a spokesperson for the Associated Press said, ``like Congressman Conyers, we believe the American people deserve answers. We want exit polling information to be made public as soon as it is available, as we intended. At this time, the data is still being evaluated for a final report to the National Election Pool.'' Analysis Clearly something unusual is indicated by the differential between the exit poll information we have obtained and the final vote tallies in Ohio. It is rare, if not unprecedented, for election results to swing so dramatically from the exit poll predictions to the official results. Kerry was predicted to win Ohio by a differential of 4.2 percentage points. The official results showed Bush winning by 2.5 percentage points. The differential between the prediction for Kerry and the winning results for Bush represent a swing of 6.7 percentage points. According to University of Pennsylvania Professor Steven Freeman, this ``exit poll discrepancy could not have been due to chance or random error.'' Professor Freeman has further concluded that statistical analysis shows a probability of 1 in 1,000 that the difference between Senator Kerry's share of the exit poll projection and the official count of the vote would be as much as the final 3.4% spread, a virtual impossibility. As a matter of fact, there are broad statistical variations of up to 9 percentage points between exit poll data and official results in Ohio and other key states in the 2004 election. In state after state, Senator Kerry's advantage in the exit poll results was lost by sizable margins. The discrepancy between the exit polls and the official vote count must be due to an inaccurate poll or an inaccurate vote. Either there was unintentional error in the exit poll or the official vote count, willful manipulation of the exit poll or the official vote count, or other forms of fraud, manipulation or irregularities occurred in the electoral process. Pollsters Mitofsky and Lenski have intimated that their poll numbers deviated from the official results because a disproportionate number of Bush supporters refused to participate in their polls. However, Professor Freeman posits that part of the discrepancy is due to a miscount of the vote. As noted above, election polls are generally accurate and reliable. Pollsters are able to categorize their sources of error and develop extensive methodologies to limit those errors with each successive poll. Political scientist Ken Warren noted claims, ``. . . exit polling has become very sophisticated and reliable, not only because pollsters have embraced sound survey research techniques, but because they have learned through experience to make valid critical adjustment.'' In fact, prominent survey researchers, political scientists and journalists ``concur that exit polls are by far the most reliable'' polls. Unfortunately, throughout American history various devices, schemes and legal structures have been used to shape the outcome of an election. Elections at every level of government have been skewed by tactics that deny voting rights, establish poll taxes, lose voter registrations, disqualify voters and disqualify ballots to ensure a certain outcome. The Florida election in 2000 provides ample evidence that our system is rife with election irregularites that have profound impacts on our election outcomes. Elections are politically controlled, with extreme pressures for certain outcomes. In our system, victory can become more important than an accurate vote count. While pollsters are privately hired based on their accuracy and timely results, candidates and campaigns are primarily concerned with winning. When key election officials are also key campaign officials, as was the case in Florida in 2000 and in Ohio in 2004, the goal of providing an accurate vote tally gets into the murky waters of winning the political contest. But pollsters lose their legitimacy, and thus future contracts, if they are not accurate. Thus, `` the systemic pressures on polling accuracy are much greater than they are on vote count accuracy. While pollsters use feedback and detailed analysis to improve their results, are motivated towards accuracy, and face market competition if they fail to provide thorough, accurate and timely exit poll results, ``there is little competition, feedback and motivation for accuracy in election processing.'' Thus we do not dismiss these exit poll results, and their discrepancy with the official vote counts, as others might do. We believe they provide important evidence that something was amiss in the Ohio election. Full, accurate and reliable statistical analysis cannot be completed until the raw data from the exit polls is released. The limited available ``uncalibrated'' or raw data indicates the broad discrepancies that are discussed above. However, it appears that the National Election Pool data was ``calibrated'' or corrected after the official results were publicized. It may be standard practice to recalibrate poll results to reflect the actual outcome ``on the assumption that the [official] count is correct, and that any discrepancies must have been due to imbalanced representation in their samples or some other polling error.'' Thus data that was publicized on Election Day showing these large discrepancies is no longer publicly available; only the recalibrated numbers are available on the Internet. An independent, detailed analysis of the early exit poll data is necessary to verify the actual outcome of the vote in Ohio, and thus restore complete legitimacy to this election. In any event, the discrepancies that we are able to identify place the entire Ohio election results under a cloud of uncertainty. C. Post-Election 1. Confusion in Counting Provisional Ballots Facts Secretary Blackwell's failure to issue standards for the counting of provisional ballots led to a chaotic and confusing result such that each of Ohio's 88 counties could count legal ballots differently or not at all. In turn, this fostered a situation where subsequent to the election, Cuyahoga County mandated that provisional ballots in yellow packets must be ``rejected'' if there is no ``date of birth'' on the packet. This ruling was issued despite the fact that the original ``Provisional Verification Procedure'' from Cuyahoga County stated, ``Date of birth is not mandatory and should not reject a provisional ballot'' and simply required that the voter's name, address and a signature match the signature in the county's database. The People for the American Way Foundation sought a legal ruling ordering Secretary Blackwell and the county elections board to compare paper registration and electronic registration records. People For the American Way further asked the Board to notify each voter whose ballot was invalidated and how the invalidation could be challenged. Neither of these actions were taken. In another case, while the state directed counties to ensure voters had been registered during the thirty days before the election, one college student who had been registered since 2000 and was living away from home was denied a provisional ballot. Analysis Mr. Blackwell's failure to articulate clear and consistent standards for the counting of provisional ballots likely resulted in the loss of several thousand votes in Cuyahoga County alone, and untold more statewide. This is because the lack of guidance and the ultimate narrow and arbitrary review standards imposed in Cuyahoga County appear to have significantly contributed to the fact that in Cuyahoga County, 8,099 out of 24,472 provisional ballots, or approximately one third, were ruled invalid, the highest proportion in the state. This number is twice as high as the percentage of provisional ballots rejected in 2000. These series of events constitute a possible violation of the Voting Rights Act, as not only were legitimate votes apparently thrown out, they undoubtedly had a disproportionate impact on minority voters, concentrated in urban areas such as Cuyahoga County which had the highest shares of the state's provisional ballots. The actions may also violate Ohio's constitutional right to vote. 2. Justice Delayed is Justice Denied--Recounts were Delayed Because of a Late Declaration of Results Facts Ohio law requires the Secretary of State to provide county boards of elections with directives governing voting procedures, voting machine testing, and vote tallying. Prior to the election, Secretary Blackwell thus issued a directive providing that Ohio boards of elections would have to complete their official canvasses by December 1, almost one month after the date of the 2004 election. The directive further states that ``no recount may be held prior to the official canvass and certification of results,'' so that county boards would have to wait until Secretary Blackwell decided to certify the results before proceeding with recounts. Ohio law also sets deadlines for the conduct of recounts. First, applications for statewide recounts must be submitted within five days of the Secretary of State's declaration of results. Second, such recounts must begin within ten days of the recount request. Secretary of State Blackwell gave county boards of election until December 1 to certify their returns and then waited to another five days, until December 6, to certify the results. As a consequence, recounts could not be sought until at least December 11, and were required to begin by December 16. The Green/Libertarian recount began on December 13, 2004. As a result, the recount was pending when the Secretary of State sent certificates to electors on December 7, and before the electoral college met on December 13. Because it appeared the Secretary of State had intentionally delayed certification to ensure that the recount could not be completed by these time periods, 11 Members of Congress, including Rep. Conyers, wrote to Gov. Taft asking that they delay or treat as provisional the December 13 meeting of the state's presidential electors. The counties completed their recounts on December 28, 2004, but due to a variety of irregularities and alleged legal violations in the recount, they remain embroiled in litigation as of the date of this report. Analysis The scenario created by Secretary Blackwell effectively precluded recounts from being concluded prior to the December 13 meeting of electors. By setting the vote tally deadline so late and then delaying the declaration of results--it took a full 34 days after the November 2 election for the results to be certified--Secretary of State Blackwell insured that the time for completing recounts, therefore, was pushed to after the date of the Electoral College meeting. As a result of this intentional course of conduct, it appears that Mr. Blackwell has ensured that the controversies concerning the appointment of electors could not be resolved by December 7, 2004, thereby causing Ohio to lose the benefit of the electoral college safe harbor so that there appointment of electors is not necessarily binding on Congress. In addition, this diminishment of the recount law may violate the voters' right to equal protection and due process, as well as undermine the entire import of Ohio's recount law. 3. 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. 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. Todd Rapp, President of Triad, also has confirmed that these sorts of changes are standard procedure for his company. 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.'' Barbian noted that he had ``provided [other counties] reports so they could review the information on their own.'' 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?'' 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.'' 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 overall integrity of the recount of the presidential election in Ohio, and 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.'' We have received several additional reports of machine irregularities involving several other counties serviced by Triad, 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. 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 retested the 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 unsealed transfer cases stored in an old wooden cabinet that, at one point, was said to be 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. 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. 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. Sec. 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. 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. 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. 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 Sec. 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, 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 Sec. 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, and that, ``teams of one Democrat and one Republican must be present with ballots at all times of processing.'' 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. 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;'' ``destroy any property used in the conduct of elections;'' ``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;'' and ``willfully and with fraudulent intent make any mark or alteration on any ballot.'' 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. In addition, a Triad affiliate, Psephos Corporation, supplied the notorious butterfly ballot used in Palm Beach County, Florida, in the 2000 presidential election. 4. Greene County--Long Waits, the Unlocked Lockdown and Discarded Ballots We have received information indicating negligence and potential tampering with Greene County ballots and voting machines. On December 9, election observers interviewed the County Director of Elections, Carole Garman, and found substantial discrepancies in the number of voting machines per voter in low-income areas as compared to other areas. Apparently, some consolidated precincts had almost the state imposed limit of 1,400 registered voters and others had only a few hundred voters. One of the precincts disproportionately affected included Central State University and Wilbur Force University, both historically black universities. The next day, the observers returned to that office and requested voter signature books for copying. Ms. Garman granted such access. After leaving the office for three hours, the observers returned and had been advised that, under Ohio law, they were entitled to copies of the precinct books for a nominal fee, and requested such copies from Garman. Garman did not concur with that view of Ohio law and telephoned the office of Secretary Blackwell, eventually reaching Pat Wolfe, the Election Administrator for the Secretary of State. Garman then advised the observers that, per Blackwell, all voter records for the State of Ohio were ``locked down'' and they now were ``not considered public records.'' Garman subsequently physically removed the books from one observer's hands'' After attempting to persuade Garman to reverse this decision to no avail, the observers departed the office. The observers returned the following day, a Saturday, at 10:15 am. While a number of cars were parked in the parking lot and the door to the office was unlocked, and there was no one in the office. One light was on in the office that had not been on the previous night after the office was closed. In the office, unsecured, were the poll books that had been taken from then observers the day before. There were also voting booths, ballot boxes apparently containing votes, and voting equipment, also unsecured. Shortly after the observers had left the office, a police officer arrived and later elections officials and members of the media. The officials were unable to offer any explanation for the unsecure office, other than negligence, and said they would ask a technician (from the Triad company) to check out the machines on Monday. A number of other substantial irregularities in Greene County have come to our attention that were uncovered after the office was discovered to be unsecure. In the short period of time that observers were given to examine voting records, ballots were not counted for apparently erroneous reasons. In a number of cases, Greene County officials rejected ballots because the secrecy envelope for the ballot appeared to indicate that the voter had voted in the wrong precinct, notwithstanding the fact that a notation was made--apparently by an election worker--indicating the vote should count. The records appeared to indicate that, in some cases, voters were sent to the wrong precinct by election workers and, in others, were given the wrong precinct's envelope for the ballot because election workers had run out of envelopes for the correct precinct. These records also appeared to indicate that some voters were purged from the voting rolls on the basis that they failed to vote in the previous election, while other voters who had not voted in several elections had not been purged. On October 26, Secretary Blackwell issued a directive and provided it to Greene County officials regarding the ``pre- challenging'' process, where a voter's eligibility is challenged prior to the election, and sent an attached list of voters who were to be pre-challenged in Greene County, to the Board of Elections. Notice was sent by the Board to these voters on the Friday before the election by registered mail, and was likely not received until Monday, advising such voters of their right to be present at a Monday hearing, where the voter's eligibility would be decided. Other irregularities appear in the official ballot counting charts prepared by election officials, including a number of precincts where the number of voters do not match the number of votes cast despite the fact that the charts indicate that those numbers ``must match.'' We have also obtained evidence indicating that eligible voters did not have their ballots counted for invalid reasons. For example, an overseas military ballot was not counted because it was a photocopy rather than the original ballot; an 85 year old voter did not have his absentee vote counted because it did not have a stub attached; a disabled voter who indicated she marked her ballot with the assistance of election workers did not have her absentee vote counted because no stub was attached; an absentee voter with a properly postmarked ballot did not have his vote counted because it was received ``too late,'' but before the initial certification of results; and provisional ballots that were not counted because an election official forgot to sign as a witness when the ballot was cast. Substantial numbers of provisional ballots appear to have been rejected because voters were purged in the last two years. Analysis Numerous Ohio laws appear to have been broken in Greene County. First it is a misdemeanor to deny the public access to election records. Ohio law clearly states that ``No director of elections, deputy director of elections, or employee of the board of elections designated by the director or deputy direct shall knowingly prevent or prohibit any person from inspecting, under reasonable regulations established and posted by the board of elections, the public records filed in the office of the board of elections.'' Not only is this a crime, but grounds for dismissal from election duties--required whether the offender is an official or an employee. It does not appear that anyone has been prosecuted, and no one has been dismissed as required by statute. Second, the complete lack of security on Friday night violates any number of Ohio laws requiring that ballots and machinery be kept absolutely secure. Section 3505.31 requires that ballots, pollbooks, poll lists, tally sheets and voting machines be kept tamper-proof and under seal. Ballots are to be held secure until a recount is properly conducted in front of witnesses, and ballots may not be handled by anyone except the board and its employees. Failure of these duties by board members and their employees, is a felony, as ``No member, director or employee of a board of elections shall willfully or negligently violate or neglect to perform any duty imposed upon him by law, or willfully perform or neglect to perform it in such a way as to hinder the objects of the law.'' Again, it requires that the offender be dismissed, and again, it appears that those actions have not been taken in Greene County. It is important to note that this statute does not require any intent of wrongdoing--simple negligence is enough to invoke the statute and there is no explanation as to why it has not been enforced. Third, Greene County's operation seems to have several Constitutional problems, both federally and at the state level. The selective use of challenges and purges invokes the Equal Protection clause. We were unable to confirm any legitimate reason why some voters were challenged and then purged, and others were not. There are also Due Process concerns as those to be purged were not given sufficient notice to meaningfully participate in their scheduled hearings. And finally, these actions violate Ohio's own constitution that guarantees the right to vote. 5. Other Recount Irregularities We learned of numerous additional troubling recount irregularities in the course of our investigation. The groundwork for these problems was laid when the Secretary of State failed to issue specific standards for the recount. In essence, Mr. Blackwell's directive on recount procedures permitted each county board of election to determine its own recount rules. Mr. Blackwell failed to issue such standards, notwithstanding the fact that election officials themselves had offered contrasting election recount procedures, including some counties who sought to unilaterally oppose doing any recount whatsoever. Some of the serious recount irregularities that we learned of in connection with our investigation include the following: a. Irregularities in Selecting the Initial 3% Hand Count--Many County Boards of Elections Did Not Randomly Select the Precinct Samples In the course of our investigation we learned: Mr. Keith Cunningham, Director of the Allen County Board of Elections, explained that it would take considerably longer to carry out the recount if there were a random selection process employed. Instead, the Board pre-selected four precincts, totaling slightly more than the required three percent, for the recount. Democratic and Green Party witnesses raised objections but to no avail. The Clermont County Board of Elections selected the 3% precinct samples by choosing the thirteen precincts with lowest number of voters plus the next number of precincts that reached the total of 3% of the total votes cast in that county. This selection process eliminated larger and more diversified precincts. The staff of the Board admitted that small precincts were chosen because fewer problems would be encountered in smaller precincts. A witness objected to this selection process, but to no avail. The Cuyahoga County Board of Elections decided to choose only precincts with 550 votes or more and from a cross- section of areas--one East side, one West side, one affluent, one non-affluent. This criterion left only eight percent of precincts available to be selected. In addition, witnesses observed that the ballots were not in a random order, and that they had been previously sorted. As the ballots were fed into the counting machines, there were long runs of votes for only one candidate and then long runs for another, which seemed statistically improbable. The total number of votes cast in Morrow County was 16,694. Three percent of this would be 501. The Morrow County Board of Elections selected the Harmony Township precinct for the initial hand count because it had 517 ballots cast. When observers complained this was not random, the Board responded that it had the right to select the precinct. During this discussion, an election official with the Board called the Secretary of State's office and reported that the Secretary of State's office stated that the Board was correct. The Hocking County Board of Elections met and Rod Hedges, a Republican Board member, stated that he believed the Board should select a precinct that was not heavily in favor of George W. Bush or John F. Kerry. The Board decided to consider only the precincts where the vote totals for Bush and Kerry were similar. An observer objected that this was not a random selection, but to no avail. Election officials in Medina County were aware of several ``problem'' districts, but instead chose to perform the manual 3% test recount on two precincts that had been part of a school levy recount the previous Monday. That meant that those ballots had been taken out of the standard ``double lock'' situation and had been handled several times since that Monday. The Board of Elections in Vinton County selected a precinct 3% manual recount test simply because its vote total was closest to 3% of the total votes cast in the county. The Summit County Board of Elections selected precincts randomly with the Director and Deputy Director of the Board of Elections and two other Board employees present, both of whom were IT specialists for the Board so that they could compute the three percent. The Board shuffled 475 precinct cards and then chose randomly from the pile. The Summit County Board of Elections conducted this selection without any recount witnesses present. b. Irregularities in Applying the Full Hand-Count Requirement--Counties Not Conducting Full Hand Count After 3% Hand and Machine Counts Did Not Match In the course of our investigation we learned: In Monroe County, the 3% hand-count failed to match the machine count twice. Subsequent runs on that machine matched neither 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 deck 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 Fairfield County, the hand recount of the 3% test sample did not match the machine count, even after two attempts. The Board suspended the recount and stated that Secretary Blackwell recommended that the recount should begin again ``from scratch.'' The Green recount observers were then told that it was 4:00 PM, the building was closed, and all had to leave. The Republican recount observers, however, were allowed to stay in a conference room for an additional ten minutes or so for a private discussion. When the Board reconvened a few days later, it announced that it would be conducting a machine count of the county's votes. When a Green Party observer objected, she was told by the Board that she was not allowed to speak. c. Irregularities in the Treatment of Ballots--Some Counties Marking Ballots and Some Counties Not Securely Storing Ballots In the course of our investigation we learned: In Washington County, the Board of Elections had, in the first count, excluded ballots which included no votes and overvotes. During the recount, the Board altered many such ballots to make them work. An observer protested this practice. An election official pulled a black marker from his right pocket near the beginning of the recount and stated that he was the mark-up man. He proceeded to do all of the marking of the ballots. Another election official assisted with the ``band-aids''. The observer noted that all the re- marking and band-aiding of ballots did reflect the will of the voter, with one exception. In the precinct Belpre 4A, a voter had both marked the oval and put an X through it for presidential candidate Michael Peroutka and had marked the oval for Bush. The election official put a band-aid over the Peroutka vote and put his own X on the Bush vote. The observer objected that it should be counted as an overvote. The Board ruled that the vote should count for Bush. In Lucas County, an observer witnessed the physical alteration of three ballots for the apparent reason of ensuring that the vote count produced by the optical scan machine would match the 3% hand count. At least one of the election officials stated that she did not want the hand count and machine count to be different because they did not want to do a complete hand count. The Board made the alterations to the ballot after determining the intent of the voters. Following a lunch break during the recount, the Board kept recount observers waiting while a technician from the Diebold company reprogrammed the machine. In Ashland County, ballots cast in the presidential election were stored by precinct in open cubicles along one wall in the employee lunchroom/meeting room, completely open and visible to anyone who enters the room. Piled on top of the cubicles were bags of Doritos, mugs, cleaning products, Glad Wrap and other miscellaneous items. Board of Election officials said the room was kept locked, except when used. In Coshocton County, the Board stored voted ballots mixed with blank, unused ballots in partially-opened boxes, unsealed at the time of observation and apparently never sealed after the election. While ballots were stored in a locked room, all Board employees had keys to the room. In Belmont County, the Deputy Director of Elections stated that her county had hired an independent programmer (``at great expense'') to reprogram the counting machines so that they would only count votes for President during the recount. In Portage County, all ballot boxes were locked and reopened, locked and re-opened again--always in plain sight-- and transported methodically from the visual inspection area to the tabulator room. d. Irregularities in the Treatment of Witnesses at the Recount and their Access to Ballots In the course of our investigation we learned: In Summit County, recount witnesses were threatened with expulsion if they spoke to counting teams. In some instances, they were expected to ``observe'' from up to 20 feet away, which prevented them from being able to actually observe recount. In Huron County, the punchcard tabulator test was observed only by Republican witnesses. This test was conducted the day before the Green Party witness was invited to observe the recount. In Putnam County, Board of Elections officials told observers that their Board would meet on December 15th to decide the start date. When the observer called back on the 15th, she was told the recount had already taken place. In Allen County, observers were not allowed to examine provisional ballots and absentee ballots during the recount. The Board told them that they must make an appointment at a later time working around the Board's schedule. The Board further stated that only the specific person who cast such a ballot is allowed to inquire whether his or her vote was counted. In Holmes County, observers asked to see the spoiled ballot pile, comprised of five ballots, but the Board denied access, stating that they were in a sealed envelope that could not be opened. In Licking County, the Board denied observers access to view provisional and absentee ballots. In Mahoning County, the Board denied observers access to view rejected absentee ballots. In Medina County, the Board denied observers access to view provisional ballot tallies, provisional ballots, and the actual machines and ballot booklets used. In Morgan County, 30 of 160 provisional and absentee ballots were not counted, and the Board denied observers access to view these ballots. The Board stated that these ballots were locked away and would be destroyed 60 days after the election. In Stark County, the Board denied an observer request to view the provisional ballots. In Warren County, the Board denied an observer request to view provisional and absentee ballots. The observer has requested that the Board have this decision reviewed by the county prosecutor and the Board is now awaiting the county prosecutor's decision. Analysis The Secretary of State's failure to issue specific standards for the recount was a major problem. It appears to have contributed to a lack of uniformity that may very well violate both the Due Process Clause and the Equal Protection Clause of the Constitution. As the U.S. Supreme Court held in 2000, ``Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.'' As the Court articulated in that case, ``It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise.'' It may also have violated Ohio state law which charges the secretary of state with ``[issuing] instructions by directives and advisories to members of the boards [of elections] as to the proper methods of conducting elections'' and ``[preparing] rules and instructions for the conduct of elections.'' In terms of the specific irregularities, they would seem to be inconsistent if not in outright violation of several aspects of Ohio's recount law. Those counties which did not randomly select the precinct samples appears to violate the Secretary of State's directive on this point. Those counties which did not conduct a full hand count after the 3% hand and machine counts did not match is inconsistent with Ohio's statutory right to have inconsistent results rechecked. Those counties that allowed for irregular marking of ballots and which failed to secure and store ballots and machinery appear to have violated provisions of Ohio law mandating that candidates have the right to ensure that ballots are secure between the election and the official recount, that ballots may not be handled by anyone besides Board members and their staff, and may not be handled outside of the presence of the Board and qualifying witnesses. Finally, those counties which prevented witnesses for candidates from observing the various aspects of the recount appear to have violated provisions of Ohio law providing that candidates have the right to observe all ballots. Recommendations A. Electoral College Challenge We believe there are ample grounds for challenging the electors from Ohio as being unlawfully appointed. We say this for several reasons. First, there is considerable doubt that all controversies regarding the appointment of the electors were lawfully resolved six days prior to the meeting of the electors (on December 7) in order for the state's electors to be binding on Congress as required by 3 U.S.C. Sec. 5. This is because, among other things, the Secretary of State appears to have intentionally delayed the initial certification of the electors until December 6, making it impossible for the recount (of which he was fully aware) to be completed by December 7, let alone the December 13 meeting of the electors. Second, there are numerous irrefutable instances where Ohio election law has been violated by the Secretary of State and others such that the election cannot be said to comply with Ohio law, and the electors cannot be considered lawfully certified under state law within the meaning of 3 U.S.C. Sec. 15. These violations of law are highlighted throughout this Report. The failure to provide adequate voting machinery would appear to violate both Ohio's Constitution, that provides all eligible adults the right to vote, and the Ohio Revised Code which requires the Boards of Elections to provide ``for each precinct a polling place and provide adequate facilities at each polling place for conducting the election.'' Secretary of State Blackwell's failure to initiate any investigation into this pivotal irregularity notwithstanding his statutory duty to do so under Ohio Revised Code Sec. 3501.05, represents another likely violation of Ohio law. The ``caging'' tactics targeting 35,000 new voters by the Ohio Republican Party for preelection legal challenge were found by three federal courts to be illegal as being politically and racially charged, and burdening the fundamental right to vote. The tactic would also appear to violate Ohioans' right to vote under the Ohio Constitution. Mr. Blackwell's decision to prevent news media and exit polls from interviewing Ohio citizens after they voted was found by a federal court of appeals to have violated the First Amendment's guarantee that state conduct shall not abridge ``freedom . . . of the press''. His decision also likely violated Ohio's Constitution that provides: ``Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.'' Mr. Blackwell's decision to prevent those voters who requested absentee ballots, but did not receive them on a timely basis from being able to vote, was found by a federal court to violate HAVA. This restrictive directive also likely violated Article 5, Section 1 of the Ohio Constitution, granting every Ohio citizen the right to vote if he or she is otherwise qualified. Numerous incidents of voter intimidation and misinformation engaged in Ohio on election day likely violate the Voting Rights Act, the Civil Rights Act of 1968, and the Ohio right to vote. Mr. Blackwell's apparent failure to institute a single investigation into these acts likely represents a violation of his statutory duty to investigate election misconduct. The voting computer company Triad has essentially admitted that it engaged in a course of behavior during the recount in numerous counties to provide ``cheat sheets'' to those counting the ballots. By insuring that election boards were 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. Triad's action appears to violate Ohio law prohibiting election machinery from being serviced, modified, or altered in any way subsequent to an election, unless it is done so in the presence of the full board of elections and other observers. Numerous Ohio laws appear to have been broken in Greene County, where after initially being granted access to poll books to conduct an audit, election observers had this access abruptly revoked under the orders of Secretary Blackwell, and arbitrary and capricious practices and counting procedures that disenfranchised hundreds of voters were identified. These practices violate Ohio law requirements preventing the denial of public access to election records; requiring that ballots and machinery be kept absolutely secure; and protecting the right to vote. The Secretary of State's failure to issue specific standards appears inconsistent with Ohio state law which charges the secretary of state with ``[issuing] instructions by directives and advisories to members of the boards [of elections] as to the proper methods of conducting elections'' and ``[preparing] rules and instructions for the conduct of elections.'' There were numerous specific irregularities in the recount that are inconsistent with several aspects of Ohio's recount law. Those counties which did not randomly select the precinct samples violated the Secretary of State's directive on this point. Those counties which did not conduct a full hand court after the 3% hand and machine counts violated Ohio's statutory right to have inconsistent results rechecked. Those counties which allowed for irregular marking of ballots and which failed to secure and store ballots and machinery appear to have violated provisions of Ohio law mandating that candidates have the right to ensure that ballots are secure between the election and the official recount, that ballots may not be handled by anyone besides Board members and their staff, and may not be handled outside of the presence of the Board and qualifying witnesses. Finally, those counties which prevented witnesses for candidates from observing the various aspects of the recount violated provisions of Ohio law providing that candidates have the right to observe all ballots. Whether the cumulative effect of these legal violations would have altered the actual outcome is not known at this time. However, we do know that there are many serious and intentional violations which violate Ohio's own law, that the Secretary of State has done everything in his power to avoid accounting for such violations, and it is incumbent on Congress to protect the integrity of its own laws by recognizing the seriousness of these legal violations. B. Need for Further Congressional Hearings It is also clear the U.S. Congress needs to conduct additional and more vigorous hearings into the irregularities in the Ohio presidential election and around the country. While we have conducted our own Democratic hearings and investigation, we have been handicapped by the fact that key participants in the election, such as Secretary of State Blackwell, have refused to cooperate in our hearings or respond to Mr. Conyers questions. While GAO officials are prepared to move forward with a wide ranging analysis of systemic problems in the 2004 elections, they are not planning to conduct the kind of specific investigation needed to get to the bottom of the range of problems evident in Ohio. As a result, it appears that the only means of obtaining his cooperation in any congressional investigation is under the threat of subpoena, which only the Majority may require. Given the seriousness of the irregularities we have uncovered, and the importance of the federal elections, we recommend that the House and Senate form a joint, select committee to investigate the full gamut of irregularities across the board. Among the issues which require further attention at Congressional hearings are the following: The misallocation of voting machines. Congress should examine the extent to which the lack of machines in certain areas led to unprecedented long lines that disenfranchised predominantly minority and Democratic voters. The decisions to restrict provisional ballots to actual precincts and to deny them to voters who did not receive absentee ballots. Congress should examine the extent to which the decisions departed from past Ohio law on provisional ballots, how many voters were impacted, and whether a broader construction would have led to any significant disruption at polling places. The use of partisan, pre-election ``caging'' tactics. Congress should examine to what extent caging is used and to what degree minority voters were targeted for intimidation and suppression. The use of voter suppression and intimidation tactics. Congress should investigate reports of intimidation and misinformation in violation of the Voting Rights Act, the Civil Rights Act of 1968, Equal Protection, Due Process and the Ohio right to vote. The use of partisan challengers. Congress should examine whether the use of such challengers is disruptive and intimidating to voters. Further, Congress should investigate whether the precinct judges, which are required by law, are sufficient to regulate voting practices. Voter purging and other registration errors. Congress should look at what methods of voter purging are used and whether they target minority groups. The prevalence of undervotes, in which ballots are cast but lack votes for president. Congress should further investigate whether undervotes are principally caused by punchcards and what reforms can be made to prevent them. The need for greater accountability in ballot counting. Congress should examine whether an audit capability for voting machines would enhance the ability to verify voter choices. The lack of national standards for issuing provisional ballots and conducting recounts. Congress should examine areas in which national standards would promote the guaranteed right to vote and would ensure that every vote counts. Restrictions on the use of government-granted power for political or personal gain. Congress should investigate the need for restricting the ability of state contractors and public officials involved in the administration of elections to participate in campaign activities. C. Legislation Our investigation has made it abundantly clear that Congress and the States must reform the election laws to address the many inequities that have come to light. At the very least, we must-- Develop a fair and uniform system of processing provisional ballots, including training of poll workers and counting votes. Ensure that every voting machine has a verifiable audit trail, guidelines for which could be established by the Election Assistance Commission. Consider an Amendment to the Constitution of the United States to reaffirm the right to vote. Facilitate voter turnout through the establishment of a national election day holiday, the expansion of early voting, and the re-enfranchisement of former felons. Ensure full enforcement by the Justice Department of anti- voter intimidation laws, including prohibitions on voter suppression and caging. Establish national standards for voter registration, polling place opening hours, and ballot recounts. Establish an explicit private right of action for voter rights in the Help America Vote Act. Ensure that state and local election officials involved in the administration of elections do not use their offices for political gain. Ensure enough accessible voting machines and poll workers are available at all precincts such that waiting times are reasonable, including in lower-income and minority communities. Consistent with the First Amendment, restrict state contractors from participating in campaign activities. Develop and fund public campaigns to educate voters on voting rights, anti-voter intimidation laws, etc. Fully fund the Help America Vote Act. Clarify that provisional ballots are available to all citizens who request them, as long as they are in the appropriate County. We recommend that House and Senate Members join together in reforming these laws and preserving our democracy. Mr. Speaker, I yield to the gentleman from Missouri (Mr. Clay) for the purpose of making a unanimous consent request. (Mr. CLAY asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Members of the House, we are here today not as partisans for one Presidential candidate or another, but because we want to do our duty under the Constitution to protect our democracy. We are here because of the inner-city voter in Franklin County who waited 10 hours in the pouring rain while suburban voters in the same county had no wait because election officials decided to reallocate voting machines from Columbus to the suburbs. We are here because of the Hispanic voter in Hamilton County who also stood in line for hours, but was directed to the wrong voting table and had his ballot thrown out because of a decision by the Secretary of State of Ohio to throw out ballots cast at the right polling place but the wrong precinct. We are here because of the elderly voter in Lucas County who requested an absentee ballot that never showed up and was refused a provisional ballot because of another partisan decision by the Secretary of State of Ohio. We are here because of the new voter in Delaware County whose registration form was thrown out because it did not meet the paper weight requirements set forth by the Secretary of State. We are here because of the African American voter in Summit County who was targeted with an unlawful voter challenge because of her race and because she refused to answer a certified letter from the chairman of the Republican Party. Most of all we are here because not a single election official in Ohio has given us any explanation for the massive and widespread irregularity in the State. No explanation for the machines in Mahoning County that recorded Kerry votes for Bush. No explanation of improper purging in Cuyahoga County. No explanation for the lockdown in Warren County. No explanation for the 99 percent turnout in Miami County. No explanation for machine tampering in Hocking County. Read on our Web page 101 pages of great staff work that takes this out of semantics, of partisanship; and I appeal to every Member of this body to sustain this objection. We are here today, not as partisans for one Presidential candidate or another, but because we want to do our duty under the Constitution to protect our democracy. We are here because of the inner city voter in Franklin County, who waited 10 hours in the pouring rain, while suburban voters in the same county had no wait because election officials decided to reallocate voting machines from Columbus to the suburbs. We are here because of the Hispanic voter in Hamilton County who was directed to the wrong voting table, and had their ballot thrown out because of a decision by the Secretary of State to throw out ballots cast at the right polling place but the wrong precinct. We are here because of the elderly voter in Lucas County who requested an absentee ballot that never showed up and was refused a provisional ballot because of another partisan decision by the Secretary of State. We are here because of the new voter in Delaware County, whose registration form was thrown out because it did not meet the paper weight requirements of the same Secretary of State. We are here because of the African American voter in Summit County, who was targeted with an unlawful voting challenge because of her race and because she refused to answer a certified letter from the chairman of the Republican Party. Most of all we are here because not a single election official in Ohio has given us any explanation for the massive and widespread irregularities in that State: No explanation for the machines in Mahoning County that recorded Kerry votes for Bush--No explanation for the improper purging in Cuyahoga County--No explanation for the lock down in Warren County--No explanation for the 99 percent voter turnout in Miami County--No explanation for the machine tampering in Hocking County. The debate we have today will not change the outcome of November's election. We know that. But out of today's debate, I hope this Congress will respond to our challenge: A challenge to hold true bipartisan hearings to get to the bottom of what went wrong in Ohio and around the Nation on election day. A challenge to show the same concern about voter disenfranchisement in this country that we show in Afghanistan, and the Ukraine, and Iraq. A challenge to enact real election reform; that gives all citizens the right to a provisional ballot; that gives all voters a verifiable paper trail; and that bans election officials from serving as campaign chairs. The thing we should never fear in Congress is a debate, and the thing we should never fear in a democracy is the voters. I hope that today we have a fair debate and 4 years from now, we have an election all our citizens can be proud of. Mr. Speaker, I am proud to yield the balance of my time to the distinguished gentleman from Vermont (Mr. Sanders).

Mr. CONYERS. Mr. Speaker, I rise to address the House.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I am pleased to announce the introduction of the ``PRO USE Act.'' As we all know, copyrighted works not only provide entertainment and provide a positive trade balance for our country's economy but also are a window to this country's cultural heritage. In recognition of this, our copyright laws are designed to encourage the production, distribution, and preservation of copyrighted content. This legislation, which I am introducing with Representative Howard L. Berman, makes two important changes to the copyright law to make it easier to preserve these artifacts. Title I is the ``Preservation of Orphan Works Act.'' This important provision corrects an oversight in the copyright law that allows libraries and archives to reproduce and distribute up to three copies of musical works, movies, etc.--not sound recordings--of a copy they have to replace stolen/deteriorated copies or for preservation/security purposes. They also can make unlimited copies of other copyrighted works--items except musical works, movies, etc.--during the last 20 years of the copyright term. This bill would amend the law to say they can make unlimited copies of musical works, movies, etc. during the last 20 years of the term of the music or movies. Title II is the ``National Film Preservation Act of 2005.'' It reauthorizes the National Film Preservation Act of 1996. We all know that motion pictures are amongst this nation's cultural treasures, going beyond entertainment to represent American ideals and values to people across the world. Unfortunately, the films on which many motion pictures are created are easily susceptible to physical deterioration; in fact, over 50 percent of movies made before 1950 have deteriorated and over 90 percent of movies from before 1929 have disintegrated. The 1996 Act was designed to ensure that we could protect the treasures we still have. It created the National Film Preservation Board and the National Film Preservation Foundation. The NFPB generates public awareness of a national film registry and reviews initiatives to ensure the preservation valued films. The NFPF issues grants to libraries and other institutions that can save films from degradation. The program has received accolades from organizations such as the Directors Guild of America and the Academy of Motion Picture Arts and Sciences. Noted filmmakers Martin Scorsese and Ken Burns also have praised the NFPB and the NFPF. Unfortunately, the program officially expired October 11, 2003, and was not reauthorized. The legislation being introduced today would remedy that oversight by reauthorizing both the NFPB and the NFPF. I hope my colleagues will join me in supporting this valuable effort as we move it through the House.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I am pleased to introduce the Democracy Day Act of 2005, legislation that would establish each Tuesday, after the first Monday in November (in even-numbered years), as a legal public holiday. The Democracy Day Act of 2005 is designed to respond to the alarming trend of voters being unable to cast their vote due to work or other important commitments. According to a recent Census Bureau study, nearly 25 percent of eligible voters cited time constraints or busy work and school schedules as the primary reason for failing to vote in the past 2000 presidential election. The creation of a federal election holiday would help address this problem by providing many hardworking Americans with the necessary time off from work so they can vote. Furthermore, the bill would have the added benefit of: Increasing the number of available election day judges, poll workers and suitable polling places; decreasing long lines and the overcrowding that occurs during peak times on election day; and reinforcing the notion that voting is an important civic duty. This Congress must ensure that every American has an equal opportunity to participate in the voting process. Enacting the ``Democracy Day Act of 2005'' would be a crucial first step towards achieving that objective. The legislation is strongly supported by a wide array of voting rights and labor organizations.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I am pleased to re-introduce H.R. 40, the Commission to Study Reparation Proposals for African-Americans Act, along with 22 original cosponsors. Since I first introduced H.R. 40 in 1989, we have made substantial progress in elevating this issue in the national consciousness. Through legislation, state and local resolutions, and litigation, we are moving closer to a full dialogue on the role of slavery in building this country. Across the nation, three state legislatures: Louisiana, California and Florida, have passed resolutions supporting H.R. 40. Another three states: New Jersey, New York and Texas, have legislation pending. At the local level, the legislation has gained similar support, with 12 major cities having passed similar supporting resolutions. However, despite this progress, the legacy of slavery lingers heavily in this nation. While we have focused on the social effects of slavery and segregation, its continuing economic implications have been largely ignored by mainstream analysis. These economic issues are the root cause of many critical issues in the African-American community today, such as education, healthcare, and crime. The call for reparations represents a commitment to entering a constructive dialogue on the role of slavery and racism in shaping present-day conditions in our community and American society. H.R. 40 is designed to create a formal dialogue on the issue of reparations through the establishment of a national commission to examine the institution of slavery. The commission will study the impact of slavery and continuing discrimination against African- Americans, resulting directly and indirectly from slavery, during the apartheid of reconstruction, desegregation, and the present day. The commission would also make recommendations concerning any form of apology and compensation to begin the long delayed process of atonement. The issue of reparations remains sensitive in many communities because of the basic question of money. Statements dismissing reparations on the grounds of payment issues, however, are completely premature, especially when we have not yet had a national dialogue or study of the area. Economists have told us that the value of slave labor to the American economy and potential damages are greater that $7 trillion. Such a staggering sum indicates that the discussion of reparations must be about something other than money. However, I must stress that the reparations issue is not about a check to individuals. The call for reparations represents a commitment to entering a constructive dialogue on the role of slavery and racism in shaping American society. Everyone profited from the labor of the slaves, even later immigrants, because slave labor and the taxes from those enterprises built the infrastructure of this nation. The debt we talk about is not centuries old, but dates back only a few decades and is within our lifetimes because of Jim Crow. This nation must make a commitment to understanding how the legacy of slavery and its vestiges contribute to present day societal and economic inequality. That is why I re-introduce H.R. 40 at the opening of every Congress and sponsor a forum on reparations during every Congressional Black Caucus legislative conference. We must be diligent in our efforts to educate this nation about its history. I hope that in this 109th Congress, we can schedule formal hearings on this legislation to begin the process of having our nation finally acknowledge its debt.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, today I am introducing a proposed amendment to the Constitution of the United States that will enable all citizens of this country to be eligible to hold the Office of President. No citizen should be denied the opportunity to seek the Nation's highest office. The proposal that I am introducing will allow foreign-born individuals who have been citizens of this country for at least 20 years to be eligible for this office. As you know, Article II of the Constitution of the United States provides that only natural-born citizens are entitled to hold the Office of President. I believe that this limitation contradicts the principles for which this country stands. This Nation prides itself on its diversity of culture, experience, and opinion. This quality is achieved only by welcoming immigrants to this country, allowing them to become citizens, and enabling them make full contributions to society. For the most part, the United States treats its citizens, those natural-born and foreign-born, the same. However, when determining who is eligible for the Offices of President, this country unfairly distinguishes between the two. Allowing the United States to be a better country because of the contributions that foreign-born citizens make, and then not allowing them to fully participate in all aspects of society, is un-American. As you may also know, some of our country's foreign-born citizens are our country's greatest public servants. There are also 700 foreign-born citizens who have received the Medal of Honor. It is unjust to deny citizens that have risked their lives for this country the chance to become President of the United States as well. A 2002 Pentagon study reports that more than 30,000 foreign-born citizens are currently serving in the U.S. military. I realize that constitutional amendments are rare and that those proposed should be subject to great scrutiny. I truly respect one of the documents on which our country was founded, the Constitution of the United States. Therefore, it is after great consideration and with the utmost gravity, that I introduce this proposal today. I am hopeful that my fellow colleagues in Congress will properly consider the proposed amendment and realize that every citizen of the United States should be entitled to dream of becoming President.