News and Publications

The Ohio 2004 Recount

On Monday November 15, 2004 NVRI issued a joint statement with Common Cause, Demos, the Fannie Lou Hamer Project, and the People for the American Way Foundation, supporting the effort by Presidential Candidates David Cobb (Green Party) and Michael Badnarick (Libertarian) to have a full recount of all votes cast in Ohio. NVRI subsequently agreed to serve as counsel for Cobb and Badnarik in their efforts to have a full and meaningful recount. While the lawsuit brought attention to the serious flaws in the state’s recount procedures, it was ultimately dismissed.

(June 12, 2006): NVRI's Challenge to Ohio's Recount Procedures End
NVRI's challenge to Ohio's recount procedures for presidential elections has come to an unfortunate end, though not before exposing serious flaws in the recount system. In February, Judge James G. Carr dismissed NVRI's lawsuit , saying the principle of sovereign immunity bars the lawsuit, and ruling that the kind of errors found in the 2004 recount are not likely to occur again. On behalf of our clients, we asked the Judge to reconsider his opinion, but in early May he issued his opinion declining to revisit his ruling. After consultation with our clients - former presidential candidates David Cobb (Green Party) and Michael Badnarik (Libertarian Party) - we have decided against an appeal. The lawsuit brought to light serious flaws in Ohio's recount procedures, including violation of requirements for random selection of recount precincts and other threats to the reliability and timeliness of the recount. CLICK HERE to read Judge Carr’s final decision. Thanks to all our partners and supporters who stood with us in this important effort.

(April 6, 2006): Indictments Handed Down in Ohio Recount Foul-ups
The evidence that Ohio’s presidential recounts were not handled fairly keeps popping up. On Wednesday, three Cuyahoga County Election officials were indicted for disregarding rules that were designed to ensure a fair recount. Though the foul-ups leading to the indictment would not have changed the final results, it re-affirms NVRI’s position that the recount system is woefully inconsistent. Though the indictment in this case does not claim intentional fraud, it does strengthen NVRI’s claims. To read about the indictments, see this article. NVRI still awaits a decision on our effort to reinstate the case.

(February 17, 2006): Motion Filed Before Judge Carr Seeking a Reconsideration of His Ruling in the Recount Case
On behalf of our clients, NVRI asked Judge Carr to reconsider his decision to dismiss this case. In his decision, Judge Carr said the problem was not likely to recur. Quite to the contrary, we argue that it is extremely likely to recur, and the complaint should be reinstated, and trial should move forward.

Read the motion here and read some of the exhibits listed below. These exhibits show just how clear it is that recount foul-ups are likely to be a continuing problem.

Exhibits to Motion Seeking Reconsideration:
Exhibit A,  Exhibit B,  Exhibit C,  Exhibit D

(February 7, 2006): NVRI Disappointed in Dismissal of Vote Recount Lawsuit
On Tuesday, February 7, Judge James G. Carr dismissed NVRI's lawsuit challenging the manner of Ohio's presidential recount system. Judge Carr said the principle of "sovereign immunity" bars this lawsuit, and found that the kind of errors found in the 2004 recount are not likely to occur again. NVRI is profoundly disappointed in the ruling and is consulting with cooperating counsel as well as clients David Cobb and Michael Badnarik about whether or not to appeal. The judge's ruling is attached.

NVRI continues its efforts to challenge Ohio's faulty election system through a separate, ongoing case, The League of Women Voters of Ohio v. Blackwell. Rather than challenging the results of any past elections, this lawsuit seeks to protect the rights of Ohio voters in future elections. Click here for the latest on this ongoing effort.

(September 19, 2005): NVRI today filed amended complaints in the Ohio recount case. Reiterating earlier statements, NVRI and our clients charge that the procedures used in Ohio are faulty in many regards -- they deny sufficient time for a full and fair recount, they are inadequate in protecting voting records for the recount, they are inadequate when it comes to random selection of votes for recounting, they include no procedures for recount of votes cast on electronic voting machines, are they are not uniform throughout the state. Read the amended complaint here.

(September 14, 2005): Federal Court in Toledo, Ohio Sets Trial Date for Ohio Recount Case
In a major development, Federal Judge James G. Carr held a status hearing on August 30 in the Ohio recount cases and in the League of Women Voters case challenging Ohio's election system. Judge Carr agreed to consolidate the two recount cases (NVRI is co-lead counsel in both of these cases) and set a trial date for these cases for the week of August 22, 2006. Counsel for KerryEdwards 2004 made an appearance at the hearing and indicated its continued participation as an intervenor in this matter.

Judge Carr also set a schedule for discovery in the recount cases, with all discovery to be completed by May 1, 2006. While Judge Carr must still rule on the state's motion to dismiss, he allowed the plaintiffs to file discovery requests while that motion is pending.

We are now preparing for the potential of a critical and intense discovery phase in this litigation to demonstrate further what went wrong during the Ohio recount in December 2004, in support of our claims that the recount was not conducted in accordance with basic constitutional principles. We will keep you updated as this case moves forward, including a further update when Judge Carr issues his ruling on the state's motion to dismiss.

(August 25, 2005): Is Senator Kerry getting out of the Ohio Recount case? Over the past few weeks, the office of former Presidential candidate John Kerry has suggested that they may withdraw their appearance in the Ohio recount litigation. Letters from both Congressman John Conyers and Rev. Jesse Jackson have urged Senator Kerry to stay in the fight. Said Jackson, "A recount is a critical means for ensuring the proper counting of the votes. There is extensive evidence that serious constitutional violations occurred in the way election officials conducted the recount of the 2004 presidential vote in Ohio, including evidence that a voting machine company tampered with voting machines prior to the start of the recount." NVRI believes the Kerry/Edwards campaign's continued presence in the case is important, as it reaffirms the critical message that recounts must be done right to ensure a fair democratic process.

You can read both letters here:
Conyers Letter
Jackson letter

(May 18, 2005): In January of this year, Congressman John Conyers issued an important analysis of the 2004 Presidential Elections, and what went wrong there. "We have found," says the report, "numerous serious election irregularities in the Ohio presidential election which resulted in significant disenfranchisement of voters." Academy Publishers of Chicago has now published that report, in book form, with an introduction by Gore Vidal. Among the issues discussed is the Ohio Recount, and NVRI's role in that recount. Says Bob Kerrey, "What Went Wrong in Ohio should be required reading for all those who believe the right to vote is fundamental to freedom and the spirit of democracy." Kerrey is the former Nebraska Senator and current President of the New School University. The book is entitled What Went Wrong In Ohio: The Conyers Report on the 2004 Presidential Election (Academy Chicago Publishers, 2005)

(May 10, 2005): The Federal District Court in Columbus, Ohio has transferred the recount case to Federal Judge Judge Carr in Toledo.

(January 17, 2005): After Congress certified the Presidential votes, it may seem the recount doesn't matter, but it does. Stuart Comstock-Gay explains why it is still important, and where we are going next.

(January 5, 2005): As Congress prepares tomorrow to receive the electors' votes for President, Congressman John Conyers and the House Judiciary Committee Democratic Staff today issued a powerful report entitled "Preserving Democracy: What Went Wrong in Ohio." The report says "We have found numerous, serious irregularities ... which resulted in significant disenfranchisement of voters. Cumulatively, these irregularities, wihch 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."

(January 4, 2005): Last night, NVRI General Counsel John Bonifaz spoke at the "Rally for the Republic," at Boston's historic Faneuil hall. His remarks are here.

(Janurary 3, 2005): With the holidays, we missed a few updates. Below is a chronology of the past 10 days, and some documents. In addition, rallies are being held around the country leading up to the congressional session on Thursday for the counting of the Electoral College votes. (Columbus Ohio today, Boston Massachusetts tonight, and Washington DC on Thursday). We will continue to keep you posted.

Now for the updates:

And on December 31, we filed documents opposing Blackwell's motion to dismiss, moving to dismiss Delaware County's earlier suit against NVRI, Cobb and Badnarik, and a proposed order doing both. Attached here is the Memorandum supporting those motions.

On December 30, we filed amended counterclaims documenting how the recount was not conducted in accordance with uniform standards, as is required by the equal protection and due process guarantees of the US Constitution. With these amended counterclaims, we are seeking additional declaratory and injunctive relief requiring a new recount to be conducted consistent with the Constitution. This document is attached.

On December 29, Ohio Secretary of State Ken Blackwell filed a supplemental pleading to his motion to dismiss the entire proceeding, adding the claim that the issue is now moot on the grounds that the recount has been completed. Read it here.

And on December 23, we filed a motion asking the federal court to preserve all ballots and election machinery, as well as another motion seeking expedited discovery on allegations that the Triad voting machine company had tampered with voting machines prior to the start of the recount. The memorandum asks: "To preserve evidence in this case, and to assess the evidence that may already have been irretrievably damaged or lost, Defendants/Counter-Plaintiffs request that the Court order all election records preserved and permit them to seek discovery from Triad regarding its role in the recount and its apparent alteration, manipulation and destruction of election records." The memorandum is here. Equally important are the many declarations filed simultaneously, especially that of Lynne Serpe, Campaign Manager of the Cobb 2004 Presidential campaign. The Green party had representatives monitoring the recount in Ohio counties, and Serpe testifies about the wide divergence among standards used for the recounts. Here is her declaration.

(December 23): Congressman John Conyers has continued the work on the Triad machine fixes in Mahoning County. Read here his December 22 letter. A quote from the letter: "I am concerned that your company has operated -- either intentionally or negligently -- in a manner which will thwart the recount law in Ohio."

(December 23): The Ohio Attorney General yesterday sought to dismiss NVRI's work in the federal district court and send the matter back to Delaware County court. The Attorney General argued that not only was NVRI not a legitimate party (in spite of the fact that it was Delaware County that brought NVRI into the matter by suing us in the first place), but that the recount questions should not be before a federal court in any case. NVRI continues to believe these voting rights questions are indeed federal questions.

(December 21): NVRI Executive Director Stuart Comstock-Gay Discusses the Ohio Recount in an Opinion Article Published in Tom

(December 16): In a disturbing story, the deputy director of the Hocking County board of elections has submitted a sworn affidavit describing the "fixes" to the voting machines that were conducted by a technician from Triad on Friday December 10. You can read Sherole Eaton's affidavit as an attachment to a letter from Congressman John Conyers, Jr., in which he asks the FBI to investigate this incident. Voting technology expert Doug Jones (University of Iowa) states that the evidence from Eaton is serious and potentially threatens the integrity of the recount statewide, and highlights the need for preserving all ballots and election related machinery throughout the state. And you can read the New York Times account of this incident here. NVRI is submitting to the federal court the Conyers letter, Eaton and Jones affidavits, and other documents relating similar concerns in Monroe and Greene Counties.

(December 15): We inadvertantly did not previously post NVRI's motion and brief to the federal court, in which we argue that the divergent re-counting methods violate equal protection and due process clauses in the Constitution. They are good reading, and explain why this variation is inconsistent with Bush v. Gore, the 2000 Supreme Court decision which awarded the Presidency to George Bush.

(December 14): The recount began on Monday the 13th, at the same time that Ohio electors cast their votes for President Bush. It's a sad day when the rush to count conflicts with a legally requested recount. In any case, the 88 Ohio counties begin their counts on different days this week. NVRI and its clients will watch carefully. Unfortunately, the various counties have a myriad of different means of conducting the recounts. Some say they'll conduct their recount by machines only. Some say they'll recount provisional ballots and others say they will not. The attached affidavit from NVRI General Counsel John Bonifaz describes many of the variations. Unfortunately a federal judge on Friday refused to rule that the differences violate consitutional protections of equal protection and due process. The door remains open for NVRI to go back to court and claim constitutional protection, if indeed the violations become more problematic.

(December 7): NVRI testimony before Congress -- "every citizen's vote must be properly counted."

(December 6): Congressman John Conyers (D-Michigan) and other Democratic Committee members of the House Judiciary Committee have scheduled a hearing on Wednesday the 8th (10am, Rm 2237 Rayburn House Office) to review the many concerns about voting irregularities. NVRI General Counsel will present testimony there on the Ohio recount -- why it's important, roadblocks that are being put up, and what happens next. See Conyers' letter to Ohio Secretary of State Blackwell here.

(December 5): At a Columbus, Ohio rally on Saturday the 4th, NVRI General Counsel exhorted the crowd to stand up for democracy. Read his comments here.

(December 4): Federal Court Judge Edmund A. Sargus, Jr. ruled on Friday the 3rd against Delaware County's motion for a preliminary injunction to stop the recount in that county. The judge denied the candidate's motion for an expedited recount. Recount demands will be filed with every county in Ohio on December 7th and the recount will go forward.

(December 4): Today NVRI filed counterclaims against Delaware County, challenging their lawsuit against NVRI, John Bonifaz, and candidates Cobb and Badnarik.

(November 24): Late on Tuesday the 23rd, U.S. District Judge James Carr ruled against an expedited recount. Read the ruling here.

(November 23): On November 22, NVRI filed papers with the Federal District Court in Toledo, on behalf of candidates Cobb and Badnarik, along with 7 individuals and Common Cause of Ohio, seeking a speedy recount in Ohio. Our concern has been that if the recount is allowed to play out at its slow pace, the recount will not be completed in a timely fashion.

Read the Complaint, the Memorandum of Law, and the Motion for a Temporary Restraining Order.

(November 18): Details of the Ohio Recount. "Provisions for Recounts," from Ohio Secretary of State (R.C. 3515).

(November 17): LETTERS from NVRI to Ohio Secretary of State, Ken Blackwell and Ohio county election officials, on behalf of candidates Cobb and Badnarik, advising officials of the intention to seek a recount, and asking for a rapid and timely response.

(November 15): STATEMENT of NVRI, Common Cause, Demos, Fannie Lou Hamer Project, and People for the American Way Foundation.

To support NVRI's legal team as we pursue this recount, click here.

For further information about this work, contact NVRI Executive Director Stuart Comstock-Gay ([email protected]) or John Bonifaz ([email protected]), NVRI General Counsel, or call 617-624-3900.

For more information about NVRI's allies in calling for a recount:
Common Cause
Fannie Lou Hamer Project
People for the American Way Foundation