afraid this is going to scare these people half to death, and they are never going to show up on Election Day,'' Barb Tuckerman,
director of the Sandusky Board of Elections, told local reporters. ''Many of them are young people who have registered for
the first time. I've called some of these people, and they are perfectly legitimate.''(75)
On October 27th, ruling that the effort
likely violated both the ''constitutional right to due process and constitutional right to vote,'' U.S. District Judge Susan
Dlott put a halt to the GOP challenge(76) -- but not before tens of thousands of new voters received notices claiming they
were improperly registered. Some election officials in the state illegally ignored Dlott's ruling, stripping hundreds of voters
from the rolls.(77) In Columbus and elsewhere, challenged registrants were never notified that the court had cleared them to vote.
On October 29th, a federal judge found
that the Republican Party had violated the court orders from the Eighties that barred it from caging. ''The return of mail
does not implicate fraud,'' the court affirmed,(78) and the disenfranchisement effort illegally targeted ''precincts where
minority voters predominate, interfering with and discouraging voters from voting in those districts.''(79) Nor were such
caging efforts limited to Ohio: The GOP also targeted hundreds of thousands of urban voters in the battleground
states of Florida,(80) Pennsylvania(81) and Wisconsin.(82)
Republicans in Ohio also worked to deny the vote to citizens who had served jail time for felonies. Although rehabilitated prisoners
are entitled to vote in Ohio, election officials in Cincinnati demanded
that former convicts get a judge to sign off before they could register to vote.(83) In case they didn't get the message,
Republican operatives turned to intimidation. According to the Conyers report, a team of twenty-five GOP volunteers calling
themselves the Mighty Texas Strike Force holed up at the Holiday Inn in Columbus a day before the election, around the corner
from the headquarters of the Ohio Republican Party -- which paid for their hotel rooms. The men were overheard by a hotel
worker ''using pay phones to make intimidating calls to likely voters'' and threatening former convicts with jail time if
they tried to cast ballots.(84)
This was no freelance operation. The Strike
Force -- an offshoot of the Republican National Committee(85) -- was part of a team of more than 1,500 volunteers from Texas who were deployed to battleground states, usually in teams of ten. Their leader was Pat Oxford, (86) a Houston lawyer who managed Bush's legal defense team in 2000 in Florida,(87) where
he warmly praised the efforts of a mob that stormed the Miami-Dade County election offices and halted the recount. It was later revealed that those involved in the ''Brooks Brothers Riot''
were not angry Floridians but paid GOP staffers, many of them flown in from out of state.(88) Photos of the protest show that
one of the ''rioters'' was Joel Kaplan, who has just taken the place of Karl Rove at the White House, where he now directs
the president's policy operations.(89)
IV. Barriers to Registration
To further monkey-wrench the process he was bound by law to safeguard, Blackwell
cited an arcane elections regulation to make it harder to register new voters. In a now-infamous decree, Blackwell announced
on September 7th -- less than a month before the filing deadline -- that election officials would process registration forms
only if they were printed on eighty-pound unwaxed white paper stock, similar to a typical postcard. Justifying his decision
to ROLLING STONE, Blackwell portrayed it as an attempt to protect voters: ''The postal service had recommended to us that
we establish a heavy enough paper-weight standard that we not disenfranchise voters by having their registration form damaged
by postal equipment.'' Yet Blackwell's order also applied to registrations delivered in person to election offices. He further
specified that any valid registration cards printed on lesser paper stock that miraculously survived the shredding gauntlet
at the post office were not to be processed; instead, they were to be treated as applications
for a registration form, requiring election boards to send out a brand-new card.(90)
Blackwell's directive clearly violated
the Voting Rights Act, which stipulates that no one may be denied the right to vote because of a registration error that ''is
not material in determining whether such individual is qualified under state law to vote.''(91) The decision immediately threw
registration efforts into chaos. Local newspapers that had printed registration forms in their pages saw their efforts invalidated.(92)
Delaware County posted a notice online saying it could no longer accept its own registration forms.(93) Even Blackwell couldn't
follow the protocol: The Columbus Dispatch reported that his own staff
distributed registration forms on lighter-weight paper that was illegal under his rule. Under the threat of court action,
Blackwell ultimately revoked his order on September 28th -- six days before the registration deadline.(94)
But by then, the damage was done. Election
boards across the state, already understaffed and backlogged with registration forms, were unable to process them all in time.
According to a statistical analysis conducted in May by the nonpartisan Greater Cleveland Voter Coalition, 16,000 voters in
and around the city were disenfranchised because of data-entry errors by election officials,(95) and another 15,000 lost the
right to vote due to largely inconsequential omissions on their registration cards.(96) Statewide, the study concludes, a
total of 72,000 voters were disenfranchised through avoidable registration errors -- one percent of all voters in an election
decided by barely two percent.(97)
Despite the widespread problems, Blackwell
authorized only one investigation of registration errors after the election -- in Toledo -- but the report by his own inspectors
offers a disturbing snapshot of the malfeasance and incompetence that plagued the entire state.(98) The top elections official
in Toledo was a partisan in the Blackwell mold: Bernadette Noe, who chaired both the county board of elections and the county
Republican Party.(99) The GOP post was previously held by her husband, Tom Noe,(100) who currently faces felony charges for
embezzling state funds and illegally laundering $45,400 of his own money through intermediaries to the Bush campaign.(101)
State inspectors who investigated the elections
operation in Toledo discovered ''areas of grave concern.''(102) With less than a month to go before
the election, Bernadette Noe and her board had yet to process 20,000 voter registration cards.(103) Board officials arbitrarily
decided that mail-in cards (mostly from the Republican suburbs) would be processed first, while registrations dropped off
at the board's office (the fruit of intensive Democratic registration drives in the city) would be processed last.(104) When
a grass-roots group called Project Vote delivered a batch of nearly 10,000 cards just before the October 4th deadline, an
elections official casually remarked, ''We may not get to them.''(105) The same official then instructed employees to date-stamp
an entire box containing thousands of forms, rather than marking each individual card, as required by law.(106) When the box
was opened, officials had no way of confirming that the forms were filed prior to the deadline -- an error, state inspectors
concluded, that could have disenfranchised ''several thousand'' voters from Democratic strongholds.(107)
The most troubling incident uncovered by
the investigation was Noe's decision to allow Republican partisans behind the counter in the board of elections office to
make photocopies of postcards sent to confirm voter registrations(108) -- records that could have been used in the GOP's caging
efforts. On their second day in the office, the operatives were caught by an elections official tampering with the documents.(109)
Investigators slammed the elections board for ''a series of egregious blunders'' that caused ''the destruction, mutilation
and damage of public records.''(110)
On Election Day, Noe sent a team of Republican
volunteers to the county warehouse where blank ballots were kept out in the open, ''with no security measures in place.''(111)
The state's assistant director of elections, who just happened to be observing the ballot distribution, demanded they leave.
The GOP operatives refused and ultimately had to be turned away by police.(112)
In April 2005, Noe and the entire Board
of Elections were forced to resign. But once again, the damage was done. At a ''Victory 2004'' rally held in Toledo four days before the election, President Bush himself singled out a pair of ''grass-roots'' activists for special
praise: ''I want to thank my friends Bernadette Noe and Tom Noe for their leadership in Lucas
V. ''The Wrong Pew''
In one of his most effective maneuvers, Blackwell prevented thousands of
voters from receiving provisional ballots on Election Day. The fail-safe ballots were mandated in 2002, when Congress passed
a package of reforms called the Help America Vote Act. This would prevent a repeat of the most egregious injustice in the
2000 election, when officials in Florida barred thousands of lawfully registered minority voters from the polls because
their names didn't appear on flawed precinct rolls. Under the law, would-be voters whose registration is questioned at the
polls must be allowed to cast provisional ballots that can be counted after the election if the voter's registration proves
''Provisional ballots were supposed to
be this great movement forward,'' says Tova Andrea Wang, an elections expert who served with ex-presidents Jimmy Carter and
Gerald Ford on the commission that laid the groundwork for the Help America Vote Act. ''But then different states erected
barriers, and this new right became totally eviscerated.''
In Ohio, Blackwell
worked from the beginning to curtail the availability of provisional ballots. (The ballots are most often used to protect
voters in heavily Democratic urban areas who move often, creating more opportunities for data-entry errors by election boards.)
Six weeks before the vote, Blackwell illegally decreed that poll workers should make on-the-spot judgments as to whether or
not a voter lived in the precinct, and provide provisional ballots only to those deemed eligible.(115) When the ruling was
challenged in federal court, Judge James Carr could barely contain his anger. The very purpose of the Help America Vote Act,
he ruled, was to make provisional ballots available to voters told by precinct workers that they were ineligible: ''By not
even mentioning this group -- the primary beneficiaries of HAVA's provisional-voting provisions -- Blackwell apparently seeks
to accomplish the same result in Ohio in 2004 that occurred in Florida in 2000.''(116)
But instead of complying with the judge's
order to expand provisional balloting, Blackwell insisted that Carr was usurping his power as secretary of state and made
a speech in which he compared himself to Mohandas Gandhi, Martin Luther King Jr. and the apostle Paul -- saying that he'd
rather go to jail than follow federal law.(117) The Sixth Circuit Court of Appeals upheld Carr's ruling on October 23rd --
but the confusion over the issue still caused untold numbers of voters across the state to be illegally turned away at the
polls on Election Day without being offered provisional ballots.(118) A federal judge also invalidated a decree by Blackwell
that denied provisional ballots to absentee voters who were never sent their ballots in the mail. But that ruling did not
come down until after 3 p.m. on the day of the election, and likely failed to filter down to the precinct level at all --
denying the franchise to even more eligible voters.(119)
We will never know for certain how many
voters in Ohio were denied ballots by Blackwell's two illegal orders. But it is possible to
put a fairly precise number on those turned away by his most disastrous directive. Traditionally, anyone in Ohio who reported to a polling station in their county could obtain a provisional ballot. But Blackwell decided to toss
out the ballots of anyone who showed up at the wrong precinct -- a move guaranteed to disenfranchise Democrats who live in
urban areas crowded with multiple polling places. On October 14th, Judge Carr overruled the order, but Blackwell appealed.(120)
In court, he was supported by his friend and campaign contributor Tom Noe, who joined the case as an intervenor on behalf
of the secretary of state.(121) He also enjoyed the backing of Attorney General John Ashcroft, who filed an amicus brief in
support of Blackwell's position -- marking the first time in American history that the Justice Department had gone to court
to block the right of voters to vote.(122) The Sixth Circuit, stacked with four judges appointed by George W. Bush, sided
Blackwell insists that his decision kept
the election clean. ''If we had allowed this notion of ?voters without borders' to exist,'' he says, ''it would have opened
the door to massive fraud.'' But even Republicans were shocked by the move. DeForest Soaries, the GOP chairman of the Election
Assistance Commission -- the federal agency set up to implement the Help America Vote Act -- upbraided Blackwell, saying that
the commission disagreed with his decision to deny ballots to voters who showed up at the wrong precinct. ''The purpose of
provisional ballots is to not turn anyone away from the polls,'' Soaries explained. ''We want as many votes to count as possible.''(124)
The decision left hundreds of thousands
of voters in predominantly Democratic counties to navigate the state's bewildering array of 11,366 precincts, whose boundaries
had been redrawn just prior to the election.(125) To further compound their confusion, the new precinct lines were misidentified
on the secretary of state's own Web site, which was months out of date on Election Day. Many voters, out of habit, reported
to polling locations that were no longer theirs. Some were mistakenly assured by poll workers on the grounds that they were
entitled to cast a provisional ballot at that precinct. Instead, thanks to Blackwell's ruling, at least 10,000 provisional
votes were tossed out after Election Day simply because citizens wound up in the wrong line.(126)
In Toledo, Brandi
and Brittany Stenson each got in a different line to vote in the gym at St. Elizabeth Seton School. Both of the sisters were
registered to vote at the polling place on the city's north side, in the shadow of the giant DaimlerChrysler plant. Both cast
ballots. But when the tallies were added up later, the family resemblance came to an abrupt end. Brittany's vote was counted -- but Brandi's wasn't. It wasn't enough that she had voted in the right building. If she wanted her vote to count, according to Blackwell's ruling, she had to choose the line
that led to her assigned table. Her ballot -- along with those of her mother, her brother and thirty-seven other voters in
the same precinct -- were thrown out(127) simply because they were, in the words of Rep. Stephanie Tubbs Jones (D-Ohio), ''in
the right church but the wrong pew.''(128)
All told, the deliberate chaos that resulted
from Blackwell's registration barriers did the trick. Black voters in the state -- who went overwhelmingly for Kerry -- were
twenty percent more likely than whites to be forced to cast a provisional ballot.(129) In the end, nearly three percent of
all voters in Ohio were forced to vote provisionally(130) -- and more than 35,000 of their ballots were ultimately rejected.(131)
VI. Long Lines
When Election Day dawned on November 2nd, tens of thousands of Ohio voters
who had managed to overcome all the obstacles to registration erected by Blackwell discovered that it didn't matter whether
they were properly listed on the voting rolls -- because long lines at their precincts prevented them from ever making it
to the ballot box. Would-be voters in Dayton and Cincinnati routinely faced waits
as long as three hours. Those in inner-city precincts in Columbus, Cleveland and Toledo -- which were voting for Kerry by margins of ninety percent or more -- often
waited up to seven hours. At Kenyon College, students were forced to stand in line for eleven hours before being allowed
to vote, with the last voters casting their ballots after three in the morning.(132)
A five-month analysis of the Ohio vote
conducted by the Democratic National Committee concluded in June 2005 that three percent
of all Ohio voters who showed up to vote on Election Day were forced to leave without casting a ballot.(133) That's more than
174,000 voters. ''The vast majority of this lost vote,'' concluded the Conyers report, ''was concentrated in urban, minority
and Democratic-leaning areas.''(134) Statewide, African-Americans waited an average of fifty-two minutes to vote, compared
to only eighteen minutes for whites.(135)
LaRaye Brown, ''Elections Board Plans Hearing For Challenges,'' The News Messenger,
October 26, 2004.
76) Miller v. Blackwell, (S.D. Ohio), (6th Cir. 2004)
77) James Drew and Steve Eder, ''Court Rejects GOP Voter Challenge; Some Counties Hold Hearings Anyhow; 200 Voters Turned Away,'' Toledo Blade, October 30, 2004.
78) United States Court of Appeals for
the Third Circuit, Republican National Committee v. Democratic National Committee, No. 04-4186
79) United States Court of Appeals for
the Third Circuit, Republican National Committee v. Democratic National Committee, No. 04-4186
80) Kate Zernike and William Yardley, ''Charges
of Dirty Tricks, Fraud and Voter Suppression Already Flying in Several States,'' The
New York Times, November
Greg Palast, ''New Florida Vote Scandal Feared,'' BBC News, October 26, 2004.
81) Kate Zernike and William Yardley, ''Charges
of Dirty Tricks, Fraud and Voter Suppression Already Flying in Several States,'' The
New York Times, November
82) Greg J. Borowski, ''GOP Demands IDs of 37,000 in City,'' Milwaukee Journal Sentinel,
October 30, 2004.
83) ''The Disenfranchisement of the Re-Enfranchised; How Confusion Over Felon Voter Eligibility in Ohio Keeps
Qualified Ex-Offender Voters From the Polls,'' Prison Reform Advocacy Center, Cincinnati, Ohio, August 2004.
84) Preserving Democracy, 64.
Additional reporting contributed to this paragraph.
85) Gardner Selby, ''Hundreds of Texans
Ride Bandwagons Around U.S.; Volunteers Say Election is Too Important Not to Hit the Campaign Trail,'' San Antonio Express-News (Texas), October 15, 2004.
86) ''Down to the Wire,'' Newsweek, November 15, 2004.
87) Lynda Gorov and Anne E. Kornblut, ''Gore to Challenge Results; No Plans to Concede; top Fla. Court refuses to order resumption of Miami-Dade
County,'' The Boston Globe, November 24, 2000.
88) Al Kamen, ''Miami 'Riot' Squad: Where are they Now?'' Washington Post, January 24, 2005.
89) Al Kamen, ''Walking the Talk,'' Washington Post, April 21, 2006.
90) Secretary of State Directive, No. 2004-31,
Section II, September 7,
91) Tokaji, pg. 1227
Act, 42 U.S.C. 1971(a)(2)(B) (2000).
92) Jim Bebbington and Laura Bischoff,
''Blackwell Rulings Rile Voting Advocates,'' Dayton Daily News.
93) Congress of the United States House
of Representatives, Committee on the Judiciary, letter from Conyers to Blackwell
94) Catherine Candisky, ''Secretary of
State Lifts Order on Voting Forms; Lighter Paper Now Deemed Acceptable for Registration,'' Columbus Dispatch, September 30, 2004.
95) Analyses of Voter Disqualification, Cuyahoga County, Ohio, November 2004, Greater Cleveland Voter Registration Coalition, updated May 9, 2006,
96) Analyses of Voter Disqualification,
97) Analyses of Voter Disqualification,
98) Lucas County Board of Elections -- Results of Investigation Following November 2004 General Election, April 5, 2005, Richard Weghorst and Faith Lyon.
99) ''Feds Confirm Investigation of GOP
Campaign Contributor,'' The Associated Press State & Local Wire, April 28, 2005.
100) Mark Naymik, ''Coin Dealer Raised
Chunk of Change for Bush,'' Plain Dealer, August 7, 2005.
101) Christopher D. Kirkpatrick, ''Noe Indicted for Laundering Money to Bush Campaign,'' Toledo Blade, October 27, 2005
Mike Wilkinson and James Drew, ''Grand Jury Charges Noe with 53 Felony Counts,'' Toledo Blade, February 13, 2006
102) Lucas County
Report, pg. 2.
103) Lucas County
Report, pg. 9.
104) Lucas County
Report, pg. 10.
105) Lucas County Report, pages 9-10.
106) Lucas County
Report, pg. 9.
107) Lucas County
Report, pg. 9.
108) Lucas County
Report, pg. 18.
109) Lucas County Report, pages 18-19.
110) Lucas County
Report, pg. 19.
111) Lucas County Report, pages 4, 6.
112) Lucas County
Report, pg. 6.
113) ''Remarks by the President at Victory 2004 Rally,'' Seagate Convention Centre, Toledo, Ohio, October 29, 2004, The White House.
note: Bernadette and Tom Noe's last name
is incorrectly spelled ''Noy'' in the official White House transcript.
114) Help America Vote Act, Title III, Uniform and Nondiscriminatory Election Technology and Administration Requirements, Subtitle A Requirements, Section
115) Directive No. 2004-33 from J. Kenneth
Blackwell, Ohio Sec'y of State, to All County Boards of Elections 1 (Sept. 16, 2004.).
116) In the United States District Court
for the Northern District of Ohio, Western Division, The Sandusky County Democratic Party v. J. Kenneth Blackwell, Case No. 3:04CV7582, Page 8.
117) Gregory Korte and Jim Siegel, ''Defiant Blackwell Rips Judge; Secretary Says He'd go to Jail Before Rewriting Ballot Memo,'' Cincinnati Enquirer, October 22, 2004.
County Democratic Party v. Blackwell, (N.D. Ohio), (6th Cir.
Tokaji, pg. 1229
119) Tokaji, pg. 1231
120) ''Judge, Blackwell, Spar Over Provisional
Ballots,'' The Associated Press, October 20, 2004.
121) In the United States District Court
for the Northern District of Ohio Western Division, The League of Women Voters of Ohio, et al. v. J. Kenneth Blackwell, Case No. 3:04 CV 7622
122) David G. Savage, Richard B. Schmitt,
''Bush Seeks Limit to Suits Over Voting Rights,'' Los Angeles Times, October 29, 2004.
123) Judge Julia Smith Gibbons August 2, 2002
Judge John M. Rogers November 27, 2002
Judge Jeffrey S.
Sutton May 5, 2003
Judge Deborah L. Cook May 7, 2003
124) Darrell Rowland and Lee Leonard, ''Federal
Agency Distances Itself from Ohio Official; Blackwell Says Their Provisional-Balloting Positions are the Same,'' Columbus Dispatch (Ohio), October 20, 2004.
125) David S. Bernstein, ''Questioning Ohio,''
Providence Phoenix, November 12-18, 2004.
126) Norma Robbins, ''Facts to Ponder About the 2004 General Election,'' May 10, 2006.
127) Fritz Wenzel, ''Purging of Rolls, Confusion Anger Voters; 41% of November 2nd Provisional Ballots Axed in Lucas County,'' Toledo Blade, January 9, 2005.
128) Interview with Stephanie Tubbs Jones
129) Democratic National Committee, Voting
Rights Institute, ''Democracy at Risk: The 2004 Election in Ohio,'' June 22, 2005. Page 6.
130) Democracy at Risk, pg. 5.
131) Ohio Secretary of State Web site,
Provisional Ballots; Official Tabulation, November 2, 2004.
132) Michael Powell and Peter Slevin, ''Several
Factors Contributed to 'Lost' Voters in Ohio,'' Washington Post, December 15, 2004.
Christopher Hitchens, ''Ohio's Odd Numbers,'' Vanity Fair.
Additional analysis by Bob Fitrakis, editor
of the Columbus Free Press, and Richard
133) Democracy at Risk, pg. 3.
134) Preserving Democracy, pg. 29.
135) Democracy at Risk, pg. 5.