Blade story raises answerable questions about electionWritten by Lisa Renee Ward | | firstname.lastname@example.org
The Nov. 2 election between Toledo City Councilman George Sarantou and then-Sylvania Trustee Carol Contrada for a Lucas County Commissioner spot is final from a legal standpoint. Sarantou and his legal team dismissed the Contest of Election suit they had filed to challenge the results of the election on Feb. 3; to many, that ended the saga. Contrada was sworn in as commissioner.
A Feb. 11 review I conducted for Toledo Free Press confirmed there were not enough questionable provisional ballot envelopes to alter the outcome of the November election for Lucas County Commissioner.
But a March 27 Blade article, “Review casts doubt on outcome of race,” ran with an online subtitle, “Data suggest Sarantou may have won post.”
There is no valid data that suggests Sarantou may have won. The Blade story that attempts to cloud the issue is credited to Blade political writer Tom Troy, who provides a statistical theory that has no legal precedence.
In the March 27 Blade story, Troy reports, “at least 527 votes were erroneously included in the total vote count. And hundreds more that were counted are suspect based on Ohio law and regulations.”
That number far exceeds the Sarantou team’s challenge during a Feb. 3 hearing, which took the number below 193 votes, which was Contrada’s margin of victory. The Feb. 11 review I conducted found 115 questionable ballots.
A majority of the identification envelopes a voter fills out before casting a provisional ballot for the election listed more identifying information than is required under Ohio law. There is a section on the provisional ballot that asks for “voluntary information” — phone numbers and email addresses were included on numerous ballots. Driver’s license numbers and the last four digits of Social Security numbers were written on a large number of envelopes.
Less than a dozen provisional envelopes had the word “invalid” marked through and the word “valid” written. Approximately 100 ballots had language that suggested the vote was cast in the correct location but wrong precinct; it did not appear that there were enough questionable provisional envelopes to create a change in the electoral outcome based on the information listed on the envelopes.
Most of the envelopes contained notations from Board of Election (BOE) employees that suggested the information on the provisional was verified. A voter requesting an absentee ballot then attempting to vote in person was a common notation on the provisional ballot envelopes; in that scenario, the provisional ballot is held to make sure the person did not cast an absentee ballot.
Documentation obtained by Toledo Free Press through public record requests includes the audio of a March 22 interview Troy conducted with BOE staff, including then-Director Linda Howe and then-Deputy Director Jeremy Demagall. That audio calls into question some of the information in The Blade’s story.
At times, the March 22 interview with Troy was contentious, as this section from the audio demonstrates:
Howe: The things you are saying are suspicious or are errors are not errors.
Troy: It’s definitely an error when an election worker doesn’t sign the document.
Howe: No, it’s not.
Troy: What excuse is there for an election worker to not ….
Howe: That does not invalidate the ballot.
Troy: I can accept that, if that’s the truth.
Howe: It is and don’t tell me it’s not the truth because it is.
Troy: I didn’t mean to say it that way, I don’t have any reason … I haven’t claimed that the election workers’ failure to sign some document is a fatal flaw. I’m just saying …
Howe: But you are going to word it as if they are suspicious.
Troy: I’m going to say that they’re flaws, they are faulty, that the election worker did not do his job or her job. Her job was to sign the document, to attest that ‘I saw this voter fill out this document and that I saw their ID’.
The numbers game
The numbers in the March 27 Blade story do not match the numbers that were presented in the election contest lawsuit. There were several different lists of challenged ballots that each contained different numbers. Lucas County Prosecutor John Borrell provided Toledo Free Press with the last list that was received by his office on Feb. 3. That list contained 331 challenges, 156 being related to “wrong precinct, right polling location” voters.
Secretary of State Jon Husted’s office stated there were 114 “wrong precinct, right polling location voters.” When Toledo Free Press inspected the provisional ballots on Feb. 9 and Feb. 11, 80 of those 114 were found that did not have the last four digits of a Social Security number.
Patrick Kriner, BOE Board Chairman, said March 25, the day that the board voted to fire Howe and Demagall in response to Husted calling for their termination, that 82 of the 114 provisional ballots did not contain the Social Security number.
Toledo Free Press was told on Feb. 11 that during the Feb. 3 hearing, additional voters were dropped from the challenged list; that took the number below 193 votes, which was the margin between Contrada and Sarantou.
This was confirmed by Howe, Demagall and LaVera Scott, BOE Supervisor, in the audio of the March 22 interview with Troy. It was stated four ballots did not contain a signature and should not have been counted.
“This case was dropped because they didn’t have anything but those four ballots,” Demagall said in a March 30 interview with Toledo Free Press.
Troy reported March 27, “In 403 cases, a box was checked requiring voters to bring more ID before their votes could be counted. The Lucas County Board of Elections has provided no evidence that those voters came forward, yet the votes were counted.”
Troy was told several times during the course of the more than hourlong interview on March 22 that there would be no additional documentation on the envelope.
The only thing needed to determine validity is the voter’s name and signature on the envelope. Signature matching was stressed as the key element in determining identification, with that being data that a poll worker would not have access to.
Troy said in his March 27 article that, “No one can know for sure how the votes of those 527 ballots were distributed between Mrs. Contrada and Mr. Sarantou because elections board workers separated the ballots from the envelopes. But if those votes were distributed in the same proportion as the total 4,081 provisional ballots that were counted in the race for county commissioner, Democrat Carol Contrada’s lead of 193 evaporates and Mr. Sarantou emerges the winner by 11 votes.”
For Troy’s theory to be plausible, his number of questionable ballots would have had to have been “the” numbers. They were not. The latest numbers available prior to what was stated in court on Feb. 3 showed a total of 331 challenged ballots.
“In 2008, Democrats received 87 percent of the provisionals; Contrada only got 70 percent,” said Demagall. “Sarantou got more provisional votes than other Republican candidates.”
Using Troy’s theory, even if all 331 challenged provisional ballots were deemed flawed enough to throw out, Contrada would have still won. That’s without the reality that the day the lawsuit was dropped, the numbers were reportedly under the 193 vote margin. Even Sarantou’s legal team, according to Troy on March 22, decided they were not going to be able to make that type of a statistical argument.
In the defendant’s trial brief filed by Lucas County in Sarantou vs Board of Elections on Feb. 1, the argument was made that validating only the wrong precinct, right polling location provisional ballots that use the last four digits of a Social Security number and not counting similar provisional ballots created a possible violation of the 14th Amendment.
Several court cases referencing the issue of equal protection have cited this argument, including the recent Hunter vs Hamilton, which cited Bush vs Gore 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.”
Matthew McClellen, press secretary for Secretary of State Jon Husted, said in a March 28 email that “The consent decree, which was entered into by the previous Secretary of State and overseen by the federal courts, carved out the narrow exception (for those using their last four digits of SSN as identification) and boards of elections were instructed on how to handle these. The federal court overseeing this case obviously did not see it as an equal protection issue.”
While she did not want to directly criticize Husted or his office, former Secretary of State Jennifer Brunner told Toledo Free Press during a phone interview on March 28 that the equal protection argument related to provisional ballots was an area of concern.
“What I will say, is that when faced with a similar situation in 2007, I personally investigated the situation,” Brunner said. “I brought the board members, director and deputy director to Columbus to find out what happened before making a decision.”
Legal advice and directives
Howe and Demagall have stated on several occasions that the decisions they made were based on written and oral directives and on legal advice given to them.
“We were told to count them on the signature and not on the Social Security number for right precinct, wrong polling location by Brian Shinn, the head legal person for Secretary of State, in May,” Demagall said March 30.
“All we go by is what we are told; we are not lawyers,” Howe said to Troy March 22. “We are not going to disenfranchise voters through an error a poll worker makes. If that’s their signature, we err on the side of the registered voter.”
The defendant’s trial brief in Sarantou vs Board of Elections made the legal arguments as to why the decision was made to not interview poll workers: “Whenever a voter sought to cast a provisional ballot, the worker at that table directed the voter to the precinct in which that voter would then cast his or her ballot. … Thus, if a provisional voter cast a ballot in the wrong precinct, it was solely because a poll worker sent him or her to that precinct. Given that the provisional voter did nothing wrong, and the directive on provisional balloting (Directive 201-74) … the Board decided to count provisional ballots cast in the wrong precinct (but proper polling location).”
Howe told Troy March 22, “We were told verbally, with our system we could count it as poll-worker error. At that time that’s what we were told and in checking with other counties, they had the same understanding.”
‘The spin is on’
“Blade coverage has been misleading. I’ve got good, really good people doing a good job,” Kriner said March 30. “The Blade is just looking for reasons to undermine the public confidence in the Board of Elections. Our job is to count the vote. They think if they attribute something that’s wrong to someone, that excuses them from responsibility. This is solely to create the opportunity to get Jon Stainbrook on the BOE. The spin is on.”
Changes to the provisional ballot system are expected On March 22 it was said changes were coming and that BOEs had been told to not order a large number of provisional ballot envelopes.
Howe said she’d like to see the system streamlined so that only the information that is legally required to be put on an envelope is listed. Demagall said a separate area on the envelope for additional information that would be helpful for verification, but not required, would be another suggestion.
Demagall said he wasn’t worried about his future.
“When you are honest, you don’t worry about this stuff,” he said.
“Fact-based reporting of an event is different than reporting on an event and slanting the results of journalistic research to feed the agendas of those who control the presses,” Kriner wrote March 27 on Facebook.
Toledo Free Press web editor Lisa Renee Ward operates the political blog GlassCityJungle.com.