Part I:  How Ohio Lawsuits Sought to Bring Crimes to Light

Crossposted at Progressive Democrats of America.

    In October of 2004, polling showed John Kerry ahead of or even with George Bush.  Kerry's lead was pronounced among voters making under $50,000 a year--a significant number in blue-collar and low-income Ohio districts.  ABC's detailed poll, published on October 19, noted that the economy and jobs ranked highest among Ohio voters polled, and those voters said they would vote for Kerry over Bush, 73% to 25%.
    On election day, November 2, exit polling favored Kerry, but when the Ohio votes were reported that night, Bush was the winner.  By the next day, Ohioans were already speaking out about touch-screen problems, which registered votes for John Kerry as votes for George Bush; four-hour or longer waits in line to vote; and forced provisional ballots for young and black voters--all of which favored the Republican candidate, since these problems occurred overwhelmingly in low-income and blue-collar precincts.  Other issues included a flier distributed in a predominantly black neighborhood with the Franklin County Board of Elections name on it, telling voters that due to record turnouts they could vote on Wednesday.  More problems were revealed as the days passed, sometimes reported in the media but more often noted on the Websites that followed developments in the wake of the election.
    Ohio Secretary of State Ken Blackwell implemented a rule in Cuyahoga County on November 9, 2004, declaring that no provisional ballots without a written date of birth would be accepted for counting, contrary to previous Cuyahoga procedure, requiring simply the voter's name, voter's address, and a signature that matched the county database.  This resulted in what observers declared was a deliberate disenfranchisement of black voters and students, since these were the groups especially required to use provisional ballots.
    On November 11, the presidential candidates for the Green and Libertarian parties called for a recount in Ohio.  Among the reasons they cited were voter intimidation, ballots that were mis-marked or discarded, and voter suppression and disenfranchisement for black voters.  When a recount became inevitable, the National Voting Rights Institute (NVRI), representing these plaintiffs, sought to have the recount conducted speedily, so that the results would be known before the Electoral College's results were declared.  When this was unsuccessful, the NVRI amended the suit to challenge the inconsistent methods the various Ohio counties used in the recount.
    Also in November 2004, the King Lincoln Bronzeville Neighborhood Association, the Ohio Voter Rights Alliance for Democracy, and others united to file suit against Ken Blackwell to, as attorney Cliff Arnebeck commented when interviewed, "conduct discovery and seek to prove that the irregularities in this election, if corrected, would produce a different result, and indeed, John Kerry was the person who Ohioans voted for."  Arnebeck--Chair of Legal Affairs Committee of Common Cause Ohio and a National Co-Chair and attorney for the Alliance for Democracy (AfD)--noted that there was an "attack" on black citizens and black precincts through a shortage of voting machines that resulted in unreasonably long lines at polling stations.  Both black people and students had been aggressively developed for voter interest and registration, he stated, which posed a threat to the Republicans.
    Arnebeck Law Office and Marshall and Morrow LLC filed the suit for the King Lincoln Bronzeville group.  The claims made included:
•    Voting machines were unevenly distributed, disenfranchising minority voters.
•    African-American voters were disproportionately assigned provisional ballots and those ballots were disqualified at higher rates than in nearby white-majority precincts.
•    Provisional ballot rules were enforced in minority districts but not applied to voters in white-majority precincts.
•    Voter purges targeted precincts with high concentration of minority voters.
    The Green Party, the Libertarians, and the Ohio Honest Election Campaign, a group launched by Arnebeck and AfD founder Ronnie Dugger, cooperated in moving their respective lawsuits forward.  The Greens and Libertarians filed for the recount with the support of the NVRI.
    The King Lincoln Bronzeville lawsuit moved forward slowly, being amended as more information came to light.  The final amendment in October 2006 added more charges and emphasized the Constitutional violations it alleged.  The court granted a stay in the proceedings in August 2007, until a status conference among the parties could proceed.  The case had changed with a new Secretary of State, Jennifer Bruner, and Attorney General, Mark Dann, now "exploring the settlement of other cases filed against the predecessor Ohio Secretary of State Kenneth Blackwell."
    In the meantime, on July 28, 2005, the League of Women Voters (LWV) in Ohio filed a lawsuit against the State of Ohio--naming Ken Blackwell among the defendants--that sought redress for what it termed was decades of an election system operating in violation of the Constitution.  Blackwell himself was deemed to have "promulgated and promoted, through action and inaction, non-uniform and wholly inadequate standards and processes ... with respect to ... voter registration, absentee ballots, provisional ballots, disabled voters, and poll worker hiring and training."  The LWV emphasized that its suit encompassed voting deficiencies that started in 1971, but it cited specific instances from 2004 in its complaint. 
    On February 10, 2006, the U.S. District judge in Toledo threw out the case brought by the Green and Libertarian Parties.  The judge decided that Blackwell's actions in delaying a recount until the election was certified--thereby producing a result after the Electoral College declared George Bush the winner on December 13, 2004--was not a policy action that could affect future races.
    More than three years after filing, the LWV received a ruling from the U.S. Circuit Court of Appeals in Cincinnati that its case should be heard in court.  The State of Ohio had claimed that the LWV case should be thrown out, because Ohio has made changes in its election process since 2004.  However, the November 26, 2008, ruling noted that the LWV's case cites elections problems dating back to 1971.  The LWV's case does not challenge the results of the 2004 election, but, if successful, it could rectify some of the problems cited in the other lawsuits.
    The King Lincoln Bronzeville suit sat inactive until July 2008, when Arnebeck filed a motion to lift the stay on the case.  The case that had lain seemingly moribund for almost a year was revived on September 19, 2008, with an order to lift the stay "for the sole purpose of permitting the plaintiffs to take the deposition of Michael Connell [a Republican media consultant in Ohio] and any other witnesses whose testimony, in the judgment of these parties, may be warranted based upon the deposition of Michael Connell."  This decision, more than any other in these cases, would change lives.

End of Part I