Cuyahoga and Franklin Counties, SoS Husted Sued to Prevent Planned Destruction of Election Records in May 8 Primary

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Voter lawsuit with expert testimony from election advocacy group AUDIT USA seeks to preserve digital ballot images necessary for verifying election results. A quick ruling is expected before the May 8 primary election.

If you use the machines the way they’re designed to be used, the ballot images are saved. You’d have to go in there on purpose to destroy them. Why would an election official want to destroy election records?

Secretary of State Jon Husted and the Boards of Election of Franklin and Cuyahoga Counties are facing a lawsuit challenging election practices voters and experts say violate the law. Plaintiffs filed Ohio Supreme Court case number 2018-0563 to halt what they say is the County BOEs’ plan to destroy key election materials known as “digital ballot images” immediately after next week’s primary election.

Cuyahoga and Franklin are among the 15 counties in Ohio with newer voting equipment that uses digital imaging to count votes cast on paper ballots. “When a ballot is fed into the scanner, the scanner snaps an image of that ballot, just like your smart phone takes a picture,” says John Brakey, expert witness and Director of Americans United for Democracy, Integrity and Transparency in Elections (AUDIT USA). “The scanner counts the votes it reads on the digital image, not on the paper ballot.”

Digital ballot images are essential for verifying the accuracy of the election results, according to the suit. Brakey says, “Scanners can miss votes, like when a voter marks the ballot lightly. The ballot images feature was created to provide a way to double-check the scanners’ vote counts. We need to be able to look at the digital images to make sure all the votes get counted. So they must not be destroyed.”

The case asks the judge to order all Ohio counties to follow the voting system manufacturer’s instructions to preserve all ballot images as required by law. This can easily be done in time for next month’s election, according to the plaintiffs.

The suit focuses on Cuyahoga and Franklin because conversations with election officials made it clear they planned to destroy the ballot images, according to Brakey. “If you use the machines the way they’re designed to be used, the ballot images are saved,” he said. “You’d have to go in there on purpose to destroy them. Why would an election official want to destroy election records?”

“We’ve had indications that most of the counties using this technology are following the law,” said attorney Robert J. Fitrakis of Columbus, who filed the suit. “As a precaution, we’re seeking a court order that these crucial records be protected in every county where they exist.”

According to the brief filed in the case yesterday a, “public record is created the moment the paper ballot is scanned. Ballot images are therefore in the chain of custody,” and mandated to be retained by law. All documents related to the case are online at http://sc.ohio.gov/Clerk/ecms/#/caseinfo/2018/0563.

“This case is simple. There’s no reason for it to be controversial,” says Fitrakis. “The law is clear. We’re simply asking the judge to order Secretary of State Jon Husted and the Boards of Election to follow the law.”

In their responses to the lawsuit filed in court last Friday, the Secretary of State and the Cuyahoga and Franklin County Boards of Elections did not specify whether or not they would preserve the ballot images. “The respondents have raised a number of general procedural arguments in their answer,” said plaintiffs attorney Chris Sautter. “but it is telling that they do not deny that they are allowing digital ballot images to be destroyed.”

Sautter continued, “We are optimistic that the Court will order respondents to follow federal and state law that requires officials to preserve all election materials including ballot images for 22 months.”

The original plaintiff in the suit, Constance Gadwell-Newton, is a candidate for the Green Party’s nomination for Governor. Voters from the Republican and Democratic parties yesterday filed affidavits in support.

In addition to Cuyahoga and Franklin, the counties that use digital scanners are Auglaize, Belmont, Carroll, Clermont, Fayette, Guernsey, Harrison, Huron, Knox, Mahoning, Monroe, Portage and Summit.

Courts in New York, Alabama, and Arizona have recognized that digital ballot images must be preserved.

AUDIT USA is a national non-partisan group working to restore public ownership and oversight of elections, to ensure the fundamental right of every American citizen to vote, and to have each vote counted as intended in a secure, transparent, impartial, and independently audited election process. AUDIT USA provides resources to voters and candidates to secure, access, and use digital ballot images to protect elections. Learn more at AUDITelectionsUSA.org.

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Emily Levy
AUDIT USA
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