John C. Thatcher
Knox County Prosecuting Attorney
117 East High Street, Suite 234
Mount Vernon, Ohio 43050
Dear Mr. Thatcher:
The Voting Section of the Civil Rights Division recently
conducted an investigation into the conduct of the November 2,
2004 general election in Knox County with a particular focus on
the events occurring at the Gambier/Kenyon College precinct
("Gambier/Kenyon"). As you may be aware, there were long delays
in voting at the Gambier/Kenyon site, where the majority of the
registered voters are college students. Some voters chose to
wait until approximately 4:00 a.m. to cast their ballots on Knox
county voting machines instead of using available paper ballots.
As set forth below, however, our investigation has revealed no
evidence that either the delays in voting at this site or the
problems with the number of voting machines were the result of
any intentionally discriminatory conduct on the part of County
election officials. In short, there was no violation of the
Voting Rights Act and we are thus closing our file.
Our inquiry was prompted by the Civil Rights Division's
responsibility to enforce 42 U.S.C. §1973bb, which protects the
rights of 18-21 year-old voters under the 26th Amendment to the
United States Constitution. From the outset, county officials
have been fully cooperative with our investigation, and we are
grateful to all of them. We also are most appreciative of your
personal assistance.
The information you provided established that Knox County
had an insufficient number of voting machines to serve the
unusually large number of voters who came to the polls to vote on
November 2. However, our investigation showed that the same
number of voting machines used during the November 2004 election
had been adequate to serve voters in all previous elections from
1996 through the 2004 primary, both in Gambier/Kenyon and Knox
County generally. The real problem in 2004 was that the national
focus on Ohio by the political parties, candidates, and other
third party organizations led to sharp increases in voter turnout
(not to mention voter registration) throughout Ohio, including
Knox County, compared to those prior elections. And Knox County
was simply not equipped to handle the increase.
Certain systemic deficiencies also contributed to the delays
in voting on election day. While there is some disagreement as
to minor details, key facts are not in dispute. As an initial
matter, the practice in Knox County, and in other Ohio counties,
has been to allocate the number of voting machines well in
advance of the actual election date based on expected
registration and turnout, taking into account turnout in prior
elections. This allows allocation, identification, appointment
and training of the necessary complement of poll workers for each
polling site. The County also follows Ohio election practice of
placing a minimum of two voting machines in each polling place,
regardless of size, so that voting at the site can continue if
one machine breaks down. For the November 2004 election, the
County allocated its entire inventory of usable voting machines
(except for one) to its polling sites, with the result that every
polling place, including the Gambier/Kenyon polling place, was
equipped with two voting machines. These decisions were made by
a board that includes equal representation from the two political
parties, and the decisions appear to have been made jointly and
cooperatively.
Furthermore, circumstances focused unprecedented pressure on
the Gambier/Kenyon precinct. As late as the March 2004 primary
election, the Gambier/Kenyon precinct had only 761 registered
voters, of whom only 239 (31%) voted in the primary election.
For the 2000 general election, Gambier/Kenyon had a larger number
of registered voters, 1,081 (of whom 41% cast general election
ballots), so that some increase in registration was predictable
for the November 2004 election. But registration grew
dramatically by November 2004 to 1,607. As a result, a majority
of all Gambier/Kenyon registrations were new (i.e., 2004)
registrations, and the vast majority of those registrations
appear to have been received near the close of registration in
the Fall of 2004, after the opening of classes at the college and
after the board had made its voting machine allocations.
It is clear that the Knox County elections office was
overwhelmed during this period. In addition to the large
increase in voter registration, the County handled 4,733 changes
in addresses for registrants, and researched numerous signatures
on petitions for a statewide voter initiative and a would-be
candidate for President. Consider that while the 2000
Presidential election generated 217.5 overtime or comp time hours
for elections staff, the 2004 election generated 574.75 comp time
hours for regular staff and 330.5 hours for special part-time
staff hired to help with these additional issues. Changes in
election practices and procedures by the state government, and
uncertainty caused by litigation over statewide election
procedures just prior to the election, added to the burden on
Knox County election officials. Under these circumstances, it
was very difficult for County officials to focus on rapidly
changing requirements for its precincts, and the window of
opportunity to resolve complex challenges was extremely limited.
Even with the benefit of hindsight, the County had very limited
options and, in any event, lacked the resources to resolve many
of the issues.
It also is apparent that as the November 2004 election day
progressed, long lines quickly developed at the Gambier/Kenyon
polling place because of the substantial increase in the number
of registered voters assigned to this site just prior to the
election, the large number of first-time voters, and the
remarkable 76 percent voter turnout at the site, a rate nearly
double the 2000 turnout. In all, nearly three times as many
voters cast ballots at the Gambier/Kenyon polls than in 2000,
which, we add parenthetically, is a point to be recognized and
applauded. Yet the County's options for addressing the resulting
lines were severely constrained by the fact that it had no more
voting machines available, the last machine held in reserve
having been sent to replace a failed machine at another site.
And the nature of the voting machines prevented their transfer
between precincts once they had been programmed, thereby
rendering re-allocations virtually impossible.
The County did make paper ballots available at the
Gambier/Kenyon polls after the close of polls pursuant to the
order of the federal court in Ohio Democratic Party v. Blackwell,
No. C2 04-1055 (S.D. Ohio November 2, 2004). In fact, the
chairpersons of the Democratic and Republican Parties of Knox
County personally appeared together at the Gambier/Kenyon poll by
9:00 p.m. and jointly announced to waiting voters that paper
ballots were available to all of the voters, and jointly assured
all voters that such ballots would in fact be counted. If these
ballots had been used by the voters, there would have been no
further extraordinary delays. Numerous voters availed themselves
of this opportunity and were able to exercise their vote without
much delay.
Unfortunately, most of the evening voters made an
affirmative decision not to cast paper ballots, but opted instead
to wait in line and vote on the machines. Many voters apparently
predicated their decision on erroneous advice from some private
individuals that the paper ballots were invalid and thus would
not be counted. This advice seems to have been imparted
primarily by members of the Gambier/Kenyon community who were
sincere in their wish that all ballots be counted, but
unintentionally precipitated extraordinarily long delays in
voting.
The advice to vote only on the machines was clearly in
error, was not provided by election officials, and was completely
contrary to the information that was being provided to the voters
waiting in line by election officials representing the two major
parties. There is no indication that the erroneous advice was
issued maliciously; rather, it appears to have been the product
of unfounded suspicion and distrust that was generated outside of
Knox County. Nevertheless, it affected and impeded County
residents.
These delays are obviously regrettable. We are pleased that
Knox County has agreed with the Department of Justice to take
steps to assure that such delays do not recur, barring another
unexpected surge in turnout in a future election. The County has
plans to increase its stock of voting machines from 112 to 160,
and has agreed that a sufficient number of machines shall be held
in reserve to accommodate increases in voter turnout as occurred
among the Kenyon students, and that predictably may occur
elsewhere in the County in the future.
The County has also agreed to take affirmative steps to head
off misunderstanding and suspicion associated with the election
process. Again, we acknowledge that such suspicion arose from
activities outside Knox County, and stands in sharp contrast to
the joint efforts of the County and the Democratic and Republican
leadership in the County to reassure voters and to run the
election in a non-partisan manner. Such steps will include
outreach to Kenyon and other area colleges to explore ways in
which the campuses and election office can share information on
the voter registration and election process.
We close with a note on the Kenyon community. As the hours
wore on, it appears that few if any students left without voting.
They waited their turn, or allowed elderly or other voters to go
ahead of them. They supported and encouraged each other and
maintained good spirits throughout the process, working on school
assignments and even ordering pizzas to be delivered while they
waited in line. The students' determination, good humor, and
commitment deserve every commendation as an example to their
fellow citizens.
We appreciate the full cooperation you showed the Civil
Rights Division in its investigation throughout this matter, and
we appreciate your determination and assurance that you will
takes steps to meet these voters' needs in all future elections.
Sincerely,
John Tanner
Chief
Voting Section
cc: Gregory Spaid
Provost, Kenyon College
