CONGRESSMAN
JOHN CONYERS, JR. December 15, 2004 Mr.
Kevin R. Brock
As part of the Democratic staff's investigation into irregularities in
the 2004 election and following up on a lead provided to me by Green
Party Presidential Candidate, David Cobb, I have learned that
Sherole Eaton, a Deputy Director of Board of Elections in Hocking
County, Ohio, has first hand knowledge of inappropriate and likely
illegal election tampering in the Ohio presidential election in
violation of federal and state law. I have information that
similar actions of this nature may be occurring in other counties in Ohio. I am therefore asking
that you immediately investigate this alleged misconduct and that,
among other things, you consider the immediate impoundment of election
machinery to prevent any further tampering.
On December 13, my staff met with Ms. Eaton who explained to them that
last Friday, December 10, Michael Barbian, Jr., a representative of
Triad GSI unilaterally sought and obtained access to the voting
machinery and records in Hocking County, Ohio, modified the computer
tabulator, learned which precinct was planned to be the subject of the
initial test recount and made further alterations based on that
information, and advised the election officials how to manipulate the
machinery so that the preliminary hand recount matched the machine
count. Ms. Eaton first relayed this information to Green Party
representatives, and then completed, signed and notarized an affidavit
describing this course of events, a copy of which is
attached.
The Triad official sought access to the voting machinery based on the
apparent pretext that he wanted to review some "legal questions" the
officials might receive as part of the recount process. At
several times during this visit, Mr. Barbian telephoned into Triad's
offices to obtain programming information relating to the machinery and
the precinct in question. I have subsequently learned that Triad
officials have been, or are in the process of intervening in several
other counties in Ohio - Greene and Monroe, and perhaps others (see
attached).
There are several important considerations you should be aware of with
respect to this matter. First, this course of conduct would
appear to violate several provisions of federal law, in addition to the
constitutional guarantees of equal protection and due process. 42
U.S.C. §1973 provides for criminal penalties against any person
who, in any election for federal office, "knowingly and willfully
deprives, defrauds, or attempts to defraud the residents of a State of
a fair and impartially conducted election process, by . . . the
procurement, casting, or tabulation of ballots that are known by the
person to be materially false, fictitious, or fraudulent under the laws
of the State in which the election is held." 42 U.S.C. §
1974 also requires the retention and preservation, for a period of
twenty-two months from the date of a federal election, of all voting
records and papers and makes it a felony for any person to "willfully
steal, destroy, conceal, mutilate, or alter" any such record.
Further, any tampering with ballots and/or election machinery would
violate the constitutional rights of all citizens to vote and have
their votes properly counted, as guaranteed by the Equal Protection and
Due Process Clauses of the Fourteenth Amendment to the U.S.
Constitution.
Second, the course of conduct would also appear to violate several
provisions of Ohio law. No less than 4 provisions of the
Ohio Revised Code make it a felony to tamper with or destroy election
records or machines.1 Clearly,
modifying election equipment in order to make sure that the hand count
matches the machine count would appear to fall within these
proscriptions.
Moreover, bringing in Triad officials into other Ohio Counties would
also appear to violate Ohio Revised Code § 3505.32 which provides
that during a period of official canvassing, all interaction with
ballots must be "in the presence of all of the members of the board and
any other persons who are entitled to witness the official canvass,"
given that last Friday, the Ohio Secretary of State has issued orders
to the effect that election officials are to treat all election
materials as if they were in a period of canvassing,2 and that "Teams of one
Democrat and one Republican must be present with ballots at all times
of processing."3
Third, it is important to recognize that the companies implicated in
the wrongdoing, Triad and its affiliates, are the leading suppliers of
voting machines involving the counting of paper ballots and punch cards
in the critical states of Ohio and Florida. Triad is controlled by the Rapp family, and its founder Tod A.
Rapp has been a consistent contributor to Republican causes.4 A Triad
affiliate, Psephos Corporation, supplied the notorious butterfly ballot
used in Palm Beach County, Florida, in the 2000 presidential election.
Please respond to me at your earliest convenience through Perry
Apelbaum or Ted Kalo of my Judiciary Committee staff, 2142
Rayburn House Office Building, Washington, D.C. 20515 (tel
202-225-6504, fax 202-225-4423). Sincerely, John
Conyers, Jr. Enclosures cc:
The Honorable F. James Sensenbrenner, Jr.
1Ohio
Rev. Code Ann.
§3599.27 provides "[n]o person shall tamper or attempt to tamper
with, deface impair the use of, destroy or otherwise injure in any
manner any voting machine...No person shall tamper or attempt to tamper
with, deface, impair the use of, destroy or otherwise change or injure
in any manner any marking device, automatic tabulating equipment or any
appurtenances or accessories thereof."
Ohio Rev. Code Ann.
§3599.24 provides "[n]o person shall...destroy any property used
in the conduct of elections."
Ohio Rev. Code Ann.
§3599.34 provides "[n]o person, from the time ballots are cast or
voted until the time has expired for using them in a recount or as
evidence in a contest of election, shall unlawfully destroy or attempt
to destroy the ballots, or permit such ballots or a ballot box or
pollbook used at an election to be destroyed; or destroy, falsify,
mark, or write in a name on any such ballot that has been voted.".
Ohio Rev. Code Ann.
§3599.33 provides "[n]o person, from the time ballots are cast or
counted until the time has expired for using them as evidence in a
recount or contest of election, shall willfully and with fraudulent
intent make any mark or alteration on any ballot; or inscribe, write,
or cause to be inscribed or written in or upon a registration form or
list, pollbook, tally sheet, or list, lawfully made or kept at an
election, or in or upon a book or paper purporting to be such, or upon
an election return, or upon a book or paper containing such return the
name of a person not entitled to vote at such election or not voting
thereat, or a fictitious name, or, within such time, wrongfully change,
alter, erase, or tamper with a name, word, or figure contained in such
pollbook, tally sheet, list, book, or paper; or falsify, mark, or write
thereon with intent to defeat, hinder, or prevent a fair expression of
the will of the people at such election.".
2Mehul Srivastava, Greene County elections board scrutinized;
Office containing ballots found unlocked overnight, Dayton Daily News, Dec. 12,
2004 at B1.
3Ohio Secretary of State J.
Kenneth Blackwell, Directive 2004-48, Oct. 29, 2004, "Absentee/Provisional Counting and Ballot
Security". National
Republican Congressional Committee
3/16/1998
$250
2/15/1999
$350
9/11/2000
$350 Ohio State Central and Executive Committee
3/1/2001
$200 Bush-Cheney
2004
2/2/2004
$500 Republican
National Committee
8/8/2003
$250
2/3/2004
$500
RANKING MEMBER, COMMITTEE ON THE JUDICIARY
DEAN, CONGRESSIONAL BLACK CAUCUS
________________________________
Special Agent in Charge
John Weld Federal Building
550 Main Street, Suite 900
Cincinnati, OH 45202
Attorney Larry E. Beal
Hocking County Prosecutor
Hocking County Courthouse
88 South Market Street
Logan, OH 43138
Dear Mr. Brock and Mr. Beal:
Source: WWW.FEC.GOV