November 25, 2007
Sent via electronic mail
To: The Office of the Ohio Secretary of State
• Patrick Galloway, Director of Communications
• Kellye Pinkelton, Director of the Voting Rights Institute
From: Adele Eisner, of Cuyahoga County
RE: Apparent Non-Compliance of the Office of the Secretary of State with certain sections of the Ohio Revised Code relating to the Duties and Responsibilities of the Secretary of State.
Dear Patrick and Kellye,
I address this letter to you, as I've previously approached you both, (and/or the VRI,) multiple times over the past months, on matters having to do with the Secretary of State's compliance with public access to information.
Instead of remediation, these matters have either gotten noticeably worse (further from compliance;) or there has been no change, which could be considered worse. I ask that you pass along the information in this letter to whomever necessary, to gain immediate and permanent remediation to the below problems/concerns.
Given the history of lack of ongoing, clear communication with even the VRI, for many months, even about how Ohio Sunshine Laws may or may not apply to that Advisory Group, I'm beginning to think that very possibly, FDR's famous statement, that in politics no happening is an accident, may hold true here. Certainly one occurrence may be an accident, twice causes one to think twice, but three times seems to indicate intent, or here, clear lack of attention to the public whom the Secretary of State is to serve.
1. First, I draw your attention to ORC 3501.05 - Election duties of secretary of state, particularly Sections B and X, which I've placed in bold:
The secretary of state shall do all of the following:
(A) Appoint all members of boards of elections;
(B) Issue instructions by directives and advisories to members of the boards as to the proper methods of conducting elections. In addition to any other publication of those directives and advisories, the secretary of state shall publish those directives and advisories on a web site of the office of the secretary of state as soon as is practicable after they are issued, but not later than the close of business on the same day as a directive or advisory is issued. The secretary of state shall not remove from the web site any directives and advisories so posted. The secretary of state shall provide on that web site access to all directives and advisories currently in effect and maintain an archive of all directives and advisories previously published on that web site.
(C) Prepare rules and instructions for the conduct of elections;
(D) Publish and furnish to the boards from time to time a sufficient number of indexed copies of all election laws then in force;
(E) Edit and issue all pamphlets concerning proposed laws or amendments required by law to be submitted to the voters;
(F) Prescribe the form of registration cards, blanks, and records;
(G) Determine and prescribe the forms of ballots and the forms of all blanks, cards of instructions, pollbooks, tally sheets, certificates of election, and forms and blanks required by law for use by candidates, committees, and boards;
(H) Prepare the ballot title or statement to be placed on the ballot for any proposed law or amendment to the constitution to be submitted to the voters of the state;
(I) Except as otherwise provided in section 3519.08 of the Revised Code, certify to the several boards the forms of ballots and names of candidates for state offices, and the form and wording of state referendum questions and issues, as they shall appear on the ballot;
(J) Except as otherwise provided in division (I)(2)(b) of section 3501.38 of the Revised Code, give final approval to ballot language for any local question or issue approved and transmitted by boards of elections under section 3501.11 of the Revised Code;
(K) Receive all initiative and referendum petitions on state questions and issues and determine and certify to the sufficiency of those petitions;
(L) Require such reports from the several boards as are provided by law, or as the secretary of state considers necessary;
(M) Compel the observance by election officers in the several counties of the requirements of the election laws;
(N)(1) Except as otherwise provided in division (N)(2) of this section, investigate the administration of election laws, frauds, and irregularities in elections in any county, and report violations of election laws to the attorney general or prosecuting attorney, or both, for prosecution;
(2) On and after August 24, 1995, report a failure to comply with or a violation of a provision in sections 3517.08 to 3517.13, 3517.17, 3517.18, 3517.20 to 3517.22, 3599.03, or 3599.031 of the Revised Code, whenever the secretary of state has or should have knowledge of a failure to comply with or a violation of a provision in one of those sections, by filing a complaint with the Ohio elections commission under section 3517.153 of the Revised Code;
(O) Make an annual report to the governor containing the results of elections, the cost of elections in the various counties, a tabulation of the votes in the several political subdivisions, and other information and recommendations relative to elections the secretary of state considers desirable;
(P) Prescribe and distribute to boards of elections a list of instructions indicating all legal steps necessary to petition successfully for local option elections under sections 4301.32 to 4301.41, 4303.29, 4305.14, and 4305.15 of the Revised Code;
(Q) Adopt rules pursuant to Chapter 119. of the Revised Code for the removal by boards of elections of ineligible voters from the statewide voter registration database and, if applicable, from the poll list or signature pollbook used in each precinct, which rules shall provide for all of the following:
(1) A process for the removal of voters who have changed residence, which shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 and the National Voter Registration Act of 1993, including a program that uses the national change of address service provided by the United States postal system through its licensees;
(2) A process for the removal of ineligible voters under section 3503.21 of the Revised Code;
(3) A uniform system for marking or removing the name of a voter who is ineligible to vote from the statewide voter registration database and, if applicable, from the poll list or signature pollbook used in each precinct and noting the reason for that mark or removal.
(R) Prescribe a general program for registering voters or updating voter registration information, such as name and residence changes, by boards of elections, designated agencies, offices of deputy registrars of motor vehicles, public high schools and vocational schools, public libraries, and offices of county treasurers consistent with the requirements of section 3503.09 of the Revised Code;
(S) Prescribe a program of distribution of voter registration forms through boards of elections, designated agencies, offices of the registrar and deputy registrars of motor vehicles, public high schools and vocational schools, public libraries, and offices of county treasurers;
(T) To the extent feasible, provide copies, at no cost and upon request, of the voter registration form in post offices in this state;
(U) Adopt rules pursuant to section 111.15 of the Revised Code for the purpose of implementing the program for registering voters through boards of elections, designated agencies, and the offices of the registrar and deputy registrars of motor vehicles consistent with this chapter;
(V) Establish the full-time position of Americans with Disabilities Act coordinator within the office of the secretary of state to do all of the following:
(1) Assist the secretary of state with ensuring that there is equal access to polling places for persons with disabilities;
(2) Assist the secretary of state with ensuring that each voter may cast the voter’s ballot in a manner that provides the same opportunity for access and participation, including privacy and independence, as for other voters;
(3) Advise the secretary of state in the development of standards for the certification of voting machines, marking devices, and automatic tabulating equipment.
(W) Establish and maintain a computerized statewide database of all legally registered voters under section 3503.15 of the Revised Code that complies with the requirements of the “Help America Vote Act of 2002,” Pub. L. No. 107-252, 116 Stat. 1666, and provide training in the operation of that system;
(X) Ensure that all directives, advisories, other instructions, or decisions issued or made during or as a result of any conference or teleconference call with a board of elections to discuss the proper methods and procedures for conducting elections, to answer questions regarding elections, or to discuss the interpretation of directives, advisories, or other instructions issued by the secretary of state are posted on a web site of the office of the secretary of state as soon as is practicable after the completion of the conference or teleconference call, but not later than the close of business on the same day as the conference or teleconference call takes place.
(Y) Publish a report on a web site of the office of the secretary of state not later than one month after the completion of the canvass of the election returns for each primary and general election, identifying, by county, the number of absent voter’s ballots cast and the number of those ballots that were counted, and the number of provisional ballots cast and the number of those ballots that were counted, for that election. The secretary of state shall maintain the information on the web site in an archive format for each subsequent election.
(Z) Conduct voter education outlining voter identification, absent voters ballot, provisional ballot, and other voting requirements;
(AA) Establish a procedure by which a registered elector may make available to a board of elections a more recent signature to be used in the poll list or signature pollbook produced by the board of elections of the county in which the elector resides;
(BB) Disseminate information, which may include all or part of the official explanations and arguments, by means of direct mail or other written publication, broadcast, or other means or combination of means, as directed by the Ohio ballot board under division (F) of section 3505.062 of the Revised Code, in order to inform the voters as fully as possible concerning each proposed constitutional amendment, proposed law, or referendum;
(CC) Perform other duties required by law.
Whenever a primary election is held under section 3513.32 of the Revised Code or a special election is held under section 3521.03 of the Revised Code to fill a vacancy in the office of representative to congress, the secretary of state shall establish a deadline, notwithstanding any other deadline required under the Revised Code, by which any or all of the following shall occur: the filing of a declaration of candidacy and petitions or a statement of candidacy and nominating petition together with the applicable filing fee; the filing of protests against the candidacy of any person filing a declaration of candidacy or nominating petition; the filing of a declaration of intent to be a write-in candidate; the filing of campaign finance reports; the preparation of, and the making of corrections or challenges to, precinct voter registration lists; the receipt of applications for absent voter’s ballots or armed service absent voter’s ballots; the supplying of election materials to precincts by boards of elections; the holding of hearings by boards of elections to consider challenges to the right of a person to appear on a voter registration list; and the scheduling of programs to instruct or reinstruct election officers.
In the performance of the secretary of state’s duties as the chief election officer, the secretary of state may administer oaths, issue subpoenas, summon witnesses, compel the production of books, papers, records, and other evidence, and fix the time and place for hearing any matters relating to the administration and enforcement of the election laws.
In any controversy involving or arising out of the adoption of registration or the appropriation of funds for registration, the secretary of state may, through the attorney general, bring an action in the name of the state in the court of common pleas of the county where the cause of action arose or in an adjoining county, to adjudicate the question.
In any action involving the laws in Title XXXV of the Revised Code wherein the interpretation of those laws is in issue in such a manner that the result of the action will affect the lawful duties of the secretary of state or of any board of elections, the secretary of state may, on the secretary of state’s motion, be made a party.
The secretary of state may apply to any court that is hearing a case in which the secretary of state is a party, for a change of venue as a substantive right, and the change of venue shall be allowed, and the case removed to the court of common pleas of an adjoining county named in the application or, if there are cases pending in more than one jurisdiction that involve the same or similar issues, the court of common pleas of Franklin county.
Public high schools and vocational schools, public libraries, and the office of a county treasurer shall implement voter registration programs as directed by the secretary of state pursuant to this section.
Effective Date: 08-28-2001; 05-07-2004; 05-02-2006; 08-22-2006; 2007 HB119 09-29-2007
I noted to you, Patrick, at the Secretary of State's Summer Conference in June, 2007 that the SoS Directives, Advisories and Memos, which had previously been available to me on the web, had begun to, at various, unpredictable times, present me with an error message, ("Http/1.1 Service Unavailable") making various portions of those items unavailable for days.
Their availability would then return, and various numbers of days later, disappear again. At first, it was only Directives that were affected, then Advisories and Memos began unpredictably yielding that unavailability message.
When it originally happened, the lack of availability originally lasted for only a day, then lasted for many more.
Though there have been brief periods of repair since that time of our first talk, now the majority of the links on your site, including all Directives, Advisories and Memos, yield the same "Http/1.1 Service Unavailable" message to me, constantly; clearly not in compliance.
As an election reform activist, and a member of the VRI, I rely on information from your site quite heavily. I would hope that many in the public do. But as mentioned above, I can now access almost nothing - not the things you're legally required to make available, and not even such items as the RFP for the "top to bottom machine" review. (I can still, however access your press releases, and all the links on the right side of the home page.)
Early this month, the last time I wrote to you about the problem, you indicated that it could be caused because I use a Mac, possibly using the Safari browser.
I replied in part, that this is not reasonable, because:
• yours is the only site of the many I visit daily causing me this problem
• that it happens in both Safari and Firefox browsers
• and the availability of the same items changes over time. When I wrote to you at end October for instance, by the next day, all Directives, Advisories and Memos again became available.
As previously written, the problem must be due to something that your web or IT people are, or are not, doing on your end, and that they need to legally fix immediately and constantly for the future.
• And if a Macintosh computer and software is the problem, though the problem may be affecting a minority, but hardly an uncommon group, it does not minimize the ORC non-compliance issue.
At the bottom of your web pages for example, per the law, you have handicapped accessibility notices for your site.
Certainly Mac/Safari/Firefox users should be afforded the same access. Certainly your IT people should be able to post information, as do all other sites I visit, so they are accessible to all who are using reasonably available hardware and software, and without requiring one to purchase more, or use others' computers. Even Mr. Blackwell's web people could do that.
2. Regarding ORC 3501.05 Section (X) - Ensure that all directives, advisories, other instructions, or decisions issued or made during or as a result of any conference or teleconference call with a board of elections to discuss the proper methods and procedures for conducting elections, to answer questions regarding elections, or to discuss the interpretation of directives, advisories, or other instructions issued by the secretary of state are posted on a web site of the office of the secretary of state as soon as is practicable after the completion of the conference or teleconference call, but not later than the close of business on the same day as the conference or teleconference call takes place.
I have never seen such postings on your site. This is despite the fact that the same language is used as in the above Section B - "posted on a web site of the office of the secretary of state," which from HB3, where such code came into existence, Section B clearly indicates availability to the public.
Is your office making such postings indicated in Section X, available only on a private intranet? If so, by what reasoning, since it is the public who owns elections, pays for them, and ultimately is made to live under such decisions and clarifications?
Thus in addition to ascertaining the answers to questions directly above, under Sunshine Law, I hereby request
• copies of all such postings, for the year 2007, as indicated in ORC 3501.05 Section (X).
• emailed copies of all SoS Directives, Advisories and Memos issued since June 1, 2007
3. Further exacerbating the above lack of compliance, is the lack of compliance of your office with providing public information.
I requested of Brian Green, with whom I was told I was to make document requests, on or about September 13, 2007, by phone, such items as the final RFP for the Top To Bottom Review, the replies from all those who replied, and then later, a copy of any other documents the Secretary of State supplied to the Ohio Controlling Board regarding the testing.
He told me the first request would probably be ready by the following Wednesday.
Though I've since emailed him once regarding this matter, and called and left messages twice, I still do not have those documents, and I've never heard back from him still. Though some of these documents have links to them on your web site, I refer you to item #1 above.
With recently updated rules for supplying public documents in a reasonably expeditious manner, this also indicates lack of compliance by your office. Am I to assume a refusal to comply?
4. Last, from your website - (in a link I can access: http://www.sos.state.oh.us/About.aspx?Section=100)
Duties and Responsibilities Chief Elections Officer
As Ohio`s chief election officer, the secretary of state oversees the elections process and appoints the members of boards of elections in each of Ohio`s 88 counties.The secretary of state supervises the administration of election laws; approves ballot language; reviews statewide initiative and referendum petitions, chairs the Ohio Ballot Board, which approves ballot language for statewide issues; canvasses votes for all elective state offices and issues; investigates election fraud and irregularities; trains election officials and reimburses counties for poll worker training costs.
In this regard, I state that I stand with all others who have presented Secretary of State Brunner with solid evidence of election fraud in the 2004 election for investigation and appropriate action to prevent same in the future.
For your office to state that there "is no evidence" and thus not openly investigate; or that we must not look backward, but forward to "successful" elections in 2008, while some of the officials in question in that evidence, are still present and active in 2008 preparation and implementation seems both nonsensical, and a dereliction of duty.
I look forward to being able to use and fully access the Secretary of State's web site very soon, including the mandated accessible Directives, Advisories and Memos, on an ongoing basis, necessary for citizens to fully participate in our elections. I also look forward to hearing back from you regarding items 2, 3 and 4, above.
So that you are aware, I am also sending a copy of this message as an open letter to Ohio election reform advocate listserves. The awareness and response of more may be able to help you monitor the status of your office's improvements.
I attach copies of the emails referred to in Item #1 above, here, for download.