Every vote should be counted.

(Was there a concerted effort to undercount GOP primary write in Ballots? – promoted by Rob “EaBo Clipper” Eno)

Thank you to all who have inquired about the status of our efforts concerning voter disenfranchisement. Probably the way to summarize where we are is by attaching the text of last month’s correspondence to U.S. Attorney Ortiz – which is below.

We are having a meeting this evening (March 14, 2012) in New Bedford in this regard (http://redmassgroup.com/diary/14044/massgop-region-5-meeting-allegations-of-possible-voter-disenfranchisement). In that city, 202 voters cast write-in ballots, but no votes were certified for the candidates – the election commissioner would tell an investigative reporter from the Worcester Telegram that she knew write-in votes had been cast for the candidates, yet chose not to count them.

While most cities and towns did a fine job of counting votes, there were significant problems in a number of places. It has been a year-and-a-half, and nothing has been done to fix those problems. Unless something is done, we should expect those problems to occur again.

Moreover, Federal law required that the ballots and related materials be preserved for 22 months. As indicated in the correspondence below, some of those materials have already been destroyed, and the rest may be lawfully destroyed this July. Should that happen, we will not be able to identify the scope of the problem and, as a consequence, fixing what is wrong may not occur.

We cannot just sit back and let voters be disenfranchised.

February 21, 2012

Carmen M. Ortiz, Esquire

United States Attorney, District of Massachusetts

John Joseph Moakley United States Federal Courthouse

1 Courthouse Way, Suite 9200

Boston, MA 02210

Re: Request for Investigation.

Dear United States Attorney Ortiz:

Given the grave importance of insuring that all votes are counted, together with the enduring need for integrity in our electoral system, I ask that you kindly accept this correspondence as a request to investigate the circumstances connected with the failure to count thousands of votes in the 2010 Republican primary for Attorney General, as well as a related and apparent violation of Federal law.  My hope is that, in doing so, you will both identify the problem and prevent future voter disenfranchisement.

This request focuses on four cities, Springfield, Worcester, Boston and Lawrence.  (The data referenced in this correspondence is largely drawn from Public Document No. 43, Massachusetts Election Statistics, 2010, published by the Secretary of the Commonwealth).  

The election officials in Springfield certified that 389 write-in votes were cast, yet that only 53 votes (14%) were for the candidates.  In contrast, Pittsfield counted 91%, Westfield counted 90%, and Holyoke counted 88%.  In fact, most cities and towns counted at least 90% of the vote for the candidates, with 62 of them counting 100%.  (Another city, Chelsea, certified that one vote was cast and that it was counted for a candidate, but an examination of such city’s website indicates that there were 44 write-in votes cast.  Thus, Chelsea did not count all votes cast, rather, it counted one, and seemingly disenfranchised 43 voters).

The City of Springfield website lists the relevant election results by precinct, with the number of write-in votes per precinct being indicated.  Notably, though the number of write-in votes are listed by precinct, the number of votes in each precinct for the candidates are not indicated.  Given the evidence lack of support in precinct-level data for the certified results, the question arose as to how Springfield could have determined how many votes were cast for the candidates.

Consequently, out of concern that the foregoing suggested that the results certified by Springfield election officials had no relation to the votes cast, I sent public record requests to Springfield seeking the election records concerning that primary (please Attachments 1 and 2).

The essence of the eventual response from the election officials in Springfield was that the sought records had been damaged in flooding caused by significant weather events, and then “mistakenly discarded” (please see Attachments 3 and 4).  

As you know, 42 U.S.C. § 1974 required those election officials to retain and preserve all records and papers concerning such election.  In light of that statute, the discarding of such materials by officials in Springfield constituted an evident violation of Federal law.

To determine the extent to which Springfield officials had discarded records – and most concerned as to whether the ballots themselves have been destroyed, I sent a last public records request to Springfield.  In that request, I asked for:

Any and all records that list or otherwise provide an accounting of any records and papers, including ballots, which in any way concerned voting in the September 14, 2010, primary, that have been damaged, destroyed, or discarded as the direct or indirect result of any significant weather events.  The sought records include all those that list or otherwise provide an accounting of any materials which related to the counting and tabulation of votes in such election that are no longer available because of weather events.

Please see Attachment 5.

In response, Springfield officials indicated that they had no such materials.  (Please see attachment 6).  Therefore, not only did Springfield officials unlawfully discard election materials, but, apparently, they have made no effort to determine what was destroyed.  (Monitoring of Springfield elections by the Department of Justice had ended earlier in 2010 – that monitoring had taken place pursuant to an Agree Settlement Order that resolved a complaint, which complaint is unrelated to the instant concerns, against Springfield by the Voting Rights Division of the Department of Justice).

In Worcester, there purportedly were 11 precincts in which voters cast write-in votes – and in which none of the votes were counted for a candidate.  (Please see Attachment 7, a copy of a document produced by Worcester election officials in response to a public records request – the data in that document would suggest that 130 votes were cast in those 11 precincts with none being counted for the candidates: 33 votes cast but uncounted in Ward 3, Precinct 1; 18 votes cast but uncounted in Ward 3, Precinct 5; 3 votes cast but uncounted in Ward 4, Precinct 3; 25 votes cast but uncounted in Ward 5, Precinct 4; 4 votes cast but uncounted in Ward 6, Precinct 1; 10 votes cast but uncounted in Ward 7, Precinct 2; 23 votes cast but uncounted in Ward 7, Precinct 4; 3 votes cast but uncounted in Ward 8, Precinct 1; 1 vote cast but uncounted in Ward 8, Precinct 2; 8 votes cast but uncounted in Ward 10, Precinct 3; and, 2 votes cast but uncounted in Ward 10, Precinct 5).

More than 100 voters were thus disenfranchised in those precincts alone.  

In the Worcester precincts in which some votes seemingly were counted, we have identified particular voters whose votes were not counted.  For example, we have identified two voters who voted for Guy Carbone – in a precinct in which Worcester election officials certified that he received no votes.

Considering the eleven precincts in which no write-in votes were counted at all, and the failure to count particular votes in other precincts, there can be no confidence that the results certified in Worcester were directly related to the votes cast.  Our system requires that the results certified must reflect what the voters did.  There can be no justification for the disenfranchisement of voters in Worcester.  

Similar patterns are evidence in both Lawrence and Boston.  In both cities, 23% of the write-in vote cast was counted for a candidate (in Lawrence, 59 of 258 votes were counted; in Boston, 359 of 1,535 votes were counted).  Moreover, in Lawrence, in 18 of the 24 precincts in which voters apparently cast write-in votes, no votes were counted for the candidates.  In Boston, there were 156 precincts in which voters cast write-in votes, yet no votes were counted for the candidates.  The results certified in Boston suggest that more than 1,000 voters may have been disenfranchised in that city alone.

The attached August 16, 2011, complaint to the Civil Rights Division of the United States Department of Justice was met with the recommendation that the concerns raised therein be addressed at the state level.  (Please see Attachment 8).  At the same time as that recommendation, one of above-referenced Worcester voters learned that her vote had not been counted – she was “stunned” to learn that she had been disenfranchised, and expressed the hope that the ballots in Worcester could be secured before they “disappeared.”

As a result, I sent three letters to the Commonwealth’s Chief Election Officer, Secretary of State William F. Galvin.  (Please see Attachments 9, 10, and 11).  In each, I described the problem and asked him to secure the ballots in Worcester, Springfield, Boston, and Lawrence.

The response from the Office of the Secretary of the Commonwealth establishes that the Secretary Galvin has chosen not to act.  (Please see Attachment 12).  In essence, despite the fact that thousands of votes were uncounted, the Commonwealth’s Chief Election Officer has made clear that he will do nothing to define precisely what happened – and why it happened, or to prevent it from happening again.  It may be concluded that the state-level remedies in this regard have been exhausted.

While, as mentioned, most cities and towns ably honored the intent of the voters, there were regrettable exceptions beyond those discussed above – for example, none of the votes were counted for candidates in places like Maynard, Wilmington, Nantucket, Nahant and New Bedford (the election commissioner in New Bedford actually told an investigative reporter from the Worcester Telegram that she knew write-in votes were cast, but that she chose not to count them).  The most profound problems, however, appear to have been in our largest cities.  

Therefore, in light of the evident breach of Federal law in Springfield, and the fact that the certified results would not seem to match the actions or intents of the voters in that city, as well as in Boston, Lawrence and Worcester, I would ask that, at a minimum, you secure the ballots concerned – should they still exist.  An investigation that included a comparison of the actual ballots to the certified results should identify the nature and scope of the problem, including such breach.

Thank you for your kind consideration in this regard.

Very truly yours,

Jim McKenna

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