Under federal and Ohio law, all ballots and election records from federal races must be preserved for 22 months after Election Day, which fell on Sept. 2, 2006. While election integrity activists and reporters from a Columbus website, FreePress.org, had sought the ballots and other election records soon after the presidential election, Blackwell would not allow county boards to release the ballots, citing court challenges to the 2004 results and a 2005 suit from the League of Women Voters alleging the state was not following the newest federal election law, the Help America Vote Act.
On Sept. 11, 2006, U.S. District Judge Algenon Marbley ordered the election boards "to preserve all ballots from the 2004 Presidential election, on paper and in any other format, including electronic data, unless and until such time otherwise instructed by this Court."
Somehow, the counties never got the message:
"Our staff unintentionally discarded boxes containing Ballot Pages as requested in (Brunner's) Directive 2007-07 due to unclear and misinterpreted instructions," wrote Butler County Board of Election Director Betty McGary and Deputy Director Lynn Kinkaid in a May 9 memo. "Several boxes containing all the wire-bound ballot pages were discarded into a Rumpke dumpster. The dumpster would have been emptied into the local landfill."
"The Hamilton County (Cincinnati) Board of Elections was unable to transfer the unvoted precinct ballots and soiled precinct ballots," wrote John Williams, Hamilton County Director of Elections on May 16, 2007. "To the best if my knowledge, the above ballots were inadvertently shredded between January 19th and 26th of '06 in an effort to make room for the new Hart voting system."
"No one could remember the disposition of said ballots," wrote Mike Keeley, of Clermont County's Board of Elections on May 10, 2007, referring to the "unvoted" or unused ballots from the 2004 presidential election.
In Warren County, where county election officials said on Election Day that the FBI had declared a homeland security alert — which they later retracted — ballots were diverted to a warehouse before counting. The local media was not allowed to observe the vote count. According to a letter from the Warren County Board of Election to Brunner's office, the election board cannot find 22,000 unused ballots from the election.
"The extent of the destruction of records is consistent with the covering up of the fraud that we believe occurred in the presidential election," said Cliff Arnebeck, a Columbus attorney representing the King Lincoln Bronzeville Neighborhood Association, which filed voter suppression suit. "We're in the process of addressing where to go from here with the Ohio Attorney General's office."
"On the one hand, people will now say you can't prove the fraud," he said, "but the rule of law says that when evidence is destroyed it creates a presumption that the people who destroyed evidence did so because it would have proved the contention of the other side."