Erie County auditor battle heads to court this week
Jan 23
2011
Rick Jeffrey and Tom Paul have clashed for weeks.
The two Erie County auditor candidates from the Nov. 2 election have debated on numerous topics, including the county's property-valuation system, computer software and accounting.
But the controversy will climax Monday when the two face off in what could become a landmark court case.
Both men will appear in Erie County Common Pleas Court for the start of a two-day hearing.
Visiting Judge Richard Markus will decide if 40 provisional ballots the Erie County Board of Elections discarded should be counted.
The elections board rejected 32 of the ballots because they were cast in the wrong precinct, while one person voted after the 7:30 p.m. deadline. The other discarded ballots were filled out incorrectly.
The Nov. 23 recount showed Jeffrey won the race by seven votes, with a grand total 14,070.
Paul, the apparent lame-duck auditor, said the provisional ballots should be counted because poll-worker errors resulted in the 40 votes being discarded.
"If there is some error by the voter which can be attributed by poll-worker error, than our belief is that vote should be counted," said Don McTigue, Paul's attorney.
Markus ordered the county's elections board to send the names of the 40 provisional voters to McTigue and Paul.
With names in hand, McTigue wouldn't reveal his plans, but he could potentially bring those voters into court to testify.
Paul's camp never specified the errors the poll workers supposedly made, said Ron Kaufman, Jeffrey's attorney.
"They have generalized and said there is error and haven't said what the error is," Kaufman said.
Even so, some type of error occurred.
"There is never going to be a perfect election where nobody makes a mistake," said Deborah McDowell, Erie County Board of Elections director. "I am not going to say no mistakes were involved."
Regardless of potential mistakes, the elections board acted with 100 percent integrity and all the results should be respected, Kaufman said.
"Rick feels very strongly that the board of elections did their job impartially and fairly and that they followed the law and the directive from the secretary of state's office," Kaufman said. "He also believes that the process that is being allowed to take place is adversely affecting the privacy of individual voters."
No matter the verdict, the case may be historic -- both locally and nationally.
"This case will probably be a landmark case for creating laws as to how (the law) will deal with close elections and provisional ballots," Kaufman said.
Timeline of the Erie County auditor's race
* Nov. 2, Election Day: Republican candidate Rick Jeffrey defeats incumbent Democrat Tom Paul by 94 votes, according to unofficial results. The Erie County Board of Elections must still count provisional and absentee ballots to determine the winner of perhaps the closest race in the county's history.
* Nov. 16, provisional count: Jeffrey's lead shrinks but holds after the elections board counts provisional and absentee ballots. Jeffrey wins by seven votes -- or 50.01 of the total. State law requires a recount when the vote is within one half of one percent.
* Nov. 23, recount: The recount confirms Jeffrey's seven-vote victory. The elections board hand-counts and scans 1,620 ballots, or about 5 percent of all ballots submitted. Official results show Jeffrey receives 14,070 votes, Paul receives 14,063.
* Dec. 3, lawsuit: Paul files a lawsuit claiming poll-worker error is attributable to 40 provisional ballots being discarded and uncounted.
* Dec. 10, counter-motion: Jeffrey and the Erie County Board of Elections file a motion to dismiss Paul's lawsuit.
* Dec. 20, initial hearing: Visiting Judge Richard Markus sides in favor of Paul, stating the provisional ballots in question must be examined to see if they were improperly rejected because of poll-worker error.
* Jan. 7, elections-board dispute: The four-member elections board -- two Democrats and two Republicans -- are split regarding the decision to appeal the court process to the Supreme Court of Ohio. Democratic members Amy Grubbe and Kevin Zeiher agree Paul should go to court. The two Republican members say if the Democrats have an issue with the provisional ballots, they shouldn't have certified the election after the recount. "If they had a problem with the votes then, why not bring the issue up then?" said Republican Chris Marinko, the elections board chairman.
* Monday, the case: Jeffrey, Paul and their attorneys will meet in court for an evidentiary hearing to determine if the 40 provisional ballots should be counted.
* March 13, decision time: This is when the auditor's previous term ends. Paul will either serve a second term or Jeffrey will take office for his first term. If the lawsuit extends beyond March 13, Paul will remain in office until all disputes are finished, according to Ohio Secretary of State regulations.

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Comments
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02:05 PM
samiam says
to Commenter--you are given a numbered ballot, but the number is removed before your ballot is scanned and counted, so unless you show it to someone, no one knows how you voted. Of course, if you vote in a primary and your get a ballot with candidates on it, it could be assumed that you would vote for at least one of those candidates, as opposed to issues only.
01:09 PM
Julie R. says
@Commenter:
I think Mr. Paul has already cost the county a lot of money. He no sooner became the auditor and he fired an employee just to give her job to a county commissioner's wife. I believe there was a lawsuit settled out of court over that. And now he's costing the taxpayers more with this sore loser suit. How much is the rent-a-judge Richard Markus charging for this one?
My suggestion would be---- why doesn't Mr. Paul go back to work for the prosecutor's office? In the mean time my other suggestion would be----how about Mr. Paul and Ms. Sessler start working on getting all transfers of Erie County property viewable on the recorder's website!
12:27 PM
Commenter says
and to Cam- you register to vote, you check in, you are given a numbered ballot. You may vote in private but someone knows how you voted. It's not known to the general public, but it's certainly not anyonymous.
12:27 PM
Commenter says
and to Cam- you register to vote, you check in, you are given a numbered ballot. You may vote in private but someone knows how you voted. It's not known to the general public, but it's certainly not anyonymous.
12:04 PM
SamAdams says
If you're not smart enough to go to the correct polling place (it's not like it's hard to figure out), I submit you're not smart enough to vote.
11:13 AM
Commenter says
when did Paul run as a Republican, I understand he switched parties but never realized he ran as a republican? I don't think he did. Really parties shouldn't even be involved. Auditor should not be an elected position. Regardless of how you feel about this, it's time to put it to rest.
Of course pro-Jeffries people will bash Paul, pro-Paul people will bash Jeffries, I'm sure each man has their own good and bad qualities as do each of us as individuals. And Julie R, you need to open your mind a little. There has to be a resolution. I'm sure if you ran the county things would run smoothly, efficiently and no money would ever get spent.
10:26 AM
Kimo says
Bottom Line:
The problem is provisional ballots not absentee ballots.
As to the "go to the polls and vote", this case proves that option can cause as many problems as absentee ballots.
You can make some of the people, happy some of the time, never all of the people, all of the time.
02:24 AM
Erie County Resident says
There needs to be a level of personal responsibility for the voter to know where they are suppose to vote at. So Provisional ballets should be gone.
The lame excuse for absentee ballets also need strict rules that should be proven to get one. Not just the reason that the voter is to lazy to get their butt to the polls to vote, but a solid valid verifiable reason.
As far as voting late... to bad so sad polls close at a certain time and that means CLOSED period!
This goes for everyone no matter what the party you belong to.
The names of the voters were given to Paul. What a joke. "Ok, people here is what ya say to da judge."
If some dim bulb attorney contacted me for this it's none of their business to start with. My answer would be the other guy gets my vote since your trying to coerce me in a public venue.
08:39 PM
Salvatore says
Hey thinkagain {{{{{ thinkagain }}}}} You get a hug too. : )
08:33 PM
Salvatore says
"sure is nice not having to stand in line at the polls"????? Some people would die to vote. Some people are just too lazy and take for granted their rights to vote.
Hey Brutus {{{{{ Brutus }}}}} I just gave you a hug because I wanted to. You don't have to like me even if I gave you a hug. You are correct, Brutus. I sometimes get my undies in a wad. : )
08:08 PM
thinkagain says
No!
I can’t believe you just called me a lazy POS. The Supreme Being is not happy with you. LOL
OK, maybe I am somewhat lazy, but it sure is nice not having to stand in line at the polls.
08:01 PM
brutus smith says
Easy sal, easy.
07:46 PM
Salvatore says
Do away with absentee ballots except for those who are absent. People have become too lazy. Get your butts to the polling places you lazy POSs. Wahhh!!! I am too lazy to vote on election day. Waaahhh!!!! I don't wan't to stand in line to vote. Waaahhh!!! I am better than most people. Waahhh!!! Only those who will be away from home should vote with an absentee ballot. Yes?
07:01 AM
Julie R. says
They don't even have the expensive Nuesse fiasco over yet and now they're whining because their buddy Tom Paul lost the election and bringing in another rent-a-judge!
06:22 PM
tk says
There is no Democrat in this race. Remember Paul is a Republican who ran as a Democrat after he lost before when he ran as a Republican. Seems this man just can't accept losing.
03:43 PM
Pundit says
Settle down trolls.
How you vote is the "secret ballot". That you vote is a public record.
The provisional ballots are already marked with their preference for EC Auditor, and that won't change. The voters cannot be pressured because they could not change their vote even if they wanted to. The voters will only testify about how a poll worker misdirected them, that is why they keep track of the voter's identity, but not how they voted.
Sounds like they favor Paul, though, no one has seen how the ballots are marked. One way to tell how the voter probably voted is to look back to the primary and whether they took a Dem or Repub ballot, which is public knowledge. Of course in a small town like this, many of the individual voter will likely be known to the candidates...
03:18 PM
Captain Gutz says
Kimo,
I'd like to believe that the vote won't change, but people being people (and lawyers being lawyers) I don't like the idea of giving heretofore confidential information to a lawyer whose job it is to serve his client, and only his client.
Do you trust lawyers?
02:26 PM
Truth or Dare says
Want to read an interesting article from l0/310/ 08 regarding provisional voting within Ohio?
Google: provisional voting ohio
Scroll down to: 'In a close race, Lawyers will look at Ohio's Provisional Ballots"
It's a good read. Since the inception of provisional ballots Ohio has been the center of some major problems! One is possible voter fraud, and the use and/or abuse of these ballots to help sway an election. Since it's inception, I wonder just how many millions of provisional ballots were cast only to be thrown out for one reason or another, not counted and possibly determining the outcome of an election? Hmmmmm. To avoid this, I do believe voter's should take personal responsiblity in knowing what's required of them before casting their ballot. It's called being informed.
Would I be so willing to go into court and testify as to my personal vote? Most likely, if I were forced! With the political climate, . and especially with what's taken place in our nation recently, can't say that I would be quick to volunteer. Heck, all ya gotta do is read some of the ugliness back n forth right here on this blog site! I would be more than willing if able, to give a sworn affidavit (they still have those, don't they) , identifed only as Voter #1-40 and what the reason used to be given a provisional ballot was and what my personal vote was that day. But to have a Judge determine that my personal info., name, address can be released to anyone for the purpose of being called into court to be questioned as to how I voted is ok................Sorry, I draw the line there! Of course, our rights to privacey are being slowly chipped away at on a daily basis, from all sides of the political realm and our judicial system!
Hey SR and Andy: From the law's standpoint, will these people have to appear and testify, and if they choose not to, what might happen to them? Provisional ballots, a double edge sword? Since Erie County seems to be at the center of a possible "landmark decision" that may effect the entire nation, you may wanna do a spread on provisional balloting in Ohio. Provide info. to your readers regarding the pros/cons, the problems within Ohio surrounding provisional ballots and the decison making process as to whether they're counted, or thrown out and how that can determine the outcome of an election. Since it's such a major problem within our State, more Ohio voters should be made aware of it, and what can be done before the next election to ensure their vote will count, let alone remain private! It can be as simple as making a phone call to one's respective Board of Elections and checking to be sure you're properly registered to vote.
02:00 PM
goofus says
Brutus, you forgot the illegal to vote convicts in Minnesota that gave Al Franken his senatorial seat.
01:59 PM
goofus says
Ooops, my bad, I forgot illegal immigration laws.
01:53 PM
goofus says
When the federal government is threatening to sue six states for enacting a state law for secret ballots, what is the liberal agenda. In lieu of card check, states are quickly passing their own legislation for secret ballots. It's all the rage along with nullifying Obama care.
01:49 PM
thinkagain says
Thats as it should be! Quit yer whinin’.
01:49 PM
goofus says
Brutus, so what's your point? It's only the right thing to do!
01:25 PM
brutus smith says
We didn't have a problem when the Supreme Court halted the vote counting in Florida and awarded Bush the Presidency. When a Repub is at 1st the winner, no recounts. But when a Dem wins, it's voter fraud, dead voters, people voting twice, etc, etc.
12:53 PM
goofus says
What ever happened to the secret ballot?
12:45 PM
ottonut44 says
Pistols, 40 paces, at dawn. DONE!!
12:25 PM
True Blue says
I would think the lawyer will want to know what the voter did or didn't do to get a provisional ballot. I don't think it will be made public how each of them voted. I can see why Jeffrey doesn't want them to count, but it could go either way. Count the votes!!
12:20 PM
Kimo says
re: This gives the lawyer an opportunity to contact these previously anonymous voters and attempt to persuade them to change their votes. Anyone see a problem with that?
I see a problem with your statement.
The purpose of the contact is to get the voters INTENTION, when the provisional ballot was cast.
The reason the provisional ballot was used, and who made the decision to "go provisional" and "for what reason".
The "vote" won't change, it may or may not be counted.
Sounds reasonable to me get the facts; make a decision based on facts, not based on CYA or political bias.
11:59 AM
Captain Gutz says
Markus ordered the county's elections board to send the names of the 40 provisional voters to McTigue and Paul.
With names in hand, McTigue wouldn't reveal his plans, but he could potentially bring those voters into court to testify.
This gives the lawyer an opportunity to contact these previously anonymous voters and attempt to persuade them to change their votes. Anyone see a problem with that?
11:12 AM
cam says
As a democrat I am very upset at this. Just so I am understanding this right. They (Paul) want to bring the 40 voters out into the public and maybe even go as far as bringing them to a open court? If I have read this right Mr. Paul you have made a huge mistake. This country was built on the fact that you could vote with out your name being brought to public. IT'S A SECRET BALLOT. If you do in fact bring these people out in the open you will hurt voter registration in Erie County if not in the State and Nation. As a democrat I am saying you got beat. Put on your big boy pants and go home. This is just another case where I really start thinking of why I even choose a party.
10:40 AM
Return of Dragon II says
Yeah too bad he couldn't be classy like that right winger Joe Miller in Alaska. How many appeals did he file?
http://joemiller.us/
He got his butt kicked and he still isn't accepting it. I guess we will all have to wait for him to restore liberty.
10:27 AM
True Blue says
If a poll worker made a mistake, why shouldn't the votes be counted. Weather the votes are for Jeffrey or Paul. Of course, if they're in favor of Jeffrey he still wins, but it they're for Paul, Paul wins. Why should any person running for an office lose because a poll worker made a mistake! IF THE BALLOT IS FROM A REGISTERED VOTER, THE BALLOT SHOULD COUNT. Good Luck to the winner!!
10:11 AM
Darkhorse says
I could care less which one of these guys wins the election. What I do care about is how things will be treated in the future when elections come this close. The voters have a right to know what the law states when and if cases like this come up again. Although Jeffrey would like this to be over and to be claimed the victor, justice needs to be served as to whether legally the Board of Elections should have thrown out the ballots. We need to make clear whose responsibility it is, either the Election Board's responsibility or the voters' responsibility. If something is not filled out properly or someone shows up at the wrong precint to vote, whose responsibility is it to make sure every vote will be counted?
09:40 AM
SamAdams says
In every election, there is a winner and a loser. Sometimes the vote count is close, but no matter how close it may be, somebody still loses. In this case, the loser is Paul. Only it appears he's a loser in more ways than one! Apparently unwilling or unable to accept that he didn't win, he's choosing to keep up a fight that costs more than a little in time, money, frustration, and a considerably less-than-smooth transition. Whether he wa a good auditor or not is immaterial to the fact that he's now clearly more interested in himself than he is in the public he's supposed to serve. As far as I'm concerned, that makes him unqualified to remain in office in and of itself.
I have no idea whether or not Rick Jeffrey will be a better auditor than was Tom Paul. What I do know, beynod a shadow of a doubt, is that Tom Paul is now hurting Erie County with his refusal to acknowledge that he lost a close election. The votes were counted, re-counted, and the totals certified. Move on, Mr. Paul, move on!
08:41 AM
Salvatore says
Here we go again. Recall Paul from office. Problem solved.