To: Pat White and Tom Slockett

From: Janet Lyness

Re: Missing Absentee ballots

Date: May 6, 2003

Background: Gordon Fisher, chair of the Iowa Democratic Party, contacted Johnson County Auditor Tom Slockett on Tuesday, November 12, 2002, reporting that staff at the Iowa Democratic headquarters had found 44 unopened absentee ballots from Johnson County that day in a lockbox at the State Democratic Headquarters in Des Moines. Mr. Fisher called at the request of Jean Hessberg, Iowa Democratic Party Executive Director. Tom Slockett requested the ballots be delivered to the Johnson County Auditor’s office and they were delivered to him that day. After consultation with the Secretary of State’s and Attorney General’s office, Tom Slockett determined that the absentee ballots could not be counted for the November 5^th election.

Jean Hessberg, Executive Director of the Iowa Democratic Party, reported she conducted an inquiry into the ballots and determined that the 44 ballots were collected by seven paid staff and two volunteers and given to the Johnson County Democratic Party’s staff on the day before the election. The staff person placed the ballots in a lock box that day. Only that one staff person had access to the lock box and was the only person to put ballots in the lock box that day. The staff person planned to deliver them to the Auditor’s office on Election Day. However the staff person was sent to another office on Election Day and forgot about the ballots and did not communicate with anyone else that the ballots were even in the lock box. The staff person subsequently delivered the lock box to the Des Moines office on Thursday, November 7^th but the box was not opened until November 12^th in the course of organizing office equipment.

Ms. Hessberg’s conclusion was that there was no intent to hold the 44 ballots in the box and not submit them to the Auditor’s office. No one else was aware of the ballots until approximately 1:00 PM on November 12^th when the ballots were found in the Des Moines office and contact was made shortly thereafter with Tom Slockett.

Investigation: I spoke with Democratic party staff, local Johnson County staff and volunteers, and someone whose absentee ballot was one of the missing ballots. My investigation found that the lock box was a fireproof box, approximately 12" x 12" x 10, weighing approximately 10-15 pounds. The box did not have any electronic or other device on it to indicate when it was opened.

Beau Shuff, the human resources director for the Iowa Democratic Party, told me that the lock box and other equipment from the field offices were brought to the Democratic Headquarters in Des Moines on November 7, 2002 including the box from Johnson County holding the ballots. The equipment was left there and remained unopened until the following week. Staff then began sorting and going through the equipment. Mr. Shuff opened the lock box and found the ballots on November 12, 2002 while sorting the equipment. There was nothing else in the lock box except the ballots. He immediately notified Jessica Vanden Berg, the deputy director of the Iowa Democratic Party. He told Jessica because Ms. Hessberg was at lunch at the time. They reported finding the ballots to Ms. Hessberg as soon as she returned from lunch. Ms. Hessberg counted the ballots and immediately contacted Gordon Fisher, who subsequently called Tom Slockett. Mr. Fisher contacted the Secretary of State’s Office and Tom Slockett within approximately one half hour from when the ballots were found to find out what could be done about the ballots. There was no effort to hide the finding of the ballots or do anything but report that they had been found and be told by the County Auditor or Secretary of State what they should do with them.

The Johnson County Democratic Party had been collecting absentee ballots for some time prior to the election. They called registered Democrats to offer to pick up absentee ballots. They also would pick up anyone’s ballot, regardless of party affiliation, who requested they pick up the ballot and this was made clear to staff and volunteers in training. Staff received written and oral instructions for dealing with absentee ballots from the Iowa Democratic Party. The training was very explicit not to open the ballots or tamper with them in any way. Ballots were always sealed when in volunteers’ or staffs’ possession. The Johnson County Democratic Party’s procedure for collecting and submitting absentee ballots was to have volunteers and staff pick up the ballots during the day or evening. Volunteers were told to bring ballots directly to the office and give the ballots to Nora Wilson, the staff person in charge of the ballots, or to someone to give the ballots to Ms. Wilson. Ms. Wilson personally trained the paid canvassers using the written materials and oral instruction she had received from the Iowa Democratic Party that explained the procedure for handling absentee ballots. Staff would either take the ballots directly to the Johnson County Auditor’s office if time permitted, or they would take the ballots to Democratic Headquarters and give them to the Ms. Wilson. Ms. Wilson would put the ballots in the lock box at night and deliver them to the Johnson County Auditor’s office the next morning or on Monday morning if the ballots were collected on a weekend.

Ms. Wilson was the only one in the Johnson County Democratic Party office with a key to the lock box. The only other key was a duplicate key that was kept at the state headquarters in Des Moines. She once let one other staff person have the key in July and the key was then returned to her within a day or two. She never again let anyone else use the key. She still had the key in her possession in December 2002 because she had forgotten to turn it in when she turned in the other equipment. Staff kept a "log" taped to the lock box to record when the lock box was opened. Ms. Wilson did not know what happened to the log and suspected it may just have been put in the paper recycling box when cleaning up after the election.

Ms. Wilson turned in ballots to the Johnson County Auditor’s office on Monday, November 4, 2002, the same process she had been following for weeks before the election. Two volunteers and seven canvasser staff collected absentee ballots. This was the primary function of the "canvassers". Ms. Wilson did not specifically remember putting the ballots in the box on November 4^th but it was her usual procedure to do so.

A decision was made on Monday, November 4^th in the evening for Ms. Wilson to go to the SEIU office in Coralville for Election Day. She was there at 6 AM and worked until 8 PM when she left to do a half-hour of door knocking to remind voters to go to the polls. She went back to the Iowa City Johnson County Democratic Party office after 9 PM. She did not think about the absentee ballots or check the lock box.

After the election, she and two other staff people, Travis Lowe and Tara Deventenso, loaded all the office equipment belonging to the Iowa Democratic Party into a car and drove it to the Democratic Headquarters in Des Moines where they left it. Ms. Wilson did not think about the ballots and didn’t look in the lock box. She did not notice anything in particular about the lock box, such as it being heavy, or suspect it contained anything when she loaded it or when she unloaded it in Des Moines. She didn’t think about the absentee ballots nor did she think about the lock box again until Jean Hessberg called her on November 12^th.

Ms. Wilson reported she had no intent to fail to return the ballots and, quite the contrary, she wanted to turn in the ballots on time so that they could be counted in the election. She was also taught to "treat the ballots like gold". When interviewed, she apologized and said that, while not an excuse, she was operating on very little sleep by the last days of the campaign and she just forgot about the ballots. She reported she felt terrible about what had occurred. She noted that there would be no reason for her to not want to turn in ballots, as this was the whole intent in collecting them, and they were collected from registered Democrats. She appeared to be very open and forthright with me, as well as apologetic about what had occurred when I spoke with her several times during the investigation.

Travis Lowe related to me that he supervised the Iowa Democratic Party staff in 15 counties, including Johnson County. He didn’t know any specifics about the absentee ballots going in the lock box other than the normal procedure as Ms. Wilson described. He helped Nora and the other staff person pack the office equipment the day after the election. There were two carloads full of equipment. The lock box was one of the items. He does not know what happened to the log that was taped to the lock box or if it was on the box when they packed it, he just doesn’t remember. He said the lock box was heavy enough empty that you would not really notice if there were ballots in it. Nothing was seen or said or done that indicated to any of them that there were ballots in the box. He learned for the first time that there were absentee ballots in the box when he was called by his former Iowa Democratic Party supervisor sometime after November 12, 2002. He is not sure of the date he received the call because he was in Louisiana at the time working on a Senate campaign. He had no knowledge of it before that time.

Beau Shuff, who found the ballots, told me that on November 12^th, he started going through the lock boxes and other equipment because they were trying to decide what to do with the equipment, either sell it or keep it for another election. Some of the field staff had put all of their office supplies in the lock boxes and he and other staff were trying to clean out the boxes and decide what to save. About half of the boxes were locked, half were left unlocked. He had duplicate keys to all the lock boxes, and is not sure how many staff remembered to turn in the keys to the boxes that had been issued to the field staff. When he came across the Johnson County box, it was locked and he had to use the key that had been kept at the Democratic Party headquarter to get into it. When he discovered the ballots he left the ballots in the box, relocked the box, and immediately took the box to Jessica Vanden Berg, the deputy director. Jean Hessberg was at lunch. Jean arrived within a few minutes. There was no discussion about not turning over the ballots or any similar discussion.

Brian Flaherty, who also helped collect ballots in Johnson County during the campaign, reported that the process for collecting ballots was that they would pick up ballots for anyone calling requesting someone pick up ballots and would call registered Democrats who had not yet returned absentee ballots. Other than having elected officials identify people they knew on the list so that the official could call that person directly about returning their absentee ballot, no other distinction of who to call about ballots was made. Attempts were made to call all registered Democrats with absentee ballots still outstanding so that they could be picked up and turned in to the Auditor’s office so they could be counted. The goal was to get as many absentee ballots of registered Democrats turned in as possible.

One of the citizen’s whose ballot was not returned reported he had been contacted by the Democratic Party to get an absentee ballot in the first place and then was contacted by volunteers from the party when he had not returned the ballot by the week before the election. His sealed ballot was picked up from his office by someone from the Democratic Party the Thursday or Friday before the election. His absentee ballot was sealed and there was no indication on it as to who he voted for nor would there have been any way for anyone to know who he had voted for unless they opened the ballot. He did not like the idea of using an absentee ballot and thought it was a bad strategy to use an absentee ballot instead of going to the polling place on election day but he agreed to do so anyhow. He did not believe there was reason for the Democratic Party to not turn in his ballot nor would his votes, had they been counted, changed the outcome of any races.

Iowa Code chapter 39A.5 Election Misconduct in the Fourth Degree states in section 39A.5(1)"A person commits the crime of election misconduct in the fourth degree if the person willfully commits any of the following acts: (b) Miscellaneous Offenses: subsection (2) "Neglecting or refusing to return an absentee ballot in violation of section 53.35, or violating any other provision of chapter 53 for which another penalty is not provided." (emphasis added)

Iowa Code chapter 53.35 states: It is unlawful for any person, having procured an official ballot or ballots to willfully neglect or refuse to cast or return the same in the manner provided.

Iowa Code section 53.35A "Failure to Return Ballot - Penalty" reads: It is unlawful for any person designated by the commissioner, or by the elector casting the absentee ballot, to deliver the sealed envelope containing the absentee ballot, to willfully fail to return the ballot to the commissioner or the commissioner’s designee.

There was no evidence that any Democratic Party staff or volunteer intentionally tried to withhold the ballots from being properly turned in to the Auditor’s office and being counted as any other absentee ballot. The next question then was whether the conduct of failing to remember to turn in the ballots amounted to a violation of the Iowa law.

The law requires there be a "willful neglect" to be guilty of the offense of Chapter 39A.5 "Election Misconduct". The Iowa uniform jury instructions indicate that to "neglect" something means a person failed to use ordinary care. "Ordinary care is the care which a reasonably careful person would use under similar circumstances. Negligence is doing something a reasonably careful person would not do under similar circumstances, or failing to do something a reasonably careful person would do under similar circumstances." "Willful" is a term requiring a specific intent. A "specific intent" means "not only being aware of doing an act and doing it voluntarily, but in addition, doing it with a specific purpose in mind." For an act to be "willful", it must be voluntary and intentional and with a specific intent to do something that the law forbids, or with specific intent to fail to do something required by the law.

Putting the two terms together, for the State to prove that a person committed election misconduct, the State would have to provide evidence that a person not only failed to act as a reasonably careful person, but that the person voluntarily and intentionally failed to return the ballots and that he or she specifically intended not to return the ballots.

Black’s Law Dictionary defines "Willful, wanton or reckless negligence" in this way:

Looking at Ms. Wilson’s behavior, I do not find that she, or any other staff or volunteers, acted with "willful neglect". There was no evidence to indicate that there was any intent to refrain from turning in these 44 ballots. I further do not believe there is evidence that anyone acted with willful negligence. The staff and volunteers followed a procedure that had been working for some time of turning in collected ballots to a particular staff person. That person consistently, up until November 5, 2002, put the ballots in a safe place, the fire-proof lock box where there would not be lost or tampered with or altered. She regularly turned in the ballots to the Johnson County Auditor’s office the next day or on Monday following a weekend pick up of the ballots. She had followed this same procedure without any problems for several weeks or months. She had no other episode of forgetting the ballots or in any other way mishandling the ballots. What she did is that she forgot about these forty-four ballots and consequently failed to turn them in to the Auditors office. I don’t find that this amounts to "gross negligence" or "willful neglect".

A person must "willfully fail to return a ballot" to be guilty of Chapter 53.35A Failure to Return Ballot". To do something "willfully" requires a person to have the specific intent to commit an act. For a person to be guilty of "Failure to Return Ballot, a person would have to intentionally not return the ballot. There is no evidence to support that Ms. Wilson or any other person intentionally failed to return the absentee ballots. Consequently, neither Ms. Wilson nor anyone else could be guilty of "Failure to Return Ballot".