Governor's race remembered for 'funny numbers'

By Bob Morgan
Staff Reporter
(Created: Thursday, July 19, 2007 4:03 PM CDT)  More Local News

As former Alabama Gov. Don Siegelman awaited sentencing last month on federal corruption charges, Alabamians seemed unaware for the most part of a burgeoning story that was developing alongside the legal story.

Siegelman's legal problems have been in full flower for years. Those problems have been meticulously detailed and charted in the state media in failed prosecutions of Siegelman and former HealthSouth founder Richard Scrushy in Birmingham and Montgomery, and their recent convictions in federal court for an alleged bribery scheme in which Siegelman appointed Scrushy to a state hospital board in return for a $500,000 contribution.

Siegelman, sentenced to seven-plus years and Scrushy to nearly seven, were taken from the courtroom to Atlanta Federal Penitentiary. (Siegelman has since been moved to Oklahoma.)

The other story was more like a bud trying to push its way through the earth. It concerned allegations of a White House connection to Siegelman's prosecution. It concerned charges that high ranking Republicans painted a bullseye on the state's signature Democrat in hopes of reducing him to a non-entity in Alabama's political future.

This budding story initially found the journalistic ground hard and packed in Alabama. Most media outlets that had given daily, blow by blow accounts of Siegelman and Scrushy's federal trial and sentencing failed to report on the other story, which was, nevertheless, picked up and reported in national publications such as the New York Times, Time Magazine and Harper's Magazine.

Only now, as the story has pushed its way into the state's awareness in these last weeks, largely due to media attention from outside Alabama, has the state media started reporting on the allegations and officials responding to it.

U.S. Congressman Artur Davis, D-Birmingham, recently asked the House Judiciary Committee to look into the Siegelman case in light of the ongoing investigation into allegations that the U.S. Justice Department routinely urged U.S. attorneys to target Democrats for prosecution.

In a July 3, 2007, press release from Alabama GOP Chairman Mike Hubbard, he said charges that form the crux of the White House connection to Siegelman's prosecution and sentencing "... has more holes than a fish net. It just doesn't pass the smell test."

Whatever the facts turn out to be, it was an affidavit that planted the seed for this second, budding story. But, in reality, it was an election, not an affidavit, that formed the first chapter in this legal thriller. No county in the state played a bigger role in that election than Baldwin County.

THE AFFIDAVIT

On May 21, 2007, Dana Jill Simpson, an attorney in Rainsville, Ala., filed a 22-point affidavit in the state of Georgia concerning certain events she alleges took place in the aftermath of the 2002 Alabama gubernatorial race. The salient points of her affidavit are as follows:

During that 2002 governor's race, she worked in now Gov. Bob Riley's campaign.

Riley's Democratic opponent, Siegelman, contested the results of the election, the closest in state history for a gubernatorial race. Riley won by approximately 3,120 votes, but Siegelman refused to concede.

A week or so after the Nov. 5, 2002, election, she was asked to find out why Riley's campaign signs were disappearing in the northeast corner of the state. She found that a Jackson County attorney she took to be a Democrat was putting Riley signs up in an area where a Ku Klux Klan rally was to be held. She took pictures of the attorney putting up the signs, an inference that the Klan was backing Riley.

She notified Rob Riley, Bob Riley's son, about the "trick" the attorney was perpetrating.

During a telephone conference in which she participated with Rob Riley, William "Bill" Canary (president and CEO of the Business Council of Alabama) and Terry Butts (a former Alabama Supreme Court justice), Butts said he would confront Siegelman with the political signs trick and, in turn, effect Siegelman's concession.

When Rob Riley asked about Siegelman being a problem in the future, Canary said not to worry about Siegelman, that "his girls would take care of him (Siegelman)." "His girls" were Leura Canary, his wife and U.S. Attorney for the Middle District of Alabama, and Alice Martin, U.S. Attorney for the Middle and Northern District of the state.

Canary added that he had worked it out with "Karl" - Karl Rove, presidential adviser - and Karl had talked with the Department of Justice and they were "already pursuing Don Siegelman."

As it turned out, Siegelman conceded the election on Nov. 18, 2002.

 

THE ELECTION

Leading up to the 2002 gubernatorial election, it was a given for state political pundits that Siegelman wouldn't carry staunchly Republican Baldwin County. He didn't in 1998 in unseating the Republican incumbent, Fob James. Siegelman failed to carry the county in 1998 by approximately 3,500 votes.

As predicted, Siegelman didn't carry Baldwin in 2002, only this time around losing the county by a much wider margin. When Baldwin County Probate Judge Adrian Johns finally went home on election day Nov. 5, 2002, what he stresses today were the "informal, unofficial, uncertified results" had Siegelman with 19,070 county votes, Riley with 31,052. Siegelman, however, had unofficially squeaked out a win statewide over Riley by less than 9,000 votes in a race that saw 1.3 million votes cast.

By the time Johns returned to work the following day, Siegelman's county total had changed to 12,736 votes. Riley's total was unchanged.

"I was very surprised ... shocked actually, and certainly disappointed," Johns said in a recent interview.

"It's so important for the public to have trust in the integrity of the voting process."

Does Johns believe voter fraud occurred in Baldwin County in the 2002 gubernatorial election?

"It couldn't be further from the truth," he said in answering.

Today, he calls what happened in 2002 the same thing he called it back then - a "computer glitch."

"I still believe that's what it was," he said, adding that he talked to media about the "glitch" for a week after the election.

"I remember somehow or another taking a lot of heat - or maybe I should say, credit - for that occurrence," he said of the "glitch."

Asked about the vote tabulation process in 2002, Johns said the Baldwin County Sheriff's Office had two functions among many on Nov. 5, 2002, as regards the election. BCSO handled the "call-in" sheets, a list of candidates in the most important races. "Something less than the entire ballot" is how Johns describes those sheets.

A person at each polling site would call the Sheriff's Office when the polls closed and the call-in sheets would be filled out. These unofficial results could then be disseminated to the press, candidates or the public, Johns said.

Another function of the Sheriff's Office was to tabulate the results from each precinct. Sheriff's deputies would bring in the election results and election materials, which included data packs that are ed into the "vote tabulator." Those data packs resemble old eight-track cassettes, John said. Once ed into the vote tabulator, election results show up on the screen for that precinct.

The operator of the vote tabulator would take a voting machine tape that came along with a data pack and compare it to the results on the screen. If the same, a report would be generated of precinct results. That night in 2002, however, that didn't happen, according to Johns.

"The operator of this equipment evidently did not check the paper tape against the screen. They were not the same," Johns said.

Thus, a report was generated of what was on the screen and it was wrong, said Johns, noting, "Once it gets disseminated it takes on a life of its own."

What should have happened that night, said Johns, citing Election Systems & Software, the Birmingham company that provided the election equipment in Baldwin County in 2002, was that the operator should have removed the data pack upon seeing the discrepancy in totals, cleared the screen, reentered the data pack, and the data would have likely come up correctly.

Citing Mark Kelly, who heads up ES&S in Birmingham, Johns said 2002 wasn't the first time such a "glitch" had happened in an Alabama election. As for 2002, "The governor's race wasn't the only one to have funny numbers in it," John said, though he agrees none of the other instances had an impact anywhere near that produced by the Siegelman "funny numbers."

Yet, Johns said ES&S to this day hasn't been able to give a good explanation for what happened on Nov. 5, 2002.

Asked if the operator of the vote tabulator on that election day eve in 2002 was operating the equipment for the first time, Johns said no.

"My understanding was that the operator was not new," he said.

Mark Kelly, whom Johns calls the "go to man" for ES&S in Alabama, said during an interview in connection with this article that he isn't supposed to talk to media in connection with matters such as the 2002 election; that ES&S has a media person in Omaha, Neb., for that. But Kelly did confirm that ES&S never determined what happened with the vote tabulator that night on election day 2002.

Kelly also said the person operating the vote tabulator that night was a member of BCSO.

CHANGES AFTER 2002

David Whetstone, who was Baldwin County district attorney in 2002, said Capt. Marvin Ussery of BCSO was the person overseeing the vote tabulation process when election results started coming in on Nov. 5, 2002.

Whetstone, during a recent telephone interview, said after the mistakes were made in the vote tabulation process he believes then Sheriff Jimmy Johnson took it personally and Ussery "really took it personally."

After the 2002 election, Johnson said his department wouldn't do the call-in sheets or data packs anymore, Johns said. Today, the Probate Office does the data pack formulation for elections and that takes place in the Baldwin County Commission chambers. Johns notes, however, that his office doesn't do the call-in sheets.

Ussery said the decision made by BCSO was more about "streamlining" the vote tabulation process and cutting out potential human error than personal feelings.

He used the words "glitch" and "anomaly" to describe what was never adequately explained. He called it "electronic error, not human error."

"I met with all of Siegelman's local attorneys out of Mobile," Ussery said of the aftermath of the gubernatorial totals changing. "They were satisfied - unequivocally satisfied."

Did Johns, as the chief election official in Baldwin County, have a sense that something - anything - was amiss the night of Nov. 5, 2002, or the following day?

"I'm not sure I had the sense that there was something wrong because I don't have the time to do the analysis like a candidate might or somebody supporting a candidate might," the probate judge said.

Whetstone said he personally was named in Siegelman's concession speech. "From the legal standpoint, I was the one Siegelman blamed for electing Riley," he said.

Indeed, Whetstone remembers plenty of pressure following the results of the 2002 gubernatorial race, some of it from the Alabama Secretary of State, who asked Baldwin County voting officials to delay the vote's certification.

"I advised them to canvass as they always did," said Whetstone of local voting officials. Thus, the Baldwin County votes were certified at noon the day after the election was held.

"If Baldwin County had trembled under pressure the dike might have been breached and the law broken," said Whetstone.

"I did threaten to prosecute anybody who opened the (ballot) box," said Whetstone of a recount of votes in places like Magnolia Springs where "some bizarre numbers" turned up, including, at one point, thousands of votes for the Libertarian candidate for governor.

Whetstone said those calling for a recount could have gotten the votes opened in Magnolia Springs but wanted all the votes opened that were cast in the county.

Like Johns, Whetstone said no evidence of voter fraud was found in connection with the Siegelman-Riley race in Baldwin County in 2002. Besides, if anybody had attempted fraud, tinkering with the votes in little Magnolia Springs wouldn't have been the way to go, he said.

"Outside of just a ping of the football at a crucial point unintentionally, nothing," is the way the former district attorney sums up the 2002 election locally as far as evidence of some kind of fraud occurring.

Asked if he was aware of a paper presented at the Alabama Political Science Association on April 11, 2003, where then Auburn University Professor James H. Gundlach presented a case for possible electronic ballot box stuffing in the Siegelman-Riley race of 2002, Whetstone said he wasn't aware of the man, paper or allegations. Johns too said the same.

"There is simply no way that electronic vote counting can produce two sets of results without someone using computer programs in ways that were not intended," Gundlach wrote in 2003 and continues to believe today.

"Gov. Siegelman continued and does to this day to hold to the story that we stole votes from him in Baldwin County," Johns said. "If he believed that one second, he'd have been in court the next day."

And court is where Dana Jill Simpson, the Rainsville attorney, looks forward to testifying under oath concerning the statements in her affidavit. In a July 10, 2007, press release, she hopes a host of other people are willing to do the same: Gov. Bob Riley, Rob Riley, Terry Butts, Bill Canary, a couple of U.S. attorneys and Karl Rove among them.

Even if Baldwin County's 2002 gubernatorial election was above reproach, Simpson doesn't believe what she alleges happened in the days thereafter was. If so, Siegelman lost not only the governor's race but the right to a fair trial as well.