If you think you’re sure the GOP has never hacked an election, then you don’t know the saga of Don Siegelman, Alabama’s last Democratic governor
By Jennifer Cohn
March 16, 2021
In 2002, Alabama’s democratic governor, Don Siegelman ran for reelection against Republican Bob Riley. Siegelman had previously served as attorney general, secretary of state, lieutenant governor, and governor. He was the only person to have held all four of these offices in Alabama. As reported by the New York Times, Siegelman was “a major frustration to Alabama Republicans. The state [was] bright red, but Mr. Siegelman managed to win the governorship in 1998 with 57 percent of the vote.” He was the one Democrat that Alabama Republicans “could never get rid of.”
In March 2001, the Kiplinger Letter posted that,“Governor Don Siegelman is the dark horse candidate who could wreck the Republican Southern strategy and emerge as the Democratic [presidential] nominee IF he wins reelection in 2002.”
Siegelman was passionate about education and hoped to fund improvements in Alabama with a state education lottery. During his first term as governor, he had launched the “Alabama Reading Initiative,” an early education literacy program, which was credited for improving reading scores.
Siegelman’s Republican opponent in the 2002 gubernatorial race, Representative Bob Riley, had served three terms in Congress. According to Siegelman, Riley’s biggest claim to fame in Congress was that he had the second worst attendance record. (Cohn Interview of Siegelman)
One of Riley’s key advisors was Billy Canary, a close friend and colleague of Karl Rove, who was at the time President George W. Bush’s senior advisor.
Rove and Canary had worked closely together in the 1990s in a successful series of campaigns to stack Alabama’s state courts with right-wing idealogues. According to Harper’s, they were “tight friends.” Rove reportedly advised the Riley campaign on a frequent basis.
The race between Siegelman and Riley was the most expensive state race in Alabama history. Riley spent more than $12 million. Siegelman spent more than $9 million.
Although Riley claimed to oppose gambling on moral grounds, his campaign was secretly funded by the Chocktaw Indians who ran a casino in Mississippi.
The Chocktaws were represented by Republican lobbyist Jack Abramoff. Abramoff was a secret confidant of Karl Rove and would later go to prison for bribing powerful members of Congress on behalf of the Chocktaws who had paid him millions of dollars for his “services.” The 2010 film Casino Jack is based on Abramoff’s criminal exploits.
The Chocktaws donated to Riley’s campaign because Abramoff told them that Siegelman’s lottery would open the door to casinos in Alabama, which would take away some of their business.
To deceive Alabama voters, the Chocktaw money was laundered through a fake “Christian charity” run by a Republican operative named Ralph Reed, who was also an ally of Karl Rove. Rove had previously helped Reed land a lucrative consulting gig with Enron before the company collapsed in scandal.
All three men (Rove, Abramoff, and Reed) were former leaders of College Republicans, an organization so ruthless that a journalist who attended one of their conventions likened the experience to “swimming with sharks.”
Siegelman still liked his chances. He had won in 1998 with the support of ninety percent of black voters. His administration had built 1,000 new school buildings and brought in five automobile plants that put 100,000 people to work. (Cohn Interview of Siegelman)
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Siegelman spent election night at a campaign party, anxiously awaiting the results. (Cohn Interview of Siegelman)
Baldwin County, which leaned heavily Republican, was last to report. Its central tabulator, the computer that receives and aggregates precinct totals, was housed at the probate court, where the results would be posted.
At about 11:04 p.m. Baldwin county finally posted them. They showed that Siegelman had received enough votes in the county to win the election. The networks called the race for Siegelman who declared victory before heading home to the governor’s mansion with his wife and kids.
But at about 4:00 a.m, Siegelman received an urgent phone call from his chief of security, Jim Alexander. (Stealing Our Democracy, p. 77.)
“Governor wake up!” Alexander told him. “They’re trying to steal the election.”
Siegelman rushed to his office where he was informed that the Baldwin County probate court had quietly posted a different set of returns to its website after telling the media and party observers to go home. According to the time stamp, it was posted at 11:06 p.m.
The new results had deleted about 6,000 votes from Siegelman’s total, throwing the election to Riley.
Baldwin county claimed that Siegelman’s earlier results had been inflated due to a computer “glitch” that had supposedly affected only his race and only his total in only one precinct.
Siegelman was concerned. The closest friend of a racist probate judge in a rural county had once told him that they sometimes held back a precinct until the end of the night so that they knew how many votes they would need to fix the result. (Cohn interview of Siegelman)
Siegelman immediately phoned the Baldwin County probate judge Adrian Johns (below right) and told him that he wanted a hand recount and that he’d arrive at the courthouse that afternoon. He planned to take a state plane.
But at 10:30 a.m. the county canvassing board certified Riley’s “win,” even though Alabama law stated that the results must not be certified until two days later.
State attorney general William Pryor, a client of Karl Rove. then sealed the paper ballots and threatened to arrest anyone who tried to open them without a court order. (In 2003, the Bush administration would reward Pryor with a recess appointment to the 11th Circuit.)
As a result, Siegelman could no longer obtain a manual recount without a protracted court process. He was floored when he heard the news.
To preserve his options, he initiated a court action. But he knew the odds were against him because Rove and Canary had already stacked the courts with partisan Republican judges. (Cohn Interview of Siegelman)
On November 17, he told the media: “Votes were stolen and now those votes have been certified. The Attorney General has refused to allow a recount of the one precinct where the vote changed. Without the ballots, I cannot prove I won. Therefore, to save the people of Alabama a long fight, I will step aside.” He formally conceded the next day.
According to election-integrity advocate and author Bev Harris, the electronic voting system in Baldwin county had been supplied by ES&S.
“Three months after the election, the vendor shrugged,” Harris wrote. “Something happened. I don’t have enough intelligence to say exactly what,” Mark Kelley of ES&S reportedly said.
Auburn University’s Professor James Gundlach conducted a statistical analysis of the results and concluded that the election was hacked by someone with either direct or remote access to the central tabulator in the Baldwin County courthouse.
Gundlach theorized the hacker had intended to shift 3,000 votes from Siegelman to Riley, but had mistakenly added 3,000 votes to both candidates. The hacker then corrected his/her mistake — the supposed computer “glitch” — by subtracting 6,000 votes from Siegelman, throwing the race to Riley.
Because no one could access the ballots, Gundlach’s theory has never been proven or disproven. But in 2018, ES&S would finally confirm, despite prior denials, that it had in fact sold systems containing remote-access software between 2000 and 2006. The bombshell report was written by cybersecurity journalist Kim Zetter.
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Siegelman felt certain his race was hacked. He decided to fight back by trying to reclaim the governorship from Bob Riley in 2006. But in May 2005, he was indicted by federal prosecutors in Alabama.
The prosecutor was Leura Canary, who just happened to be married to Billy Canary, Riley’s campaign advisor. The Canarys were also close friends with Rove. The case reeked of political retaliation.
Siegelman’s alleged crime involved two $250,000 donations made by a CEO named Richard Scrushy to an ultimately unsuccessful education referendum, which Siegelman had supported. Scrushy made the second donation after Siegelman had reappointed Scrushy to a non-paying position on a hospital board. But prosecutors called the donation a bribe.
Scrushy had also served on the same hospital board during the administrations of three prior Republican governors. He had donated to each of those governors’ campaigns, but only the contribution to Siegelman’s education referendum was investigated and prosecuted.
The United States Supreme Court had already held that the prosecution in a bribery case involving a campaign donation must prove an explicit agreement to exchange favors, also known as a quid pro quo. But Fuller bizarrely instructed the jury that “explicit” could mean implied, which puzzled and alarmed many legal scholars, journalists, and political pundits from both sides of the aisle.
In June 2006, the jury found both Siegelman and Scrushy guilty based on this dubious implied standard and dubious (at least partially false) testimony of a former Siegelman aide named Nick Bailey. Prosecutors had already indicted Bailey in an unrelated criminal case and met with him up to 70 times to “rehearse” his testimony. A DOJ whistleblower would later say that he had been coached by the prosecution. According to at least one report, one of Bailey’s friends would later claim that the prosecutors had threatened Bailey with extra prison time and smears if he didn’t cooperate.
Fuller sentenced Siegelman to more than seven years in prison and Scrushy to more than six.
In June 2007, a Republican whistleblower and attorney named Dana Jill Simpson wrote in a sworn affidavit that she had participated in a conference call with members of Riley’s campaign on November 18, 2002, the same day that Siegelman had conceded to Riley.
According to Simpson, Billy Canary said during the call that he had spoken to “Karl” (a reference to Rove) and that “his girls” (a reference to Leura Canary and another prosecutor) would “take care of” Siegelman who they had considered a political threat.
Simpson had phone records to support her sworn testimony. Simpson later testified to additional conversations, including one in 2005 (before Siegelman was indicted) where Riley’s son allegedly said that the case against Siegelman would be assigned to Fuller who “hated” him and would “hang” him.
In February 2008, Simpson and Siegelman were featured in a segment on 60 Minutes that brought international notoriety to the case.
There was bipartisan outrage over the Bush DOJ’s seemingly politically motivated prosecution of Siegelman. Arizona’s Republican former attorney general, Grant Woods, told the 60 Minutes audience:
“I personally believe that what happened here is that they targeted Don Siegelman because they could not beat him fair and square. This was a Republican state and he was the one Democrat they could never get rid of.”
Woods, who was the co-chair of the McCain for president leadership committee, explained further:
“WOODS: You do a bribery when someone has a real personal benefit. It’s that you’re exchanging an official public act for a personal benefit. Not, “Hey, I would like for you to help out on this project which I think is good for my state.” If you’re gonna start indicting people and putting them in prison for that, then you might as well just– build nine or ten new federal prisons because that happens everyday in every statehouse, in every city council, and in the Congress of the United States.
PELLEY: What you seem to be saying here is that this is analogous to giving a great deal of money to a presidential campaign. And as a result, you become Ambassador to Paris.
WOODS: Exactly. That’s exactly right.”
Later that year, 44 attorneys general, including both Democrats and Republicans, prevailed upon the House Judiciary Committee to investigate whether Bush’s DOJ had charged and prosecuted Siegelman as an act of political retribution.
Following that effort, a bipartisan coalition of 75 attorneys general asked then Attorney General Eric Holder to investigate the prosecution of Siegelman’s case. Former vice president Al Gore helped raise funds for Siegelman’s appeal.
None of it worked.
Holder, whose former law firm had helped protect Rove’s emails (which had been stored on a private RNC server at Smartech), instead fired a DOJ whistleblower who said that she had observed the prosecution coaching Nick Bailey, its key witness. Another whistleblower reportedly decided to remain silent out of fear that he’d suffer the same fate or worse.
Holder also successfully opposed Siegelman’s petition to the US Supreme Court. As explained by the Legal Schnauzer blog, “this is an administration that argued against U.S. Supreme Court review of convictions in the Siegelman case, even though public documents raised serious questions about bias from the trial-court judge — and the case was decided on bogus jury instructions.”
In 2012, Siegelman’s (now adult) son, Joe Siegelman, wanted to know if the many attorneys general and legal scholars had been wrong about his dad. (Stealing Our Democracy, Prologue.)
He persuaded Bailey, the prosecution’s key witness, to meet with him. They sat outside at a local restaurant, away from other people. Joseph asked Bailey, “Do you personally think there was an agreement between my dad and Scrushy?” According to Joseph, Bailey quickly replied “No” and then added that “It’s impossible to bribe your dad.” Joseph says that at one point Bailey referred to his own testimony as “bullshit.” (Stealing Our Democracy, Prologue)
In 2015, Judge Fuller was forced to resign from the bench after beating up his wife at a Ritz Carlton hotel.
But unlike Siegelman, he would never go to prison. Instead, he was given a plea deal to expunge his domestic-violence arrest in exchange for completing counseling.
The following year, more than 100 attorneys general, both Republicans and Democrats, asked Obama to pardon Siegelman, stating that “the prosecution of Gov. Siegelman was a perversion of justice.” But Obama had decided to “look forward, not backward” on the crimes of the Bush administration. He denied the petition for clemency, calling it “unwarranted.”
In 2015, Russia hacked one of Smartech’s servers. Smartech, which is located in Chattanooga, Tennessee, had hosted the RNC’s emails, as well as those of Rove and other members of the former Bush administration.
When Congress requested some of these emails in 2007, the Bush administration claimed to have deleted 22 million of them. Many of these emails were later recovered by the Obama administration, but only a handful have been produced.
Smartech is also significant because Ohio’s 2004 election results were secretly routed through one of its servers late on election night, sparking concerns that the results could have been adjusted to ensure that Bush won re-election.
Those results deviated significantly from the exit polls. In 2018, ES&S would finally admit, despite prior denials, that it had sold systems with remote-access software preinstalled between 2000 and 2006.
Unlike the DNC’s emails, which Russia released in 2015, Russia has not released most of whatever it found on Smartech’s server, suggesting the possibility that these emails could have been used as kompromat against Rove and other high-profile Republicans.
The documentary Atticus v. the Architect is a “must watch” on the same subject and is free to those with Amazon Prime accounts. It changed how I view American politics forever. Depressing but necessary if we are to effect meaningful change.
With the benefit of hindsight, I believe Obama made a grave mistake to think we could safely move forward as a country without also looking backward at the electoral misconduct of the Bush administration and, especially, Karl Rove. Bad actors typically don’t stop doing bad things without accountability.