Hi all.
Sorry about the lack of updates, but it looks like many other people here have been picking up the slack! I haven't had a chance to diary because I've been working on Armando's challenge and well, there is life outside of dKos. :)
So, let's catch up...
1. "The problems are even more serious that I thought."
"Some of us are going to call for it...we're going to ask Kerry..." Thus says Maxine Waters, Congresswoman, who will be contesting the election on January 6th. Listen to her audio here. There are still some rumblings about a Senator.
What type of Must-See-TV would it be to have Congresswoman Waters, on the floor, objection in hand, asking outloud "Senator Kerry, will you stand with us?"
Get the popcorn ready.
2. Shhhhhh, don't tell anyone.
Lean close. Closer....OK, this is just between us.
President Bush, Karl Rove, and Vice-President Dick Cheney have been subpoenaed.
Yes, I know, it's amazing, isn't it? The SCLM apparently doesn't care that the most powerful man on earth has been implicated in a voting fraud case and has been called to testify no less, so shhhhhh. I guess we're lucky to keep that explosive information in our litte circle. Don't you feel speeeecial?
They were supposed to be deposed today and tomorrow, but their lawyer is claiming they weren't served properly. Guess who's in charge of serving the paperwork? The Ohio court system.
3. Anyone have a fire extinguisher handy?
'Cause Blackwell's pants are smoldering right now. "You can't ask me questions! You're harassing me!"
Richard Conglianese, Ohio Assistant Attorney General, is seeking a court order to protect Blackwell from testifying under oath about how the election was run.
How dare we ask the chief Election officer of Ohio how he runs his elections! The audacity! What is he, some Gitmo detainee we have "free reign" to question? You want to know "how" the election was run? Hmmff. Go look it up on those bloggers out there, cause you're not getting any info from me.
As many people pointed out, how can we force the President of the United States to testify about a blow job, yet a Secretary of State doesn't think he should testify about how he ran an election?
4. Crunch Time.
Today is the last day for Arnebeck to file a memorandum explaining to Chief Justice Moyer why the case is not moot.
If you recall, Moyer set the grounds for dismissal by wondering if the case was moot:
IT IS FURTHER ORDERED, pursuant to the authority granted me by R.C. 3515.11, that contestors shall file on or before December 28, 2004, a written memorandum of law addressing the following two questions:
(1) Whether this election contest is moot based on the fact that it was filed subsequent to the "safe harbor" date established by 3 U.S.C. §§ 5 and 7? This date was December 7, 2004 for the November 2, 2004 presidential election.
(2) January 6, 2005 is the date established by 3 U.S.C. §15 forCongress to review the votes of the electors and formally declare the winner of the presidential election. What would be the legal significance of the passage of that date relative to the contestors' petition?
Now, I don't know if Moyer threw Arnebeck a freebie with #1 or if he doesn't agree with Arnebeck's argument. I've mentioned this before in a comment, but I'll explain it again.
In a Motion for a Temporary Restraining Order (which was denied), Arnebeck explained how the federal safe haror provision is inapplicable to Ohio's elections.
Here is an excerpt from Arnebeck's TRO: Federal law (3 U.S.C. §§ 5 and 7) states:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
Thus, as Arnebeck argued, "a state may avail itself of the safe harbor if and only if it has estbalished a procedure by which any challenges to the composition of its body of electors is to be resolved, and if and only is the state has in fact followed its own procedure."
Arnebeck goes on to argue:
Ohio has such a procedure for resolution of election contests, but Ohio's procedure does not require resolution by the deadline established by the federal safe harbor statute. In fact, Ohio's scheme contemplates that election contest will not be determined prior to the safe harbor deadline, or indeed, the meeting of electors. Ohio Revised Code Section 3515.09 ("Filing a contest petition") provides, in pertinent part:
A contest of an election shall be commenced by the filing of a petition with the clerk of the appropriate court, signed by at least twenty-five voters who voted at the last election for or against a candidate for the office or for or against the issue being contested, or by the defeated candidate of said nomination or election, within fifteen days after the results of such a nomination or election have been ascertained or announced by the proper authority, or if there is a recount, within ten days after the results of the recount of such nomination or election have been ascertained and announced by the proper authority.
Arnebeck goes on to say that under Ohio law, the SoS's certification is the "proper authority" announcement, and that the certification occured on December 6th. Therefore, anyone wanted to contest the election could not do so, by law, until at least December 6th.
He continues by pointing that unlike Florida in Bush v. Gore, Ohio has not provided for resolution of election controversies by the safe harbor. He points to Ohio law, which says that a hearing on a recount petition must be heard no earlier than 15 days after the certification of the results. Thus, it is impossible to comply with both Ohio law and the safe harbor.
Read over the TRO and it makes a lot of sense. The information is around page 10 or so.
As for a #2, about whether it's too late. Arnebeck will make a strong argument that it was Blackwell's stonewalling and late certification that prevented the case from being filed sooner. Also, here's an interesting tidbit. If there were an objection on January 6th, the chambers would split up and debate for "two hours":
While the Houses are separated, each Senator and Representative may speak on each objection for five minutes, and not more than once per objection. After debate on an objection has lasted two hours, the presiding officer of each House will close debate and call for a vote on the objection.
Only two hours? That means a decision has to be made on the 6th? Not necessarily. The provision mandating two hours of debate is 3 U.S.C. § 17. It's a procedural rule, and like any procedural rule, it can be modified or waived under parliamentary procedure. Maybe.
Under this provision, the presiding officer in each house held in 1969 that a motion to table the objection was not in order (Deschler's Precedents, v. 3, Ch. 10, §3.7). On the other hand, the Senate agreed, by unanimous consent, during the same proceeding to a different way in which the time for debate was to be controlled and allocated (Deschler's Precedents , v. 3, Ch. 10, §3.8).
So, it may be possible that those two hours can be stretched. Also, it is important to note that the two hour limit applies to each objection.
To read up more on the statutory framework for elector objections (even form objections!) click here
6. Kerry files motions...case moving slower than ketchup coming out of a bottle.
William Pitt brings us news that Kerry filed two motions yesterday. It's entitled "Motion Of Intervenor-Defendant Kerry-Edwards 2004, Inc. For A Preservation Order And For A Leave To Take Limited Expedited Discovery."
The preservation order is self-explanatory. The "limited expedited discovery" is interesting. This is Kerry's attempt to speed things up (hmm, why would he want to speed things up unless he wanted to get more evidence by January 6th???)
Time is critical here. In New Mexico, there is already talk of wiping out the information on the e-voting machines The same cannot happen in Ohio.
A decision on Kerry's motion should come within a few days. Unless the Court continues its trend of moving like molasses on these issues...
7. Must Reads
A speech to put passion in our hearts...
Let us march on ballot boxes,
march on ballot boxes until
race-baiters disappear from the political arena.
Let us march on ballot boxes
until the salient misdeeds of bloodthirsty mobs
will be transformed into the calculated good deeds
of orderly citizens. . . .
Let us march on ballot boxes
until we send to our city councils,
state legislatures, and the United States Congress,
men who will not fear to do justly, love mercy,
and walk humbly with thy God.
Let us march on ballot boxes
until brotherhood becomes more
than a meaningless word in an opening prayer,
but the order of the day on every legislative agenda.
Rev. Martin Luther King, Jr
"Our God Is Marching On!"
Selma, Alabama
March 25, 1965
6. Must Dos
Be in D.C. on January 6th to protest for accuracy and integrity in our elections. Click here and here to find a ticket!
Don't let up the pressure! Contact your senators and express your concern about approving a slate of electors from a state riddled with "irregularities."
Keep an eye out on the Ohio Supreme Court website AND the Ohio District Court website as well. Decisions on Arnebeck's case should come in after January 3rd, while Kerry's motions should be ruled upon shortly.
And, for the piez de resistance!
I can hear Olbermann now. But it's not a congressional inquiry...blah...blah. Whatever. It's sad a lighted theater sign is giving Conyers more coverage than the media at this point!
Update [2004-12-28 20:18:41 by georgia10]: As rincewind posted below, O'Connor has put up yet another roadblock in the Arnebeck lawsuit. The lawsuit is Moss v. Moyer.
O'Connor has, sua sponte apparently, without a motion by the Defendants that is, decided that the case will probably be dismissed (again, without prejudice) unless Arnebeck can prove that his complaint is sufficient.
Civ.R. 9(B) requires that allegations of fraud or mistake be pleaded with particularity. She thinks Arnebeck did not plead his claim as such.
I have read over Arnebeck's complaint, and honestly, I think she's stretching it. The case law I've read requires basically that the Plaintiff plead the "who, what, where and when" of the fraud. The purpose of the particularity rule is not to put out your entire case, but rather to put the defendant on notice of his pruported role in the fraud, and also to prevent false claims of fraud from being filed.
I've touched on this before in some of my comments, but courts have generally relaxed the particularity rule if the information is beyond the Plaintiff's knowledge at the time of filing. Let me cut n' paste a part of one of my briefs (in federal, not Ohio state court), bur still, it provides a good overview:
Rule 9(b) [Or the Ohio rule in this case] requires a Plaintiff to plead all averments of fraud with particularity. See Vicom, Inc. v Harbridge Merchant Servs., Inc., 20 F.3d 771,777 (7th Cir. 1994). The most basic consideration underlying Rule 9(b) is to provide the defendant with fair notice. Viacom, Inc. 20 F.3d at 777-78 (quoting 5 Wright & Miller, Federal Practice and Procedure § 1298, at 648 1969). In the Seventh Circuit, a plaintiff may satisfy Rule 9(b) by providing a "general outline" of the circumstances constituting the alleged fraud, sufficient to "reasonably notify the defendant[] of [its] purported role" in the fraud. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1020 (7th Cir. 1991). Generally, this outline should include "the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated." Schiffels v. Kemper Fin. Servs. Inc, 978 F.2d 344, 352 (7th Cir. 1997). These requirements are tempered somewhat where a plaintiff alleging fraud does not have access to all the facts necessary to provide such details. See Katz v. Household Int'l, Inc., 91 F.3d 1036, 1040 (7th Cir. 1996).
Here, the very nature of the scheme alleged is such that identification of the exact methodology used to perpetrate the fraud is impossible to know,much less allege in the complaint. Arnebeck can't describe the illegal software on the machines (if there was any) unless he has access to it. He doesn't know how the scheme was implemented because he wasn't privy to the private conversations between Bush, Cheney, Rove and Blackwell. Enforcing the particularity rule in this case in such a stringent fashion is to ignore the context of the case: this isn't some run of the mill fraud case -- it is a fraud case involving the most powerful and resourceful people in the world. The only way to get full knowledge of the scheme is to proceed to discovery.
If I were Arnebeck, I'd make the above argument and tell the Court that they still have a summary judgment motion under their belt if they believe, --at some later point -- that there is not enough evidence to go forward.
Like I said, reading over the Moss v. Moyer complaint, there is more than enough information there to survive dismissal. Arnebeck specifically alleges:
WHO: Bush, Cheney, and Rove
WHAT: gained "access to voting and tabulating equipment"
WHERE: did not need physical access. They could access them "from anywhere in the world under the right circumstances."
WHEN: Illegal software on the machines operated on November 2, 2004.
HOW: the Defendants gained illegal access to the machines and/or put software on the machines.
Not only that, but Arnebeck's complaint also includes a case of prima facie fraud. How can she dismiss a claim for fraud when the statute clearly says what constitutes fraud, and Arnebeck goes on to explain, in detail, how the statute was violated?
The more I read
her opinion and Arnebeck's lawsuit, the more pissed I became. This is obviously a delay tactic.
How convenient that Arnebeck has to respond by Jan. 7th. How convenient that the other side gets until January 15th to respond.
If all goes as she plans, maybe she can tuck away the whole lawsuit before Bush's inauguration. We wouldn't want anything spoiling his nice day.
Obviously, no one on the court is taking any of these cases seriously. Their tactic is to delay, delay, delay, then declare everything moot.
Can't wait to see what they pull next.