Lawsuit Before the Ohio Supreme Court

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Lawsuit Before the Ohio Supreme Court
Summarized by Mary Anne Saucier, Columbus, Ohio

NATURE OF THE ACTION On December 13, 2004, numerous Ohio citizens contested “the certification of the election of the electors pledged to George W. Bush and Richard B. Cheney for the offices, respectively, of President of the United States and Vice President of the United Sates for the terms commencing January 20, 2005…” and “…the certification of the election of Thomas Moyer for the office of Chief Justice of the Ohio Supreme Court for the term commencing in 2005.”

LAWSUIT REFILED On December 16, 2004, Chief Justice Thomas J. Moyer threw out the complaint because it had two election challenges. The following day, on December 17, thirty-seven voters and their lawyers refiled the election challenge for President and Vice President of the United States. The other case for the office of Chief Justice of the Ohio Supreme Court was refiled on December 20, 2004.

DEFENDANT-CONTESTEES are George W. Bush (candidate for the office of President of the United States of America), Richard B. Cheney (candidate for the office of Vice President of the United States of America), Karl Rove (chief election strategist and tactician for the Bush-Cheney campaign), the Bush-Cheney 2004 Committee, Thomas J. Moyer (Ohio Supreme Court Chief Justice candidate), J. Kenneth Blackwell (Ohio Secretary of State), and the 20 Ohio Bush electors.

ATTORNEYS filing the suits are Clifford O. Arnebeck Jr. (Chairman, “Ohio Honest Election Campaign” of The Alliance for Democracy, and Chair of Legal Affairs Committee for Common Cause-Ohio); Robert Fitrakis, PhD (Director/Editor, Columbus Free Press, and Professor of Political Science at Columbus State Community College); Susan Truitt (Co-founder of Citizen’s Alliance for Secure Elections-Ohio); Peter Peckarsky, Technology Lawyer, based in Washington, D. C.; and such other attorneys retained by them for the litigation.

ELECTION CONTEST The defendants are accused of being part of “the pattern of vote fraud and discrimination… which operated to deprive numerous Ohio citizens of their constitutional and statutory rights.

“CLAIM FOR RELIEF” cited:

· INITIAL STATE ELECTION EXIT POLLS INDICATE KERRY-EDWARDS WON The 2004 National and State Election exit polls (interviewing voters immediately after they voted), directed by “the respected and world-renowned Warren Mitofsky,” showed dramatic differences between initial (“uncalibrated”) exit polls and the corrected exit poll (adjusted later to conform to the voting) for Ohio and a number of other states. The initial poll results were only available for a very short period of time when Andrew Card (White House Chief of Staff) claimed victory for Bush in Ohio, and “called for a concession and an end to any inquiry into the results.” But, “…when these uncorrected results are compared to the ‘official’ state-by-state results, it is clear that election fraud (or other irregularity) occurred in the counting of the vote in Ohio and a number of other states.”

· NATIONAL EXIT POLLS INDICATE KERRY-EDWARDS WON “The vote fraud in connection with the national vote may also mean that the national exit poll is the most accurate representation of the votes actually cast. This means that candidate Bush probably did not win a ‘mandate’ of 3.5 million votes but actually lost the national vote by a significant margin to John Kerry. The chance of Kerry receiving a greater percentage of the popular vote than Bush in an honest election was 98.7%.”

EXHIBIT A contains a paper by Steven F. Freeman, PhD, University of Pennsylvania, entitled “Was the 2004 Presidential Election Honest? An Examination of Uncorrected Exit Poll Data. Part I: The Unexplained Exit Poll Discrepancy.” It presents “clear and convincing evidence of election fraud” in ten of the “battleground” states (Colorado, Florida, Iowa, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, Ohio, and Pennsylvania).

· LAWFUL BALLOTS DESTROYED OR ALTERED; UNLAWFUL BALLOTS ADDED “On information and belief, plaintiffs-contestors allege that traditional means of vote fraud were used…that unlawful ballots were added to those cast by lawful voters and that lawfully cast ballots were either destroyed or altered.” In Ohio, it is believed that at least 130,656 votes were deducted from Kerry-Edwards and added to Bush-Cheney.

· ABSENTEE VOTES NOT LISTED Dr. Werner Lange studied poll books in Trumbull County and found “580 absentee votes were cast for which there was no notation of absentee voting in the poll books.”

· UNLAWFUL DENIAL OF ACCESS TO POLL BOOKS Secretary of State Kenneth Blackwell, also co-chair of the Ohio Bush-Cheney campaign, “ordered all 88 boards of election to prevent public inspection of poll books until after certification of the vote on December 6, 2004.” This “apparently caused violations of R.C. 3599.161(B) and (C) and may have caused such violations by every board of elections in the state…Each violation “of any provision of Title XXXv (35) is a separate instance of criminal election fraud pursuant to R.C. 3599.42” and could be a basis for removing Blackwell from office, if convicted.

· THERE WAS NON-TRADITIONAL TAMPERING WITH VOTES AND THEIR TABULATION Physical or electronic access can easily be gained to the voting and vote tabulating systems.

Exhibit B, written by Chuck Herrin, CISSP, CISA, MCSE, CEH, entitled “How to Hack the Vote: the Short Version,” (www.chuckherrin.com/hackthevote.htm) shows how this can be done by “changing the votes actually received by one or more candidates in a race, leaving the total votes cast in the race unchanged, and erasing or falsifying the electronic audit trail which could show the access to the computer and the spreadsheet.” Or unauthorized operating instructions could have been “inserted into the software used to operate either the vote tabulating machines or the voting machines.”



KERRY WON OHIO AND THE PRESIDENCY; ELLEN CONNALLY WON THE CHIEF JUSTICE OF THE OHIO SUPREME COURT



· It is believed “that due to error, fraud, or mistake…” that at least 130,656 votes “were deducted from the total number of votes actually cast for the Kerry-Edwards ticket and added to the number of votes actually cast for the Bush-Cheney ticket.” Kerry-Edwards won Ohio by at least 142,537 votes. It is thereby requested that at least 130,656 votes be added to the Kerry-Edwards ticket and the Kerry-Edwards Electoral College electors be issued certificates of election.

· At the same time, it is believed “that due to error, fraud, or mistake…” that 216,779 votes were deducted from Ellen Connally and added to those cast for Thomas J. Moyer. This means that “Ellen Connally won the election for Chief Justice of the Ohio Supreme Court by at least 149,326 votes.”



EXAMPLES OF CONSTITUTIONAL AND STATUTORY VIOLATIONS:



· AUGLAIZE COUNTY - voting machine errors. A former employee of ES&S, “the company that provides the voting systems in Auglaize County, had access to and used the main computer that is used to create the ballot and compile election results…a violation of county board of election protocol…Mr. Nuss was suspended and then resigned.”

· CUYAHOGA COUNTY - (1) “more than 10,000 voters” were kept from voting; (2) in a mostly black precinct, confused results for Kerry and third party candidates indicated “fraud, error, or mistake”; (3)“there was an effective denial of the right to cast a provisional ballot and have that provisional ballot counted. 8,099 were “ruled invalid,” about 1/3 of those cast; (4) “voters were misled when they received phone calls incorrectly informing them that their polling place had been changed”; and (5) in some cases, “arrows on the absentee ballots did not align with the correct punch hole” which “led to voters casting a vote for a candidate other than the candidate they intended to support.”

· FRANKLIN COUNTY - (1) In some absentee ballots, there was lack of alignment in the punch card hole, such as occurred in Cuyahoga County; (2) about a dozen voters were told that their voting location had been changed by someone “claiming to be from the County Board of Elections..”; (3) “there was a discriminatory assignment of more voting machines per registered voter to precincts with more white voters than African-American voters..”; and (4) there were “numerous reported instances of vote hopping (in which a voter selecting Kerry for President saw the choice displayed on the machine ‘hop’ to Bush for President).”

· KNOX COUNTY – (1) Mostly white precincts received more voting machines than precincts with a majority of African-American voters; and (2) certain precincts lacked enough voting machines.

· HAMILTON COUNTY – (1) Mostly white precincts received more voting machines than predominantly African-American precincts; (2) there were some voting machine errors keeping voters from inserting ballots “all the way into certain machines…”; (3) candidates Kerry-Edwards names were omitted from some absentee ballots; and (4) a Republican precinct judge was asking every voter for their address and “being a jerk about it.”

· JEFFERSON COUNTY – “some challenged voters were not notified that their registration was challenged and their right to vote was in question. Their names were merely published in a nearly unreadable list in the local newspaper.”

· LAKE COUNTY – “some voters received a memo on bogus Board of Elections letterhead informing voters who registered through Democratic and NAACP drives that they could not vote.”

· LUCAS COUNTY – (1) there was “discriminatory assignment of voting machines to precincts; and (2) machine errors “snarled the process throughout the day. Jammed or inoperable voting machines were reported throughout the city. Lucas County Election Director Paula Hicks-Hudson said the Diebold optical scan machines jammed during testing in the weeks before the election.”

· MAHONING COUNTY – (1) voting machine errors included one precinct “recorded a negative 25 million votes”; (2) twenty to thirty “ES&S iVotronic machines needed to be recalibrated during the voting process because some votes for a candidate were being counted for that candidate’s opponent”; (3) about a dozen of these machines had to be reset because they “essentially froze.” And, (4) “there were numerous reported instances of vote hopping (in which a voter selecting Kerry for President saw the choice displayed on the machine ‘hop’ to Bush for President).”

· MERCER COUNTY – Voting machine errors showed “289 people cast (punch card) ballots, but only 51 votes were recorded for president. The county’s Web site appeared to show a similar conflict… It would appear that about 4,000 votes (nearly 7%) were not counted for a candidate.”

· MIAMI COUNTY - (1) In Concord Southwest precinct “voter turnout was a highly suspect and improbable 98.55%. In Concord South precinct, there was a highly improbable 94.27% voter turnout.” (2) After all precincts had reported, “18,615 votes came in” and are “statistically suspicious..”

· MONTGOMERY COUNTY - Voting machine errors showed two precincts with “25% presidential undervotes. This means no presidential vote was recorded on ? of the ballots. The overall undervote rate for the county was 2%. The undercount amounted to 2.8 percent of the ballots in the 231 precincts that supported candidate Kerry, but only 1.6 percent of those cast in the 354 precincts that supported candidate Bush.”

· SANDUSKY COUNTY - (1) There was an overcount “when a computer disk containing votes was accidentally inserted into the vote tabulating machines twice by an election worker.” (2) Also, it was “discovered some ballots in nine precincts were counted twice.”

· STARK COUNTY - “The Election Board rejected provisional ballots cast at the wrong precinct in the right polling place.” This had been allowed in other elections.

· TRUMBULL COUNTY - a voter forged a registered voter’s name and gave a different address. When the registered voter arrived, she was allowed to vote.

· WARREN COUNTY - “there were irregularities in the county on election night when officials locked down the county administration building and blocked anyone from observing the vote count.”

· IN SEVERAL COUNTIES, besides Franklin and Mahoning, “there were numerous reported instances of vote hopping..” Kerry voters saw their votes go to Bush.



The attorneys are basing their arguments on Ohio’s Revised Code 3515.16, entitled “Testimony in Supreme Court.” All testimony will be given in the form of depositions.

The contestors may have 20 days to take and file testimony and the contestees 20 more days, but “the court may render such judgments and make such orders as the law and facts warrant.”

Michael I. Shamos from the Institute for Software Research International, at Carnegie Mellon University, believes “it is possible to overturn the Elector’s vote to match the will of the people if the irregularities are enough to overcome the margin of victory.”