Bush stole the 2004 election as well -
21/11/4 Lawsuits start

By Marjorie Cohn Monday 22 November 2004

Without much fanfare, a number of lawyers are busy mounting court challenges to the election. Lawsuits have been filed and other actions are being taken in Ohio and Florida, the two key electoral states. Members of Congress have demanded a General Accountability Office investigation of the election. The largest Freedom of Information Act request in the nation’s history has been launched, and other efforts are in the works.

Is there substance to these challenges? On Thursday, the University of California’s Berkeley Quantitative Methods Research Team released a statistical study - the sole method available to monitor the accuracy of e-voting - reporting irregularities associated with electronic voting machines may have awarded 130,000-260,000 or more excess votes to Bush in Florida. The three counties where the voting anomalies were most prevalent were also the most heavily Democratic: Broward, Palm Beach and Miami-Dade, respectively. The official tally in Florida shows Bush with 380,978 more votes than Kerry.

Recount, Lawsuits, Hearings in Ohio

Green Party candidate David Cobb and Libertarian Party candidate Michael Badnarik have sought a recount of the votes in Ohio. A demand for a recount can only be filed by a presidential candidate who was on the ballot or a certified write-in candidate. Alleged improprieties in Ohio include mis-marked and discarded ballots, problems with electronic voting machines, and the targeted disenfranchisement of African-American voters. Although a recount doesn’t typically begin until after the vote has been certified (December 6), Cobb and Badnarik have asked for the recount to proceed forthwith for fear there won’t be sufficient time to complete the recount in time for the December 13 date on which the Ohio presidential electors will meet.

Bush now leads Kerry by about 136,000 votes in Ohio. A battle is looming over nearly 155,000 provisional ballots, which might decide who really won the election. The Ohio Democratic Party has joined a lawsuit by elector Audrey J. Schering, which asks U.S. District Judge Michael H. Watson to order Ohio Secretary of State Kenneth Blackwell to impose uniform standards for counting provisional ballots on all 88 counties. The lawsuit cites the U.S. Supreme Court’s opinion in Bush v. Gore, which “held that the failure to provide specific standards for counting of ballots that are sufficient to assure a uniform count statewide violates the Equal Protection Clause of the United States Constitution.” Attorney Donald J. McTigue, who filed the suit, told me that although many of the provisional ballots are being counted, his client is concerned about those that are not being counted. Blackwell has provided only limited instruction about which provisional ballots to count. But many doubts remain about how different election boards determine whether someone is a registered voter. Some may type the name in on a computer; others may look for typographical errors; still others may look at the hard copy. McTigue worries that there is no way of knowing what each board is doing. Do they go back to the purged files? Were they properly purged?

Of the 11 counties that had completed checking provisional ballots by Wednesday, 81 percent have been ruled valid. McTigue expects the counting of provisional ballots to last at least two more weeks.

On Election Day, Sarah White filed a class action against Blackwell and the Board of Elections of Lucas County, claiming they violated the Help America Vote Act, passed in the wake of the 2000 election debacle, that gives voters in federal elections a right to cast provisional ballots. White claimed that although she requested an absentee ballot one month before the election, she never received one. Blackwell ruled that persons who had requested, but not received their absentee ballots, would not be permitted to cast a provisional ballot. U.S. District Judge David A. Katz, however, ordered that “the Board of Elections of Lucas County shall immediately advise all precincts to issue provisional ballots to those voters who appear at the voting place and assert their eligibility to vote, including that the voter is a registered voter in the precinct in which he or she desires to vote, and that the voter is eligible to vote in an election for Federal office.”

Last week, the Ohio Election Protection Coalition held public hearings in Columbus. Extensive sworn and written testimony of Ohio voters, precinct judges, poll workers, legal observers, and party challengers revealed a widespread and concerted effort by Blackwell to deny primarily African-American and young voters the right to cast their ballots within a reasonable time. Precincts were deprived of adequate numbers of voting machines, so voters waited in lines from 2-7 hours, even though 68 electronic voting machines remained in storage and were never used on Election Day. Blackwell, who oversaw the election in Ohio, also served as co-chair of the Ohio Bush-Cheney reelection campaign. Lawyers for the Ohio Election Protection Coalition plan to use the testimony from the Columbus hearings to challenge the results of Ohio’s presidential vote in the state Supreme Court next week.

Lawsuits in Florida

On Election Day, the American Civil Liberties Union of Florida and Florida Legal Services sued Miami-Dade County and Broward County election officials in U.S. District Court for denying voters sufficient time to mail in absentee ballots. The Broward County Supervisor of Elections sent 13,300 absentee ballots to voters late. Plaintiffs Fay Friedman, Adam Meyer, and Daniel Benhaim claimed the two counties violated the Civil Rights Act of 1964 and the First and Fourteenth Amendments because they did not receive their absentee ballots until Election Day, and it was therefore impossible to comply with state law requiring persons who are out-of-state but present in the U.S. to submit absentee ballots by 7 P.M. on Election Day. Under Florida state law, a separate rule gives more time to absentee voters outside the U.S., who may postmark their ballots by November 2 as long as the ballot arrives within 10 days after the election. JoNel Newman, a Florida Legal Services attorney, says, “The rules governing absentee ballots should apply equally to every voter, whether they are temporarily in other parts of the country or overseas.” On Tuesday, U.S. District Court Judge Alan Gold denied plaintiffs’ motion for a preliminary injunction to include the late ballots in the final vote tally; however, the lawsuit remains alive for trial on a request to apply the late counting rule used for foreign absentees to domestic ballots.

Opponents of slot machines at South Florida pari-mutuels filed a lawsuit seeking an official recount of about 78,000 absentee ballots cast in Broward County on Amendment 4. About 94 percent of the new votes on the amendment were “yes” and only 6 percent were “no,” a “statistical anomaly.” No hearing has yet been scheduled on the case.

Recount in New Hampshire

Pursuant to a request by Ralph Nader, votes in some New Hampshire towns are being recounted. An analysis showed wide differences in voting trends between the 2000 and 2004 elections; about three quarters of precincts with severe changes used Diebold optical scanning machines. Last week, Diebold agreed to pay $2.6 million to settle a lawsuit with the state of California. Diebold officials misled state leaders about the security and certification of its products to get payments from the state, according to California Attorney General Bill Lockyer. Diebold, which helped to count the Ohio vote with e-voting machines and optical scan machines, is headed by Republican CEO Wally O’Dell. Last year, O’Dell wrote to Ohio Republican donors, saying he was “committed to helping Ohio deliver its electoral votes to the President next year.”

Lawsuits Challenge Mayoral Results in San Diego

Election results in San Diego’s mayoral race remain in doubt. The unofficial tally shows Mayor Dick Murphy the victor. But write-in votes for Donna Frye have been excluded because voters did not darken the oval on the left of the line where they wrote in Frye’s name. A lawsuit seeks to force the county registrar of voters to count the excluded write-in votes, which many believe will tip the results in her favor. Two other lawsuits are attempting to have Frye’s candidacy ruled illegal and force a runoff between Murphy and Supervisor Ron Roberts. Frye ran on a platform critical of Murphy’s financial leadership and the culture of secrecy at City Hall.

Congressmen Request GAO Investigation

Three members of Congress - John Conyers, Jr., Jerrold Nadler, and Robert Wexler - wrote to the Government Accountability Office on November 5, requesting an immediate investigation of the efficacy of voting machines and new technologies used in the 2004 election, how election officials responded to difficulties they encountered, and what we can do in the future to improve our election systems and administration. The Congressmen cited an electronic voting system in Columbus, Ohio, that gave Bush 4,000 extra votes; an electronic tally of a South Florida gambling ballot initiative that failed to record thousands of votes; a North Carolina county that lost more than 4,500 votes due to a mistaken belief by officials that a computer that stored ballots could hold more data than it did; a substantial drop off in Democratic votes in proportion to voter registration in counties utilizing optical scan machines that was apparently not present in counties using other mechanisms; and numerous reports from Youngstown, Ohio, as well as Palm Beach, Broward and Dade counties in Florida, that voters who attempted to cast a vote for John Kerry on electronic voting machines saw their votes instead recorded as votes for Bush.

Freedom of Information Act Requests

Blackboxvoting.org, a nonpartisan, nonprofit consumer protection group for elections, has filed the largest Freedom of Information Act request in history. It seeks the internal computer logs (which are public records ) from voting machines from every county that used electronic voting machines. The organization has initiated fraud investigations in selected counties. It needs lawyers to enforce public records laws, as well as computer security professionals and citizen volunteers.

Open Records Act Motions

Cindy Cohn, Legal Director of the Electronic Frontier Foundation in San Francisco, told me that independent testing of voting machines could shed light on why so many people who tried to vote for Kerry saw their votes registered for Bush. Her organization is moving under the Open Records Act, which allows people to see government records, to gather information, including the impoundment of voting machines, in some counties in Florida, Ohio, New Mexico and Pennsylvania that had serious problems with the machines. Local counsel are needed to help with this effort. Cohn can be contacted at cindy@eff.org.

Results Not Final Until January

Although John Kerry conceded that George W. Bush won the election, a candidate’s concession is not legally binding. Electors will be certified on December 7, which gives a presumption of legitimacy to the vote; but electors actually vote on December 13. These votes are not opened by Congress until January 6, so there is still time to challenge the results in key states such as Ohio and Florida. A challenge requires a written objection from one House member and one senator. If that objection is recorded, both Houses separate again and they vote by majority vote as to whether to accept the slate of electoral votes from that state.

Bush is claiming he has a mandate, planning to spend his “political capital.” Curiously, virtually all of the so-called “anomalies” in the voting results favor Bush. The electors have not yet voted; the election results are not yet final. In the words of Yogi Berra, “It’s not over until it’s over.”

Ohio Presidential Results to be Challenged By Steven Rosenfeld FreePress.org

Saturday 20 November 2004

Ohio’s 2004 presidential vote will be challenged as soon as next week in the state Supreme Court, a coalition of public-interest lawyers announced Friday.

The lawyers have taken sworn testimony from hundreds of people in hearings in Columbus and Cincinnati, and will use excerpts as well as documents obtained from county election officials and Election Day exit polls to make a case that thousands of votes were incorrectly counted or not counted on Election Day.

“The objective is to get to the truth,” said Columbus Ohio lawyer Cliff Arnebeck, coordinator of the Ohio Honest Elections Campaign. “What’s critically important, whether it’s President Bush or Sen. Kerry, whoever’s been elected actually elected, is to know you won by an honest election. So it’s in the interest of both sides as American citizens to know the truth and have this answered.”

The challenge comes as the Green Party has plans to file for a recount of the state’s 2004 presidential vote. The Green Party and the Ohio Honest Elections Campaign both believe the unofficial results announced on Election Day were wrong. Ohio Secretary of State Ken Blackwell has not yet certified the Nov. 2 vote. The state’s election law says an election challenge must show the wrong candidate was been declared the winner, or it can be dismissed without a hearing. The state Supreme Court’s chief justice hears the case.

The Ohio Republican Party dismissed the challenge on Friday, the Associated Press reported, but the coalition announcing it said they were ready to litigate.

“The sworn statements that we’ve received should give everyone cause to go forward in terms of this inquiry,” said Robert Fitrakis, a lawyer, political science professor at Columbus State Community College, and editor at www.freepress.org, at the announcement.

The ‘Ohio Honest Election Campaign’ is a coalition of public-interest groups and citizens interested in free and fair elections. The three lawyers announcing the challenge are associated with a variety of established groups. Arnebeck is the counsel for Common Cause’s Ohio chapter and The Alliance for Democracy. Attorney Susan Truitt is with Citizens Alliance for Secure Elections-Ohio, www.caseohio.org. The boards of groups have not yet formally endorsed the election challenge but are expected to do so in coming days.

The Honest Election campaign is part of a populist groundswell to safeguard voting rights. The 2004 campaign saw the most new voters in a generation. Even though Kerry conceded on Nov. 3, many people were not satisfied with national media explanations of the Ohio vote. Scientifically designed nonpartisan exit polls taken during the day showed a different result from the result reported that night, when George W. Bush was declared the victor.

Moreover, on Election Day there were long lines and widespread accounts of people who did not get to vote in urban Democratic-leaning precincts across the state. These factors and other reports of voter frustration, computerized voting miscounts and still-changing provisional ballot counting rules left many doubts about the unofficial vote count and George W. Bush’s 130,000 vote margin.

Those concerns coalesced into a grassroots campaign for an answer. Within two weeks following Election Day, Arnebeck had talked to the Green and Libertarian Parties about filing for a recount - if the funds could be raised. The Greens and the Honest Election Campaign started fundraising the same day, and in less than a week, the Greens had raised $150,000 via their website to file for the recount. The Ohio Honest Election Campaign raised about $90,000 via the Alliance for Democracy site, after two Air America Radio hosts, Laura Flanders and Randi Rhodes, embraced the cause and talked up the campaign.

Meanwhile, FreePress.org’s Bob Fitrakis inspired Amy Kaplan and Jonathan Meier, two young members of the League of Pissed-Off Voters’ Ohio chapter (www.indyvoter.org) to organize public hearings to gather testimony under oath of the people who saw or experienced what they thought was voter suppression or intimidation. Such intentional acts would violate the federal Voting Rights Act. Two hearings were held in Columbus and hundreds of people showed up and testified. Then activists in Cincinnati and Cleveland organized hearings.

At these hearings, scores of people said too few voting machines were put in Democratic-leaning inner-city precincts, creating long lines and deterring many people from voting. In contrast, Republican-leaning suburbs had plenty of voting machines and did not have the long lines. There were also reports of miscounts by computer voting machines, as well as errors registering the wrong candidate for president. Minority voters also spoke of disproportionately getting provisional ballots, including long-time residents.

Early in the weeks those hearings were being held, the Green and Libertarian Parties announced they would seek a statewide recount. By week’s end, the Honest Election Campaign announced its intention to challenge presidential election result at the Ohio Supreme Court.

Others lawsuits may be announced next week, Arnebeck said, because there is limited time to hold a meaningful recount and to address election irregularities before the Electoral College meets in December