Attorney Political Analysis of Election Officials' Convictions in Ohio 2004 Pres recount rigging

[Land Shark]

Election Attorneys Amplify Importance of Convictions
for Recount Rigging in Ohio 2004 Presidential Race

Even in Democratic County, They Rigged To Avoid The Extra Work and Embarrassment that Finding Discrepancies Would Bring

a news analysis
by Paul Lehto, Attorney at Law

THE BASIC NEWS:

The verdict is in on whether the November 2004 presidential election recount in Ohio was "illegally rigged {by election officials} in what was supposed to be a random sample recount in {order} to avoid a time-consuming hand count of all votes." http://wcpo.com/news/2007/local/01/23/oh_elections.html

Verdict: Two officials found Guilty of felony level negligent misconduct in elections. The lowest level manager of the three officials charged was acquitted on all counts.

The two convicted Election officials face terms of 6 to 18 months in prison. A third assistant manager was acquitted on all counts. http://www.ohio.com/mld/beaconjournal/news/state/16536269.htm

The recount was originally requested by the Green and Libertarian presidential candidates, David Cobb of the Green Party and Michael Badnarik for the Libertarians as a statewide recount. The felony convictions represented misconduct only in Democratic-vote-rich Cuyahoga County, located in and around Cleveland. http://www.ohio.com/mld/beaconjournal/news/state/16536269.htm

===========================================

THE NEWS ANALYSIS

"If any intelligent and loyal company of American citizens were required to catalogue the essential human conditions of national life, I do not doubt that with absolute unanimity they would begin with free and honest elections. "And it is gratifying to know that generally there is a growing and nonpartisan demand for better election laws; but against this sign of hope and progress must be set the depressing and undeniable fact that election laws and methods are sometimes cunningly contrived to secure minority control, while violence completes the shortcomings of fraud."

--Remarks on the Tariff and On Voting Rights, From the Second Annual Message to Congress, by President Benjamin Harrison, on December 1, 1890. (italics added)


As an election attorney, in response to the above news of the convictions of Ohio Elections officials concerning the 2004 presidential recount, I talked briefly with some other election attorneys that could be reached on short notice. Unless otherwise noted or quoted, the following news analysis is mine.

First, the prosecutors in Ohio did not seek to prove that the criminal misconduct affected the election – but this does not mean the presidential election wasn’t affected by the recount shenanigans. As any lawyer knows it would be foolish to set out to prove more than one is required to prove by the elements of the offenses charged. Moreover, charges of partisan intent would likely fall flat with a jury in a Democratic county like Cuyahoga, so the prosecutors played it mostly by the book in alleging only a motive of avoiding work. That motive would apply statewide, but additional partisan motive would be present in other places.

Ohio attorney Bob Fitrakis, an attorney involved with 2004 election-related litigation in Ohio, commented:

"The rigging of the recount was the NORM in Ohio, and the Cleveland convictions are just the tip of the iceberg. The recount rigging came right from the top with Ken Blackwell saying that the definition of "random" recount was whatever the locals decided -- including nonrandom selection of ballots and allowing private vendors to pick the precincts to be recounted. I think Blackwell (who was co-chair of the Bush Cheney campaign) knew that a proper recount would have revealed that John Kerry was elected by Ohioans in 2004, and not the candidate Blackwell represented in Ohio. As attorneys in pending litigation in Ohio, in our case it is our goal is to continue to preserve the ballots in Ohio so that citizens and scholars can determine the true count someday soon. As a matter of fact, limited proper recounts have been performed and wherever we've counted we've found discrepancies in favor of Kerry."

According to the Free Press Defense attorney Roger Synenberg, who represents {election official} Dreamer, told the jury that the recount was an open process, and that his client and the others "were just doing it the way they were always doing it." http://www.freepress.org/departments/display/19/2007/2362 These and other defense excuses were either rejected, or else the jury impliedly also found that Ohio's recounts have always been criminally negligent.

I am involved in congressional election contests in California and state election contests in other states, and it seems to me that it's especially important to note these convictions come in a Democratic County, showing that Democratic officials could not be trusted to recount DEMOCRATIC votes. For these election officials, avoiding the personal embarrassment, avoiding the fishbowl, and avoiding being "another Florida" all combined to inspire criminally negligent misconduct on the part of elections officials, and thus obviously trumped both any desire the election officials may have had to get at the most truthful honest total as well as any desire they may have had to see Democrats prevail, if any.

A recount will not always get us the truth of an election: if you recount a stuffed ballot box ten times, you'll get the same stuffed result ten times, and you'd be a fool to pronounce the election clean. Moreover, if the recount is rigged to match the reported election results, a recount doesn't even prove that the machines counted correctly the FIRST time, which is normally what a recount could prove, because the "adjustments" to the ballots after the first count cover that up. The most important lesson from these Ohio convictions, in my opinion, is that only CITIZEN RECOUNTS can be trusted. Elections officials simply have too many built in unavoidable conflicts of interest. These include not only avoiding work and helping the candidates they voted for (whichever ones they are) but they also include the fact that the government gets all of its power and taxing authority via elections and therefore can not watchdog itself. It's clear that citizen oversight of elections is the one indispensable thing in elections, yet it is virtually extinct in this country. We need to demand that citizen oversight of elections be restored, in full, immediately. Obviously, this must mean ballot counting that citizens can actually see and understand, not secret vote counting on proprietary software on trade secret corporate hard drives. Even if you think Ken Blackwell was a good guy, it's clear that no government officials of any party can be trusted to administer elections without extensive citizen oversight."

Election attorney Ken Simpkins, a veteran of election contest battles in California’s 50th congressional District along with me, said “This verdict shows us what is possible when citizens are allowed to seek the truth about the conduct of public officials. Too often, judges are willing to give their fellow public servants a pass when it comes to accountability. Responsible citizens are left wondering what happened to the idea that the government is theirs. I know from first-hand experience in San Diego how hard it is for voters to be heard in the courts on issues relating to how their elections are conducted. Here in San Diego we've got touch screens, paper trails and audits and that system just doesn't work at all, but that message has yet to be heard nationally.” The new Holt bill proposes just such a paper/audit “solution” nationally. Simpkins continued: “I am inspired by the group of citizens and lawyers who pursued the truth in this case for two years overcoming, I'm sure, many obstacles to achieve the result reached today.”

The lessons of Ohio also point to another important lesson. They support the proposition that any alleged election “safeguard” that is left for a time after the election is over is highly unlikely to be executed properly by elections officials of any party or even nonpartisan officials. This means recounts, "paper trails" "audits" or what have you are often given short shrift.

One partial solution: The press needs to back off its pressure for immediate results on election night and the first count (as well as any subsequent recounts and audits) should be carefully done under citizen oversight

One non-solution: Although it is a good thing for election officials not to be involved with partisan campaigns, it is a formula for false confidence to simply have “nonpartisan” election officials, who will still have the same conflicts of interest the Ohio election officials had, and (if they vote) will simply be “secretly partisan” even if they split their tickets. Even Ken Blackwell and Katherine Harris could run and win as “nonpartisan” election officials and so long as they didn’t officially and openly serve as campaign managers, they could have the same corrosive effect on our elections.

Again, this dead horse is worth beating: There is no substitute for robust Citizen oversight of all aspects of elections. No federal bill is currently even talking about this, but it is nevertheless the indispensable condition or factor, the sine qua non of real democracy, which recognizes that power comes exclusively from the people alone, and that legitimate government is government “of the people, by the people and for the people.”

Electronic voting, via the Help America Vote Act of 2002 and its billions in federal funding for computerized elections, eliminated and X’d out the people from a meaningful oversight role in elections because they can no longer see the ballots and/or their counting, and therefore the people can not verify that we indeed still have the democracy Lincoln spoke of at Gettysburg.

The truth is that Congress, when voting on elections systems, is voting on the conditions of its own re-election, and therefore they could not FOR THE RECORD expressly favor unaccountable elections systems for their own elections that eliminate public oversight in favor of secret vote counting in their own future elections. This is the ultimate conflict of interest, and as a result of this conflict, legislators can and should be made aware that they are not really free (as they are in other areas) to vote for whatever election system they wish: in elections they must serve the public with a loyalty and selflessness that is unparalleled. Since the government can not watchdog itself in the elections that give the government its power, it is most certain that citizen oversight must be restored, and fully restored.

Barring the illumination of this conflict of interest by thousands of citizens (which has the capability of freeing the Congressional logjam and its baloney about what’s “realistic”) the restoration of citizen oversight must in any event be obtained, at least for Lincoln’s sake, and for the sake of democracy, by all necessary means.

-----END--------

For more information on restoring citizen oversight of elections see:
www.wethepatriots.org
www.freepress.org
http://www.freepress.org/departments/display/19/2007/2362 Presidential Recount Rigging begins to Unravel, by Fitrakis and Wasserman
http://journals.democraticunderground.com/Land%20Shark

This article may be freely forwarded, blogged or reproduced with full attribution preserved. The author may be reached at lehtolawyer at gmail dot com.

[MissWaverly]

1. Good analysis, it depresses me greatly

$200.00 dollars of my hard earned money went to the recount in Ohio, I did not spend this
money lightly but I believed that a recount was needed, the election officials made a mockery of the recount, this still has not been addressed, I was cheated, the entire country was cheated, and many of those involved will get off with no accountability at all, and what is the result of all this fraud, the worst leadership crisis I have ever seen in this country.

[Land Shark]

3. Your $200 was very well invested IF it leads to citizen oversight RESTORATION nt

[MissWaverly]

4. Yes, if it happens but the crooks have to be made accountable

otherwise they will not stop until they are caught, why should they? They will continue
to break into democratic campaign offices, steal voting lists, set up little convenient
purges of voter registration rolls. I want my country back and I want voter verified
paper ballots like Andy Stephenson told us we need. And I want these expensive machines
that never come up with the same total twice booted out the door and to the dump where they
belong.

[L. Coyote]

38. OHIO 2004: 6.15% Kerry-Bush vote-switch found in probability study

Defining the vote outcome probabilities of wrong-precinct voting has revealed, in a sample of 166,953 votes (1/34th of the Ohio vote), the Kerry-Bush margin changes 6.15% when the population is sorted by probable outcomes of wrong-precinct voting.

The Kerry to Bush 6.15% vote-switch differential is seen when the large sample is sorted by probability a Kerry wrong-precinct vote counts for Bush. When the same large voter sample is sorted by the probability Kerry votes count for third-party candidates, Kerry votes are instead equal in both subsets.

Read the revised article with graphs of new findings:

The 2004 Ohio Presidential Election: Cuyahoga County Analysis
How Kerry Votes Were Switched to Bush Votes

http://jqjacobs.net/politics/ohio.html

A small spreadsheet too:

http://jqjacobs.net/politics/xls/cuyahoga_t_tests.xls

A lot of good it did to recount the ballots when there was a 6% vote-switch. Wrong-precinct voting counts the same every time.

So, barring any new evidence, every penny spent on the recount may have just detracted, just long enough, from pursuing the real fraud to get the election certified. Hindsight is golden, especially in smoke-filled spaces, cyber or otherwise. However, that does not change the tallies and the evidence.

[L. Coyote]

39. DU Election Reform Discussion here:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=466044&mesg_id=466044

[Kurovski]

2. "election laws and methods are sometimes cunningly contrived ..."

Like MissWaverly, I also find it depressing that such carelessness was practiced. The excuse for it sounds very cowardly (if true).

However, it is also a rather convenient excuse. (Lazy and nutty, too.) 6 to 18 months in the pokey hardly seems sufficient.

[MissWaverly]

5. Yes, and I hope they don't get pardoned

because they are basically nice people.

[Land Shark]

6. Supposedly, we PASSED HAVA to avoid "another FLorida" so this proves that ANYTHING

can happen in our elections to 'avoid another Florida." yet, i've always wondered what was so awful about a careful recount for the most important position in the world, even if it takes several weeks?

i.e. "avoiding another Florida" translates as "avoiding close results and attendant recounts" in the minds of some or many elections officials

[MissWaverly]

8. the whole problem with Florida was lack of standardization

and the difficulty reading the hanging chads and butterfly ballots, plus the usual
skullduggery, but you are right, if the Supreme Court had not jumped in with
their decision, a careful recount would have been made, and a winner would
have been resolved within the standards already set down.

[bleever]

7. Key points you make

include:

Can't rely on the notion of "nonpartisan" election officials;

Misfeasance by Democrats and Republicans are both unsatisfactory;

Remedies that follow the election per se are ineffective, despite their reassuring promises.

Right?

Damn, if we ran the voting like the casinos run their games, we'd really all be better off. None of this "trust me" crap.

[MissWaverly]

9. yes, I agree

well, I am sure that we have had 6 years of proof why this fraud should not
continue.

[Land Shark]

10. yes, those are the basic points, plus restoration of citizen oversight of elections

[bleever]

12. Not oversight by some citizens;

the oversight of any and all citizens. I.e., anyone can check, as if they were stockholders in a public corporation?

[Land Shark]

14. well that makes a whole lotta sense don't it?

and if they've moved the venues to larger places like gymnasiums and that still isn't enough to accommodate public interestin oversight, then they can do a lottery for the top 100 citizens (or whatever) that can be accommodated at the largest possible vote processing sites in that particular county.

[bleever]

16. Nah.

There should be quarterly report-style documentation, where every stockholder expects and gets a full documentation of the full financials. Except, elections are inherently less complicated, in their basic inception, than corporate finance.

Open source, publicly available, published at the controlling authority's expense.

[Land Shark]

20. Another key point from OP: Fact of birpartisan officials in Ohio didn't save anything...

Of course even the Dems on the election boards served at the pleasure of Blackwell and Blackwell cast the deciding vote in case of tie and the boards were setup as 2 Dems and 2 Reps so it is a formula for forcing the party that doesn't control the SOS position to believe that resistance to party shenanigans of the party that does control the SOS position is futile.

Remember how MANY excuses were made for Ohio because of its bipartisan boards, though?

crossposted GD discussion of this article: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x465777

[bleever]

24. And in Florida, where "Democrats" are well-represented in running elections,

a similar scenario occurred.

[kster]

11. My only question , Where was the SWAT team?

when these election workers decided to cut their day short?

http://seattlepi.nwsource.com/national/181877_kerry13.html

Hmmmmmmmm............

Good work Landshark. K&R

[midnight]

13. Hi landshark. I was hoping to get your response about Ohio

election rigging. My new mantra about everything and not just voting is "citizen oversight". The justifications that you describe in your post for voting apply to other shenanigans going on in this administration. Because when you get down to it, election officials or not, those in govt. have too many built in conflicts.

[Land Shark]

15. Yup, the whole idea of auditing one's self, watchdogging one's self - all RIDICULOUS

citizen oversight, not self serving blue ribbon rubber stamp panels (if pressed to the wall...)

THank you.

[rumpel]

17. great post

Citizens should have a right to audit any dealings in their county leading up to the elections - including the processing of voter registrations, instead of being shoved down less than mediocre competency down our throats.

[Land Shark]

18. The facts of this post are the answer to the charge that Dems would never work with Blackwell....

but, in effect, they DID have a unity of interest in avoiding accountability: avoiding a proper recount that would make them WORK and make them perhaps embarrassed, i.e. "another FLorida." This was sufficient to overcome any partisan checks and balances showing that the indispensable check and balance is PUBLIC OVERSIGHT.

[rumpel]

25. I agree, the "to avoid work" is observed at the county registrar's office.

I have previously reported on the problems we had with my daughter's registration.
The registrar's office reminded me of the notorious CA, DMV when people coined the phrase "spend your day at the DMV". You see employees sitting, chatting, wandering about -

We here in Los Angeles County, like in so many other counties - have not insisted on oversight of the registration process - we are to take their word - of "not having received", of having received "damaged registrations" and on and on, when in fact, I suspect they were inputting data at a pace that disqualified many legitimate registrants on the day of elections, forcing them to vote "provisional".

The dis-organization - continues:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x465855

[Land Shark]

27. It's somewhat endemic to HUMANS (not just govt) you can see it in large corps

or anywhere people have enough space where they can get away with it (lack of supervision means that backlog of need for R&R can be remedied and for many that backlog is seemingly equal to the rest of life...: ) ) People are famous for sleeping in the rafters of the Boeing warehouses (huge) in Washington state for example and the stories there rival the government stories..

[nicknameless]

19. Kick

(Recommended earlier)

[mod mom]

21. "Even in Democratic County" , of course where the majority of Dem votes occur,

but as Bob, Richard, and Harvey have commented before-this was wide spread.

I love how the corporate media is quick to point out that this wouldn't have changed the "presidential" results. Yeah...right, they know for sure.

:sarcasm:

Another excellent post, Paul!

[Land Shark]

22. yeah, the point is the RECOUNT WAS NEVER DONE so how can they say

the results "wouldn't have changed"? This is TOTALLY ILLOGICAL. They have no basis for saying it. (even if we somehow "knew" they were right, they still have no factual basis for saying it within the context of this story)

ERRATUM, in the paragraph that starts "According to the Free Press Defense attorney Roger Synenberg, who represents" there should be a comma after Free Press, which would then indicate that the defense attorney is not affiliated with the free press, instead the free press is the source of this particular piece of information. See www.freepress.org for great democracy coverage.

[mod mom]

23. In Ohio, they are saying it might change some local races/school levees. How could

any one know?

Thanks for the correction.

:patriot:

[MissWaverly]

26. Your response also brings up another issue

the only recourse in a disputed election is currently the recount, we see both times
in 2000 and 2004 that this was effectively subverted, once through the Supreme Court
and once through the machinations of various election officials in Ohio, can you think
of any strategy to insure that a recount will be done as stipulated. Any ideas?

[kster]

28. Kick.nt

[Land Shark]

29. Late breaking comments I wish I could have included, but just kick for now...

[kster]

31. Why would they rig the audit? The audit

determines, how they would have to do a full recount of all the ballots.

The audit determines one of two things:

A) We have to do a full Hand Count of all the Paper Ballots, or

B) We have to do a full count of the ballots using the same machines that counted the ballots in the first place.

They went with B, Rig the audit so that all we have to do is rescan the ballots, But why would the employees care what the audit turned up, it isn't like the two or three of them would have had to sit there and Hand Count ALL the Paper Ballots .

Which leads me to believe, because of what they said in the article "its the way they always do it" an audit is the Politicians (in football terms) the "Hail Mary Pass" their last chance (if all else fails with the voting machines) to keep the people away from Hand Counting the Paper Ballots.

My two cents.........

[autorank]

35. You think like a Cynic...and that's appropriate. K&$

Why?

If you're afraid of the results of a recount, you rig the audit to prevent a recount.

They said that this is the way that they do it. How many times have they done this for a
recount? Just asking, don't know.

They threw a "Hail Mayr" but they're no Doug Flute.

KR

[Contrite]

30. KEY phrase here re: Holt's bill

Snip:

"Here in San Diego we've got touch screens, paper trails and audits and that system just doesn't work at all, but that message has yet to be heard nationally.” The new Holt bill proposes just such a paper/audit “solution” nationally."

Ergo, Holt's bill must be stopped.

[kster]

32. Tell Holt to do what is RIGHT or we will show him the way (PERIOD)

the game is OVER, DONE...............

[Land Shark]

33. They should instead be thinking about restoring public oversigh

and broad FOIA rights, etc., such as is outlined in significant part at www.wethepatriots.org

Even little, incremental, increases in information to the public are net gains. This however is not true of seemingly "incremental" changes to complex interdisciplinary elections systems, such as adding paper trails, which turns the whole kaleidoscope and not in a good way, either.

[Contrite]

36. Agreed, 100%.

And thank you for everything you are doing, Paul.

[Land Shark]

37. Thanks for mentioning it, though I hesitate to proudly thank someone named "Contrite" : )

[Wilms]

34. Thanks for the thoughts, LS.

This case is rich with the various colors of fraud it reveals and indicates. I hope we can build upon the lessons it offers others about the way "humans" operate, let alone partisan thieves.

One minor adjustment. e-voting predates both HAVA and the 2000 elections. There was plenty of scanned balloting and some DREs around. HAVA was probably a greater threat with regard to the proliferation of DREs, and in the erroneous interpretation leading states to abandon levers.