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Ohio Justice Throws Out Election Challenge


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Dec 16, 4:26 PM (ET)


(AP) Nancy Bihary and Anastasia Pantsios, right, look at a ballot during a recount Thursday, Dec. 16,...
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COLUMBUS, Ohio (AP) - The Ohio Supreme Court's chief justice on Thursday threw out a challenge to the state's presidential election results on a technicality, ruling that the request improperly challenged two separate election results.

Chief Justice Thomas Moyer ruled that state law does not allow voters to challenge the results of more than one race in a single complaint. The challenge likely could be refiled.

The challenge before Moyer, filed Monday on behalf of 40 voters, included the results of the presidential race and of Moyer's race against a Cleveland municipal judge.

The wrangling begins.........this reminds me of a favor I asked Sandra :o

Is this judge ruling on a challenge to his own election? Conflict of interest?

I don't think this is the one the attorney filed.

GEEZ!!! Didn't those filing the challenge consult an attorney first? It was thrown out based on improper filing procedure, a technicality.

I'm reading this correctly: The same Judge whose election results were being challenged sat on the bench for this proceeding? Shouldn't he have recused himself for conflict of interest?

Need to rate this Yahoo Story up Challange needs to be Refiled



Ohio Justice Throws Out Election Challenge

Thrown out on a technicality, can be refiled.

Snip

Without listing specific evidence, the complaint alleges that 130,656 votes for Kerry and John Edwards (news - web sites) in 36 counties were somehow switched to count for the Bush-Cheney ticket.


The allegations are based on an analysis comparing the presidential race to Moyer's Supreme Court race against a Cleveland municipal judge.


But nothing in state law or any previous court decision allows challenges to be combined, Moyer said.


"Were this court to sanction consolidation here it would establish a precedent whereby twenty-five voters could challenge, in a single case, the election results of every statewide race and issue on the ballot in any given election," Moyer wrote.


Messages seeking comment on the court decision were left for Jackson and Arnebeck.

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http://news.yahoo.com/news?tmpl=story&u=/a...el_pr/ohio_vote

Isn't it amazing. The story is all over the place when it's rejected. Hmmm!

don't forget that the freepers read our boards and are likely the ones hammering the story down with low ratings.

they haven't yet made a public call to keyboards but they're following DUs take on the issue:

http://www.freerepublic.com/focus/f-news/1...sts?q=1&&page=1

NIce interpretation of what the ruling today means:

Ohio Chief Justice "Trips Up" Arnebeck lawsuit
by georgia10
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Thu Dec 16th, 2004 at 18:13:43 EDT

Link to the Ohio Supreme Court decision
RawStory Link
NY Times (AP) Link

As Chief Justice, I have statutory authority to determine only the
challenge filed by the contestors to the election of President and Vice-President.
No statute or case law authorizes the filing of multiple election contests in a single
case. The complaint is fatally defective. I therefore order that the contest of the
presidential election held on November 2, 2004, be dismissed without prejudice.
So ordered.
What does this mean? More, below.

Diaries :: georgia10's diary ::

"Dismissed without prejudice" is not fatal to the case...far from it. It's a procedural slap on the wrist.

Here are some questions answered:

1) Did they decide anything about the claims?

No. It means that the complaint itself was somehow improper in form. This decision is NOT based on the merits of the case or the substance of the claims.

2) Can they appeal this decision?

Probably not. Generally, you can only appeal a "final judgement;" and dismissal without prejudice isn't generally construed as a "final judgement" because the claim isn't resolved or dead. It can easily be adjudicated anew with the filing of a new complaint.

However, it is possible that this can be appealed if it precludes Arnebeck from bringing the same case forward. This might be a possible argument, if there was little or no time to re-file,.

3) Who decided this?

The Chief Justice. And the Chief Justice only. The Chief Justice has sole discretion in pre-trial motions. Read more concering the amibuity in Ohio law about who gets to decide what in the recount process here.

4) What did he decide?

Basically, the decision states that Ohio law, viewed in light of the intent of the legislature, does not allow two different elections to be contested together. Here, it is the presidential election and the Supreme Court election which were objected to.

Chief Justice Moyers took a strict constructionist approach to reading Ohio law ( Preznit Bush would've been proud!). He said that since the law states "an" election appeal shall be filed with the Supreme Court, the law "clearly" allows for only case to be filed per complaint.

Here is the pertinent part of the decision:


Nothing in the pertinent election-contest statutes or case law
construing R.C. 3515.08 permits contesting more than one election in one case.
In fact, the statutes contemplate that an election-contest case will challenge only
one election. For instance, R.C. 3515.09 provides that "[a] contest of 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")
(emphasis added), and R.C. 3515.14 provides that the court shall dispose of an
election contest by pronouncing judgment as to "which candidate" (not
candidates) was elected.

{¶ 6} In adopting R.C. 3515.08 the General Assembly recognized that
election contests by their nature are not well suited to consolidation.
Consolidation of two election contests--one challenging the results of the
presidential election and one challenging the election of the Chief Justice--
unnecessarily complicates the two contests procedurally. R.C. 3515.08 vests responsibility for deciding the election contest concerning the presidential
election with the Chief Justice of the Supreme Court of Ohio. However, under the
statute, the Governor selects another justice to hear a contest of an election to the
office of Chief Justice of this court. Therefore, if this combined election-contest
case were to proceed as filed, two separate justices would be responsible for
presiding over two separate contests in one case. No words in the statute nor any
decision of a court of which I am aware supports a conclusion that the General
Assembly produced that result. Moreover, were this court to sanction
consolidation here it would establish a precedent whereby twenty-five voters
could challenge, in a single case, the election results of every statewide race and
issue on the ballot in any given election.

Arnebeck likely filed both suits together thinking that the Chief Justice would have to recuse himself from the case because he was a candidate for the Supreme Court election. But like any man in a position of absolute power, the Chief Justice here says no. He still wants to preside over the Bush/Kerry part of the suit, so he dismissed the case to get his way.

I think the most disturbing part is the last part, where he doesn't want to "set precedent" of 25 voters challenging the election results of every race and issue. This would seem like a valid point; however, where votes for all those races/isses were cast on the same machines which are, in effect, the essence of the dispute, I think it would be logical to keep them together.

5) What can be done? Arnebeck can refile this with a simple "cut n' paste" , cutting out the Connelly stuff and putting it in a separate document and filing it that way.

Under Ohio law:

"The petition must be filed within 15 days after the results of the election have been “ascertained and announced by the proper authority” or if there is a recount within 10 days after the results have been ascertained and announced. R.C. 3515.09. On October 5, 2004, the Ohio Supreme Court held in Maschari that “ascertained and announced” in this statute refers to certification of election results under R.C. 3513.22.
The Election results were certified on December 6th. If my math is correct, that would give them until December 21st to refile. More than enough time, of course. Just to make sure, it is the objection to the election results that was dismissed, NOT the legal filings in relation to the recount injuction. In any event, this is just a brief explanation from my (not professionally legal!) point of view. Post your questions/comments and we'll see what else we can hash out about this.

go to link to see comments

http://www.dailykos.com/story/2004/12/16/171343/04