Ohio Supreme Court throws out Arnebeck lawsuit on technicality
Filed under: General— site admin @ 4:41 pm Email This

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, the Associated Press reported this afternoon.

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.

Sources close to the case tell RAW STORY that Arnebeck is very likely to refile shortly.

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, according to the AP.

More from AP:

“Claiming fraud, the voters cited reports of voting-machine errors, double-counting of ballots and a shortage of voting machines in predominantly minority precincts as reasons to throw out the results.

“Ohio and its 20 electoral votes determined the outcome of the election, tipping the race to President Bush. The state declared Bush the winner by 119,000 votes, but counties are in the middle of a recount — requested by two minor party candidates and supported by John Kerry’s campaign.”

Click on see more documents here link and check out Zell Miller article.

December 15, 2004

The Honorable J. Kenneth Blackwell
Ohio Secretary of State
180 E. Broad Street, 16th Floor
Columbus, OH 43215

Re: Compromised Hocking County Recount

Dear Secretary Blackwell:

I am writing to you on behalf of John Kerry and John Edwards, the Democratic Party candidates for President and Vice-President of the United States at the November 2, 2004 general election.

Given the information that has come to light regarding activity that occurred on December 10, 2004 at the Hocking County Board of Elections, the integrity of using the Board’s computerized tabulating system to conduct the recount of the presidential election has been seriously compromised. I assume that by now your office is fully aware of the affidavit by the Deputy Director of the Hocking County Board of Elections regarding what she observed and heard. Based upon this affidavit, I hereby request that you conduct a thorough investigation of the matter. In the meantime, the tabulating system should not be used for the recount and I hereby request that you order the Hocking County Board of Elections to conduct a full hand recount of the ballots and not use the tabulating system for the recount. I also request that you immediately impound the tabulating equipment and programming, and preserve it in its present state, and prohibit access to the same.

I also request that your office immediately review with all other boards of elections whether representatives of any company that may have been employed to program or prepare their tabulating equipment for the recount were made aware of the precinct or precincts that would be included in the three percent hand count. If such is the case, I request that you take corrective action, including ordering full hand recounts or allowing the candidates to have the systems tested by outside independent experts.

As the state’s Chief Elections Official, you have both the authority and responsibility to take these actions. Time is of the essence and your immediate attention is required. I look forward to your response.

Very truly yours,

Donald J. McTigue


Cc: Daniel J. Hoffheimer
Kerry-Edwards State Counsel, Ohio

169591, UH-OH!
Posted by troubleinwinter on Thu Dec-16-04 06:41 PM

"(ADDENDUM FROM THE NEWS EDITOR AND THE ADVOCATE LEGAL DEPARTMENT: There's no word yet on why, if Justice Moyer thought Attorney Arneback's contest of election was contesting his own election as Chief Justice of Ohio, he didn't recuse himself from the case immediately. Justice Moyer's failure to do so suggests that he has just made ruling on a case which, according to his written opinion, directly implicates his own personal and pecuniary interests. The News Editor and The Advocate Legal Department will be curious to see whether Attorney Arneback moves to recuse Justice Moyer from all further proceedings in the case, and/or files formal complaint with Ohio's equivalent of New Hampshire's Judicial Conduct Committee. The News Editor and The Advocate Legal Department believe that Justice Moyer's written decision may, if news reports are accurate, constitute a prima facie case of a violation of the American Bar Association's Model Code of Ethics, as well as any state-based reproduction thereof).

http://www.nashuaadvocate.blogspot.com

Arnebeck said that while he believes he is permitted to contest two elections with a common set of facts, "we're going to go with the flow." Filing the challenge again on Friday would depend on gathering the voters' signatures again, he said.

Searching Sanity, don't waste your time. Blackwell has ALWAYS been on in it, hes picking up a check from the fraudsters as we speak.

Also to further compromise the situation, Moyers was elected illegally, thus he shot himself in the foot by making the brash decision he did without the aid of other supreme court justices. It may be forced upon him to step down if its proven he was elected illegally by his staff, which means among arrests a likely formal contesting of the election.

What are you talking about?  Nothing I do with regard to this serious issue is a waste of time.

Ohio Chief Justice "Trips Up" Arnebeck lawsuit
by georgia10

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

Thu Dec 16th, 2004 at 17:13:43 CDT

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.

Ohio Chief Justice "Trips Up" Arnebeck lawsuit | 45 comments

two ways  i look at this. O nthe one hand, the CJ is of course right and it is an easy decision. the legislature and the statutes clearly seem to be saying that you cannot contest two "elections" at the same time. Fine.

On the other hand, this is total bull "expletive deleted". The entire trend of the civil procedure in this country seems to be towrds allowing the consolidation of like claims in order to reduced administration costs and the lieklihood of disparate judgments on like issues creating injustice.  Further, the semantic split of "election" to me seems disingenuous and calculated to throw up the exact roadblocks the cntestors now face. Since all "elections" were practiaclly the SAME election, if you prove fraud in one "election" you have pretty much thrwn all of the others into question. Total BS.

by Euphronius

--------------------
    makes sense, really

    my reading of the decision is that his reasoning was not that you could not contest more than one election at one time....its just that you could not contest an election involving the Chief Justice AND another election in which the Chief Justice must make certain decisions at the same time.

    Which in a lot of ways makes perfect sense to me.  If the law empowers the Chief Justice to preside over Presidential election contests, it is clear that he should do so----but combining that contest with a contest concerning his own race would force his recusal REGARDLESS of the merits of the case against the Chief Justice.

    Arneback should refile, and if the evidence shows that the same fraud schemes benefitted both Bush and the Chief Justice, he should file a motion for recusal by the Chief Justice.

Shouldn't Sybill Edmonds, if he is really working on the real case, be able to get an audience with Conyers or Cobb or someone?  If he is as close as you say he is to cracking this whole thing open then it shouldn't be hard for a person of his stature to get a hearing on the matter.

Sybill Edmonds is a she as far as I know, and they already had a confirmed audience on the radio, it was already aired a few times in vermont, another state, and I think I gave it to you.

But they have still not talked with Conyers directly about the issue, in fact they are nowhere near Ohio.

I think it is very close to the time necessary to bring to front runners in with the details of this story, if not to put more resources on it then at least to ensure they are aware of who and what they are actually dealing with (well, possibly dealing with, I dont really know).

The question is, how can we do it?

Whenever you think the timing is ripe, I'll try forwarding all the data you have given me and anything else you want to add to DU'ers like WilliamPitt who have connections to Conyers, etc.  Although I dont know if they will be very receptive unless you can provide some more compelling evidence to link it all together.

We will have that compelling evidence by way of what FormerCIA has dug up and myself, we have a full list of members in this fringe movement, the documents on Duane which you need to read (It does cost) and also a few very important details on the family. Its being handled right now.