What are our post-mortem election rights? Specifically, what constitutes "actionable fraud"?
Also, did you know there is a fascinating historical parallel to our recent election madness?
This and more I found in a comment posted by Major Tom just before the pre-Thanksgiving bustle.
I think the free legal opinion here is worthy of the several minutes you'll need to thoroughly read this enjoyably written mini-treatise by Major Tom.
BTW, I suggested to Major Tom that he re-post this as a diary because it was far too dense and difficult to read--not to mention easily missed--as a mere comment. Major Tom graciously declined, but gave me permission to post it and make formatting changes. And changes I did make. You can blame the annoying italics, bolding, subject headers, etc., all on me. My intention was to make it easier to read on the computer--forgive me if you find it distracting.
If History is always good prologue when it comes to politics. Back in 2000, nearly all of America
(Republicans as well as Democrats) became uncomfortably aware that that
our election system was severely broken in numerous places around the country. Of course, nowhere was that more clear than in Florida with its hanging chads and butterfly ballots. In fact, it was
so terribly broken in Florida that the
election was actually handed over to the loser, GW Bush. Months following the election, and after an exhaustive review of all the state's voting precincts, a number of reputable news organizations, including the
Wall Street Journal (hardly a bastion of liberalism), concluded that
Al Gore had in fact won Florida and should have taken all its electoral college votes and been elected President of the United States, if all the votes would have been counted based upon the intent of the electorate.
But heck, we knew that by just considering all the lost votes due to the infamous "butterfly ballot." Remember, Bush ended up winning the state by less than 600 total votes, while the votes lost by Gore by reason of the "butterfly ballot" exceeded 10,000 in number (all those Jewish people in Palm Beach certainly weren't voting for Buchanan, a candidate who loudly proposed giving less financial and military support to the State of Israeli). By the way, the irony is that Gore would have picked up thousands of votes in central and northern Florida (including the Panhandle) had he been sage enough to request a hand count in all of Florida's counties when he first requested a recount.
Well, when the outrageous U.S. Supreme Court (using incredibly spurious logic and reasoning, breaking many well established legal precedents, and smashing entirely the seminal concept of "res judicata"), subsequently pulled the plug on the statewide recount that was well in progress, it seemed everyone sought of just went home and completely forgot about the outrageous miscarriage of justice that had just occurred in our nation. For me, I can tell you, the resulting silence was disturbingly deafening.
Justice in the Supreme Court?
By the way, if the U.S. Supreme Court had orally informed the attorneys for Gore and Bush of their vote count deadline at the end of their oral vote, and not have waited the few days for the official opinion to be written up, the Florida statewide recount could have been hastened and might have been fully completed in time for the false, statutory imposed deadline of the U.S. Supreme Court.
Thus, following the U.S. Supreme Court's incredibly partisan ruling in a case of such national enormity, I began asking myself: Where is the OUTRAGE? Where is the righteous indignation of the American people!!! When are they going to rise up, even if it's only half of them. Of course, there was none; or should I say, there was very little, considering the very high stakes involved. I know, Al Gore had a lot to do with the lack of deep concern and wide public discontentment as well as clarion calls for instant change. Yep, he simply moseyed off into the sunset, and the Democratic powers that be at the time simply followed in his steps. And, of course, we sheepishly followed them. For me, that is when I lost all respect for Al Gore and when the silence became even more deafening to me.
Historical Precedent for the Taking
Yet there was precedent for Al Gore not to give up so easily and scream "foul" to the top of his lungs. Back in the Presidential Election 1876, there was close election where vote fraud had been claimed and which involved no less, the State of Florida. That election was between Samuel Tilden (Dem) and Rutherford Hayes (Rep). Tilden had received 250,000 more votes than Hayes, and he needed just one (1) electoral vote from the four disputed states of Florida, Louisiana, Alabama and Oregon to win office. On the other hand, the very determined Rutherford B. Hayes needed to take the electoral votes from all four of those states in order to win the Presidency. Because the Constitution did not give the U.S. Supreme Court the relegated power to decide the election controversy, the dispute eventually fell to the Republican Congress which swiftly voted along party lines and awarded the election to their brethren, Rutherford Hayes. At that point in time, Tilden and his brethren could have sheepishly walked away like Al Gore had done in 2000, as appears Kerry is doing now; however, they didn't.
The Democrats were so outraged and DETERMINED not to be defrauded, they fostered nationwide threats of civil war. With the country in such grave turmoil, the two parties subsequently entered into negotiations and finally reached the famous "Compromise of 1877" by which the Republicans acceded to several hard demands of the Tilden forces which included guaranteed appointments of Democrats to certain Federal offices and posts as well as a promise that Hayes would not seek a second term of office as President. Gosh, if only Gore had been more like Tilden.
The main point of the above history lesson is that Democrats should not be afraid to stand up at any cost and declare they will not be hoodwinked by Republicans fraudsters. Incidentally, Rutherford B. Hayes kept his promise and did not run for re-election in 1880.
What is the Legal Concept of "Reasonable Suspicion"?
There is something else of import that all of us should keep in mind. It is the concept of "reasonable suspicion." In brief, it's a standard that law enforcement authorities need to meet in order to stop and search a citizen, a car and so on; and it can be the valid basis of an eventual arrest. Indeed, it is less than a "probable cause" or "more likely than not" legal standard. Thus, a twenty or thirty percent likelihood of a given event or fact would meet the "reasonable suspicion standard."
Furthermore, hearsay can be the basis of a "reasonable suspicion" threshold finding, while an actual warrant issued by a judge or magistrate is not necessarily required. Certainly, it is a much less stringent minimal bench mark than "actual proof." Unquestionably, if actual proof were always required, there would be very few legitimate searches conducted across the country on the part of law enforcement authorities.
The point that should be garnered from the brief recital of law set forth in the previous paragraph is that absolute guarantees of proof are never required in the law before a search of anything can be conducted. Furthermore, under our legal system, this basal or minimum standard of "reasonable suspicion" is quite sufficient in the criminal law arena where rights are more greatly coveted and protected than in the civil law arena in which considerations of recounts would more generally apply. Therefore, a suspicion legitimately based upon any facts and inferences, including hearsay, are enough to base a civil or quasi-civil case (which a recount case is), even if those facts represent only a small percent of actual likelihood or probability, so long and on the condition that it is made in good faith.
Do We Have Sufficient Grounds?
So to all those who are screaming "where is the indisputable facts or truth, because I haven't heard any yet," I say to them, "that at this point in the proceedings, indisputable proof is not required whatsoever."
In fact, because we are not suggesting that a criminal action be brought, the standard of proof is even less than "a reasonable suspicion." Don't we at least have some of that from what we have thus far heard? OF COURSE, WE DO. Just think about what we now know to have occurred in Volusia County, Florida; or what has occurred in South Carolina; or what has occurred in Ohio, and so on and so on. Even the enormous
improbabilities regarding the discrepancies between the exit polls and the actual poll results should raise within all reasonable people a "reasonable suspicion" that something is definitely awry concerning many of the 2004 poll results. Wasn't the odds 250,000,000 to 1?
Actually, with regard to some of the reports we have been hearing from here and there, I would respectfully suggest that the criminal law, "reasonable suspicion standard" has also been met concerning some of the activities that we have been informed about - destroying original polling tapes. At least, that is my view. Again, however, we are not suggesting that someone bring a criminal action at this point in the continuing controversy. We're talking about a "quasi-civil action" here.
What "Civil Discovery" Would Allow:
There is also the matter of "civil discovery." When someone begins a civil action, the parties then have a corresponding right to request an inspection of documents and or other evidence, including equipment, admissions, and answers to specific questions under oath (interrogatories or depositions) from the other party or parties to a civil action. All of these rights are set forth to assist and aid each party in proving their base allegations as set forth in their complaint or petition.
In our particular situation, we would greatly appreciate a look into the brains and guts of some of the voting machines and voting tabulators, wouldn't we? Yet, unless and until we request a formal recount, or we challenge an election outcome itself, we will never be allowed that right and opportunity to analyze what these machines actually do and don't do.
"Res Ipsa Loquitor," What It Means:
There is something else that I should discuss at this point. There is an old legal doctrine on the books known as "Res Ipsa Loquitor." It is a Latin phrase which basically means, "Let the object speak for itself."
Where's the Burden of Proof?
How is Res Ipsa Loquitor applicable here? Well, in theory, when something goes awry concerning an object or instrumentality which is in the exclusive control of a person or persons, be it equipment or the like, and that failure does not normally occur without fault or without negligence, then the burden to prove that the object or the machine did not malfunction in a certain way then legally shifts to the owner or exclusive possessor of that very object or machine.
Respectfully, under the principles of this specific, time-tested legal doctrine, I would contend that Diebold, et al., should be required to prove how any of its vote machines malfunctioned in any given instance, or put another way, they should have the burden of proof to demonstrate that all of its machines functioned properly, just as they were intended to function. You know, when you really think about the fact that our democracy itself happens to be at stake, that isn't asking a whole lot.
About "Trade Secrets"
Finally, I should discuss the semi-privileges of "proprietary interests" and "trade secret" holders. Friends, they are not absolute. Everyday within our courts throughout the land, trade secrets and proprietary rights cases are litigated. Famous cases involving KFC, Coca Cola, Pepsi, Disney and IBM are just a few examples from many thousands I could mention. Indeed, I could go on and on. Furthermore, parties are frequently ordered by the courts to give up trade secrets and make them known to the court and the opposing party's experts, if justice cannot be served otherwise.
In the case of proprietary interest companies like Diebold, I would predict that a judge would likely order that the secret codes underlying all functions of these voting machines or tabulators, as well as some the voting machines and tabulators themselves, be given over to a candidate's experts, so that they might have a reasonable opportunity to test for themselves whether or not these machines do exactly what they are legally supposed to do and nothing else.
Likely, the court would safeguard the limited release of those trade secret codes by swearing an expert to strict confidentiality. That same court would also likely require the candidate to pay Diebold whatever its reasonable costs might be incurred in order to recode the voting machines and tabulators. That's right, my friends, these voting contraptions simply need to be recoded in order for them to be fully functional and operational again. And I suspect we're not talking about an enormous recoding expense. Really, it's not like Diebold would have to throw all their machines away and start all over again.
Absolute Proof--Nonsense!
So to all those who demand absolute proof, I once again state that absolute proof of fraud (or a smoking gun) is not needed at this point in the proceedings. However, for those who still want to hear about some quite definitive fraud, please consider the following:
(1) That when voting officials tell the voting public that they have counted all ballots, when they have in fact tossed huge batches of ballots in the trash canisters, then that is actionable fraud.
(2) That when voting officials tell the voting public that they have counted all ballots, when they have in fact loaded huge batches of ballots in the back of a pickup truck that just happens to have a pro-Bush sticker on it, then that is actionable fraud.
(3) That when voting officials tell the voting public that they have turned over all official voting tallies, when they have in fact tossed some official vote tallies that they said didn't exist into trash containers, then that is actionable fraud.
(4) That when voting officials state that they have turned over all official records pursuant to an appropriate Freedom of Information Request (FOIR), when they have in fact not done so, then that is actionable fraud.
(5) That when voting officials secret or destroy public voting records in order to conceal it from the public, then that is actionable fraud.
(6) That when voting officials dissemble anything of significant import concerning an election, then that is actionable fraud.
(7) That when voting officials intentionally give the voting public wrong information about who can or cannot vote in an election, then that is actionable fraud.
(8) That when voting officials intentionally give the voting public wrong information concerning where a person can or cannot vote, then that is actionable fraud.
(9) That when voting officials intentionally give the voting public wrong information about who can or cannot register to vote in an election, then that is actionable fraud.
(10) That when individuals, under the color of authority, accept voter registrations from members of the voting public and promise to bring them to the Registrar of Voters, but instead tear them up or throw them away, then that is actionable fraud.
(11) That when members of the opposing party give the voting public wrong information about who can or cannot vote in an election, then that is actionable fraud.
(12) That when members of the opposing party give the voting public wrong information about where a person can or cannot vote in an election, then that is actionable fraud.
(13) That when members of the opposing party give the voting public wrong information about when a person can or cannot vote in an election, then that is actionable fraud.
(14) That when members of the opposing party tell the voting public that they will be arrested for overdue parking tickets at the polling site when they vote, then that is actionable fraud.
(15) That when voting officials tell the voting public that they do not have any additional machines to put on site, when they know there are another 87 of them sitting in their warehouse, then that is actionable fraud.
(16) That when Blackwell states in a media interview that there were only a few minor problems during the Ohio election, when he knows the statement to be completely false and untrue, then that is actionable fraud.
(17) That when voting officials tell the voting public that they have enough voting machines on site, when they know that they do not, then that is actionable fraud.
(18) That when voting officials tell the voting public that they have sent out by mail, as per individual request, 50,000 absentee ballots, when in fact they did not, then that is actionable fraud.
(19) That when voting officials hide from the voting public the fact that they have thrown out thousands of provisional ballots, then that is actionable fraud.
(20) When voting machine manufacturers actively hide the fact that their key people who generate the secrets codes for their voting machines and tabulators are convicted embezzlers, hackers and felons, then that is ACTIONABLE FRAUD.
I could go on and on, depending upon which particular state or jurisdiction I happened to be talking about. Friends, it is important to remember that an election does not begin and end with a vote being cast on election day; instead it begins when one registers to vote and ends when all legitimate votes cast in a specific election are counted in full.
Perhaps the word "fraud" scares too many people? Well, if that is the case, then simply do not use the word "fraud" in any civil complaint, or any recount justification, or in any news article or internet post. Instead, use the term irregularity, impropriety, dysfunction and even error or mistake. In the twenty listed statements above relating to fraud, simply insert in lieu of the word "fraud" whatever word you happen to prefer, i.e. irregularity, impropriety, etc.
However, my advice to you is to scream out as loud as you can whatever word you choose to use, if you wish to have any reasonable expectation that the right people are going to listen and do something about your grave concerns.
A Few Other Important Considerations:
While I'm discussing improprieties, I should also mention a few other actionable grounds which can be used to base a recount or a election challenge upon. How about: voter suppression, voter intimidation, and voter disinformation. Or how about the fact that minority precincts and college precincts have half the operational voting machines in like precincts that happen to be located in Republican districts?
Do you think there is a legitimate case there?
Sure there is. And perhaps a Civil Rights Voting Act Case. You know, the problem is that there has been far too few legal cases authorized by Democratic leaders and filed in America over the last decade to correct these rampant voter inequities that seem to reoccur without fail each and every election cycle.
Do you realize that perhaps the votes of 60 people PER Ohio PRECINCT, who simply didn't have their vote counted because of intimidation, misinformation, long lines, hanging chads, undervotes, and overvotes or whatever, could mean the difference between Bush or Kerry being in the White House for the next four years.
Too Little, Too Late?
Within the next year or two, I fully expect some newspaper to come along, and after studying the Ohio vote in depth, write an illuminating and riveting column stating that if all the votes of the people who had intended to vote for Kerry in Ohio had been counted in full, then Kerry would have been duly elected President of the United States in the election of 2004. Isn't this more Deja Vu All Over Again? Just how much more of this can we all take or be expected to take?
Listen, I know I've gone on far too long already. I didn't mean to; but I felt I needed set forth some legal precedent and history. I say this because I fully agree with Tocque DeVille that the media as well as the blog masters have been so deafeningly silent when they should be our rally leaders.
Frankly, I don't understand the silence; but it is there. And I don't really know the exact reasons why. However, I do know that if we do not make this cause the most preeminent issue of the day right now, then we are going to have the same situation repeat itself in 2006 and 2008, and God only knows how long after that. Yep, it'll be that Deja Vu Stuff All Over Again.
You know, because seemingly passive Democrats and the National Media did NOT scream to high heavens about the Florida election irregularities right up until the time of the passage of "The Help America Vote Act" (HAVA), what we actually got was something even worse than what we already had.
Help America Vote Act Madness:
For those who do not know, the act actually financially rewards companies like Diebold that introduce "Direct Electronic Voting Machines Without Paper Trails" to new voting districts that formerly utilized a different voting system or operational format, including the OP-Scan System. Beyond that, HAVA has not changed much of anything else of any significant import or improvement. Yep, the Democrats simply got hoodwinked again. Hell, haven't we all figured that out by now? What else is new? "But damn the torpedoes, and full steam ahead," shouldn't WE bloody well now change OUR Modus Operandi before it's way too late?
Some Laughs?
You know, it's so painfully hilarious to think about it. In 2000 we have Bush in reality losing not only the total national vote count but also losing the real Electoral College Vote count; and yet he has the unmitigated gall to claim a mandate (through none other than Mr. Cheney) from that catastrophic election. And yet he gets completely away with it. Where the hell was the Democratic outrage when Bush claimed that phony mandate back in 2000? Also, just look what we got as a result of the fraudulently claimed mandate. Finally, what are we to be served up as a result of Bush's newest mandate proclamation? Is it too unbearable to even think about it? Only time will tell.
Now matter how you view it, the inescapable fact is absolutely clear: Whether or not Kerry can actually pull out this election is suddenly irrelevant to whether or not an exhaustive, post-mortem examination of the 2004 election should now be conducted post haste.
You know, friends, if the shoe were on the other foot, do you really believe the Republicans would have faded away so conveniently and so quietly? I think not. Perhaps, the Republicans are right about something: Because Democrats are not fighters, "they would constitute a great risk to our national defense, if they happened to be in power in a time of war."
Doctor in the House?
Finally, if you are a medical person or technologically oriented, then please think of this election as a suspicious poisoning death. In that case, don't you think an autopsy might be in order and like pronto.
Huh, no matter how it cuts, I guess it's just Deja Vu All over Again. Great song, isn't it?
However, it gets more than a bit stale after a while, doesn't it?
