by Steve Rosenfeld and Harvey Wasserman
February 3, 2005
Stiff legal sanctions sought by Ohio's Republican Attorney General James Petro against four attorneys who have questioned the results of the 2004 presidential balloting here has produced an unintended consequence -- a massive counter-filing that has put on the official record a mountain of contentions by those who argue that election was stolen.
In filings that include well over 1,000 pages of critical documentation, attorneys Robert Fitrakis, Susan Truitt, Peter Peckarsky and Cliff Arnebeck have counter-attacked. Their defense motions include renewed assertions that widespread irregularities threw the true outcome of the November vote count into serious doubt. That assertion has now been lent important backing by a major academic study on the exit polls that showed John Kerry winning the November vote count.
Petro's suit is widely viewed as an attempt at revenge and intimidation against the grassroots movement that led to the first Congressional challenge to a state's Electoral College delegation since 1876. The attorney general's action was officially requested by Secretary of State J. Kenneth Blackwell, who administered the Ohio presidential balloting while serving as co-chair of the state's Bush-Cheney campaign. Petro and Blackwell have labeled as "frivolous" the election challenge filing. Their demand for sanctions will be reviewed by the Republican justice of the Ohio Supreme Court.
Though Petro's filing was aimed at backing down further challenges to the Ohio vote, it has allowed the election protection attorneys to enter into the official archives critical documentation detailing dozens of problems with Ohio's presidential balloting. Among the documents now made part of Ohio's legal archives is a congressional investigation report from Rep. John Conyers that seriously questions the November 2 outcome.
The two now-infamous lawsuits in question, Moss v. Bush and Moss v. Moyer, argued that irregularities involving enough votes to switch the state's electors from Bush to Kerry, and from Supreme Court justice Tom Moyer to challenger Ellen Connally, gave the public the right to file suit. Underlying much of the challenge have been wide ranging questions about whether Blackwell administered the election in a partisan manner.
Blackwell refused to testify in the case, and he has removed from public access critical documents relating to the vote count.
Under Ohio law, an original action to contest election allows only deposition testimony. It was impossible during the ten days of discovery to take the depositions of tens of thousands of disenfranchised voters, the majority African-American. But, as a result of Petro’s sanctions motion, the attorneys were able to enter into evidence (as Exhibits 1 & 2) explosive first-hand sworn testimony from November 13 and 15 public hearings in Columbus about voting irregularities. Excerpts from these first-person accounts were published on the House Judiciary Committee Democrats webpage and were used by some three-dozen U.S. Representatives and Senators to challenge Ohio’s Electoral College certification in Congress on January 6.
That historic challenge and ensuing national debate deeply embarrassed Ohio's Republican establishment. Blackwell was explicitly criticized on the floor of Congress for partisan behavior in administering the election. In return, Blackwell -- who is running for governor -- has issued personal attacks against the election protection attorneys who filed the Moss lawsuits, at one point referring to Fitrakis in public as "a complete idiot."
In documents filed with the Ohio Supreme Court, Petro’s office charges that the citizen contestors – Ohio voters - and their attorneys lacked evidence and proceeded in bad faith to file the challenge. Petro says the election challenge was a "political nuisance" lawsuit, and as such, the legal team should be fined -- personally -- many thousands of dollars.
As the sanctions motion moves toward a hearing before Ohio’s Supreme Court, hundreds of sworn statements are now permanently in the public record, documenting the massive voting problems which led to Bush's contested win in Ohio.
Equally significant, the attorneys were able to place into the court record the 102-page Status Report of the House Judiciary Democratic Staff entitled "What Went Wrong in Ohio?" Spearheaded by Rep. John Conyers (D-MI) the report concludes, "We have found numerous, serious election irregularities in the Ohio presidential election which resulted in a significant disenfranchisement of voters. Cumulatively, these irregularities, which affected hundreds of thousands of votes and voters in Ohio, raise grave doubts whether it can be said the Ohio electors selected on December 13, 2004 were chosen in a manner that conforms to Ohio law, let alone federal requirements and constitutional standards."
A motion was also filed asking the court to allow an amicus curiae brief from Rep. Conyers in support of the contesters counsel. Fitrakis, Truitt, Peckarsky and Arnebeck have entered affidavits swearing that they had proceeded in good faith in contesting the election.
Also entered into evidence was a letter dated December 23, 2004 from Peckarsky to John Zucker, Senior Vice President for Law and Regulation at ABC that outlined an agreement to "maintain intact Mitofsky's exit poll data" and that it "not be altered or destroyed"; and a letter from Truitt dated December 27, 2004 confirming a telephone conversation, with Richard Coglianese, Ohio Assistant Attorney General, "to the effect that regardless of the need for the deposition and regardless of the amount of notice provided (whether days or months) you will not allow the deposition of your client, J. Kenneth Blackwell, the co-chair of the Bush-Cheney campaign in Ohio, to occur at any time for any reason."
Arnebeck filed a separate memorandum opposing the sanctions that began: "The Attorney General's motion for sanctions is false and defamatory. It appears to be submitted for the partisan purpose of attempting to discredit those who brought the challenge . . ." Arnebeck told the court that the Attorney General filed the sanctions motion for intimidation purposes and it was aimed at public interest attorneys.
"In this instance the Attorney General of the State of Ohio may unwittingly have placed himself in a position of obstructing justice rather than upholding it through the filing of this partisan motion, which is lacking merit and is intended to terminate the search for truth and accountability in an election of profound importance to the citizens of Ohio, the United States and the world," Arnebeck concluded.
Fitrakis, who also holds a Ph.D. in political science and served as an international observer in the 1994 elections in El Salvador and co-authored and edited the international observer's report to the United Nations, charged that Petro's actions should be regarded as "an act of political retaliation and state repression." In the affidavit he also states that the "Ohio elections fail basic standards of transparency" under international law.
In the meantime, a high-powered team of researchers concluded "the many anecdotal reports of voting irregularities create a context in which the possibility that the overall vote count was substantially corrupted must be taken seriously. The hypothesis that the discrepancy between the exit polls and election results is due to errors in the official election tally is a coherent theory."
The report comes from USCountVotes, which convened ten mathematicians, statisticians and other researchers to evaluate recent assertions by Warren Mitofsky and other pollsters that the November 2 exit polling may have been wrong. Among the assertions by the pollsters is that more Republicans than Democrats may have refused to be polled after casting their ballots.
But the USCountVotes study points out that the numbers of voters polls in Republican precincts was actually higher than in Democratic ones. Mitofsky and others have said the disparities between their exit polls and the final outcome were "most likely due to Kerry voters participating in the exit polls at a higher rate than Bush voters." But, says the USCountVotes study, "no evidence is offered to support this conclusion. In fact, data newly released in the report suggests that Bush supporters might have been OVERREPRESENTED in the exit polls, widening the disparity to be explained."
The report adds that no data in the pollster's report "supports the hypothesis that Kerry voters were more likely than Bush voters to cooperate with pollsters, and the data suggests that the opposite may have been true."
Should Ohio's Republican-dominated Supreme Court decide to take revenge on the four election protection attorneys, it will have a mountain of data to disregard. But whatever the decision, that mountain of assertions about who really won Ohio and thus the presidency is now a part of the state's permanent legal landscape.
Steve Rosenfeld and Harvey Wasserman are co-authors, with Bob Fitrakis, of OHIO'S STOLEN ELECTION: VOICES OF THE DISENFRANCHISED, 2004, a book/film project from www.freepress.org. Contributions are welcome at www.freepress.org and via the Columbus Institute for Contemporary Journalism, 1240 Bryden Road, Columbus, OH 43205.