Washblog

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.

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.

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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.