Dec 7 Not the Deadline, Ohio will not reach "Safe Harbor"

[truehawk]

http://moritzlaw.osu.edu/electionlaw/analysis/041130a.htm

Snip<<<<<<

Presidential electors are due to cast ballots on Monday, December 13, 2004. The “safe harbor” would apply only if a “final determination” of Ohio’s election controversy were to occur by six days earlier, or Tuesday, December 7, 2004. Given that Secretary of State Blackwell has announced his attention to certify the winners of the Presidential election on December 6, 2004, it is plain that, if he maintains that schedule, Ohio’s process for reaching a “final determination” of the electoral contest cannot yield an answer by December 7.

It would be surprising, moreover, if Ohio ever achieved the “safe harbor” in any truly close race. Because (a) Boards of Elections can canvass the presidential popular vote no earlier
than 11 says after that vote, and (b) the “safe harbor” expires unless an election dispute reaches its final determination within 35 days, there are only 24 days under Ohio law for a slate of electors to be certified and for all recounts and contests to be initiated and resolved. This is not much time to deal effectively with any election in which well over 5 million voters are likely to cast ballots.
<<<<<<<<<<<<<<<

When I looked in to it more, Oldleftielawyer was RIGHT!!
and Judge Carr was Wrong!!

[leftyandproud]

1. my god...just give it up..

accept reality..

you are only going to cause more pain..more people to raise their hopes then be crushed again. Bush won by 3.4 million. The nation has accepted it...even the most hardcore partisans on our side have accepted it (Michael Moore, Moveon, Americans Coming Together, our leaders in Washington, etc etc etc.)

It is OVER.

[truehawk]

2. It may be expedient for it to be over, but that is not the truth.

The truth is that we can NOT trust our electoral system.

The truth is that the election was stolen this time, and it will be again unless we do something about it.

The truth is that when you find out the vote has been rigged it is Damned scary, and NO ONE WANTS TO HEAR IT!!

In 1994, I held a voting board in my hand with the pegs moved down half an inch so that the holes lined up with the wrong lines on the ballot,
AND NO ONE WANTED TO HEAR IT.

If they people want to choose the President, then they had better do something, not just try not to "have their hearts broken". A stolen country with nukes and fundies is worse.

[4democracy]

4. Jesse Jackson and Cliff Arnebeck would not agree it's over

They have a very strong lawsuit to be filed in Ohio. See @
http://www.c-span.org/VideoArchives.asp? The date is Dec.2nd
and Cliff Arnebeck is interviewed at length on the lawsuit.

[Straight Shooter]

7. All that matters are the 119,000 votes in Ohio that divide bush and Kerry

If we are allowed to proceed in fact-gathering, that may very well diminish and disappear altogether.

Facts gleaned from an Ohio recount will then be associated with the bizarre results in other states.

This election was tainted. I'm not getting over it. I worked my a** off for Howard Dean, and then John Kerry. bush is going to put the world in the toilet, and I'm not going to sit back and let it happen.

He stole 2000. The Wall Street Journal even ran an article on 9/12/01 (what a banner day for revealing news) admitting it. Now bush's minions have done it again, and we're supposed to bend over and take it?

Huh-uh.

[Not_Without_A_Fight]

22. Do you have a URL for that Wall Street Journal Article? n/t

[saracat]

8. Really? What nation? And the popular vote goes down everyday.

It isn't 3.4 million anymore. I don't know what the truth is but neither you or anyone else has the right tell me or anyone else what to "accept" or to accept your definition of "reality". I have not been impressed by any of the so called evidence in this case but that doesn't mean the election was not rigged. People like RFK Jr. and Jesse Jackson ,as well as several members of Congress, have also expressed their doubts. 1960 hung like a cloud over history, and most refer to it as the "stolen" election. I want this one to be tainted as well. I also want election 2000 to be questioned. I guess you probably believe Gore lost too? And we don't HAVE any leaders in Washington, in case you hzven't noticed!

[IndyPriest]

9. Gosh, I must be more hardcore

than Michael Moore, MoveOn, ACT, our leaders in Washington, etc. etc. Never thought of that. But it makes me feel pretty damn good.

[Spiffarino]

11. You come from a good place, Lefty

I don't question your sincerity. But to me, and I think I speak for most of us, the only thing that really matters is verifying the quality of the 2004 election.

We'd all love to see Kerry get in office, but there's a snowball's chance in Hell that it'll happen. However, I think you'll agree that we need to know whether this election was a fair one. If it was, we can all remain members of the loyal opposition. If it wasn't, then heads must roll...and we are going to be the ones lopping them off.

Vote and voter suppression is a big deal; intentionally miscounting and discarding votes is a big deal; filling out absentee ballots is a big deal. There is strong evidence that at least some of these things happened. It doesn't matter which party did it, either. We have to clean up this mess and count every vote.

[Wordie]

19. OH law has precedent for JUDICIAL decision in contests!!!!!!!

<snip>
27. However, as late as 1914, Ohio apparently provided for a commission to hear contests involving presidential electors. See Link v. Karb, 104 N.E. 632, 638 (Ohio 1914) (“For instance, the contest of an election of an elector of the President of the United States shall be heard before a commission consisting of the Governor and four judges of the circuit courts, to be appointed by the Governor; the judgment of this commission is final.”).

<snip again>
29. Other commentators concur that compliance with the federal safe harbor provision is unlikely using Ohio’s statutory provisions. See Hugh M. Lee, Does Bush v. Gore’s Promise of Due Process in Federal Presidential Elections Create a Right Without a Remedy?, 13 STAN. L. & POL’Y REV. 53, 71-72 & n.106 (2002) (concluding that the mandatory provisions of an election contest under Ohio R.C. 3515.08—.10 would take more than thirty-five days).

Both of these are from the Moritz site, link in the OP

I tend to agree with Kerry's chances, although I wish it wasn't so, BUT what if the OH Supreme Court were to decide???? Could that ever happen???

[stopbush]

18. Or, you can go to this link

http://www.moveon.org/investigatethevote/

and sign Moveon's petition to investigate the vote...

[jamboi]

24. Resistance is futile! n/t

[Wordie]

3. haha, truehawk, I posted almost exactly the same thing two minutes after

you posted this. Here is my thread: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x120959

I don't know what the eventual outcome would be though, if OH misses the safe harbor. What would happen then? Do you know?

[truehawk]

5. The electors are appointed by whatever means the state law provides for

Sorry about the dangling participal.

I'll try to find a link

[Wordie]

6. I think the crucial issue may be whether the OH legislators explicitly

said that it was their intent to meet the safe harbor deadline. I can't find a link about that. If you can, that would be wonderful!

[truehawk]

12. Look at the link in the thead title post

Ohio does not have any hard and fast deadlines in their state law to try to resolve contraversy before the "Safe Harbor" deadline.

[truehawk]

10. Here look at USC Title 3 Section 5 and 6, 7 and 12

Basicly it states that if a state manages to settle any contraversey before Dec 6, then they have met safe harbor. If they havn't then they will send their votes along as soon as practical, hopefully before the Jan 7.

http://www.archives.gov/federal_register/electoral_college/provisions.html
"
Determination of controversy as to appointment of electors

§ 5. If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

Credentials of electors; transmission to archivist of the united states and to congress; public inspection

§ 6. It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate under the seal of the State; and if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal of the State to the Archivist of the United States a certificate of such determination in form and manner as the same shall have been made; and the certificate or certificates so received by the Archivist of the United States shall be preserved by him for one year and shall be a part of the public records of his office and shall be open to public inspection; and the Archivist of the United States at the first meeting of Congress thereafter shall transmit to the two Houses of Congress copies in full of each and every such certificate so received at the National Archives and Records Administration.

Meeting and vote of electors

§ 7. The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.

Manner of voting

§ 8. The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution.

Certificates of votes for president and vice president

§ 9. The electors shall make and sign six certificates of all the votes given by them, each of which certificates shall contain two distinct lists, one of the votes for President and the other of the votes for Vice President, and shall annex to each of the certificates one of the lists of the electors which shall have been furnished to them by direction of the executive of the State.

Sealing and endorsing certificates

§ 10. The electors shall seal up the certificates so made by them, and certify upon each that the lists of all the votes of such State given for President, and of all the votes given for Vice President, are contained therein.

Return to 3 USC Ch. 1, Table of Contents



Disposition of certificates

§ 11. The electors shall dispose of the certificates so made by them and the lists attached thereto in the following manner:
First. They shall forthwith forward by registered mail one of the same to the President of the Senate at the seat of government.
Second. Two of the same shall be delivered to the secretary of state of the State, one of which shall be held subject to the order of the President of the Senate, the other to be preserved by him for one year and shall be a part of the public records of his office and shall be open to public inspection.
Third. On the day thereafter they shall forward by registered mail two of such certificates and lists to the Archivist of the United States at the seat of government, one of which shall be held subject to the order of the President of the Senate. The other shall be preserved by the Archivist of the United States for one year and shall be a part of the public records of his office and shall be open to public inspection.
Fourth. They shall forthwith cause the other of the certificates and lists to be delivered to the judge of the district in which the electors shall have assembled.

Failure of certificates of electors to reach president of the senate or archivist of the united states; demand on state for certificate

§ 12. When no certificate of vote and list mentioned in sections 9 and 11 and of this title from any State shall have been received by the President of the Senate or by the Archivist of the United States by the fourth Wednesday in December, after the meeting of the electors shall have been held, the President of the Senate or, if he be absent from the seat of government, the Archivist of the United States shall request, by the most expeditious method available, the secretary of state of the State to send up the certificate and list lodged with him by the electors of such State; and it shall be his duty upon receipt of such request immediately to transmit same by registered mail to the President of the Senate at the seat of government.

Same; demand on district judge for certificate

§ 13. When no certificates of votes from any State shall have been received at the seat of government on the fourth Wednesday in December, after the meeting of the electors shall have been held, the President of the Senate or, if he be absent from the seat of government, the Archivist of the United States shall send a special messenger to the district judge in whose custody one certificate of votes from that State has been lodged, and such judge shall forthwith transmit that list by the hand of such messenger to the seat of government.

Forfeiture for messenger's neglect of duty

§ 14. Every person who, having been appointed, pursuant to section 13 of this title, to deliver the certificates of the votes of the electors to the President of the Senate, and having accepted such appointment, shall neglect to perform the services required from him, shall forfeit the sum of $1,000.

Counting electoral votes in congress

§ 15. Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

Same; seats for officers and members of two houses in joint meeting

§ 16. At such joint meeting of the two Houses seats shall be provided as follows: For the President of the Senate, the Speaker's chair; for the Speaker, immediately upon his left; the Senators, in the body of the Hall upon the right of the presiding officer; for the Representatives, in the body of the Hall not provided for the Senators; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk's desk; for the other officers of the two Houses, in front of the Clerk's desk and upon each side of the Speaker's platform. Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this subchapter, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess of such House not beyond the next calendar day, Sunday excepted, at the hour of 10 o'clock in the forenoon. But if the counting of the electoral votes and the declaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other recess shall be taken by either House.

Same; limit of debate in each house

§ 17. When the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Senator and Representative may speak to such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each House to put the main question without further debate.

Same; parliamentary procedure at joint meeting

§ 18. While the two Houses shall be in meeting as provided in this chapter, the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw.

Vacancy in offices of both president and vice president; officers eligible to act

§ 19. (a) (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.
(2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.
(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.
(c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that
(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and
(2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.
(d) (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs.
(2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.
(3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.
(e) Subsections (a), (b), and (d) of this section shall apply only to such officers as are eligible to the office of President under the Constitution. Subsection (d) of this section shall apply only to officers appointed, by and with the advice and consent of the Senate, prior to the time of the death, resignation, removal from office, inability, or failure to qualify, of the President pro tempore, and only to officers not under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon them.
(f) During the period that any individual acts as President under this section, his compensation shall be at the rate then provided by law in the case of the President.

Resignation or refusal of office

§ 20. The only evidence of a refusal to accept, or of a resignation of the office of President or Vice President, shall be an instrument in writing, declaring the same, and subscribed by the person refusing to accept or resigning, as the case may be, and delivered into the office of the Secretary of State.

[Wordie]

14. It looks to me that OHlaw, by the deadlines it has established, does not

allow for meeting of the safe harbor deadline. If you look in my thread about this, there even appears to be a JUDICIAL precedent for the selecting of electors!!!!

Should we request from the administrators that they consolidate our two threads? I imagine it is confusing for people.

[truehawk]

17. That is okay by me, please ask them to if you know how

I don't.

[jsamuel]

13. So are you saying that Dec. 13th may not happen in Ohio?

[Wordie]

15. Moritz, election law specialists say OH likely will not have safe harbor

Here is the link: http://moritzlaw.osu.edu/electionlaw/st-ohio.html
(It is part way down the page and also goes into a variety of other problems in OH)

<snip>
Ohio does not have a specific requirement of speed for recounts or election contests, possibly causing an Ohio recount to run past the federal constitution’s “safe harbor” provision.

Federal law provides that when a state has a method in place for resolving a conflict about the selection of the state’s presidential electors, that method shall be conclusive in determining that state’s electors. However, federal law goes on to state that the determination must come within thirty-five days of the date of the presidential election. If the state fails to resolve any controversy within the thirty-five day “safe harbor” time period, then in counting the electoral votes, Congress is not bound to recognize the state’s designated electors.

Ohio law does not specifically address the issue of presidential election controversies. Ohio law does provide a process for determining the outcome of election controversies generally; however, Ohio’s time frames for filing petitions and setting hearings makes it unlikely that a contest could be resolved within the thirty-five days mandated by the federal law.

[Blue_In_AK]

16. Ultimate outcome

Whether or not this can all come together in time to get John Kerry into the White House, is probably questionable. However, I don't think we should ever give up looking for the problems in this election. If enough "dirty tricks" can be verified we can bring that a****** down ala Watergate. I live for the day GWB is forced out of office in shame and humiliation, taking his whole corrupt administration with him.

[caduceus111]

20. I think it's pretty clear what Blackwell's intent is here...

Think about it. Blackwell's running out the clock for two reasons. First and obviously, it stalls the recounts (Florida 2000 anyone?).

But there's a second, ulterior motive I think is going on. If for some reason the result is overturned in favor of Kerry, Blackwell has effectively run beyond the safe harbor deadline, leaving our lovely Repuke led Congress to have the opportunity to deny the Democrat slate of electors.

Either way, the crooks win.

::sigh::

[Wordie]

23. What about the judicial precedent????

<snip>
27. However, as late as 1914, Ohio apparently provided for a commission to hear contests involving presidential electors. See Link v. Karb, 104 N.E. 632, 638 (Ohio 1914) (“For instance, the contest of an election of an elector of the President of the United States shall be heard before a commission consisting of the Governor and four judges of the circuit courts, to be appointed by the Governor; the judgment of this commission is final.”).

I got that off Moritz site. I don't know if it is still in effect, or applicable.

[delphine]

21. If John Kerry doesn't care about meeting deadlines, then

I don't particularly care about it either.

And frankly they can figure out if the votes were stolen in their own sweet time if the candidate himself doesn't give a crap about making sure the votes were counted right ON TIME.

It's almost like he was so afraid to say he might have won, that something major was wrong, so he wouldn't look like a "sore loser" or so he wouldn't hurt his chances in 2008 or for whatever lame and stupid reason, that he let the time lapse and let his chances go by.

He could have easily joined in the glib lawsuit to expedite the recount.

I love the guy and really want him to be president. But he's completely tone deaf when it comes to what we think.

We wanted him to fight throughout the campaign, and his stupid fucking idiot campaign managers kept telling him to be "nice", to "let it go", not to "call more attention to it", and it was really alienating to me. He didn't seem to know what we were thinking at all.

If he had any political ear at all right now he would be really forcefully fighting in the name of having folks' votes counted and having a meaningful outcome BEFORE the electors are chosen. He could have pointed out that Blackwell was simply letting time run out.

If people want to call that "sore loser", then fuck 'em.

Rove is chuckling in his beer about now, knowing that tomorrow it's too late, and that Kerry's need not to look desperate or "sore loser" or whatever has really doomed him both in 2004 AND for 2008.

How can people vote for him in 2008 (and I REALLY want to) if they think he didn't want it bad enough now to fight? Or if they think he didn't fight to make sure their votes counted THIS TIME?

[shraby]

26. Whether Kerry asked for a recount or not,

it still couldn't start until the count was done and certified..which happened Monday. The Glibs are starting the process on Tuesday.

[RaulVB]

25. As I said before...

The whole process is invalid.

Not to worry about legal formalities.

[Imagevision]

27. Conyers said recount could go on after Dec. 13th deadline