All you lawyers out there.. what does this mean? (Arnebeck suit)

[mostly_lurking]

It looks like Moyers is denying the motion to expedite and is asking for arguments concerning the need to rule prior to Jan 6. Can any lawyers out there shed any light?

http://www.sconet.state.oh.us/rod/newpdf/0/2004/2004-ohio-6995.pdf

[New Earth]

1. can a real lawyer please answer

hey, you might want to change the title to match the point of this letter from the judge - i think you'll get a lot more replies, and faster.

[New Earth]

2. kick

and change the title! :)

[read the law first]

60. No emergency hearings

The Ruling means:

1. the Judge does not feel that the contestants met their burden of showing how ruling on the matter without giving the other side the time allotted by law will make a difference.

2. that the Judge expects the attorneys to read and follow the rules of the Court (this is somewhat of a warning shot across the bow to be up to speed on the rules)

3. the law already requires that the evidence be preserved so there's no purpose in ordering the evidence to be preserved.

4. the court wants both sides to brief the two essential, indespensible questions of the matter.

[EMunster]

61. Arnebeck's motion included impounding the voting machines, are you.....

saying that's being done?

[read the law first]

67. It's of no value for a judge to order what the law requires already

I'm not saying anything.

In his Order, the Judge is saying that there's no purpose to an emergency order to require something that the law already requires. It would be redundant. In other words, there's no reason to get an emergency order imposing a speed limit on a motorist where there's already a speed limit posted. If you have to preserve these things under R.C. 3599.34, there's no purpose in the Judge ordering the same thing because it's already the law.

[mikelewis]

87. Can the Ohio Congress change the electors vote?

Lets's say that on 12/29 an event happens that suddenly and dramitically changes the entire countries view of President Bush. Let's say this event could be definitive proof of election fraud. Let's say this proof could be a sudden desire for the press to actually start letting us know what the hell is going on. May be it could be Larry Silverstein getting indicted for treason and conspiracy to commit homicide. Could be anything.

The question is, should this event happen, how set in stone is the vote of the electors? I understand that they have met and cast thier votes but until the votes are certified, can they be altered?


Now that I think about it, maybe someone should hack into the electoral college computer and change the totals on election day. Wouldn't that just be fucking awesome? We could change every election to a third party DU candidate. It might not stick but it would sure be an embarassment. Or hack in and change Bush's name to Chimpee or something. Man, I wish I could hack and wasn't opposed to spending many years in prison. That's be the sweetest thing. Oh well, to dream.

[merh]

3. That's what it looks like, a stall

asking for more argument to support or oppose the parties positions.

[mostly_lurking]

4. In further review

This announcement is in fact denying the motion for an expedited hearing. It's also asking for arguments, from both sides, as to whether or not the suit is "moot" pursuant to "safe harbor" and the fact that the EC has already convened and voted.

Again, I'm not a lawyer... please may the lawyers chime in...

[Sandpiper]

5. Law Student's response

The C.J. has sidetracked this suit on procedural grounds.

Before the Court will listen to arguments as to the merits of the case, the two procedural issues that Moyers outlined will have to be satisfied.

If they are not, the case will probably be dismissed.

[understandinglife]

13. He is now aiding and abetting Blackwell in disenfranchising...

...the voters of OH.

Blackwell stalled and thus 7 Dec 2004 passed.

Conyers stalled on Monday (and ruled on a case in which he was named -- wonder how the ethics investigation of that is proceeding) and, now, he stalls further.

Do you agree?

In any event, these acts should be all the more reason and justification(s) for Congressman Conyers and colleagues to halt the election process on 6 Jan 2005.

[zann725]

40. I second that motion!

n/t

[bear425]

102. Hi Understandinglife...

I think you mean to say "Moyers stalled on Monday" (not Conyers?) At any rate, this whole thing looks to be a conflict of interest. Moyers should have recused himself from the beginning, I think.

[zann725]

38. But one contention of the original suit questioned Moyer's legitimacy...

as a C.J., due to possibly skewed votes for him in this election.
Until it IS proved that he legally did win, it seems he is NOT entitled to Judge on this (or any related case),NOR should he be entitled to delay it.

Plus, Arnebeck has worked the last few years in Ohio litigating on illegal corporate contributions to appointments to the OSC.
So I don't see how almost any of the 7 OSC judges would be entitled to rule on this without conflict of interest...or rule on it at all, since most may indeed be "illegitimately" appointed.

[prosecutr1960]

39. setting up grounds

for dismissal.

[Diane R]

6. I think he is laying groundwork for dismissal.

I am not an attorney, either. My read? Moyers is preparing to dismiss based on not filing on December 7th. It is sounding to me like Moyer has invited the opposing side <'bush'> to file a petition by the 28th asking that the case be dismissed because it was not filed properly, i.e. by December 7th. I imagine Arnebeck claimed that Blackwell obstructed by running out the clock and not certifying until the last possible moment and therefore is claiming the 7th was not reasonable.

I am thinking Moyer is just playing with this lawsuit like a cat with a mouse. Running out the clock and throwing up roadblocks.

And....I am NOT an attorney.

[prosecutr1960]

7. OHIO Recount news!

86 out of 88 conties done recouting. Kerry has gained 242 votes! I think I know why Kerry didn't want to get too involved. 242? I thought there would be more!!!

[New Earth]

10. first of all

(shh faye) second of all, THEY DIDN'T EVEN DO A RECOUNT. Blackwell and county officials did everything they could to keep from doing a hand recount. Don't jump for joy yet, it's not over.

[seito]

21. Did ya really

I mean really?????

I guess we better just move on then. Nothing to see here. lol!!!

[Alizaryn]

49. "Counted" is the operative word.

[garybeck]

51. read up, friend

the recount was fixed too. there's widespread documentation of this. check http://election.solarbus.org

[Joe Chi Minh]

82. prosecutr1960

sounds as thick as two short planks, doesn't he? So what's new?

[buddysmellgood]

53. There are more. Enough to give him a 130,000 vote lead. Do some

homework.

[texastoast]

71. Hmm.

Did you really think there were more? So do I.

Hey! Where'd you go?

[Vektor]

81. Correct me if I'm wrong ---

And I may be, (there's so much recount news, it's hard to keep track) but don't they only count a tiny percentage of each county's votes? (Like 1-3%?) A gain of 242 doesn't sound like much, but when you compare it to the FULL percentage, doesn't that indicate there may be a HELL of a lot more votes to be uncovered if a full recount were done?

[Doctor O]

83. They did a hand recount of the 3 %, then ran the same ballots

through the machine. If those two counts matched, then they did a machine recount of the entire county. The new votes came out of both the hand and machine recount.

[New Earth]

84. they didn't randomly pick the precincts

like they are SUPPOSED to do.

[Vektor]

95. I heard that..

Did Blackwell pick the counties?

[rdmccur]

91. There were no recounts of entire counties

[Doctor O]

103. There were machine recounts of each precinct in the county, so

while technically you are correct, doing machine recounts of each precinct means that they counted the whole county in total. If you are saying they did not recount, 3% by hand and 100% by machine, you better do your homework. Go to votecobb.org and read the reports of county by county.

[Vektor]

92. OK...thanks!

...for clearing that up...

Regardless, I still have a hard time trusting what they're saying in Ohio...too many irregularities.
:shrug:

[gulogulo]

93. So - if you're not sure about the Ohio recount, here is how you make sure

After the "canvassing period" ends, the election records - ballots and polling books - become public record. This means that anyone can recount them if they pay for the county workers' time that it takes.

If there is (as there seems to be) a big group of DUers that is convinced that there was fraud, and who are interested in uncovering it regardless of the fact that it won't install Kerry as president - why not collect the money and do those recounts? Ohio, Florida, New Mexico - anywhere you like?

Miami Herald has already done this in 3 counties in Florida. I have seen reports of some people doing it on their own in other counties in Florida. I believe the cost of the recount in those counties was $10/hour for the time that it takes.

"But it will be too late" - too late for what? Too late to have Kerry as president - assuredly. But not too late to prove fraud, and taint Bush's second term - if massive fraud is proven.

I calculated, based on the costs of Florida recounts by peaople from www.recountflorida.com that the total cost of recount in Ohio that will need to be paid to the BOEs should be around $300,000. I am sure every DUer who is dead sure that widespread fraud has been perpetrated in Ohio will run, not walk, to donate/volunteer/participate in such a recount.

[Vektor]

97. Really?

Private citizens are allowed to do this?

[gulogulo]

99. Of course - why not

see http://www.recountflorida.com/modules.php?op=modload&name=News&file=article&sid=13&mode=thread&order=0&thold=0

That's just a couple of people who wanted to recount a few precincts. Total cost - $50 so far.

[Vektor]

105. That's interesting!

I wasn't aware that this option was available, at least not so soon after the election.

I live in CA, and haven't had any cause for alarm regarding our local votes, but definitely, there are other parts of the country that do not look good at all.

[New Earth]

8. Moyers can go to hell

fuck him. he is stalling. he says both parties should respond on or before Jan. 3rd. you know Bush lawyers will respond ON the 3rd, last day possible. then 3 days to hear the case? IF he's going to hear the case? WHAT AN ASS>

[mattclearing]

22. I think that's plenty of time.

I don't know what the Ohio Supreme Court is like, but the SCOTUS took less than three days to come up with an opinion on Bush v. Gore, didn't it?

[bobbieinok]

86. Sat: stopped the process; Wed ruled

[mattclearing]

9. I think it is asking for Arnebeck to explain his position.

First, why should I overlook the fact that it wasn't filed by December 7th, which was the deadline according to (law cited), and

Second, what is the significance of the electors' vote in Congress on January 6th, 2005 to you? If I let this date pass before I rule, will you care?

I think he's asking Arnebeck for a statement of intent. Arnebeck will have to decide whether this is a legal exercise or if he is really seeking to overturn the presidential election in time to stop Bush from being voted in by the electors.

His response will make for interesting reading.

edited to note that I am not a lawyer, but have taken some undergrad law classes.

[imenja]

11. link doesn't work

[seito]

15. It is a PDF file

you need Acrobat Reader to open it...I believe

[seito]

12. This seems to be quite important.

:kick:

[Patsy Stone]

14. Question

No lawyer, me.

1) Isn't the response to his first request that the election could not be contested until it was certified, and since Blackwell dragged it out until the last minute, the case couldn't be filed until it was official?

2) It seems the second of his requests could be answered with the statement that if it isn't heard and resolved by Jan. 6, that the President would be illegitimate?

Anyone? How wrong am I?

[mattclearing]

18. Not how I read it, but maybe.

No lawyer here, either.

[Patsy Stone]

33. Just going from memory

There was a certain legal time period during which a contest could be filed, but it had to be after it was certified. Arnebeck filed on the last day of that time period. That seems to me to be the answer as to why it was filed after 12/7: because Kathy Blackwell stalled the certification.

When Arnebeck filed, it was sent back because he included two suits in the same petition. He then re-filed. They also asked for immediate relief, which Moyer denied because he didn't see any benefit.

He's given them until 12/28 to answer the questions, not 1/3.

I have not, by any stretch, read all of the codes and laws Moyer refernces. This is my layman's talking out of my butt interpretation.

[johnaries]

36. I'm not a lawyer, but there was an earliler thread about safe harbor,

and if I remember correctly because the recount was not completed before the Electors met, they did not qualify for safe harbor. I'm still new to DU (although It's now my official main source of news!), is there a way to search for threads for references to "safe harbor"?

Whatever the reason, I distinctly remember that safe harbor does not apply to the Ohio Electors.

[Helga Scow Stern]

16. The name is MOYER, not Moyers, thank you very much. n/t

[Patsy Stone]

17. Justice Moyer? Is that you???? I didn't know you read DU! :) n/t

[Helga Scow Stern]

23. I wish it were true--then I would try to rule on the case with integrity..

as it is, I am just a Bill Moyers fan, who doesn't want to see his name associated with any wrong doing. O8)

[Patsy Stone]

35. LOL! I wish it were you also... n/t

[MadLinguist]

45. Yeah I miss Bill Moyers already

His last broadcast was Sunday (12/09/04). The topic was the complete corruption of the media.

[debl]

19. In other words Moyer is saying...

Like I'm really going to let you come into court and present your arguments about election fraud!

Instead, you have until January 3rd to submit legal arguments on these two very important points, key to ensuring that Americans have faith that their vote will be counted:

1. Isn't this suit a moot point since the safe harbor date was passed on 12/7 and the suit wasn't filed until 12/17? I'm giving the contestees (Bush) all of the way until 1/3 to answer that, and you can answer up till 12/28, so I'll look at both filings after 1/3 and I'll answer on 1/6 or 1/7 or something like that. Meanwhile...

2. Once January 6th comes and Bush is declared the official winner, isn't this suit a moot point?

(In other words, Fat Chance and FU -- in legaleese.)

[New Earth]

20. lol basically yeah

[Truman01]

112. I expected to hear from you on this thread....

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x187592

[mattclearing]

24. Actually, doesn't it say December 28th is the deadline?

eom

[corky44]

30. discovery & subpoena power for Arnebeck?

[New Earth]

25. ahhhh i see now,

he says that the CONTESTORS need to respond by Dec. 28th, and the CONTESTEES need to respond by Jan. 3rd.

[mattclearing]

26. Meaning Blackwell et al. must respond on the 3rd?

eom

[New Earth]

28. right, as well as Rove/Bush/Cheney/Campaign, etc

[debl]

32. Faye, I think I like you!

[New Earth]

34. loll

ok thanks. watch out tho, cuz i do bite :shrug:

[Razorback_Democrat]

27. Not a lawyer, but it says "screw you" to Arnebeck

He (Moyers) is saying that since it wasn't filed before the "safe harbor date" (the original was that was dismissed) then an argument needs to be made as to why it isn't moot.

Why didn't Arnebeck file it on time if he's the hot shot election lawyer he says he is?

[eomer]

29. I don't think that December 7 is a deadline for the lawsuit to be filed...

I think it is a deadline for the state. If the state legislature establishes procedures by which all controversy is resolved by Dec. 7 then its decision on electors is considered a state issue. If it does not establish procedures by which all controversy is resolved by Dec. 7 then its decision on electors does not have the benefit of the federal safe harbor and the electors can be contested at the federal level.

I don't think this deadline has any bearing on the validity of the lawsuit. Under Ohio law the lawsuit was timely.

IANAL and I'm going from memory based on reading relevant law only once so any lawyers (or non-lawyers for that matter) feel free to correct me.:)

[bemis12]

43. I agree with thast assessment as to the December 7 date

His second question is more troubling. Clearly the Jan 6 date is where the next President is officially chosen. And after that date, anything found in the suit would not have any legal meaning. I think he's ready to toss it based on the theory that it can't be proven by that drop dead date.

[eomer]

55. Way out on a limb here...

since IANAL...

but since Ohio missed the safe harbor date to resolve all controversy then the federal legislature can contest and change the electors on Jan 6. In other words they could refuse to accept the current set of Ohio electors and choose to accept a second set for Kerry. And they could do that for any reason (or lack of any reason) that they see fit. They just have to vote on it. So they could take the decision of the Ohio lawsuit into account, they could ignore a decision in the Ohio lawsuit, they could take evidence from the lawsuit into account even if the lawsuit is still undecided, they could just decide to put the Bush electors in even if there is evidence of massive fraud or whatever they want. Each Senator and each representative is voting and legally they don't have to justify their vote. They could also vote to reject the Ohio electors for any whim they wanted. That's how I understand the legal aspects of it.

The political aspects are that the Republican majority is sure to accept the Bush electors even though they are not bound to (since the federal safe harbor was missed) unless there is such a clear showing that the election was stolen that they have no choice (from a political point of view).

[mostly_lurking]

58. Two things...

First, Congress can't "create" a second set of Electors for Kerry. The Ohio EC would have to meet and submit a second set (and then Congress would have to vote on which set to accept). Otherwise, all Congress could do is throw out the Ohio electors and Bush would still win (266-252).

Second, how will evidence of "massive vote fraud" emerge in time for the January 6 session? The recounts have turned up nothing. Unless some discovery is made, through subpoena or other legal means, there will be no such evidence. Congress is not going to contest the Ohio votes w/o such evidence.

[eomer]

62. I agree that U.S. Congress can't "create" a second set

of electors for Kerry. That's why I said "accept" a second set. That's in the part of my post where I was talking about the legal possibilities, not the ones that are politically likely. For that to happen, Ohio would have to "create" the second set of electors, which is not likely.

As to how evidence of massive fraud will emerge by January 6, you answered your own question - through the discovery process of the lawsuit, through Freedom of Information access to the records, through spontaneous confession from someone with inside knowledge, whatever the possibilities are. I didn't say how likely or unlikely that was to happen, just listing the possibilities.

[mostly_lurking]

63. I agree

I agree I answered my own question (in part). The unanswered part is just how will that discovery take place in time for the January 6th session of Congress? It looks as though the SCO won't even decide whether or not to hear the case until then, let alone grant Arnebeck any discovery powers.

Perhaps that's why Moyer is indicating the suit will be "moot"?

[bemis12]

64. That's the take I had, that

Moyer is hinting around about that Jan 6 date. I don't think the case can be decided in time and evidence supplied between Jan 3 and Jan 6.

I think he's saying "It's getting too late to do anything about it."

[New Earth]

65. he's MAKING it too late to do anything about it.

[bemis12]

70. I think Blackwell made it too late.

It's hard for courts to move very quickly.

[bobbieinok]

89. just like supreme court did in 2000

they ruled on 12-12 and said xyz must be done but ..... surprise, deadline is 12-12 and you suckers don't have time........it was later pointed out by many (some were lawyers) that the deadline was really Jan 6, and in fact 5-6 states did not have vote certified until then

[eomer]

66. You may be right

but I'm not giving up hope yet that the fraud will be exposed in time to see the candidate that won get inaugurated.

On the other hand, if we don't make it in time then we'll still keep fighting. If massive fraud and the stealing of the election is exposed after the inauguration, that's still victory.

[gulogulo]

68. see my post at

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x186961

[PennyMan]

72. Yes But The Recounts Are Not Being Done Fairly

Yes But The Recounts Are Not Being Done Fairly Or As Kerry Requested

[Doctor O]

78. Kerry can ask, but he

has no standing in the recount. He contributed no money and the request is from the green party not the democratic party. why should he have any say.

[saracat]

88. Not exactly true. He does have standing and he did join in the petition.

[Doctor O]

90. I have seen nothing that says Kerry joined in the

recount. The only case he joined into was the Delaware county case where Delaware County had refused to recount.
His only action in the recount for the entire state of Ohio was to send a letter to Blackwell saying I want you to follow these guidelines.

[Patsy Stone]

104. Right, but a bit more than guidelines

http://www.buzzflash.com/alerts/04/12/ale04101.html
http://www.onnnews.com/Global/story.asp?S=2682767

11 requests to Blackwell and BoEs -- ending up in the trash to be sure, but more than guidelines.

[Carolab]

80. No Bush would NOT still win

needs 270, not 266

[hootinholler]

113. The real thing to be delayed by Moyer is...

The beginning of discovery.

They be no Effin way I'ze a lawyer.

Does this push subpoena powers to at least the 3rd, and more likely the 5th, CJ Moyer would need to give the responses due consideration before rendering his opinion. Thus it jeopardizes the gathering of evidence for presentation to Congress on the 6th.

Just askin dumb questions.
-Hoot

[New Earth]

31. now see what we need to think about

is that Jan 6. is even MORE important now. what happens if Reps. and Senators DO contest the election on the 6th - did i hear it correctly that congress has to make a decision ON THAT DAY, after a 2 hour session of discussion?

so if that is true, what exactly do they have to decide? to they have to decide WHO gets the electors, or just decide on whether or not they are going to accept them?

[BoomerSoonerOKU]

37. Correct...

On the 6th if it is contested they have two hours to debate and then they vote. They only vote on whether or not to accept the votes. They accept them, * wins. They don't accept them, it goes to Congress and they vote for *.

[roenyc]

41. I am confused

by another thread, there are two cases - one was approved and one wasnt?

this one seams to be the object of this thread:http://www.sconet.state.oh.us/rod/newpdf/0/2004/2004-ohio-6995.pdf

and then there is this one: http://198.234.109.19/rod/newpdf/0/2004/2004-ohio-6994.pdf

anyone know the difference? or are they the same. both are 2004-2088 moss v bush.

[theboss]

42. Same case; two motions

Arnebeck won one, and is apparently about to lose the second once he files more briefs.

[roenyc]

46. Thanks

thought so.

[BoomerSoonerOKU]

44. The second link

just permits lawyers who aren't certified to practice law in Ohio to work on this case. It's normal procedure, nothing big.

[roenyc]

oh man

can they just put more obstacles in our way? this is frustrating. it reminds me of used car sales men trying to break you down. they run you ragged till the last minute and then you just say OK OK. i will take it. anything, just let me go!

dont suspect anyone named in that suit is going to be replying anytime soon! hope the people who filed the thing can stay alive and out of scandals (Jesse Jackson) long enough to get through to the 3rd.

[Doctor O]

47. More specifcally,

BOTH repub controlled houses have to vote to not accept the electoral votes. Any my guess is that Kerry will either abstain or not be present.

[gulogulo]

48. According to the law, the Congress does not get to decide

who gets the electors. Congress can reject a group of electors - but only if

1. 1 senator and 1 representative challenge it
2. after the challenge, if after 2 hour debate *both* the House and the Senate rule to reject that group

[mostly_lurking]

50. Hmmm. That means Bush wins either way.

If they reject the electors, Bush still wins 266-252. The only way Kerry wins is if Ohio flips its Electors (or submits an alternate slate). Congress would have to vote to accept the alternate slate.

So, if there is no alternate slate on January 6, Bush wins regardless of any challenge in Congress...

[debl]

54. All is not lost

I believe and I hope, and there's no harm in that. Pray for Cliff is my current mantra (if you believe in that kind of thing.)

But if "everyone" is right and the OSC refuses to allow Jesse Jackson and the people of Ohio their day in court, we will persevere anyway. Even in the face of all of the injustice and opposition, we must win the public relations battle. We must not let the MM say for 4 years that Bush won an overwhelming victory and that he had a great mandate. We must at least get enough information out there, via the counter-inaugural, via the January 6th protest, via the internet, via a Congressional challenge on 1/6 if a senator can be found, to show the US and the world that Bush is STILL not our president.

Bush did suffer from the cloud of illegitimacy caused by the 2000 election. We must make it even worse in his second term, no matter which partisan hacks they have sitting on the OSC and no matter what they do to Cliff.

Trust me, if the reps were in our situation, they would show no mercy.

[eomer]

74. And the cloud of illegitimacy should also cover

the Republican majority in both houses since they stole much of that too.

[eomer]

56. The only way Kerry wins

is if there is such conclusive evidence that the election was stolen that the Republican majority in both houses chooses to reject the current Ohio electors.

Sort of like when Nixon resigned even though legally he didn't have to.

[gulogulo]

57. and for that you need hard proof

meaning either physical evidence that cannot be interpreted away or a confession by someone who committed fraud on a large scale.

[eomer]

59. Agreed (n/t)

[suston96]

52. Two announcements

There are two announcements. 6994 and 6995.

The contents of each have been described above: One says that the court accepts Arnebeck's new filing instead of the first one that was thrown out.

The second one is really easy to understand: No expediting allowed. So what if this court proceeds? What happens when January 6, 2005 comes along and the Congress has affirmed the election?

Great questions. I would like to see what happens in such a huge electoral crisis.

[OmmmSweetOmmm]

69. The best thing about a Constitutional Crisis is that FINALLY the Truth

Can Get Out There! Then MSM is going to have to cover it.

[eomer]

73. I seem to remember some argument

that Congress has more leeway than that (referring to post #31). The inauguration closes the deal but up to that point I believe that Congress still has some avenue to change the winner.

So up to inauguration, it's in Congress' hands, after the inauguration it's in Congress' hands (impeachment). Except, of course that Bush is free to resign anytime he wants to.

Edited to clarify which post I'm responding to since it's so far above this one.

[roenyc]

76. impeachment..............

does he take cheney with him??? not like i want him anywhere near the podium. jeez cant remember what happened to Nixon, Agnew was messed up too and left before him. so then it was ford? ugh. wasn't like they put the democrat in or anything.

[candice]

75. Should we send Arnebeck more $$$?

I can't find the link with the address. Doesn't he need more money for discovery?

[Doctor O]

77. Before you send him your hard earned money,

ask him of he is going to return it if his case is thrown out of court in January.
Or beter yet wait to see if progresses forward after the 1st week in Jan.

[Joe Chi Minh]

85. Touching to

read Zero's solicitude for your hard-earned dollars, isn't it? These people, are without shame... so transparent. Get that man a new pair of underpants. His reaction reeks of panic and horror.

[Doctor O]

111. And fully read this link

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x187592

[thanatonautos]

79. This is very bad. Moyers is running out the clock ...

and flaunting his ability to do so.

I am not a lawyer, but here's my thinking anyway.

The most serious problem in this ruling is that CJ Moyer has denied the
motion for emergency expedited hearing and relief. He is, on the surface, allowing the
suit to proceed in a normal fashion. But as I understand it, 30 days are now
allowed for contestees to file an answer to the suit. Only at that point in
time will the suit proceed. This will effectively run out the clock on the
contestors, since the electoral votes will have been counted in Congress on January 6.

I imagine that the only way around this ruling is to make a Federal issue out
of it. But on an eventual appeal to the Supreme Court of the United States,
we know that the response is very likely to be a refusal to hear the case at
all. So this looks very bad.

CJ Moyer then asks for answers to two questions, which are both relatively
easily answerable, but which appear to suggest that the contest was and is
moot. He wants answers from contestors first, by December 28th. Then
he will wait for contestees response on January 3. He can
then rule, if he feels it necessary, before January 6. It seems
clear that he intends to toss the case out, before January 6, if at all possible.

It's hard to imagine how the case could possibly be concluded
between January 3 and January 6.

The first question has to do with the "safe harbor" date of December 7, and
the implied argument that the case is moot on that basis is, I believe,
spurious. The second question has to do with the date of January 6, on which
the electoral votes will be counted. Recall that it is CJ Moyer's denial of
the motion to expedite the case, in this ruling, which has made it a near
certainty that the date will be passed. So asking the question takes real
chutzpah. It is, nevertheless, an answerable question.

I've taken a shot at answering both questions below.

(1) Whether this election contest is moot based upon the fact
that it was filed subsequent to the "safe harbor" date established
by 3 USC 5 and 7?

3 USC Section 5. Determination of controversy as to appointment
of electors

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.

Section 7. Meeting and vote of electors

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.

As I read the statutes in question, they establish that, if procedures for
the resolution of a controversy regarding appointment of electors by a State
are in place by six days before the date established for appointing the
presidential electors (in this case the date was December 13th according to 3
USC 7), and the controversy has been resolved by six days before (December
7), then according to those procedures, any such resolution of the
controversy by a State is considered to be conclusive. The Congress is
bound to accept electors chosen in this fashion, despite any
controversy that may have existed.

To render an election contest moot under 3 USC 5 as CJ Moyer appears to be
contemplating is a possibility, it appears that he would have to construe
the statute as binding upon his State, that is that it requires the State of Ohio
to resolve all controversies before the "safe harbor" date. Such a reading
appears to be bizarre, because no language appears in the statute which is
binding upon the States. Language referring to the States role and procedures
is conditional. Any contest of the election after the safe harbor date could
have been, I suppose, mooted under State law and procedure, but if it has not
been mooted under State law, I fail to see how 3 USC 5 is binding on the
State. The plain meaning of the Federal statute appears to be that a State
may choose to extend controversy over its electors past the "safe harbor"
date, but does so at the risk of allowing Congress to disregard that State's
eventual resolution of the controversy.

So the first question CJ Moyer asks appears to be easily enough answered.

(2) January 6, 2005 is the date established by 3 USC 15 for Congress to
review the votes of the electors and formally declare the winner of the
presidential election. What would be the legal significance of the passage of
that date relative to the contestors' petition?

3 USC 15 is extremely lengthy, and I defy anyone to parse it in full as to
all of its possible ramifications. But it seems clear that the legal
significance of the passage of January 6, 2005 depends upon the status
of contestors' petition at the time. If contestors have prevailed in their
suit before that date, and Ohio has appointed a new slate of electors as
requested in the prayer for relief, it would be possible under section 15 for
Congress to consider which slate of electors to accept. If the 6th has
passed and contestors have not yet prevailed, there will be no legal
significance of the suit which is binding upon the Congress,
the safe harbor date for the resolution of controversies having already
passed. A slate of electors from Ohio has in fact already been appointed,
their votes have been cast, and the votes, we may trust, will have been
delivered to Congress by January 6. Therefore Congress is free to proceed
under 3 USC 15 in counting the electoral votes as it sees fit. The existence
of a continuing controversy in Ohio may or may not lead to objections being
raised at the time of counting of the votes. Nevertheless, there
may very well be legal significance of the suit in Ohio, since
the allegations therein refer to what are potentially criminal
violations of Ohio law, by both State and Federal officials.

[suston96]

94. Not a lawyer either.....

But.... I don't think January 20 is a drop dead date either.....

" Amendment XX

Section 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. "

We gots plenty of time!

[GetTheRightVote]

96. 1. The election was stolen period, we have enough proof of it

oppression, suppression, misinformation, etc.

2. I know due to the fact that I was volunteering at the polls and saw it for my own eyes, I joined in on the recount and it to is rigged.

3. We must save our democracy by taking to the streets even as the lawyers in Ohio state their case, we the people will demand action on the fraud period.

4. Do not lose faith in justice, do not lose faith in your fellow Americans, 1 out of 5 Americans already know that the election was stolen, that is you and me.

5. Once not long again I was asked why do the American people not take to the streets behind this stolen election. I had no answer for them but to reply that we needed to have faith, to wait, and see, they will come when it is time too.

6. Now it the time to stand up to * and company, now is OUR time to stand up for our selves and tell the world that we believe in Democracy and we demand it.

7. I put my life on the fact that this election was stolen, I am so sure of it, it drives my hungrier for justice every day now.

We must prevail, we must spring into action and take back what is ours, American, our Democracy, if you truly love her, you must rally in support of her and those who seek to keep her safe. Get your signs ready and march for her.

[gulogulo]

101. If you are so dang sure that there was massive fraud -

that you would "put your life on that fact" - why don't you expose it?

After the "canvassing period" ends, the election records - ballots and polling books - become public record. This means that anyone can recount them if they pay for the county workers' time that it takes.

If there is (as there seems to be) a big group of DUers that is convinced that there was fraud, and who are interested in uncovering it regardless of the fact that it won't install Kerry as president - why not collect the money and do those recounts? Ohio, Florida, New Mexico - anywhere you like?

Miami Herald has already done this in 3 counties in Florida. I have seen reports of some people doing it on their own in other counties in Florida. I believe the cost of the recount in those counties was $10/hour for the time that it takes.

"But it will be too late" - too late for what? Too late to have Kerry as president - assuredly. But not too late to prove fraud, and taint Bush's second term - if massive fraud is proven.

I calculated, based on the costs of Florida recounts by peaople from www.recountflorida.com that the total cost of recount in Ohio that will need to be paid to the BOEs should be around $300,000. I am sure every DUer who is dead sure that widespread fraud has been perpetrated in Ohio will run, not walk, to donate/volunteer/participate in such a recount.

[GetTheRightVote]

106. I see a non believer among us, I have donated and plenty too

In time, effort, money, all that I have to give, where have you been sitting, typing on DU as if you care ?? I was there in Florida when Al Gore won and it has been proven by the Maimi paper as well. I was there this year as well in Florida where they demortalized African Americans when all they wish to do was vote, and I watched it all go down. The Republicans are stealing our elections underneath our feet and we are allowing it, especially people such as yourself who wish to question the truth right before their eyes. Money is nothing if we lose our Democracy, money is the reason why we are where we are today, greed on the part of human beings instead of the desire for justice is what lead us to this end result. I am concerned with losing my country along with the haterd shown to my country man and woman yet all you think of is the cost of their oppression in dollars. This is a sad state of affairs when money is all that is thought of instead of equality in life, liberty, and happiness.

YES, my life but do not worry, not yours.

[gulogulo]

107. I don't understand your response

You think widespread fraud has occurred? Why don't you expose it? All you have to do is to request access for recounting a few precincts where you think fraud has occurred. I am sure if you find wild discrepancies there, you will get support/volunteers/funds to do more precincts etc until the whole state is hand-recounted by you and your force of volunteers.

So - when are you starting your recounts?

Edit: the dreaded typo.

[ElaineinIN]

98. Capable of Repetition yet Evading Review?

Any one familiar with Ohio law know if the Ohio has a similar concepts? For nonlawyers, the SCOTUS has a doctrine that says that even if the outcome is moot, the court could still review it if the event could happen over and over, but because of the time involved, it can't be reviewed judicially on a timely basis. As I recall, this happened with a lot of abortion rights cases.

[ElaineinIN]

100. Dupe sorry n/t

[Truman01]

108. I am a lawyer, and since no one else has said they are I'll answer....

Again I'm not barred in Ohio so my answer is excepted for that.

From what I read, Arnbeck filed a Rule Nisi request for a hearing in chambers prior to the period set to have briefs filed for several requests.

Rule Nisi is a special provision by which attorneys can ask that the court bypass the normal time constraints and have a hearing out of order because failure to do so in a timely manner will render the subject matter moot, and shall do irreprairable harm to the movant.

The judge's rulings in order basically mean the following:

1. No special time provisions will be granted because he doesn't find them necessary in the interests of Justice.

2. All other motions will be handled under the normal time and other provisions of the court rules.

3. The Judge asked sui sponte (without being promted) that the parties each file their opinion on the two questions proposed by 12/28. Then he took the unusual step of allowing a rebuttal response by January 3, 2005. (If you read the normal rules rebuttal responses are not allowed.)

Believe it or not the judge is giving the appearance of being quite fair. He is asking that each side give their opinion on whether this lawsuit is void/moot because of not being filed by December 7th the federal safe harbor deadline (law with emphasis below). Secondly he asked their opinion on what would happen if this lawsuit went past Jan 6th.

He is basically establishing with the first question if this issue is still ripe for discussion and if he still has jurisdiction. With the second, he is establishing that if he does have jurisdiction does January 6th make all questions moot then?

My guess is that he is going to rule that any change to the electors whether by the legislature or judiciary must be done by December 7th because of the 3 USC 5 passage below See the underlined portion.

You make your own mind up.

TC

I included the relevant sections of law quoted by the judge in the Order.

S.CT.Proc.R XIV(4)(a)(b)(c)
Section 4. Motions; responses

(A) Unless otherwise prohibited by these rules, an
application for an order or other relief shall be made by
filing a motion for the order or relief. The motion shall
state with particularity the grounds on which it is based. A
motion to stay a lower court's decision pending appeal shall
include relevant information regarding bond and be
accompanied by a copy of the lower court's decision and any
applicable opinion.

(B) If a party files a motion with the Supreme Court, any
other party may file a memorandum opposing the motion within
10 days from the date the motion is filed, unless otherwise
provided in these rules. A reply to a memorandum opposing a
motion shall not be filed by the moving party. The Clerk
shall refuse to file a reply to a memorandum opposing a
motion, and motions to waive this rule are prohibited and
shall not be filed.


(C) The Supreme Court may act upon a motion before the
deadline for filing a memorandum opposing the motion if the
motion is for a procedural order, including an extension of
time to file a merit brief, or if the motion requests
emergency relief and the interests of justice warrant
immediate consideration by the Supreme Court. Any party
adversely affected by the action of the Supreme Court may
file a motion to vacate the action.


3 U.S.C. § 5. Determination of Controversy as to Appointment of Electors.

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.

(June 25, 1948, ch. 644, 62 Stat. 673.)


3 U.S.C. § 7. Meeting and Vote of Electors.

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.

(June 25, 1948, ch. 644, 62 Stat. 673.)

[Doctor O]

109. So basically he is saying

I did not find enough reason to hear the case based on the filing and my reading of the laws, but I am going to be fair and give you a chance to persuade me I am wrong, before i dismiss this filing.

[Truman01]

110. I will answer questions on this thread I started.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x187592