Moss v. Bush

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Moss v. Bush (Supreme Court of Ohio Case Nos. 04-2055 and 04-2088) was a lawsuit filed by 37 Ohio voters challenging Ohio's certified electoral college votes in the 2004 U.S. presidential election. It was filed on 13 December 2004, and dismissed at the plaintiffs' request following the acceptance of Ohio's votes by the U.S. Congress and Senate on January 6, 2005. The suit was headed by Cliff Arnebeck of the Alliance for Democracy.

Following the dismissal, Arnebeck's group filed a motion to intervene in a federal case brought on Election Day by the Ohio Democratic Party against Ohio Secretary of State Kenneth Blackwell.[1] That motion was opposed by the Ohio Democratic Party[2] and ultimately denied.[3]

Contents

[edit] Details of the case

The case challenged Ohio's certification of its electoral votes, which had been awarded to George W. Bush and his running mate, Dick Cheney, the candidates on the Republican Party ticket. The plaintiffs alleged that there had been widespread systematic election fraud that altered the outcome of the election; lead plaintiffs' attorney Cliff Arnbeck claimed to have evidence to prove these accusations.[citation needed] On that basis, the suit asked the courts to set aside the certified results, and, possibly, award the state's electoral votes to John Kerry and his running mate, John Edwards, the candidates on the Democratic Party ticket. If successful, shifting Ohio's 20 electoral votes in the 2004 presidential election would have had the effect of shifting the overall election from Bush to Kerry. See generally 2004 United States presidential election, results.

The second complaint read in part:

The Contestors "ask the Court to determine that the number of votes affected by the irregularities identified herein are sufficient to declare the Kerry-Edwards ticket the winner of Ohio's electoral votes for the office of President and Vice President for the terms commencing on January 20, 2005, and that the certificates of election to the Bush-Cheney electors named as Defendants-Contestees be cancelled by operation of law as set forth in R.C. 3515.14, or, in the alternative, that such irregularities, errors, frauds, and mistakes make the result of the election so uncertain that the Court should order the results of the election be set aside persuant to R.C."

The suit further made a number of specific claims:

  • That there were statistically improbable discrepancies between exit poll data and actual results (.0012 probability, according to the suit's analysis). Exit polls showed 52.1% for Kerry compared to 48.7% for Kerry in reported votes (pp. 29-30).
  • That vote fraud took place including adding unlawful ballots and destroying lawful ballots, fraudulent absentee ballots, unauthorized access to tabulating machines and computer operating insructions (pp. 34-35).
  • That the legally protected right to inspect public records in the office of the board of elections was over-ruled by Ohio Secretary of State Ken Blackwell (p. 34) and specifically violated in Green County when precinct voting books and computer printouts were removed from the hands of a woman inspecting the records which had been provided to her in the office (pp. 36-37).
  • That the equal protection provisions of 14th and 15th amendments and the Voting Rights Act were violated by, for example, false information being provided to voters and inequitable distribution of voting machines (pp. 41-46).
  • That, as a result, at least 130,656 votes were miscounted for Bush instead of Kerry (pp. 37-40).
  • That, as a result, at least 216,778 votes for State Supreme Court Chief Justice were miscounted for Thomas Moyer instead of for Ellen Connally (pp. 40-41).

[edit] Litigation

[edit] The first filing, Moss v. Bush I

Following the November election, Ohio's electors were scheduled to meet and cast their votes for President Bush on 13 December 2004. On that same day, various Ohio citizens (the "Contestors") filed an Election Contest Petition[4] alleging fraud in the conduct of the Ohio election and a Motion for Temporary Restraining Order and Preliminary Injunction[5] seeking to prevent Ohio's electors from meeting or casting their vote before completion of the Election Contest.

[edit] Allegations raised in Moss v. Bush I

  • The Contestors based their challenge in large part on the theory that the discrepancy between exit poll results and the certified election results provided clear and compelling evidence that the election results were procured by fraud. (See Petition, paragraphs 72-84).
  • Based on this discrepancy, the Contestors hypothesized "on information and belief" that the Bush-Cheney campaign alleged in a variety of fraudulent practices. (See Petition, paragraphs 86-93).
  • The Contestors also complained about a variety of alleged irregularities in various Ohio counties (See Petition, paragraphs 94-97, 105-133
  • Based on these allegations, the Contestors requested that the court overturn the presidential election and the re-election of Ohio's Chief Justice, awarding Ohio's electoral votes to the Kerry-Edwards tickets and the Chief Justice position to challenger Ellen Connally. (See Petition, "Request for Relief").

[edit] Resolution of Moss v. Bush I

On 16 December, [2005], Justices' Thomas Moyer and Maureen O'Connell, in separate opinions, dismissed Moss v. Bush I without prejudice to refiling the action as two separate cases. Both Justice Moyer and Justice O'Connell ruled that Ohio election law did not permit Contestors to challenge the election of two different officials in a single Petition.[6], [7]. Based on those dismissals, Justice Moyer denied the Contestors' pending motions to prevent the Ohio electors from casting their votes and to take discovery as moot.[8]

[edit] The second filing, Moss v. Bush II

On 17 December, the case was refiled, with it now referring only to the election of Ohio's electors for the presidential electoral college. A request was also made that the Court declare the Kerry-Edwards presidential ticket the rightful winner of Ohio's electoral votes.

On 22 December, Judge Moyers denied the request for an expedited trial and asked:

  1. "Whether this petition is moot based on the fact that it was filed subsequent to the "safe harbor" date established by 3 U.S.C. 5 and 7? This date was December 7, 2004 for the November 2, 2004 election."
  2. "January 6, 2005 is the date by 3 U.S.C. 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?"

On 27 December, Kenneth Blackwell refused to appear at a deposition. (AP) (AP) (Contester's publication)

"Richard Conglianese, Ohio Assistant Attorney General, is seeking a court order to protect Blackwell from testifying under oath about how the election was run. James R. Dicks, Miami County Assistant Prosecuting Attorney, filed a motion to block a subpoena in his county while Conglianese filed to block subpoenas in ten key Ohio counties.
President George Bush, Vice-President Richard Cheney and White House Political Advisor Karl Rove received notice that they will be deposed Tuesday and Wednesday, December 28 and 29. The trio’s Ohio attorney, Kurt Tunnell, so far claims his clients have not been properly served. Under Ohio law, the Republican-dominated Ohio Supreme Court is responsible for serving the three with subpoenas."
"...The challengers are seeking a January 4th hearing before the Ohio Supreme Court." [9]

On 29 December 2004, Judge Moyer refused to recuse himself, and spoke dismissively of the suit:

"The voters and their attorneys filed poorly documented affidavits that contain hearsay, don't indicate who the people making statements are and don't explain what their statements have to do with the election."

On 31 December 2004, several expert witnesses submitted testimony.

  • Dr. Ron Baiman (pdf) - Professor of statistics, Institute of Government and Public Affairs, University of Illinois in Chicago
  • Dr. Werner Lange (pdf) - Professor of sociology, University of Pennsylvannia in Edinburg and part-time pastor
  • Dr. Richard Hayes Phillip (pdf) - Professor, Doctor of Geomorphology, Master of History, Master of Geography, and Bachelor of Politics

On 3 January 2005, George Bush's election campaign asked Judge Moyer to dismiss the case.[citation needed]

On 12 January 2005, Moss v. Bush was dismissed at the contestors' request.[10] Lawyer for contestor Cliff Arnebeck said they would be seeking "other avenues".[citation needed]

[edit] Motion for sanctions

On 18 January 2005, Ohio's Secretary of State filed a motion for sanction against the plaintiffs, alleging that the claim in Moss v. Bush was meritless, did not meet the standards of evidence required by law, and was brought only for partisan political purposes. [11]

On 19 May 2005, Chief Justice Moyer denied the motion for sanctions.[12] Justice Moyer concluded that, although "[t]he contestors indeed made multiple allegations in the complaint that are, at best, highly improbable and potentially defamatory, inflammatory, and devoid of logic" (Paragraph 4), and "[d]espite the apparently scurrilous nature of most of these allegations," (Paragraph 16), sanctions were not appropriate under Ohio law for two reasons. First, Justice Moyer concluded that unlike civil litigation, the election contest statutes of Ohio do not permit sanctions for meritless charges. (Paragraphs 17-24). Second, because the contestors dismissed their suit before evidence was gathered, Justice Moyer concluded that even if sanctions were permitted by law, there was not enough evidence before the Court to issue sanctions. (Paragraph 25).

  • Some of the documents in the sanction case are available at [13].

[edit] Moss v. Moyer

On 20 December 2004, the case contesting "...the certification of the election of Thomas Moyer for the office of Chief Justice of the Ohio Supreme Court for the term commencing in 2005." was refiled. The case is known as "Moss v. Moyer", Ohio Supreme Court Case No. 04-2106. Justice Maureen O'Connor was designated to preside over the matter by Governor Bob Taft.

On 28 December 2004, Justice O'Connor issued an order stating that under Ohio Rule of Civil Procedure 9(b), the Contestors were required to plead the alleged acts of fraud in the election for Chief Justice with greater particularity. She ordered that Contestors do so by 7 January 2005, allowed their opponents until 14 January 2005 to respond, and stayed any discovery proceeding pending those pleadings.[14]

On 12 January 2005, Moss v. Moyer was dismissed at the request of the Contestors.[15]

[edit] Litigation documents

[edit] Moss v. Bush I Litigation Documents

[edit] Moss v. Bush II Litigation Documents

[edit] Moss v. Moyer Litigation Documents

[edit] See also

[edit] External links

[edit] Related correspondence

  • Letter from Arnebeck to Concerned Citizen [19]

[edit] Multimedia

  • American Dream Radio: Cliff Arnebeck, lead counsel for the voters law suit in Ohio which sought to reverse the election outcome because of widespread voting irregularities. He explains about the law suit (as opposed to the recount), discusses some of the voter suppression tactics alleged, and talks about the expected course of the legal wrangling. Dec. 19, 2004 at 9:25 AM(audio)
  • Pacifica radio: Cliff Arnebeck explains how he alleges the Ohio vote was rigged (audio)
  • C-SPAN video: Cliff Arnebeck, National Co-Chairman for the Alliance for Democracy and counsel in a lawsuit that challenged the presidential election in Ohio, discusses the legal challenges to the 2004 vote in Ohio. 12/2/2004: WASHINGTON, DC: 30 min. (video, rm)

[edit] References

[edit] Further reading

v • d • e
2004 United States Presidential Election
Candidates George W. Bush • John Kerry • Ralph Nader • (full list) Electoral map, 2004 election
General articles Election timeline • Detailed results • Democratic primaries • Republican Convention • Democratic Convention • Effects in Canada
Controversies Controversy and irregularities (timeline) • Exit polling inconsistancies • Vote suppression • Voting machines • Moss v. Bush • Florida • Ohio • Kerry military service • Bush military service
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Other 2004 elections House • Senate • Gubernatorial
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