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Article Archives (1-04-2005)
Barak Obama and Ohio, shall he stand with Conyers?
Today Barak Obama, hailed as a rising star of the Democratic party, shall be sworn in as a United States Senator. However, Senator Obama shall have scant time to bask in the warm glow of his achievement for his first trial in office comes two days later, Thursday the 6th. This is when a joint session of Congress shall count the votes of the electoral college from the 2004 presidential election pursuant to United States Code, Title 3, Section 15. Say what? OK, maybe you have never heard of Title 3, Section 15 of the United States Code but certainly you have seen or heard of Mike Moore's polemic Fahrenheit 9-11. One of the more moving scenes in this flick was from January 2001 when 19 members of the Congressional Black Caucus filed objections to the electoral votes submitted from the State of Florida. This was done during the 2001 electoral college vote of which we shall have a replay on January 6, 2005. The 2001 version was anticlimactic. The law requires any challenge to electors to be in writing signed by both a member of the US House and Senate. 19 house members objected, no senators joined. In an appropriate twist of fait, Al Gore (in his capacity as presiding officer of the Senate) was the one who overruled the objections of the members of congress to the 2000 election and, thus, declared his opponent, George W. Bush, the winner.
It is important to note that there were no black senators in 2001. As of today, there shall be one. This election's Florida is Ohio. Congressman John Conyers (D-Michigan) has already publicly stated that he shall rise to challenge the electoral votes from Ohio on Thursday during the joint session of Congress. It is unknown how many members of congress shall rise with him. One thing is for certain though, all eyes shall be on the junior senator from Illinois this Thursday. Does he stand with John Conyers in objection or does he sit silently by?
Grounds for objection to Ohio electors
No one is really sure what the legal standards are for challenging electors in the January joint session of congress where the electoral college votes are counted. Reason: a proper challenge has never been filed. Congressman Conyers has already done the legal research on this issue:
Historically, there appears to be three general grounds for objecting to the counting of electoral votes. The language of 3 U.S.C. §15 suggests that objection may be made on the grounds that (1) a vote was not "regularly given" by the challenged elector(s); and/or (2) the elector(s) was not "lawfully certified" under state law; or (3) two slates of electors have been presented to Congress from the same State.
(quoting from letter of Congressman Conyers to Senator Boxer). Congressman Conyers has honed in on the 2nd ground for objection: "the elector(s) was not 'lawfully certified' under state law". That's a significant hurdle to get over. For the record, the Ohio official who certified Bush the winner, Secretary of State Ken Blackwell, was also co-chair of the Ohio Bush-Cheney 2004 campaign. Yes, Bush's Ohio campaign chairman is in charge of counting the votes. Can you say Katherine Harris? FN1 As an aside, we need to end this practice in America. Is it such a difficult concept that vote counters should be non-partisan, neutral?
What evidence is there that the vote in Ohio was not lawful under state law?
The standard almost universally applied when the world community wishes to monitor elections in the 3rd World to determine whether or not fraud has occurred is exit polling data. In this case, the exit polling data from both Ohio and Florida indicates a statistically anomalous event. A professor at the University of Pennsylvania (with a Phd from MIT) calculated the probability that Kerry received 48.5% of the vote in Ohio (which is the percentage certified by Ken Blackwell) in light of the exit polling data that predicted Kerry's share at 51.2% to be less than 1 in 1000 (.08% to be exact). See Report of Dr. Freeman at page 7. As Dr. Freeman points out, no one has come forward with data adequately explaining how or why the usually reliable exit polling data was so wrong. The statistical analysis merely shows that the variation between the exit polls and the reported tallies is so disparate that it cannot be due to random chance. It does not lead to a conclusion of fraud or improper vote counting. Another potential explanation is that the poll was conducted improperly.
So do we have direct evidence of impropriety as opposed to a statistical inference? The following comes from Keith Olbermann of CNBC:
Interestingly, none of the complaining emailers took issue with the remarkable results out of Cuyahoga County, Ohio. In 29 precincts there, the County’s Website shows, we had the most unexpected results in years: more votes than voters.
I’ll repeat that: more votes than voters. 93,000 more votes than voters. Oops.
Talk about successful get-out-the-vote campaigns! What a triumph for democracy in Fairview Park, twelve miles west of downtown Cleveland. Only 13,342 registered voters there, but they cast 18,472 votes. Vote early! Vote often!
Olbermann link, See November 9 entry.
What this information tells us is that evidence exists tending to show that the 2004 presidential election was inaccurate (and substantially so). Although these facts alone should have been enough to spark a media uproar, barely a peep has been heard from the networks, major city papers, and cable bigs (i.e., CNN and Fox) on the subject. I think the main reason for this is that John Kerry has been secluded in Massachusetts licking his wounds and, for whatever reason, has chosen not to call for an investigation into the irregularities. Getting back to the original question, the evidence of an inaccurate vote is fine and dandy; however, in order to have grounds for an objection, evidence must be uncovered tending to show that Ohio election laws have been broken. Where there is smoke fire usually is not far behind, however, to overturn or even hold up a presidential election, I suggest actual fire is necessary. Do we have any direct evidence of the election laws of Ohio having been broken?
Amazingly, the answer is "yes". Section 3515 of the Ohio Revised Code reads as follows:
§ 3515.04. Procedure for recount; stopping recount.
At the time and place fixed for making a recount, the board of elections, in the presence of all witnesses who may be in attendance, shall open the sealed containers containing the ballots to be recounted, and shall recount them. If a county used punch card ballots and if a chad is attached to a punch card ballot by three or four corners, the voter shall be deemed by the board not to have recorded a candidate, question, or issue choice at the particular position on the ballot, and a vote shall not be counted at that particular position on the ballot in the recount. Ballots shall be handled only by the members of the board or by the director or other employees of the board. Witnesses shall be permitted to see the ballots but they shall not be permitted to touch them, and the board shall not permit the counting or tabulation of votes shown on the ballots for any nomination, or for election to any office or position, or upon any question or issue, other than the votes shown on such ballots for the nomination, election, question or issue concerning which a recount of ballots was applied for.
Link. Green Party presidential candidate David Cobb and Libertarian candidate Michael Badnarik (but not Kerry) properly applied for a recount with the Ohio Secretary of State. Did Ohio Secretary of State Blackwell conduct a recount of the presidential ballots in all Ohio counties as required by Section 3515.04 of Ohio law? The answer is NO. He issued Directive No. 2004-58 which stated, in part, that the election board of each Ohio county was to "randomly" select whole precincts whose votes would comprise 3% of the total vote for the county. They were then to hand recount all votes for these precincts and, if the hand count did not exactly match the previously reported vote count, then the entire county was to be recounted. There is evidence that many counties did not select the precincts randomly; in several others, the recount total from the sample differed from the previous vote count but the county board refused to recount the entire county's votes per the Secretary of State's directive; and, finally, in several counties witness were not allowed to actually view the recount taking place as required by state law. See Affidavit of John Bonifaz filed in Federal District Court in an election related case. For a list of additional activities that do not appear to comply with Ohio election law, see this link.
What does Obama do?
OK, Kerry is MIA on this issue, he's got precious little time for consideration, what should Obama do regarding the Conyers challenge looming Thursday? As this shall be his first act in the senate and one that shall be closely watched, I am sure the Senator wants to move with discretion. What is the downside to joining Conyers? Well, of course, the Republican hounds shall bay at the moon. That's a given. They'll take any opportunity to jump on Fox News and howl. "I'm appalled at this upstart for attempting to delay the coronation of Emperor George II, what gall!" No real harm there. What is important is that Senator Obama be a man of reason, one not given to pure partisan actions lacking substance, a man with respect for the law and the Constitution. Based upon the foregoing, there does appear to be evidence that the election laws of Ohio have been violated regarding the recount. There is also evidence that the presidential vote total is incorrect. Is it not important that all votes be lawfully counted? Is that not a principle worth standing up for? I know its his first shot out of the box but I urge the Senator to stand tall this Thursday, shoulder-to-shoulder with Congressman Conyers. However, one bit of tactical advice: keep you decision close to the vest before Thursday (real close), call a press conference 20 minutes before the joint session is scheduled to start, then drop the news professionally, without undue emotion, laying out the legal grounds and supporting facts which you believe require that the electors from Ohio be rejected at this time. Then calmly call for a lawful, properly witnessed recount of the Ohio presidential ballots in accordance with that state's election laws.
In so doing senator, you shall immediately launch yourself as the national opposition leader to George W. Bush. Your spear will be planted in the ground. Game on.
FN1 Katherine Harris was the 2000 Florida Bush-Cheney campaign co-chair who also happened to be Florida Secretary of State and, thus, certified Bush the winner in that state in the 2000 election.
JJR
1-04-2005
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