16 October 2014

The lawsuit challenging Ohio's 2004 presidential race has been withdrawn from the Ohio Supreme Court, having served as a lightning rod to draw national attention to the widespread and possibly illegal irregularities in the vote that gave George W. Bush a term as president starting in January.

While the election challenge lawyers say they may raise the suit's constitutional and civil rights issues in other legal venues, the case, Moss. V. Bush, became a vehicle for an aggressive investigation of irregularities in the Ohio presidential vote that culminated in a congressional challenge of the 2004 Electoral College.

The suit grew out of an Election Day that saw multiple thousands of Ohioans, particularly minority inner city and young people, disenfranchised. Public hearings were convened where scores of voters testified under oath about losing their right to vote or seeing it attacked and compromised. By December, a half-dozen noted academic experts freely offered their analysis of the state-certified results, pointing to anomalies that raised the specter of widespread vote-counting fraud. While the Ohio Secretary of State J. Kenneth Blackwell, who was also the co-chair of the president's Ohio campaign, obstructed all efforts at discovery and evidence gathering -- preventing those claims of fraud from being validated -- the widespread and detailed record was sufficient proof for members of Congress to hold hearings examining the vote and eventually challenge the Electoral College results on Jan. 6.

"This is not the end, this is merely the end of one state action," said Cliff Arnebeck, the challenge's lead counsel. "More importantly, it signals the emergence of a much broader effort where we plan to investigate and litigate county by county, ward by ward, precinct by precinct."

In mid-December, 37 plaintiffs in the historic Moss v. Bush lawsuit filed suit to challenge the seating of Ohio's 20 Republican electors, contending instead that John Kerry was the legitimate winner of the Ohio popular vote, not George W. Bush. John Kerry did not join the suit.

The election challenge legal team used the testimony from public hearings and analyses of the certified results to allege that Kerry was deprived of votes - in numerous ways in varying counties - and sought the use of notices of deposition to investigate further and prove their case. They believed elected officials had a responsibility to testify in duly filed legal actions. They noticed depositions of Blackwell, officials on 10 county boards of election, Karl Rove, Dick Cheney and George Bush. In almost all cases except at the local level, those efforts were rebuffed by public and Bush-Cheney campaign officials.

Blackwell refused to be deposed. He was the second consecutive Republican Secretary of State to simultaneously serve as a state's Bush-Cheney campaign chair in a state that decided a presidential election for Bush, following Florida's Katherine Harris. He is now running for governor of Ohio. Blackwell argued he did not have to testify because he was "a public official." His office labeled the deposition notices a form of "harassment." Messrs. Bush and Cheney and presidential advisor Karl Rove refused to appear. Without their testimony -- and the ability to examine actual election records in a more detailed manner than the statewide recount -- Moss v. Bush had little chance of proving what really happened November 2.

One key element of the case involved the Ohio Supreme Court Chief Justice race, where the Democratic candidate received many more votes than Kerry in southern Ohio. That raised the possibility that computer tabulators may have assigned Kerry votes to her candidacy. The election challenge asked Ohio's Chief Justice Thomas Moyer to recuse himself from the case, which was refused. Thus, Moyer made it clear a fair verdict in Moss v. Bush at the Ohio Supreme Court level was unlikely. A second action -- Moss v. Moyer -- based on those same returns was also dropped by the 37 plaintiffs, who will now seek other legal routes to address that conflict of interest and the massive civil rights violations that defined the Ohio vote.

But the suit remains something of a historic landmark. It grew out of the massive public protests that followed the November 2 vote. It began to document a wide range of violations that prompted a rare congressional challenge to the seating of a state delegation to the Electoral College. By challenging the seating of Ohio's electors, Sen. Barbara Boxer (D-CA), Rep. Stephanie Tubbs Jones (D-OH) and others issued a powerful statement about the conduct of a state-wide presidential election.

A written statement released through their legal team stated that the "Contesters remain dedicated to the task of finding an alternative legal forum in which they may seek redress for the severe damage done...."

The contesters believe that the alleged constitutional and statutory rights violated on Election Day were racially motivated. The contesters assert that they "remain dedicated to the goal of ensuring through the legal system that in the future no other group of people, or indeed any individual voter, is deprived of the fundamental and basic right to elect our leaders freely and fairly in an election in which all votes are counted honestly."

The statement issued by the contesters contends that Ohio Secretary of State J. Kenneth Blackwell, Karl C. Rove, Richard B. Cheney and George W. Bush "were properly noticed for depositions" and "failed to appear for their depositions."

The contesters say they "look forward to the day" when they can place Blackwell, Rove, Cheney and Bush under oath in "an appropriate legal setting."

In closing, the contesters thanked "...all the people in the United States and around the world, from the Ukraine, Iraq, Afghanistan, Romania, Poland, South Africa and many other nations, who supported and continue to support the efforts to ensure the legitimacy of national and state elections in the United States...".

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Bob Fitrakis, Steve Rosenfeld and Harvey Wasserman are co-authors of OHIO'S STOLEN ELECTION: VOICES OF THE DISENFRANCHISED, 2004, a book/film project forthcoming from http://freepress.org. Contributions are welcome via http://freepress.org/store.php or at the Columbus Institute for Contemporary Journalism, 1240 Bryden Rd, Columbus, OH 43205. Fitrakis served as legal counsel on the Moss v. Bush lawsuit.