Moss v. Bush

828 N.E.2d 994, 105 Ohio St. 3d 458
Ohio Supreme Court·Decided May 19, 2005·No. No. 2004-2088·Published·Cited by 16 cases

Opinion

Moyer, C.J.

{¶ 1} This case originated as an election contest challenging the results of the November 2, 2004 election in Ohio for President and Vice-President of the United States. The contestors, 37 Ohio residents who allegedly had voted in the presidential election, filed an election-contest petition pursuant to R.C. Chapter 3515. The named contestees were President George W. Bush, Vice-President Richard Cheney, Bush-Cheney adviser Karl Rove, Bush-Cheney ’04, Inc. (alleged by the contestors to be the political committee for Bush and Cheney), Ohio Secretary of State Kenneth Blackwell, and Ohio’s presidential electors.

2} On January 6, Congress met in joint session pursuant to Section 15, Title 3, U.S.Code and certified George W. Bush and Richard B. Cheney the winners of the November 2, 2004 national presidential and vice-presidential election. Five days later, on January 11, 2005, contestors applied to dismiss their election contest. That application was granted, and the case was dismissed. Moss v. Bush, 104 Ohio St.3d 1449, 2005-Ohio-71, 820 N.E.2d 934.

{¶ 3} Before me is a motion filed January 18, 2005, by Secretary of State Blackwell and Ohio’s 20 presidential electors seeking the imposition of sanctions against the attorneys who represented the contestors. The movants assert that counsel for the contestors filed a meritless complaint without having adequately researched the law relative to their grievances and failed to adhere to the procedures and time requirements set forth in the election-contest statutes and the Rules of Civil Procedure. They claim that the complaint was based on “theory, conjecture, hypothesis, and invective” rather than evidence and that the contestors filed this contest proceeding “only for partisan political purposes.” The movants note that the petition accused Ohio election officials of blatant misconduct, including fraud, and assert that contestors had no evidence of fraud, let alone the clear and convincing evidence that a finding of fraud requires. They accuse opposing counsel of filing meritless and frivolous motions and demanding [459]*459unwarranted discovery. They assert that the contestors acted for the purpose of “generating headlines and harassing the rightful winners of the election” rather than for legitimate purposes.

{¶ 4} I have little doubt that many informed Ohioans share the movants’ assessment of the motives of these contestors and disdain for their actions. The contestors indeed made multiple allegations in the complaint that are, at best, highly improbable and potentially defamatory, inflammatory, and devoid of logic. They asserted no less than a vast criminal conspiratorial scheme to subvert our democracy through massive election fraud. Examples of these allegations are:

{¶ 5} • George W. Bush, Richard Cheney, Karl Rove, and Bush-Cheney ’04, Inc., participated personally and/or substantially “in devising and/or implementing [a] pattern of vote fraud and discrimination * * * which operated to deprive numerous Ohio citizens of their constitutional and statutory rights”;

{¶ 6} • Ohio Secretary of State J. Kenneth Blackwell participated personally and substantially “in ordering and/or acquiescing in the commission of numerous instances of election fraud in violation of Ohio criminal law after November 2, 2004, which actions served to cover-up and delay disclosure of the fraudulent scheme”;

{¶ 7} • Election fraud or other irregularity must have occurred in the counting of the vote in Ohio and a number of other states because the ultimately certified result showing John Kerry winning only 48.7 percent of the Ohio vote was inconsistent with exit polls;

{¶ 8} • Preliminary exit polls forecasting a Kerry victory were more reliable than the certified election results, and there was a 98.7 percent likelihood that Kerry actually received a greater percentage of the popular vote than Bush;

{¶ 9} • The contestees schemed to “steal the election” by reducing or eliminating the time the “fraudulent results would be subjected to serious scrutiny.”

{¶ 10} • “[Traditional means of vote fraud were used. * * * [Ujnlawful ballots (not cast by a registered voter but merely added to the stack of ballots being counted) were added to those cast by lawful voters and * * * lawfully cast ballots were either destroyed or altered (as for example by adding a second vote to the one allowed vote for President and thereby invalidating the ballot).”

{¶ 11} • Secretary of State Blackwell ordered all 88 boards of election to prevent public inspection of poll books until after certification of the vote on December 6, 2004, apparently to “cause[ ] violations [of state law] by every board of elections in the state.”

{¶ 12} • An unknown conspirator “was actually changing the vote totals” electronically from an unknown location, which could have been virtually anywhere in the world;

[460]*460{¶ 13} • Conspirators procured fraudulent vote totals by inserting “unauthorized and so far undetected operating instructions into the software” used in connection with voting machines, and “some or all of the unauthorized operating instructions were pre-set to delete themselves a given amount of time after the election.”

{¶ 14} Contestors further alleged fraud in the casting and counting of absentee ballots and alleged individual election incidents occurring throughout the state, including isolated voting-machine, registration, and provisional-ballot errors and irregularities, as well as long lines and discriminatory distribution of voting machines.

{¶ 15} Had the contestors not dismissed the election contest, several or all of these allegations of fraudulent conduct may well have been subject to dismissal pursuant to Civ.R. 9(B), which requires that in “all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” The voluntary dismissal of the election contest, however, renders that issue moot.

{¶ 16} Hundreds of persons — including members of both the Democratic and Republican Parties — served on boards of elections, at polling places, and in other capacities to conduct the presidential election in Ohio on November 2, 2004. While that election was not perfect, the contestors’ allegations, and the notoriety they produced, proclaimed to the world that Ohio did not conduct a fair and lawful presidential election. By their conduct, contestors, their attorneys, and other persons who appeared to be more interested in their own notoriety than in the facts profoundly disserved Ohioans of both political parties who worked so hard to conduct a fair election. Despite the apparently scurrilous nature of most of these allegations, I am, however, guided by the relevant statutes and precedent in considering the motion before me.

{¶ 17} R.C. 3515.11 provides that “[t]he proceedings at the trial of the contest of an election shall be similar to those in judicial proceedings, in so far as practicable, and shall be under the control and direction of the court which shall hear and determine the matter without a jury, with power to order or permit amendments to the petition or proceedings as to form or substance.” Accordingly, this court has employed the Rules of Civil Procedure in adjudicating election contests. For example, the court has recognized that a party to an election contest could invoke Civ.R. 26(B)(3), which authorizes, under certain conditions, discovery of an opponent’s work product. In re Election of November 6, 1990 for the Office of Atty. Gen.

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Moss v. Bush, 828 N.E.2d 994, 105 Ohio St. 3d 458 (Ohio 2005).

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