Dragged back out of the Archives, Major Toms Post on Actionable Fraud

[truehawk]

http://www.dailykos.com/story/2004/11/30/185532/75


The main point of the history lesson is that Democrats should not be afraid to stand up at any cost and declare they will not be hoodwinked by Republicans fraudsters. Incidentally, Rutherford B. Hayes kept his promise and did not run for re-election in 1880.

What is the Legal Concept of "Reasonable Suspicion"?

There is something else of import that all of us should keep in mind. It is the concept of "reasonable suspicion." In brief, it's a standard that law enforcement authorities need to meet in order to stop and search a citizen, a car and so on; and it can be the valid basis of an eventual arrest. Indeed, it is less than a "probable cause" or "more likely than not" legal standard. Thus, a twenty or thirty percent likelihood of a given event or fact would meet the "reasonable suspicion standard."

Furthermore, hearsay can be the basis of a "reasonable suspicion" threshold finding, while an actual warrant issued by a judge or magistrate is not necessarily required. Certainly, it is a much less stringent minimal bench mark than "actual proof." Unquestionably, if actual proof were always required, there would be very few legitimate searches conducted across the country on the part of law enforcement authorities.

Do We Have Sufficient Grounds?

So to all those who are screaming "where is the indisputable facts or truth, because I haven't heard any yet," I say to them, "that at this point in the proceedings, indisputable proof is not required whatsoever."

In fact, because we are not suggesting that a criminal action be brought, the standard of proof is even less than "a reasonable suspicion." Don't we at least have some of that from what we have thus far heard? OF COURSE, WE DO. Just think about what we now know to have occurred in Volusia County, Florida; or what has occurred in South Carolina; or what has occurred in Ohio, and so on and so on. Even the enormous
improbabilities regarding the discrepancies between the exit polls and the actual poll results should raise within all reasonable people a "reasonable suspicion" that something is definitely awry concerning many of the 2004 poll results. Wasn't the odds 250,000,000 to 1?

Actually, with regard to some of the reports we have been hearing from here and there, I would respectfully suggest that the criminal law, "reasonable suspicion standard" has also been met concerning some of the activities that we have been informed about - destroying original polling tapes. At least, that is my view. Again, however, we are not suggesting that someone bring a criminal action at this point in the continuing controversy. We're talking about a "quasi-civil action" here.

What "Civil Discovery" Would Allow:

There is also the matter of "civil discovery." When someone begins a civil action, the parties then have a corresponding right to request an inspection of documents and or other evidence, including equipment, admissions, and answers to specific questions under oath (interrogatories or depositions) from the other party or parties to a civil action. All of these rights are set forth to assist and aid each party in proving their base allegations as set forth in their complaint or petition.

In our particular situation, we would greatly appreciate a look into the brains and guts of some of the voting machines and voting tabulators, wouldn't we? Yet, unless and until we request a formal recount, or we challenge an election outcome itself, we will never be allowed that right and opportunity to analyze what these machines actually do and don't do.

"Res Ipsa Loquitor," What It Means:

There is something else that I should discuss at this point. There is an old legal doctrine on the books known as "Res Ipsa Loquitor." It is a Latin phrase which basically means, "Let the object speak for itself."

Where's the Burden of Proof?

How is Res Ipsa Loquitor applicable here? Well, in theory, when something goes awry concerning an object or instrumentality which is in the exclusive control of a person or persons, be it equipment or the like, and that failure does not normally occur without fault or without negligence, then the burden to prove that the object or the machine did not malfunction in a certain way then legally shifts to the owner or exclusive possessor of that very object or machine.

[jamboi]

1. kick

[truehawk]

2. Kick

[Emit]

3. Thanks for reminding me

of this article, truehawk. I read it last month on dKos. Along these lines, I received an email update from People for the American Way. I think they were at the Conyers forum this week. They've released a report that has highlighted some of the reported incidents from voters. I know some of these were listed here at DU before, but I had not seen the specifics of some of the incidents contained in this report. I just don't understand why more Democrats where I live are not outraged and taking to the streets in great numbers. Here's just an excerpt:

ELECTION PROTECTION 2004
Shattering the Myth: An Initial
Snapshot of Voter Disenfranchisement in
the 2004 Elections

http://www.kintera.org/TR.asp?ID=M66407685892203310372565

<snip>
The following reports describe problems encountered by voters in the 17 states in which
the Election Protection Coalition mounted extensive ground operations. These states are
Florida, Ohio, Pennsylvania, Arizona, Michigan, Wisconsin, New Mexico, Illinois,
Colorado, Minnesota, Nevada, Missouri, Texas, North Carolina, Louisiana, Georgia, and
Arkansas. The state-by-state reports summarize and provide examples of the more than
39,000 complaints recorded to date in the Electronic Incident Reporting System (EIRS)
database as reported by voters and by Election Day volunteers in the field and on the
Voters’ Hotline.

This is a preliminary snapshot of complaints reported through the EIRS as of November
24, 2004. In 2005 Election Protection will release a comprehensive report of data
gathered through the EIRS. We will work with both statistical and social science
professionals to create a thorough analysis of the barriers Americans’ face throughout the
voting process, based on EIRS data, information gathered through public records
requests, and interviews and hearings with voters and election officials across the
country.

<snip>
(Florida)
We also received reports about optical scanners not working
properly and voters having to drop their ballots into a box to be
scanned later in some cases.
<snip>

<snip>
(Arizona)
voter reported that an individual was traveling to various polling
places and confronting minority voters and asking them if they
were citizens. He was asking to see their ID and had a cameraman
with him who filmed the encounters. The individual wore a black
tee shirt with "US Constitution Enforcer" written on it and a
military style belt that gave the appearance that he was armed.

<snip>

<snip>
(Ohio)
One entire polling place in Cuyahoga County had to “shut down”
at 9:25am on Election Day because there were no working
machines. It is unclear whether this polling place ever re-opened.
<snip>

<snip>
(Illinois)
A voter, who was one of the first people in line, reported ballot
concerns. When his ballot was placed into the machine, it came out
as "damaged." They gave him another ballot with the same result.
Every person after him had the same problem. The poll workers
put the ballots in a cardboard box.
<snip>

<snip>
(Michigan)
A voter complained about a jammed voting machine scanner. She
said poll workers instructed her to drop her ballot into a bin with
those that were already scanned. They were told they could wait
until the repair person came but they had already waited over 1
hour and 20 minutes.

• A voter reported that a Scantron tabulator was broken and people
were getting ballots & voting but votes were not being counted on
site. Poll workers told EP volunteers they would count the votes
later. Scantron was down for 2 hrs.

<snip>
(New Mexico)
EP volunteer reported that while he was helping an elderly man
with voting he witnessed that when the Democrat Presidential
candidate was selected, the Libertarian candidate would be
highlighted. The poll worker instructed on how to correct and the
vote was corrected, but the same irregularities were reported in
other area precincts during early voting with touch screens.

<snip>
(Wisconsin)
EP volunteer reported a discrepancy between a ward’s
machine vote totals and the ward’s count of actual votes. The
machine had recorded 982 votes, while the ward books showed
971 votes.
<snip>