Did Arenbeck posture his case for consideration by SCOTUS?

[merh]

I was reading an article written on the Ohio electin contest laws. The last footnote peeked my curiosity.


29. Other commentators concur that compliance with the federal safe harbor provision is unlikely using Ohio’s statutory provisions. See Hugh M. Lee, Does Bush v. Gore’s Promise of Due Process in Federal Presidential Elections Create a Right Without a Remedy?, 13 STAN. L. & POL’Y REV. 53, 71-72 & n.106 (2002) (concluding that the mandatory provisions of an election contest under Ohio R.C. 3515.08—.10 would take more than thirty-five days).

http://moritzlaw.osu.edu/electionlaw/procedures_recount05.html

==========================
Does this mean that since Arenbeck has tried to pursue the remedies available under Ohio state laws and has been shot down, is he in a better position to file a challenge with SCOTUS, since Ohio state statues don't comply with or provide adequate remedies as required by the federal safe harbor provisions? :shrug:

[bemis12]

1. Either that or...

... he's just not a very good lawyer.

[ClassWarrior]

7. Hee-hee...

NGU.

[BigBearJohn]

72. What does "NGU" stand for?

[IndyPriest]

97. NGU: Never Give Up :-) n/t (no text)

[ClassWarrior]

107. Thanks IP...

:)

NGU.

[BigBearJohn]

112. Thank you

so much

[Pithy Cherub]

2. Big Risk. Big time play....

I have been wondering if he only wanted Ohio SC on the record before proceeding with SCOTUS.

[rdmccur]

3. Excuse my ignorance, but

what is SCOTUS (i SUPPOSE IT'S AN acronym for ?)

[Helga Scow Stern]

4. Supreme Court of the United States.

[rdmccur]

41. Now I should have guessed that!

Thanx

[Pithy Cherub]

5. Supreme Court of the United States n/t

[Doctor O]

6. Using the Ohio Supreme Court to test his theories before

going to the US Supreme Court. Does not make sense. Its a little like a pitcher blowing his tryout with the minor league team to get to the major league scouts.

He needs to build credibility in the case's merits in the lower court before he can get to SCOTUS. SCOTUS will review the lower court findings before deciding to accept the case.

[merh]

9. Exactly the point. There is no record to review. The Ohio Supreme

Court did not allow him to make much of a record. Moyers not recusing himself was deprived Arenbeck and his clients of due process. His very narrow interpretation of the limited record before him and his "stingent" determination that the affidavit was not a legal affidavit denied due process and violates the federal safe harbor act. Arenbeck has had matters before the Ohio Supremes, political cases, and he knew from the get go he would not get a fair hearing or just consideration. It wasn't testing his theories, it was pursuing the avenues available to him under Ohio law. Now he can ask SCOTUS to review the Ohio election laws to decide if they are constitutional and if they comply with the federal safe harbor act.

[Doctor O]

12. Still hard to believe that this is a great theory. I seem to remember

that SCOTUS considered elections to be state jurisdiction and were loathe to become involved.

[IndyOp]

27. Me too! So why did they overrule the FLA Supreme Court and

appoint the pResident in 2000? Of course, I understand that it was to *'s favor for the Court to step in last time, so they overcame their reluctance to become involved in a state issue.

[Patsy Stone]

47. Special One Day Only Sale on Suppression of States' Rights n/t

[lonestarnot]

8. May be why repulsives chose Ohio to pour on the vote stealing.

[merh]

10. You hit the nail on the head. According to that article that I linked

in my first post, Ohio election laws present all kinds of procedural problems. They seem to be deficint and there are due process problems.

[madison2000]

11. "you file a lawsuit with the court that you have, not the court you wish

to have at a later time" or something like that


:thumbsdown: :cry: :thumbsdown:

[Doctor O]

14. Exactly, the relief Arnebeck is asking for is tossing the election

results or asking the judge to declare Kerry the winner of the EV. Since time is an issue, then you need to take your best shot first. If he tries to go over the head of OSSC to SCOTUS without a resolution, it seems to me that SCOTUS would refuse to hear it. And after Jan 6th it becomes MOOT.

IN THIS CASE TIME IS OF THE ESSENCE. Just sending up a weather baloon does not make sense.

[merh]

19. Its the best of both, the Ohio Court didn't prolong and stretch it

out and now it is ripe for the SCOTUS. It is possible that Moyers did do Arnebeck a favor.

[theboss]

20. I don't think the Supreme Court will touch this with a ten foot pole

Claims dismissed for failure to state a claim rarely get far at the appellate level.

[zann725]

80. My guess is, he Arnebeck chose NOT to show his "hand" to OSC,

but WILL at an Appellate level...as the 'clock is running.'

[theboss]

95. That would make sense if the law worked that way

But it doesn't.

You can't introduce new evidence at the appellate level.

[righteous1]

96. True, only questions of law or proceedure may be presented,

additional "facts" are excluded

[theboss]

98. The law degree helps sometimes.

Just sayin'.

[bones_7672]

91. FYI, the cases are still pending before OSC, and I'm sure they won't be

finished with them before 1/6.

[garybeck]

85. but if it is a federal crime, shouldn't it be filed in federal court?

[bones_7672]

92. Nope, the Constitution gives the States the right to manage choosing

their own electors, so it's a State's responsibility here, not a Federal one.

[garybeck]

111. but the case involves other states too

[GetTheRightVote]

13. Hm, there may be a madness to his method yet ....

:kick:

[bones_7672]

93. Oh, there's madness, alright! n/t

[Straight Shooter]

15. Umm, merh? It's Arnebeck.

Not Arenbeck.

I'm just such a stickler for names, heh ;)

[merh]

21. Sorry Strait Shooter

Woops, I mean Straight Shooter. I am bad with names, I also have a problem transposing letters. receive and recieve are hell, as are thier and their.

I will try to improve, I promise! :silly:

[Wilms]

32. "i" before "e", except after "c" is disinfo.

They pounded shit like this in grammer school. Is it a wonder that flunk is in the WH?

[catnhatnh]

99. Can cure one for you....

...accidentally read part of an email as "THE IRS..." when it read THEIRS...now I just remember that the IRS thinks all my money is theirs....I always get that one right now....

[merh]

104. Thanks, that will help (I hope)

The mind is a funny tool, sometimes it just does what it wants. Then again, last night my posts were full of typos because I was tired and then very frustrated. Post that attack and ridicule do that to me. Thanks for the suggestion, I will try it.

[madison2000]

16. Its really difficult for non-lawyers to see through the machinations of

lawyers. Rarely are things what they seem to be. And election law seems to be a very specific kind of law that not as many are acquainted with. That's why we need as many lawyer perspectives here at DU as we can get. For the rest of us its like reading tea leaves!!!

:tinfoilhat: :tinfoilhat: :tinfoilhat: :tinfoilhat: :tinfoilhat:

[seito]

17. I will see your tin-foil-hat and raise you another

:tinfoilhat: Very interesting idea, I like it.

[Wilms]

34. Ain't an idea. It's reality.

And the reality is, reality (even fairness) has only so much to do with a case. Law and how the game is played is where the action is.

"Blind Justice".

[Doctor O]

18. While I have zero experience in election law, I have been

involved in reviewing and negotiating contracts, with the guidance of lawyers, for a wide variety of purposes, and even the slight mistakes can lead to substantial problems. So preciseness in legal form and content are important in any legal document. I find no difference in this case.
The affidavits were in improper form and were improperly notarized. Evidence needs to be correct in order to survive the legal test at this level. Maybe in a lower court they may pass, but not in a Supreme Court

[madison2000]

22. thank you, that helps

[merh]

25. You are full of baloney.

And how dare you give legal conclusions when you have only "negotiated contracts, with the guidance of lawyers". You are entitled to your opinion, but it ain't worth a hill of beans to me. Go read the article, it points out a number of problems with the Ohio election laws. The biggest problem with what Moyers did to Arnebeck's suit is (1) not recuse himself and (2) not provide him and his clients the proper due process of the law. This is not a state election, this is a federal election. Apparently there is a federal law known as the federal safe harbor act that the Ohio election laws fail to adhere to and/or live up to.

The affidavit claim of Moyers is evident that the man is "green" and was grabbing for straws. There was no proof that the notary that notarized the document was not a notary and there was no such finding. The law in most states provide that it is against the law for a notary to notarize a document that is not signed in their presence. On its face, the affidavit was sufficient. Without testimony or affidavits presented by the other side that the notary was (1) not a lawful notary or (2) not present when the affidavit was signed, Moyer's conclusion is in error. Again, he did not provide a hearing to either side to perfect a record and to negate the affidavit or the notary. He dismissed on weak technicalities, that, if reviewed by another court, would not stand up. (imho)

[buzzard]

30. Hi merh are you an attorney. Just curious.

[bunny planet]

33. I have lots of annoying people on ignore, who was it who was full of

baloney? Just curious.

[merh]

35. No need to name names. I will just follow your lead and put the

person on ignore. I am not saying that what I have posted is a fact, I merely posted it as a possibility. Certain experts (apparently in all fields) post their responses as fact and then remark how ridicilous that the post was ever made. You have to wonder when they do that if they run back to their mother ship to report of the latest possibility.

LOL. Ignore, that is a good feature to remember! Thank you. :thumbsup:

[bunny planet]

38. I couldn't live w/o the ignore button, still trying to install one on my

rabidly Republican sister-in-law!

[read the law first]

40. You're gonna get mad, but the affidavit is NOT in the proper form.

You're going to get really mad and I'm hesitant to post but I am an attorney (18 years, AV rated) and I deal with affidavits many, many times a day.

The Puke Judge did not say the notary wasn't a notary. What he said was that the FORM of the affidavit did not meet the criteria of an affidavit. First, there is no statement that the witness was placed under oath prior to signing the affidavit. My affidavits start out, "Comes now before the undersigned officer duly authorized to administer oaths, xxxxxx xxxxxxx, who after being duly sworn, deposes and states as follows...." This meets the standard that the Puke is talking about. There is nothing in the "affidavit" that says that the deponent (or the affiant if you will) was placed under oath. Once, I had an affidavit thrown out on a summary judgment motion because the notary didn't have the Affiant raise his hand in order to swear the oath.

Every single one of my affidavits contains a signature block for the notary public that says "Sworn to and subscribed before me this ____ day of ________, _______" thus establishing that the notary was a SUBSCRIBING witness (i.e. one that saw the witness sign the document or one before whom the witness ratified the signature).

It's the FORM that the evil, lying, sack of crap Puke was blasting but like a broken clock is right twice a day, the Puke, unfortunately, was right on that "affidavit." It's not an affidavit. Now, many times I will have a notary attest to a written statement to establish that something was done or noted on a particular day (for example, x employee was given this notice on this day and then the notary signs it) It doesn't establish the truth or falsity of the contents of the written statement but it does establish that it was written on that particular day.

I'm sorry but some sadomasochistic urge that I can not resist compels me to correct the record and then take my beating (that will most certainly ensue) like a mensch.

[Mojorabbit]

48. It does not make me angry

I have appreciated all your posts to date. It has helped me understand things. Thanks.

[Patsy Stone]

50. And any lawyer

who uses the word "mensch" is okay by me. :)

[merh]

55. I appreciate your opinion, but I do not agree with you are

assessment or Moyers findings. Funny thing is, I am entitled to that opinion. I have problems with Moyers use of the word "purported notary public" when he was bound by the record before him and unless he was presented with evidence that the person that notarized the document was not a notary, his reasoning is terribly weak and flawed.

Likewise, his reasoning related to the actions of the notary seem flawed. "A Notary Public is a public officer appointed under authority of state law with power to administer oaths, certify affidavits, take acknowledgments, take depositions or perpetuate testimony and record notarial protests."
http://www.huroncountyclerk.com/printerfriendly/notaryinfo.htm

Applying the ordinary and common meaning of the word here, an “affidavit” is a “voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” Black’s Law Dictionary (7Ed.1999) 58; see, also, Webster’s Third New International Dictionary (1986) 35, defining “affidavit” as “a sworn statement in writing made esp. under oath or on affirmation before an authorized magistrate or officer.” Therefore, the mere fact that Section 42 of the Columbus Charter does not include terms like "notary” or “notarization” in addition to “affidavit” does not obviate the requirement that circulators of initiative petitions must declare under oath before an officer authorized to administer oaths the number of signers on the part petitions and that those signatures were made in their presence.
State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d ___.]
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=oh&vol=020297&invol=1

He also overlooks the reasoning as found in Conyers' letter
Moreover, bringing in Triad officials into other Ohio Counties would also appear to violate Ohio Revised Code § 3505.32 which provides that during a period of official canvassing, all interaction with ballots must be "in the presence of all of the members of the board and any other persons who are entitled to witness the official canvass," given that last Friday, the Ohio Secretary of State has issued orders to the effect that election officials are to treat all election materials as if they were in a period of canvassing,2 and that "Teams of one Democrat and one Republican must be present with ballots at all times of processing."

And he also tends to overlook this very basic statute:
Ohio Revised Code Title XXXV Elections, Sec. 3599.42 clearly states: "A violation of any provision of Title XXXV (35) of the Revised Code constitutes a prima facie case of election fraud within the purview of such Title."

[read the law first]

56. Nothing wrong with that. It's still America, even if just barely.

Cheers. :toast:


But help me out on the Columbus City Charter. I'm missing what you're trying to tell me there.

[merh]

58. That is preciously the point. The case he cited in support

of his position deal with other aspects or requirements related to petitions. The important language is the definition of an affidavit. I think he made the mistake of not reading the full case he cited. That is often a problem, mixing apples and oranges.

I updated my post, added a few things.

[read the law first]

60. Doesn't it say "does not obviate the requirements" ?

This language is from a case, not from you. ok. I'm with ya.

But reading the cite, doesn't that opinion say just because it's not defined (in this instance in the city charter) does not mean that one doesn't have to follow the general requirements for an affidavit?

It still has to show on its face that it was subscribed by the notary, it still has to show on its face that the witness was administered an oath, etc.

BTW, I agree with you that "purported" was gratuitous.

[merh]

62. It wasn't just gratuitous, it was outside of the record before him.

There lies the major flaw with his reasoning. It was arbitary and capricious, he made findings that were not supported by the very limited record before him.

[read the law first]

63. It was gratuitous and superfluous.

:toast:

[merh]

105. Look what I found.

§ 147.14. Removal from office for certifying affidavit without administering oath.

No notary public shall certify to the affidavit of a person without administering the appropriate oath or affirmation to the person. A notary public who violates this section shall be removed from office by the court of common pleas of the county in which a conviction for a violation of this section is had. The court shall certify the removal to the secretary of state. The person so removed shall be ineligible to reappointment for a period of three years.

HISTORY: GC § 131-1; 104 v 6; Bureau of Code Revision, 10-1-53; 149 v H 94. Eff 6-6-2001.

It can be argued that the notary was aware of his/her legal duties and it is to be assumed he/she sworn in the affiant. Without evidence to the contrary, the judge seems to have acted well outside the record and the law.

[righteous1]

106. There are different types of affidavits 1. general affidavit under oath

2.general affidavit before a notary. these each require a very specialized "form" to be properly filled out to carry legal affect. If a person intends to state certain facts under oath and affirmation the former must be used. It is my contention from reviewing the Moyer decision that the correct form was not used in this particular case. The latter requires an assumption which courts are historically very hesitant to do

[merh]

108. I think the affidavit presented is distinguishable from the

affidavits referenced in the cases he cited. The statute provides for the presumption that it was sworn to before the notary, as the notary could not have attested to it without violating the statute. The form is a technicality and not a substantive violation of the requirement.

[righteous1]

109. Again with the "presumptions" and "assumptions" rarely in my

experience are courts predisposed to presuming or assuming anything unless the statute specifically states that as a given..If the statute states that, I will stand corrected. Also please enlighten me as to how the affidavit in question is "distinguishable" from the cited case law.

[merh]

110. Distinquishable?

Specifically, the Supreme Court has repeatedly ruled that the failure to have a required circulator affidavit invalidates an initiative or referendum petition. In State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 2002-Ohio-997, 764 N.E.2d 971, the Columbus Charter required that initiative petitions have circulator affidavits, not merely circulator statements. The subject initiative petitions did not have affidavits, and the Supreme Court ruled that because the provisions of the charter prevailed over state law, the initiative petition was insufficient and invalid. Similarly, in State ex rel. Van de Kerkhoff v. Dowling (1991), 61 Ohio St.3d 55, 572 N.E.2d 653, the court ruled that a referendum petition was insufficient because it failed to comply with the city charter requirement of circulator affidavits. See, also, State ex rel. Evergreen Co. v. Bd. of Elections of Franklin Cty. (1976), 48 Ohio St.2d 29, 356 N.E.2d 716; and State ex rel. Macko v. Monzula (1976), 48 Ohio St.35, 356 N.E.2d 493. Cf. State ex rel. Barton v. Butler Cty. Bd. of Elections (1975), 44 Ohio St.2d 33, 336 N.E.2d 849 - failure to comply with requirement of circulator statement rendered initiative petition invalid.

State ex rel versus Cody (2003-Ohio-6180)
http://www.sconet.state.oh.us/rod/newpdf/8/2003/2003-ohio-6180.pdf

[merh]

113. ....

However, “the format of the affidavit does not affect the existence of facts based upon the affiant's personal knowledge.” Boros v. O'Konski (Sept. 24, 1993), Lucas App. No. L-92-358, 1993 WL 372240, *4. Instead, “ach individual statement must be examined to make this determination.” Id.

Chase Manhattan versus Locker (2003-Ohio -6665)
http://www.sconet.state.oh.us/rod/newpdf/2/2003/2003-ohio-6665.pdf

[read the law first]

61. It wasn't a ruling on the merits. It was just on the emergency motion.

He didn't throw the suit out. He just denied the emergency motion for expedited discovery. The federal judge did the same thing (I seem to recall) but on different grounds. That was on the grounds that Ohio law already required the records to be preserved. I think I remember that correctly.

[merh]

64. When did the federal judge rule?

I realize he did not throw out the case, but denying the motion leaves the evidence open to accidential spoilage (on purpose).

[read the law first]

68. It was last week sometime as I remember.

I'll have to go and try to dig that out.

It was something to the effect that the law already requires the records to be preserved so there's no purpose in ordering what the law already requires.

I'll try and find it (or I'll have to admit that it's a sleep deprived fantasy and my mind is playing tricks on me).

[merh]

71. Kerry's team just filed their motion to join in the Glibs motion

for expediated consideration that was filed in federal court. Remember, the snow storm, the Glibs filed on the 23rd. Kerry filed on the 27th. Go get some rest, I will be signing off soon. Thank you for the discourse. I enjoy being allowed to have a different opinion or an off the wall question without being attacked or ridiculed. Thank you. Clean, information debates are fun and educational. Good Night.
:hi:

[read the law first]

83. It was right about the same time as all that.

So it must have been toward the end of last week. I'll have to go looking.

Thanks.

Best regards.

[SharonRB]

100. And we all know how well they've been following the law! LOL

[Truman01]

66. merh, if you ever want to have your head handed to you in

a court of law, quote black's as if it is some sort of statute book. The fact is that this affidavit was insufficient. Whoever wrote it doesn't know what the hell they are doing or they did it to be insufficient. You are pretty bold to put your limited legal knowledge up against a sitting Chief Justice of a State Supreme Court. These guys, regardless of their political leanings, didn't get where they are by making stupid and inane judgments. You would be wise to wait until you have accomplished something in the legal field before blasting them with your legal expertise.

TC

[merh]

70. Hey, read the quote, that is from an Ohio Supreme Court case

on an election issue. First lesson, read the full text. Second lesson, notice the citation. You must be young in the profession (and life) to assume that just because someone is a Supreme Court judge or any judge for that matter (especially an elected one) that they have a greater ability to read and comprehend than another. I am not professing any legal expertise, I am stating an opinion as to why I believe Moyers opinion is FLAWED! Please don't tell me how to think and when to think, you haven't the right and it would appear, the experience or maturity.

[Truman01]

73. Why don't you read post 65 before you make too many foolish

statements about my degree of expertise in the field or maturity. It is strange to have someone who not only is obviously not legally trained but has the sense to admit it, yet wants to shout down others. Now me personally, I graduated top of my class at Columbia, I've practiced before 3 Supreme Courts and advised both a President and Vice President. My credentials aren't up for discussion and I don't appreciate you making a fool of yourself in trying to discredit what you don't know.

Have more respect for yourself.

TC

[merh]

78. Don't chastise me for citing Blacks then. Sorry you missed the

citation or overlooked it or just assumed something. Now you made a mistake and instead of apologizing you attacked. Dang, get over it. As for the "credentials that are not up for discussion" statement, I find that odd since you sure have discussed yours in this thread. Stop attacking me. You can have your opinion and I can have mine. I can ask my questions and if you have answers, then I am all ears, if you have insults, then don't bother.

[Truman01]

81. You were the one who foolishly assumed that I was

immature and without expertise. Funny you should do that when you flatly stated that you have no expertise in law. I didn't slam you until you made such a fool statement about someone you don't even know.

You can have your opinion. I have no problem with your opinion except you act as if your uninformed opinion is something that all of us should take note of. Even Chief Justice's with opinions we don't like deserve respect. We call that politeness and courtesy. Civility is suppose to be a hallmark of the enlightened, not boorishness.

TC

[merh]

87. I assumed you were immature because you did a foolish

thing. You "warned" me that citing Blacks would get me laughed out of court, yet you failed to read the entire quote and notice at the end that it was taken directly from a Ohio case. Silly me, I assumed a learned professional would have noticed that. It was an honest mistake. I owe no respect or courtesy to Moyers. He stole the votes, just as the weed stole votes. Just because he wears a robe does not entitle to him any type of respect that he does not earn or deserved. To have dismissed the motion on the weak grounds that he did clearly evidences that he is as tarnished as is the weed's admin and the evil people that are trying to destroy my nation.

Do me a favor civil one, stop being a boor by trying to put me down.

[Doctor O]

52. See Post 40.

[Truman01]

65. merh, I don't know what your expertise is in but it isn't law

I am an attorney, I have practiced for over 15 years including state, and federal law. I have argued before both the GA, VA, and US Supreme Courts. I don't mean to just beat my drum, but your analysis is passionate but wholly flawed.

Moyer has NO reason to recuse himself in Moss v Bush. You have a small argument in Moss v. Moyer, but the fact that he simply ruled that they be split is not harmful to either side. No harm, no foul.

We may not agree with Moyer's in his politics but no one becomes a Supreme Court Justice by being "green." He certainly isn't grasping for straws. Law is all about words. You don't ASSume anything. An affidavit is a SWORN statement before an official of the court who is authorized to take such swearing. Any lawyer worth his salt doesn't make an affidavit without saying the affiant appeared in person and SWEARs or Affirms to the following. And you don't notarize anything that is an affidavit without language to the affect that so and so appeared personally before me being known by me personally or by identification and executed the following.

The "green" part of this is that any first year paralegal knows that. You may not like the judgment of Moyers but there is nothing "green" or wrong about it.

No hearing was necessary as the affidavit is required to meet thresh hold standards that are not secrets. This Complaint was filed in a way that anyone in the know wouldn't do unless they wanted it to be dismissed.

Your analysis of this is passionate but dead wrong. Moyers did nothing even out of the ordinary and he is the Chief Justice of a State Court and by definition doesn't have "appellate" review. The federal courts are surely not going to second guess his reading of a simple affidavit.

By the way, "apparently" there is a safe harbor provision of federal law, it is 3 USC 5 and 7 and the Ohio provisions do fall within it. Believe me, it doesn't do our cause any good to act like everyone who doesn't do what we want them to do is an idiot. I think Arnebeck is playing us for an idiot, I just have not figured out why.

TC

[merh]

75. You opinions of me don't matter, nor do they change my

opinion about Moyers' opinion.

And while we are throwing around opinions, Arnebeck is not playing us for idiots, he is playing them.

[Truman01]

77. Opinions are like assh*les we all have them, only some of them

count.

[read the law first]

86. Y'all shake hands and be friends.

:grouphug:

[georgia10]

23. No, that's not quite what it means

The section you've quoted deals with whether Ohio is subject to the federal safe harbor provision.

It is not.

If you want, to can head over to my dKos diary at http://www.dailykos.com/story/2004/12/28/17218/394. Point #4 in that diary deals with this issue.

Basically, the federal safe harbor provision is conditional. It only kicks in if a state has a scheme which allows for controversies to be resolved prior to the safe harbor date. Because Ohio doesn't allow the filing of election contests until AFTER the count has been made official, and because Ohio law mandates a waiting period before a hearing, allows for extension of that time, etc. there is no way to comply with Ohio law and the federal safe harbor provision. Thus, the federal provision does not apply.

Florida in 2000 was different, because Florida law did allow for the resolution of elector controversies prior to the safe harbor.

This is what Moyer asked Arnebeck to brief him on, whether the safe harbor was applicable. In an earlier TRO that was denied, Arnebeck clearly proved it was not.

[merh]

28. That makes sense to me and I appreciate the clarification.

But that does not answer the question as to whether Ohio elections laws (as they relate to federal elections) provide the proper due process. How is it that the Supreme Court of Ohio is the only body that can hear the issue? Myers was in error when he did not recuse himself. There is a case cited in the article that reflected that Myers opinion is not subject to further review. When blatant legal conclusions are made by the reviewing court, relative to a federal election claim, what avenue does the aggrieved party have?

[IndyPriest]

44. I have always believed Arnebeck was positioning for either...

SCOTUS or the Congress. He's been laying traps for the OH machine for a LONG time. He never thought he could win in OH, and didn't plan to. Whether his moves will get him where he wants to go is another question. But I don't have ANY doubt that Arnebeck knows where he wants to go and what he wants to do.

[read the law first]

45. They can make a federal claim to SCOTUS.

The traditional route is to claim that the State Supreme Court violated a federal constitutional right and file THAT claim in federal district court. That's ultimately how SCOTUS got * v. Gore. The claim there was that the Florida Supremes violated a federal right of equal protection and that claim was brought into the federal courts.

[Truman01]

67. Do you have Arnebeck's response to Moyer's request

to answer how the 3 USC 7 safe harbor provision applied to this instant action? I never did see the brief.

TC

[read the law first]

69. I keep trying to find that too without success.

I would very much like to read it.

[read the law first]

74. What thread are you going to next Truman1? n/t

[Truman01]

76. Which ever one piques my interest, why? nt

[read the law first]

79. There's no football on at 2 in the morning so this is the closest thing

lol.:toast:

[Truman01]

82. I enjoy your posts, what legal experience do you have? nt

[read the law first]

84. Enough to know what an affidavit is and isn't.

<knowing smile.>

[read the law first]

88. 18 years. AV rated. Phi Beta Kappa.

Dozens of election law cases including several contests.

[Truman01]

89. Since your PM's are blocked, send me a pm with an email

I'd like to talk to you.

TC

[georgia10]

102. I suspect he will use the same argument

He used in the TRO.

He argued quite forcefully and convincingly in his TRO that the safe harbor provision is inapplicable because of Ohio's laws.

The safe harbor provision is conditional, and looks like it doesn't apply here.

Maybe the Moritz site has a link to the TRO. If not, I can scavenge up the link.

[dalloway]

24. I am keeping my chips on Arnebeck

I believe he knows just what he is doing.

[eowyn_of_rohan]

26. Not being a legal expert

I defer to those who are, and assume (and hope) Arnebeck has a grand scheme in progress.

BTW, peeked = piqued

[shiina]

29. Arnebeck has spoken about this in an interview

He said that if the single judge finds against them, they can appeal to the Ohio State Supreme Court. SCOTUS doesn't usually deal with stuff like this, but it's possible they could appeal to them as well, but not really very likely. Disputed elections are Congress' job, he says, and he believes leaders in both parties will step forward.

\You can find the whole interview, about 44 minutes at : http://www.radio4all.net/proginfo.php?id=10653

[merh]

36. Thank you for the link. His interview gives me a better

understanding of what he may have in store. I hadn't heard this before. It just bugs the poopoo out of me that Meyers could be the last word on this and his opinion stinks, not just his findings, but he bogus reasonings.

Thanks again.

[SharonRB]

101. This IS the Ohio Supreme Court, is it not?

How can they appeal Moyer's decision to the Ohio SC if he is a justice in the Ohio SC. Wouldn't they appeal it to the US District Court?

[BreakForNews]

31. Info please

Do we by any chance have an online copy (pdf?) of
Arnebeck's actual Emergency Motion to Disqualify? 2004-2088

As referenced in:
http://www.sconet.state.oh.us/rod/newpdf/0/2004/2004-ohio-7120.pdf

Fintan Dunne, Editor
http://www.BreakForNews.com

[merh]

37. I don't have the motion, sorry.

Wish I could help. I am just trying to make sense of this nonsense. It is sad that you can ask questions but find that some don't like it that questions are asked so they start their attacks.

I still have my money on Arnebeck. His success with the Chamber of Commerce case is very impressive.

[BreakForNews]

39. Thanks : )

The motion would be icing on the cake.
But we have the substance from Moyers decision.

Impressions that Arnebeck does not know what he is doing,
are missing the point.

The dismissals in this case should not be taken as any
indication that Arenbeck is either incompetent of inept.

As you say, Moyers should have recused himself from the initial
combined cases contesting Bush and contesting Moyers himself.

And Moyers has now compounded that error.

Arnebeck is not only doing a good job - but a brilliant job.

[merh]

43. The insurgents from another forum, far, far away (in terms of

ideology) have made reasonable discussions so difficult, not impossible, just difficult. If they think they are weakening our resolve, they are out of their twisted little minds.

Maybe you could PM Pitt and ask him if he has a link to the motion. He might have one.

BTW: I do like your work. You do some wonderful research and your writings are very reasonable. Thank you for your efforts. :thumbsup:

[IndyPriest]

53. There's gold in the thread, merh. We just have to pan for it! :-) n/t

[merh]

59. I know, it is just my back aches and I am tired of picking out the

pebbles and throwing them away only to have them end up right back in my pan! :silly: Thanks for the encouragement! ;-)

[read the law first]

42. The Moritz Law School website had the motion and the exhibits.

google Moritz and Election and it will take you to the website. I don't have the url handy. sorry.

I'm on Moritz like a tick on a dog's ear. You'll find everything that you're looking for there.

[Diane R]

46. Is this the link?

http://moritzlaw.osu.edu/electionlaw/key-litigation.html

[read the law first]

49. close. here's the one that has this particular case broken out.

http://moritzlaw.osu.edu/electionlaw/key-recounts.html#moss

[read the law first]

51. go to the second pleading in case number 04-2088.

that's the motion to which this ruling pertains.

[BreakForNews]

54. Thanks

Close. From that link I got this one:

http://moritzlaw.osu.edu/electionlaw/key-recounts.html#moss

Which has a lot of good stuff - but not the latest
Emergency Motion to Disqualify Moyers.

However we got some of the key details when Moyers
quoted the motion in his decision. :)

[read the law first]

57. oh, I'm sorry. I was linking to the expedited discovery motion.

I'll have to go and find the motion to disqualify. I might have gotten that link off of dailykos.

Sorry. my bad.

[righteous1]

94. Being that the expediated disc. motion etc was denied

and the Congress votes to accept or reject the electors in just 1 week, does that not make a ruling on the action in it's entirety moot? By the time that any evidence is collected and presented to the SC arguments made and a decision rendered the date to possible submit a new slate of electors will be well past

[bemis12]

90. Interesting idea, posturing for SCOTUS

He may be the most brilliant attorney ever. He starts off in the time-honored tradition of pissing off the justice that he needs a ruling from by calling him a crook, indirectly. And without any evidence.

And he does it all to try to force himself into a court that's almost certainly not even going to hear his case or let him present evidence.

Brilliant. Let's hope he continues this magnificent display of legal talent by referring to Justices O'Connor and Scalia as a "whore" and a "spic". That should grab their attention.

[georgia10]

103. Somewhere in this thread

Someone mentioned that Moyer did not have to recuse himself from Moss v. Bush. But I can't find where it was :(

In any event, I think he should have. On p. 29 of the second filing of Moss v. Bush, Arnebeck specifically states that vote fraud was used to control the votes of Moyer and Connally.

The Moyer/Connolly/Bush/Kerry votes are a large part of Arnebeck's case, and I cannot see how Moyer can ethically judge the case under these circumstances.

Not only that, but don't judicial ethics require that a judge refrain from even the appearance of impropriety? Here, where the judge will be examining his own vote totals, even if he could be impartial, it sure reeks of impropriety to me.