"Conclusive evidence" is NOT what is needed

[madbelgiancow]

before a Senator should join the election contest.

When there was a huge controversy over the past election,
which was LATER (too late) proven to have a different outcome,

When there have controversial issues like the War in Iraq that polarized the country, and the challenger wipes the floor with the incumbent in all three "debates",

When public records are illegally witheld by an SOE, and a plethora of disenfranchisement evidence exists,

When there is a massive turnout on election day, but exit polls are ignored unless in the Ukraine, and the MSM blacks out voting issues,

When the voting process is inauditable in large parts of the country,

There IS more than reasonable doubt, which HAS to be taken away.

Not for americans, but for the world.

[righteous1]

1. Hmmmm ,so inconclusive evidence is preferable

[FreepFryer]

3. a non-response to a valid post.

[madbelgiancow]

5. I did not say "preferable" I said "needed"

thanks for the kick!

[TruthIsAll]

6. Do you know what it means to investigate?

You only need a prima facie case which passes the smell test.
The case for fraud is well beyond the smell test.
We strongly suspect that FRAUD has occurred, based on the evidence which is out there.

TO DO NOTHING ONLY SERVES TO PERPETUATE AND EXCUSE THE FRAUD.

[KittyWampus]

62. NO, Evidence Enought To Make FURTHER MORE AGGRESSIVE

investigations if preferable.

[ClassWarrior]

2. I thought this passage in another DUer's letter was spot on...

“You do not need clear evidence of ‘fraud,’ however you might define it, in order to contest the election. If a person disappears over a cliff, do you turn your back and go about your business because you have no evidence of injury or death? If your house is on fire do you walk away just because you don't know how it started? The MASSIVE list of disturbing unanswered questions is more than enough to justify standing up and demanding answers before accepting the electors' votes.”

Wish I remembered the name of the poster.

NGU.

[merwin]

8. This the post you looking for?

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=203&topic_id=218650

[ClassWarrior]

9. Yup, that's the one. Thanks buddysmellgood! Well said.

NGU.

[Pacifist Patriot]

12. Wow, wish I'd seen that before I composed my letters.

Excellent point made.

[madbelgiancow]

10. I noticed the "post your letters" thread too late

Or my OP would have been there, even if it's not a letter since I'm no american.

The cliff analogy is excellent.

[Misskittycat]

4. There's an interesting legal doctrine that has some analogy value here.

The doctrine is "res ipsa loquitur" and is applied in negligence cases. The gist of this long-established doctrine is that if something happens, and it just couldn't have happened without someone's negligence, then the burden shifts to the defendant to prove that it is not neligence.

The classic law school example of this is when a patient is given general anesthesia for stomach surgery, and after the surgery it is discovered that he has a surgical sponge in his abdomen. There is no reasonable explanation for that sponge being left in his body other than the medical team's negligence. And since the defense has control of the information to prove or disprove it, they are required to prove it was not negligence.

In this case, there is strong circumstantial evidence of serious irregularities, and the Republican-controlled companies and Republican officials had, and continue to have, exclusive control of the proof, i.e., they control the machines. There is sufficient prima facie proof of voter problems here to require the burdent to shift here, and for the Republicans to prove there was not fraud.

Maybe this isn't a perfect analogy, but it's a starting point to counter the notion that conclusive proof has to be proved by us, i.e., the plaintiffs, before action is taken.

[madbelgiancow]

7. Eloquently put and a good analogy!

You are so right.

Shifting the burden of proof - as Stephanie said in a earlier thread, re-frame the debate - just what the doctor orders on Contest The Election 6th!

Edit fo spelling

[Amaryllis]

72. See this for great arguments for contesting and why "proof" not needed!

http://www.democraticunderground.com/discuss//duboard.php?az=show_mesg&forum=203&topic_id=226349&mesg_id=226349

[cali]

11. res ipsa is a terrible analogy

and many of us who aren't on the fraud cost JK the election bandwagon aren't stating that there has to be conclusive proof, we're saying there needs to be clear and easily understood evidence. Exit polls are not enough. The lack of security in electronic voting machines is not enough. Even scattered incidents of voter suppression are not enough to contest the election. We need witnesses, programmers, executives, etc. We don't have one credible witness. I am not suggesting we give up, and I'm tired of having to explain that one can support election reform without supporting a meaningless stand against certification.

[madbelgiancow]

15. Correct me where I go wrong :

If you think election reform is worth fighting for,
if you acknowledge exit polls, security and voter suppression to some degree,
and agree with some of the premises in my OP namely that the situation is such that all light should be shed on the election and it's process,

then don't you agree it's 5 past 12 to let the american people HEAR about the difficulties that were present AGAIN?

And isn't an election contest a surefire way to get the attention?

As I'm not on any bandwagon, maybe there are better ways to accomplish what you have in mind. Tell us more?

[SicTransit]

27. Election contest may be a "surefire way to get the attention"

but it is also a "surefire way" to make absolutely sure that no Congressional investigation of the 2004 elections will take place and that no election reform will happen.

Because if there is election contest, and a Senator stands up to challenge the election, this will be seen by the Republicans (you agree?) as a "point of no return" and no Republican in Congress will be willing to cooperate with any Democrats on this issue - if for no other reason than that such cooperation would undermine the legitimacy of a Republican presidency. Not one. Since in order to launch a Congressional investigation or do anything about electoral reform you need at least a few Republicans to go along, neither of these things will be possible. So - for a couple of hours of grandstanding you're willing to give up on the issues that you claim you care about.

[madbelgiancow]

33. So you want to leave it up to a nice bipartisan commision

maybe you want to call it "Help America Vote revisited"?

This is 2005 (you agree?), not 2000.

Thanks for your fast analysis of my intentions too ("wiling to give up on..."). What is your surefire way to get the necessary reform?

[SicTransit]

34. First of all,

there is no such thing as a "partisan investigative commission". You can see it with Conyers' so-called "hearings" - not one Republican participating, no subpoena powers, in fact, no powers at all. All he can do is beg for someone to appear, and beg for someone to respond to his letters, and is ignored by MSM and by Blackwell.

Second - there is no surefire way to get the necessary reform. But the objection on the 6th is a surefire way to make sure it doesn't happen - for the reasons I described.

[madbelgiancow]

41. I did not say "partisan" but "bipartisan"

Which is what you want to leave things to.

That's what happened after the 2000 election.

[SicTransit]

51. You did not understand what I said.

You said that I wanted to leave matters to a "bipartisan commission". I explained to you that there is no such thing as a "non-bipartisan commission", at least not with any investigative powers, and ALL commissions are "bipartisan". So if you don't want a "bipartisan commission" you would get no commission at all.

[madbelgiancow]

55. Well you are right on something

I do not see ANY good coming from any comission right now, as I have said repeatedly.

I think the issue needs media exposure. Do we disagree?

When all the ugliness comes to light, then MAYBE a comission could be usefull.

But it wouldn't be the republicans calling the shots anymore.

Hey I can dream & believe someone will do the right thing and not the politically shortsighted move.

<insert MLK quote here>

[SicTransit]

56. let's say that you want to make it widely known

that your house is for sale. You put ads in papers, but no one comes. So you put a huge sign - "house for sale" - then you burn the house down. Sure, the sign is in all town papers tomorrow - but was your action productive?

[madbelgiancow]

59. let's say you want to make it widely known

your village is under attack. But the enemy has cut all lines of communications. You have to signal to the surrounding vilages.

It is therefore decided that the only way to get the message through
is by sending a huge smoke signal.

Down goes the house. Wouldn't you offer up your house for this purpose?

See, I found a sneaky way to get back to my question (which you did not answer). Not that I remotely agree with the implication in your analogy that contesting an election is like burning down a house. It's more like a rape victim speaking out even when it's known she may get a beating in retaliation.

But thanks for teaching me the meaning of counterproductive.

I understand your take on this - it's not mine.

:-)

update for spelling

[madbelgiancow]

18. "scattered incidents of voter suppression"

just reminds me of a map that was on here overlaying voting problems with Cleveland precints.
The problems were scattered nicely in the african american suburbs allright.

It was pretty convincing to me, but I do agree you can't put a map on any stand to testify.

[davidgmills]

40. You need to read the Freeman and Baiman reports

I say they is enough evidence. Here's why. Consider for a moment the difficulty of this situation. Suppose I had 120 million dollar bills and wanted to make sure that 60 million of them went to NY and 60 million to LA. How would I know if the count to each city was correct and how would I know that some of the money wasn't stolen? Well, chances are I would have to depend on some statistical method.

Counting the votes of 120 million people is fraught with the same problem except that it is compounded. Instead of choosing maybe one or two methods to count the vote there may be as many as ten. Ballots are not nearly as consistent as dollar bills and considering the stakes involved in elections, you have the risk of election theft.

Freeman makes the point that exit polls are probably more accurate than an actual election count can ever be. The goal of a pollster is to be accurate, not to win the election.

He also points out that we can't even get an accurate census, which is still counted by civil servants, (instead of financially interested corporations) and with much less at stake. Experts in the census arena say that statistical sampling would give us a much better picture of how many people there are in the US than the actual count.

If you buy the argument that election counting is not nearly as accurate as it is cracked up to be, that this is a national myth, then I think you have plenty of substantial evidence. In fact you have superior evidence to the count itself.

That is why when the question is asked who won the election, the answer should be Bush won the mechanical tabulation; Kerry won the intent of the people. When the claim is made that the people have spoken, the retort should be that election machinery said something different than the people intended.

[me b zola]

69. Scattered incidents of voter suppression?

Try this. Widespread voter suppression using many different tactics to disenfranchise Democratic voters. Perhaps you should google 'poll-tax' to have a better understanding of the history of such tactics, and how it appears to be making quite a comeback.

As far as clear and easily understood evidence of fraud, I would suggest that if elections were held in a manner upholding election law, there would be clear and easily understood evidence that a legitimate outcome was achieved.

The burden of proof is theirs.

[righteous1]

13. I am sorry but I don't agree with your assertion. The only specific thing

that I believe could be be classified as negligence would be the voting machine issue. In that case the "potential negligence" would be levied against the county BOE officials who were responsible for ordering and allocating them. Reasonable people however could differ as to whether the BOEO absolutely should have known that voter turnout would be +20%, (ros ipsa loquitur) would not be applicable because negligence is not neccessarily the only possible explanation. In addition, one cannot apply R.I.L to purely circumstantial cases. There has to be a factually verifiable and irrefutably distingishable phenomenon proven to have caused harm before R.I.L could be even contemplated

[Misskittycat]

20. I said it was not a perfect analogy, and not to be analyzed

as such. Also, the fact that it is a "negligence" doctrine does not limit its usefulness as a theoretical starting point for thinking "outside of the box."

Often, in law, we try to brainstorm creatively to see if we can help the client's case. That's all I'm doing here.

Moreover, as I understand it -- and I acknowledge my understanding is flimsy on this point -- this action on Jan. 6th is not to overturn the election, but to challenge (for a while at least)what Ohio has determined to be the victorious slate of electors. If there were significant problems in the Ohio vote, then the Republican electors from Ohio should be precluded at this time from making the Ohio vote a done deal.

[madbelgiancow]

47. You are arguing why there is no hard evidence

to base a negligence lawsuit on.

I was arguing why now is the time to stand up and be counted and not be concerned about the legal case, but the case of the people.

And by the way, I would imagine a BOE to have a pretty good estimate of the expected turnout through the monitoring of registrations.

If then the number of machines foreseen is inadequate in heavily democratic areas and not in republican areas which also had high registration rates, you may even have a negligence case against them.

[bemis12]

14. You're talking about

Overturning a United States election. Yes, it needs to be conclusive. We have a strong habit of not ignoring election results here.

(Here being the United States, not DU, where the practice is more common)

[madbelgiancow]

16. So you think conclusive proof has to exist before

any serious investigation takes place? Or am I not getting what you said?

I was not speaking of overturning the election. I am speaking of giving the public what they deserve : a system they can trust yielding results that can be relied upon.

[bemis12]

17. No, a serious investigation is warranted.

Serious reforms are warranted. Trying to overturn a presidential election is not the way to do it.

[ClassWarrior]

21. Oh yeah, Congress handled it just fine last time, didn't they?...

We got all the shiny, pretty new machines.

Sorry pal, it's the ONLY way to do it anymore.

NGU.

[madbelgiancow]

24. if you say an investigation is warranted,

may I assume that you say this based on what happened in this election?

I also assume you don't want such an investigation to be academical, and you also want the obvious flaws in the process to be exposed?

I suppose you agree state officials aren't forthcoming to help take away the doubt, and neither are state courts. The media is nowhere but they are still analysing exit polls so they can't give 'em.

So who do you look to to trigger the change process, and when?

[consciousobjector]

19. I see, so we don't ignore election results

unless the election results are in the Ukraine...

[Name removed]

25. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Qutzupalotl]

28. Exit poll discrepancy is a valid point.

Discrepancy in Ukraine = revote
Discrepancy in Ohio = exit polls are wrong

There is no need for clear-thinking, fair-minded people to slap irrational labels on people prematurely. Some suspicion is warranted.

[SicTransit]

29. Did you even read the post to which you responded?

No. Discrepancy in Ukraine does not equal revote. Incontrovertible and massive, documented hard evidence of electoral fraud in Ukraine, of which exit poll data was a tiny and corroborating part, equals revote.

[Qutzupalotl]

32. See post 31.

:P

[Qutzupalotl]

53. The U.S. held up exit poll discrepancies in the Ukraine

as an indicator of fraud, to push for a revote. The same administration dismissed exit polls in the U.S., saying they must be wrong. Why is that?

And are you so certain that massive, documented hard evidence of electoral fraud would not be uncovered if a full congressional investigation were held, that you would dissuade us from seeking one?

[SicTransit]

57. You are wrong - US held up

massive documented hard evidence of electoral fraud to put for a revote. Exit polls were a small portion of that - but were seized upon by people like you with an agenda.

Did you see the link someone posted here? Here it is again:

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/11/28/wukra28.xml

take a look. Then ask yourself if you can give and example of something that happened in the US that even approaches this.

[righteous1]

30. Exit poll anomalies are noteworthy but are proof of absolutely

nothing.

[Qutzupalotl]

54. They were enough for the U.S. to cast doubt on the integrity of the vote

in the Ukraine. Just not here.

[righteous1]

61. Again that was a miniscule part of the whole. What cast doubt

were the eyewitness reports of the observers and actual voters. The exit polls were superfluous

[madbelgiancow]

31. Since you have called me a nut burger by inference,

given that I too referenced the Ukraine in my OP,
allow me to clarify that the Ukraine-US is a valid comparison in the sense that all voting irregularities this time around were and are very well blacked out by the US media, but all hell breaks loose when the Ukraine election is in doubt.

This fact alone warrants the US-Ukraine comparison for me.

Do you agree that the electronic voting without verifiable trail makes providing irrefutable proof up front kinda hard?

Thanks for pointing out how corrupted the Ukraine election was. I was unware of the serious incidents you mention. Gun pointing etc omg - got a link?

[bemis12]

35. Link

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/11/28/wukra28.xml

[madbelgiancow]

37. thanks for the link, doesn't refute my point about media attention

but thanks anyway.
I was unware it was this bad.

Makes me think about Blackwell trying to throw out ballots with an obscure paper weight rule. Much more subtle, same goal.

[righteous1]

36. I did nothing of the sort and I inferred no such thing. But I can

however understand someone thinking that. I am a plain spoken person. If i wished to convey that, I would have said it.

[madbelgiancow]

43. Thanks for the clarification

So do you agree the comparison can be valid in some respects?

I wish you'd put your obviously sharp mind (see your post about "not a neglicence case" to work on how to get things done rather than find things not to do.

[righteous1]

44. Thanx....I think, I have a 100 things on what to do but most of them

have to do with 06 & 08 and most of the folks on here are not ready to talk about that yet

[madbelgiancow]

49. that may be because

this is the 2004 Election results and discussion part of DU

[righteous1]

63. Yes, but what I debate here can have an extremely important affect

on what may or may not transpire in future elections.

[madbelgiancow]

68. Which is why you are advocating

against the contesting of the election?

Or am I reading you wrong?

I'm curious to know what you think is the right way forward to 06 and 08, considering the election process is heavily flawed.

First things first was what I was thinking.

[righteous1]

38. They threatened people at gunpoint. It's not an obscure fact

it has been widely reported on the MSM

[McCamy Taylor]

22. There is CONCLUSIVE EVIDENCE that Blackwell has violated OHIO Law

so those Ohio electoral votes look pretty suspect to me.

[ClassWarrior]

23. Good point.

Another one for the good guys.

NGU.

[righteous1]

26. Namely ? n/t

[seriousstan]

39. “Clear and convincing evidence”

At trial, the contestor’s burden of proof is high. Every reasonable presumption should be indulged in favor of upholding the validity of an election. 15 To prevail in an election contest, the contestor must prove by clear and convincing evidence that one or more election irregularities occurred and that the irregularities affected enough votes to change or make uncertain the result of the election. 16 “Clear and convincing evidence” is a degree of proof that provides the trier of fact with a firm belief or conviction as to the facts sought to be established. It is more than a mere preponderance of evidence but not to the extent of such certainty as is required in criminal cases with “beyond a reasonable doubt.” 17

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

[madbelgiancow]

42. thanks Stan, especially the "not to the extent of criminal cases"

[Misskittycat]

45. But you get court-enforced discovery before trial.

So you have a decent stab at discovering the evidence in possession of the other party. The clear and convincing standard doesn't apply until after discovery is completed. You don't have to have the clear and convincing evidence when you bolt out of the gate.

[bemis12]

46. You do when you're charging fraud

That's been covered here by lawyers. You can't make a charge of fraud and THEN go looking to see if it exists. You've got to have evidence of it up front. That's one of the reasons Moyers is likely to throw this case out.

The second reason is that it's too late to affect the election, and is therefore moot.

[madbelgiancow]

48. but they aren't charging fraud

http://www.sconet.state.oh.us/rod/newpdf/0/2004/2004-ohio-6792.pdf

They claimed "voting irregularities" - back to you.

The main reason Moyers would throw it out is because Bush asks him to imho.

"Too late to change the election" - think disenfranchised voters are gonna have the "hey, it's too late to care anyhow" feeling when they hear about this before Bush* is sworn in?

[bemis12]

52. I'm afraid you're incorrect

http://www.sconet.state.oh.us/rod/newpdf/0/2004/2004-ohio-7079.pdf

Both cases are on the verge of being tossed for ignoring Rule 9, which requires them to cite "circumstances constituting fraud or mistake with particularity".

They contain nothing but conjecture and hearsay. But don't take my word for it, read the rulings of the Supreme Court Justices.

[madbelgiancow]

58. I'm not - you misquote

I am aware what they are threatened to be tossed for, thank you.

That was not the argument. It was said that conclusive evidence is needed in a fraud case. I responded by saying the plaintiffs didn't file based on fraud.

Nothing in your post or the link leads me to believe otherwise.

And all of the arguments against the gist of my OP are based on legal ramifications, when my OP was all about reframing the issue.

So all of the legal sidetracking is just that, sidetracking.

[Misskittycat]

50. Fraud requires pleading with greater particularity than general civil

cases, but it doesn't require that you have absolute proof of the fraud at the pleading stage. And you can plead certain portions of the fraud claim on "information and belief" -- that is, you don't have personal knowledge of all the details, but you have some basis for claiming it might be so.

Also, the level of detail required for a fraud claim to proceed depends in each case on the level of detail that actually exists at the time of pleading. The question the judge determines at the early stage of a lawsuit is basically -- what is enough detail, based on what is available at the time. The purpose of pleading rules is that the plaintiff give the defendant adequate notice of what he/she/it has to refute.

[righteous1]

60. If you look at the quote from the Ohio SC concerning expidited

discovery etc. The term "woefully inadequate" was applied to the submitted material. That does not sound even close to the burden of proof required

[madbelgiancow]

65. Don't you think the public has the right

to be the judge of that, when it all gets some serious airtime?

And why do you think this is something other than a stalling tactic from a partisan court just like the partisan 2000 Selection?

[mzmolly]

64. Your correct actually. Conyers framed the issue as "debate and dialogue"

so evidence is certainly not needed. But, it's likely that the issue of *evidence* will be the deciding factor for many in the senate because the so called "will of the people" is being called into question.

:shrug:

I'm just plain curious what they will do and can't wait for January 7th. I do hope some one stands up.

[madbelgiancow]

66. Thanks mzmolly - and to add to that thought

it's not like what came out of the Conyers hearing are the only facts to consider when judging on whether to join or not.

There is also the 2000 background - didn't fight then "for the sake of the country" - see where that got you - lied into a war for profit. (Plame? hello??)

There can be NO question on what the right thing to do is this time.

I do agree you need some serious spine to do this, now, with the blackout, and Kerry absent from the public debate.

It would be like thunder in a clear blue sky.

[mzmolly]

67. Indeed. SPINE is a necessary element.

:hi:

"Thunder in a clear blue sky ..." excellent analogy. I love it!

[madbelgiancow]

70. Talking about spine,

I am at times totally amazed at the lack of true opposition from the minority party.

I cannot help but think a lot is the result from party financing coming from the same power elite on both sides of the aisle.

We had that too in the 80's but now large contributions by firms are illegal.

Or, I admit, it may be a false idea of mine due to a lack of knowlegde of the inner dealings in the house and senate. Maybe I should watch C-SPAN all day like Randi :-)

:hi: back at you

It could also be a ray of light that parts the clouds of course :-)

[madbelgiancow]

71. final kick and off to work

I think we "won" :-)