As I mentioned the other day, in May 2005 John McKay promised to get tough on election crimes:
if there is ballot stuffing - then, if it involves a Federal election, the Federal Government's involved.I posed the question whether the hundreds of ineligible votes that King County officials tossed into the do-count pile would be considered "ballot stuffing" under federal law. Bob Edelman forwarded this document, "The Federal Crime of Election Fraud" by Craig Donsanto of the US Department of Justice Public Integrity Section. Edelman summarized:
A specific federal statute related to Stefan's evidence that invalid ballots were knowingly counted is 42 USC 1973gg-10:Posted by Stefan Sharkansky at March 21, 2007 10:50 AM | Email ThisA person, including an election official, who in any election for Federal office--Donsanto points out that election law violations can be prosecuted under federal law even in local elections. One paragraph refers to the very activity that Stefan uncovered:shall be fined in accordance with title 18, United States Code (which fines shall be paid into the general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title 31, United States Code), notwithstanding any other law), or imprisoned not more than 5 years, or both.(1) knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any person for--
(A) registering to vote, or voting, or attempting to register or vote;(2) knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by--(B) urging or aiding any person to register to vote, to vote, or to attempt to register or vote; or
(C) exercising any right under this Act; or
(A) the procurement or submission of voter registration applications that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held; or(B) the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious or fraudulent under the laws of the State in which the election is held,
- Schemes by polling officers to violate their duty under state law to safeguard the integrity of the election process through purposefully allowing void ballots to be cast ("stuffed") in the ballot box, or by intentionally rendering fraudulent vote tallies, can be prosecuted as civil rights violations under 18 U.S.C. 241/242 per U.S. v. Olinger. 759 F.2d 1293 (7th Cir. 1985) and its progeny. These two statutes prohibit, among many other things, intentional denigration by public officers acting under color of law of the «one-person-one-vote» principle of Equal Protection that is guaranteed in the 5th and 14th Amendments of the Constitution. Schemes to manipulate voting equipment and to stuff ballot boxes normally require physical access to voting equipment that can only be achieved through authority conferred by state law, thus satisfying the "state action" jurisdictional peg in these two statute in ballot manipulation schemes.
1. The first threshold in excercising prosecutorial discretion which is found at page one is that the activity is appropriatly remedied through criminal prosecution.
The key is what guidelines for that judgement call. Is there case law or other prosecutions which give example of that standard?
2. The defintion excludes isolated acts, also found at page one. The defintion looks to an organized effort to corrupt the voting process.
The key here is whether there are facts which more likely than not lead one to believe that there was in fact an organized effort. This is where a preliminary investigation is key. My vague recollection of the Chelan trial which can be corrected, is the judge did not want to allow statistical evidence. Evidence here is key.
The document excludes the defense of mistakes. Here, I believe it is key as to whether a reasonable person believes that the situation in KingCo was the result of reasonable mistakes.
3. My reading of this document and I am more than willing to defer to others who practice in the area is that prosecution may be possible if there was in effect and this is where my understanding of the threshold becomes murky:
a. Is the standard that there is or was a reasonable belief that there was a scheme to subvert the election process? or
b. Is the standard that there has to be some evidence which leads to a reasonable belief that there was an scheme to subvert the election process?
4. It appears that the statute is 18 USC.
5. From another thread, these are my questions;
. How does state law define:
a. a valid voter
b. a valid vote
c. fraud
d. negligence which does not amount to fraud
2. How does federal law define:
a. a valid voter
b. a valid vote
c. fraud
d. negligence which does not amount to fraud
3. For the 2004 election, were there voter fraud
cases prosecuted in other areas of the country?
a. Were these cases prosecuted in state courts?
1. Were state laws similar to Washington's
2. What was the basis of the prosecution
3. Were these prosecutions successful
b. Were these cases prosecuted using a federal
statute(s)?
1. What was the statute
2. What was the basis of the prosecution
3. Were these prosecutions successful?
My two cents.
Posted by: WVH on March 21, 2007 11:21 AMIt would seem to be a high standard of proof. Obviously beyond a reasonable doubt, but also specific elements of the crimes have to be proved to that standard.
The statute includes some key language:
"knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process"
"the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious or fraudulent under the laws of the State"
It would be much easier to file a civil lawsuit for damages and/or injunctive relief under 42 USC 1983 for violation of federal civil and constitutional rights.
Posted by: Richard Pope on March 21, 2007 11:43 AMI would also assume that Ballot Box UNSTUFFING would also fall into this realm....you remember, the Rossi Precindts where there are LES votes than voters. Where conceivably someone yanked some of the legitimate ballots before they were counted???
Stefan, it seems like you are so close.....
Really, we need someone in that Election Dept. with the courage to step forward with firsthand knowledge of illegal acts. Doesn't seem like that is going to happen.
Anyone out there with firsthand knowledge and a conscience that is eating at them?????????
Call or e-mail someone connected with this blog.
We need to keep focused on the issue: The evidence uncovered by Stefan strongly supports the allegation that there were criminal acts by King County officials under federal law. It was not Stefan;s responsibility to provide proof of criminal intent. Rather, it was the duty of law enforcement to investigate these allegations to determine if prosecution was justified. Neither the FBI nor McKay did so after being presented with the evidence.
Posted by: Bob Edelman on March 21, 2007 12:10 PMIt always has been about ILLEGAL ACTIVITIES.
Stop using the F----word for God's sake.
McKay uses it because he knows he isn't lying when he says there is no evidence of FRAUD. The other KLOWNS also use FRAUD as what must be proven. NOT TRUE!!
The difference between proving ILLEGAL ACTIVITIES and FRAUD is about as far apart as New York & Tokyo. Fraud is a legal term. Make sure you know what it means before you use it.
Instead, the major offenses were by election officials who decided to process ballots that had been identified as invalid, and agreed to falsify ballot report numbers to cover up discrepencies in the ballot counts.
Remember, words mean things - and the words are being chosen carefully in this case.
Posted by: Patrick on March 21, 2007 03:13 PMKudos to you all! I almost feel unworthy to post on this thread.
Posted by: MSRedneck on March 21, 2007 05:50 PMMcKay should have done more to investigate....I can understand that early on no one could get the stuff because King Ron wouldn't let it out or they out right lied.
preponderance of evidence & events here tell me enough. discerning readers arent distracted by the white noise.
Posted by: jimmie-howya-doin on March 21, 2007 08:54 PM1. In the earlier thread, I believe I asked if the voter rights statute were a better basis for a suit.
2. Bob, I will freely admit that I do not know this area of the law. The issue in my mind is this, does the evidence produced by Stefan rise to the level that taken together it indicates a pattern and practice of corrupt activities which can be distinguished from negligence or mistake?
I believe that is the issue with using Stefan's evidence?
3. Again, this is not my area. Does RICO apply here?
Posted by: WVH on March 21, 2007 09:50 PMI'm not a lawyer but I can give you my perception.
Stefan uncovered and produced evidence of illegal activity. An investigation is needed to determine if it is evidence of criminal activity. Law enforcement needs to it - Stefan can't.
I am a lawyer, just not the election law type. Stefan and I have butted heads in the past, but I think that he does good work and is an asset in helping to look under rocks and uncover dirt.
I agree with you that an investigation is needed, the question is what will be the trigger. In a prior thread, I asked if an aggrieved voter could get an action started under the voting rights act. I don't know that much about RICO, but I wonder if that is an option for getting something started.
I am a proud indie and as much as possible try to stay out of partisan politics and I really don't care to get into personalities. Corruption affects the groups I care about - children and the disadvantaged because ultimately corrupt politicans and a corrupt system steal valuable resources.
What is needed now is a good election lawyer. I don't know if there are any foundations around. I know that when Christians have public policy issues there are a couple of foundations that I can send them to.
Posted by: WVH on March 22, 2007 12:18 AMJeff B...Bill H is not nervous, because he knows there will never be a real investigation. Those who have the authority to request an investigation have too much to hide.
Posted by: dl on March 22, 2007 09:50 AM1. As inpartiial as possible, an investigation
with:
a. subpeona power
b. individuals placed under oath
c. review of records
d. perservation of whatever evidence in
computer records
2. To the extent possible, some buy-in from local
good government groups.
For better or worse, the perception of a large chunk of the population is that the election was not legitimate. Those is power can choose to ignore that perception saying that it has no basis in fact. It may even serve the purpose of some to not address the perception as many people get discouraged and don't vote.
3. The question is how to get to the destination from here.
Since David, et al. reads this blog from Florida, there must be readers out there that:
1. Know a good election lawyer or lawyers
2. Know a foundation or foundation(s) supporting
voter rights and clean government.
The question that should be put to the lawyer or
lawyers:
Is there a way to initiate or trigger an investigation by by-passing local authorities?
I do not know that this is the case, this is just a hypothetical question:
If one was in a situation which was so corrupt that local authorities would do nothing, what is the remedy for that?
The steps are:
1. Contact election lawyer(s)
2. Review by lawyer
3. The question to the lawyer, is it possible to
trigger an investigation?
You are putting people to sleep with this overused nonstory.
Time to move onto something that people really care about...like banning David Mathews.
Sad that David attracts tons more comment than your silly, delirious ultra right wing fantasy droolings...but if you care to think about it, you'll see why: Marginal beliefs (e.g. yours) have marginal following (e.g. everyone else).
Bye....bye.....bye
Posted by: StefanIsWrong on March 22, 2007 10:49 AMBut even if invalid ballots were counted, the Feds couldn't prove that any of this was done knowingly and willfully, or that it rose above the normal errors in an election.
The federal guidelines specifically states such mistakes should not be criminalized:
"Finally, this definition excludes mistakes and other gaffs which inevitably occur in the administration of the usually hectic election day polling process. Mistakes happen. They can have significant impact on the outcome of close elections. Where mistakes occur on a significant enough level to potentially affect the outcome of an election, the appropriate remedy is an election contest brought by the loser seeking civil judicial redress through the appropriate state election contest process. But mistakes in election administration are not appropriately remedied through criminal prosecution."
http://soundpolitics.com/The%20Federal%20Crime%20of%20Election%20Fraud.pdf
And as a bit of legal nitpicking, the statute quoted above speaks of ballots that are known by the person to be: " materially false, fictitious or fraudulent".
I would claim that a missing registration or ballot signature by an otherwise valid voter, would not be such "false", "fictitious" or "fraudulent" behavior. That missing signature might render the ballot invalid, but doesn't rise to the dishonesty that the statute appears to be aimed at.
Posted by: crawford on March 22, 2007 11:14 AMPlease take a closer look at the cover letter dated 12/02/2005 that I sent to the FBI with a copy to McKay. The letter is at http://soundpolitics.com/EdelmanFraudEvidence.pdf. The examples in the letter clearly show that officials were aware the ballots were invalid. I will repeat the information under each figure:
Figure 1a: This voter did not sign her registration form so she was not eligible to vote. The provisional ballot was correctly marked "Fatal Pend/Sig" but that determination was overridden with the notation "OK to count" and initialed "JM". Records show that her registration was not corrected until late 2005.
Figure 1b: A voter registration is considered "incomplete" if it does have a valid residential address. This voter registered his residence at an address within a non-existent block of 19th Avenue. The registration software automatically checks for existence of address blocks and his registration was correctly identified as "Fatal Pend Address". However, the ballot rejection was overridden by an election official and, as of November 2005, the registration remains active.
Figure 2: This voter was not registered for the election nor is she registered now. She gave her residence as a Federal Way address but was assigned to precinct 1823 in Seattle, home of the King County Administration Building.
Figure 3a: A person who had cast an absentee ballot also voted this provisional ballot. The envelope notes that the absentee ballot had been returned on 10/20/04. Nevertheless, the provisional ballot was counted. The envelope of the returned absentee ballot is shown below in Figure 3b.
In each case the evidence is right there on the ballot envelope that officials knew that the ballots were invalid. Nevertheless, a person or persons overrode the system and counted the ballot. In the case of the unregistered voter the ballot was even counted in the wrong jurisdiction. A proper investigation by law enforcement could determine why the ballots were counted even though it was known that they were invalid.
The examples in the cover letter were included to illustrate the hundreds of such ballots on the enclosed CD.
Posted by: Bob Edelman on March 22, 2007 12:00 PMDid you ever find out why the election officials gave the OK to count the ballot? How do you know they didn't have a legitimate reason or at least an arguable reason. In one case I read an email from the elections department which claimed or at least implied that proper signatures were on file at another location.
But even if proper signatures were lacking, I don't see how you could ever prove that the election officials counted ballots that they "knew" without a shadow of an argument were illegal, absent some confession of evil intent on their part, which you aren't going to get.
If you read that guidance memo, you will see that election fraud is primarily a state matter, and the feds should only intervene if some organized or large scale fraud and dishonesty takes place, not just negligence or mistake. So far I have not seen any allegation of fraud or dishonesty.
The improperly counted ballots you point to here seem similar in nature to the improperly counted provisional ballots at issue in the election contest. The judge there said those ballots were improperly counted, but no fraud or dishonesty was shown. That would seem to be the case with this latest evidence also.
Posted by: crawford on March 22, 2007 12:55 PMYou speak of "illegal activity", not of criminal behavior. As I said, counting invalid ballots may have been "illegal", but is little to zero evidence that the federal criminal statute quoted above was violated.
Under the federal guidelines referenced above, the Feds probably shouldn't even investigate your allegations without at least **some** substantial evidence of "knowing" or "willful" dishonest behavior. At a minimum you should have presented some evidence that it was more likely than not that the invalid ballots were counted because of fraud, rather than mistake or negligence.
Posted by: crawford on March 22, 2007 02:56 PMFirst, I suspect you know that the quote you cite as a "federal guideline" is no such thing. It is rather one private individual's explanation of what he believes the law to say. You then compound your error by referring to "the federal statute quoted above" - which it ain't.
As Bob pointed out, what is missing is any evidence that the US Attorney's office actually conducted any sort of fact-finding investigation before concluding there was nothing to prosecute. As I noted in an earlier post, it would be interesting to see if there is any documentation of how the US Attorney's office reached that conclusion.
The evidence clearly shows that election officials violated procedures with which they were legally bound to comply. As the annotations on the ballots demonstrate, someone made a conscious decision to count ballots that under the rules and procedures in effect at the time could not legally be counted. The decision to circumvent procedure for any reason - however "innocent" it might be - is actionable under the law. The evidence is clear that there was "intent" to bypass procedure.
Why is this important? The secret ballot makes it virtually impossible to prove election fraud. Instead, detailed procedures are put in place to prevent (or at least reduce the likelihood of) such fraud. It is these "nitpicky" rules that protect the sanctity of the ballot. When the rules are ignored, there is no way to know whether or not fraud has occurred. Therefore, a willful violation of the rules is made criminal, to encourage compliance.
Which reminds me, what is the distinction you make between "illegal activity" and "criminal behavior?" If it's illegal, a crime has been committed - at least, that's what I was taught....
Posted by: Patrick on March 22, 2007 04:04 PMCraig Donsanto is the head Department of Justice expert responsible for enforcing the federal election laws. His guidelines are supposed to give guidance to the US attorneys in deciding what election law violations to prosecute when weighed against their other priorities. He is not a "private individual". His guidelines make clear that official mistakes and negligence should not be criminalized.
As to crimes vs. "illegal".
Running a stop sign and hitting another vehicle would be "illegal", a civil infraction and possibly also civil negligence in a lawsuit for personal damages.
Running a stop sign on purpose with the intent to kill someone could be a violation of specific criminal statutes, i.e. murder, attempted murder or assault.
Here some election worker may have counted some ballots in violation of Washington rules, regulations or statutes about how to count ballots. That may have been "illegal", or a violation of those rules.
But those actions almost certainly didn't violate the specific elements of the Federal criminal statute quoted above. So those actions weren't a federal crime. You'd have to have some election worker confess "I knowingly counted illegal ballots, because I wanted to unfairly influence the election".
Posted by: crawford on March 22, 2007 06:07 PMI will concede that the term "private" may have been a poor choice of words in referring to Mr. Donsanto's role as a commentator. However, my point still stands that quoting his explanation of the statute (however expert it may be) is not the same as quoting "the statute." In your last post you still make this error. It would be correct to refer to "the explanation of the statute quoted above," but not to suggest that the quote is the actual language of the law.
As for your explanation of "criminal" vs. "illegal," you ignore the most appropos example: someone who deliberately runs a stop sign without specific intent to injure or kill someone, but also without any regard for the risk that someone will be injured or killed. That is known as "criminal negligence." Someone in KCE made a conscious decision to override the notation of "fatal pend" on a batch of invalid ballots in violation of the law. It wasn't a case of someone accidentally picking up the wrong stack of ballots and counting them. We also know that KCE personnel discussed and deliberately chose to alter ballot counts to make sure the totals balanced.
Whether or not these people believed their acts would affect the outcome of the election in any specific way does not excuse their deliberate violations of procedure. It certainly raises questions that fall within the scope of the statute as described by Mr. Donsanto. However, until we see some record of how the US Attorney's office reached its decision to not investigate further, we will not know how they chose to apply the law to the facts.
Posted by: Patrick on March 23, 2007 12:18 AMWhen I spoke about the "statute quoted above" I refer to the statute (42 USC 1973gg-10) that Sharkansky quoted in his original post above, NOT to the guidelines whose purpose is to define when prosecutions should be brought under that statute.
The guidelines make clear that the DOJ will not prosecute "mistakes and other gaffs which inevitably occur in the administration of the usually hectic election day polling process".
My claim is that under the language of the statute you have to show actual knowledge and intent to count illegal ballots, not mere negligence or even "recklessness". Beyond that my claim is that you also have to show a "willful" desire to "deprive" the public of a "fair and impartial" election.
Why? The language of the statute quoted above:
"knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process"
Absent a showing or confession of intent to throw the election, counting a few assorted ballots lacking a signature on the registration form doesn't rise to the level of intent and dishonesty required by this criminal statute.
Posted by: crawford on March 23, 2007 11:21 AM
Currently, this nation does not allow ex-felons to legally vote unless, these same ex-felons petition for that right to be restored. This situation seems to be in direct contradiction to the Supreme Law of the land, Our American Constitution. Let me explain why I believe that this is totally against the Constitution.
It is an accepted fact and legally ruled upon by our Supreme Court (in many land mark cases) that the language of the Constitution is unambiguous. Taking this statement as fact, I will present my reasons for believing the withholding of voting and other rights granted by the Constitution, as pertains to ex-felons, is unconstitutional and thus illegal.
All emphasis shown herein are mine. Further, I have changed the typeface of my comments to allow for easier distinction.
Upon review of our Federal Constitution and certain United States Supreme Court Cases, we can find the following;
Article. VI.
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
It is obvious and often referenced by our Supreme Court that the above clause refers to the supremacy clause of the Constitution. In Reid v. Covert, 354 U.S. 1 (1957) "The rights and liberties which citizens of our country enjoy are not protected by custom and tradition alone, they have been jealously preserved from the encroachments [354 U.S. 1, 7] of Government by express provisions of our written Constitution." Thus the US Supreme Court upheld our rights under the Constitution.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The above amendments further express within the Constitution the restriction of government to encroach on individual rights granted under this constitution. While certain changes to parts of this constitution have been made in the past and will be changed in the future, there are certain requirements that must be met before these changes can become an integral part of our Constitution as shown in the quote below...
"This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress."
The preceding quote along with other strict requirements indicates that even if an amendment abridging individual rights was passed it would also need to be ratified by numerous states as set forth in the constitution before it would become legal. Further, these changes cannot be held to be retroactive if they would create criminal penalties on past actions.
Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
If we continue to assume the Constitutional wording is unambiguous it is evident that imprisonment as a punishment for a crime committed is "involuntary servitude" as defined in Amendment XIII. This comment will become quite clear in the next two (2) quoted amendments.
Amendment XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In Amendment XIV we find that the various states are restricted in what they can do pertaining to the privileges of the citizens. These privileges and rights are defined under our United States Constitution in various Amendments.
Amendment XV
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
We have already seen that confinement is a condition of servitude. Therefore, to deny the right to vote to any ex-felon based upon his/her previous servitude is in direct contradiction to our United States Constitution. Further, after reviewing numerous court orders, wherein sentencing for a crime was directed by the court, no Court Sentence for any infamous crime had ever revoked the citizen's rights as a punishment, a condition of imprisonment, or a condition of parole. As a result, any government entity to require an ex-felon or prisoner to petition to have any of his/her Constitutional rights reinstated cannot be legal. Why should a person need to apply to have a right reinstated that could not be removed by the government within the framework of the Constitution?
As a further indication of how our Courts view the rights of the individual I would submit the following passage from a landmark case. This case gave us what is widely known as our Miranda rights.
In Miranda v. Arizona the following passage sums it up very nicely.
Where rights secured by the constitution are involved, there can be no rule making or legislation which would abrogate them.
I believe any attempt to circumvent the rights and privileges of the citizens enumerated and outlined within our United States Constitution should not be condoned at any level of government for any reason.
Lastly, I think the portion of Reid v. Covert, 354 U.S. 1 (1957), show below, summarizes the most important ideals of the Constitution, our individual rights and freedoms.
The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.
Posted by: Bob Taylor on March 24, 2007 09:10 PMI'm a lawyer and you totally lost me. Assuming that you don't want to have a record expunged and then petition for restoration of voting rights. The next best thing is become a dem, your position is where they are going. I have no problem with ex-felons voting provided:
1. They have served their sentence
2. Paid court costs
3. Made restitution to the victim(s)
I do not that voting rights and election law is a very specialized area of the law.
Posted by: WVH on March 24, 2007 10:56 PM