Nonetheless, out of 88 counties, at least 58 counties destroyed the evidence. The destruction did not come to light until July 2007. It is well-documented.
Neither the plaintiffs’ attorneys nor the Ohio Secretary of State’s office, through her attorney, the Ohio Attorney General, filed the extensive documentation of destroyed evidence with the court. Therefore, there was no record in the court docket of the destruction of evidence and no way for the judge to legally hold the election officials accountable for disobeying his order. Our research of early July 2008 proved the court not only did not have this evidence, but was unaware of its existence.
Shortly before the one-year statute of limitation was to expire on possible criminal contempt charges against the election officials (July 2008), the OEJC filed their motion for criminal contempt proceedings and a special grand jury.
In their motion, the OEJC filed the extensive documentation of destruction of evidence with the court. The OEJC plaintiffs also filed documents obtained through public records requests.
These documents show that certain election officials, especially those in a leadership position within the Ohio Association of Election Officials, mocked the idea of preserving the evidence and had ample actual notice of the legal requirement to preserve the evidence.
These election officials are still in office, still hold leadership positions, and they continue to control Ohio’s elections. These election officials, although nominated by party, are primarily loyal to each other and their association, the Ohio Association of Election Officials.
The lobbyist for the Ohio Association of Election Officials (OAEO), Aaron Ockerman, was also a lobbyist for private election vendors such as ES&S during the HAVA inspired selection of the electronic voting machines. The OAEO is a private corporation that will not release records or even the names of its past officers.
Given the extent of the destruction of evidence as well as the varying degrees of responsibility on the part of the election officials, a special grand jury would be fair to the election officials, grant them due process guarantees, and also serve as an economical use of federal judicial resources.
Further, a special grand jury is authorized, by law, to issue a public report on its findings. Most grand jury proceedings are secret.
The Ohio Secretary of State, Jennifer Brunner, through the Ohio Attorney General’s office, has asked the court to deny both motions. The Ohio Secretary of State is now running for the U.S. Senate.
The plaintiffs’ attorneys have asked the court to strike the OEJC motions from the record, including all the documentation showing the 2004 evidence was destroyed, as well as the e-mail correspondence among the election boards and Blackwell’s office and other citizen-collected evidence that would lead a jury to believe this evidence was, in many cases, intentionally destroyed.
Motions to strike are usually rare in litigation, and intervenors on the same side, as we are, customarily are allowed by the plaintiffs. In fact, the OEJC now has good reason to believe the plaintiffs were never asked – or even knew – of the actions their attorneys were taking.
On March 5, 2009 the court issued the judge’s order and opinion. All requests of the OEJC were denied and all evidence submitted will be stricken from the records. The OEJC motion for an expedited conference for fraud upon the court was denied and will be stricken.
Subsequent to this order, the OEJC learned that multiple current plaintiffs are unaware of the actions being taken in their name, especially the attorneys’ request to strike the material showing the 2004 election records were destroyed. In addition, the OEJC learned that members of the King Lincoln Bronzeville Neighborhood association, in mid-May 2009, did not know they had been named in a law suit (this is the lead organizational plaintiff in the case).
On March 24, the OEJC filed a motion for reconsideration with the federal court. Documents and a video interview were filed to substantiate the questionable lack of fairness and notice to the plaintiffs of what was being done in their names and on their behalf.
Several plaintiffs signed affirmations but wanted them filed under seal (privately) because of a fear of retaliation from the attorneys. An affirmation was filed by the OEJC from a California attorney that these same plaintiff attorneys did not inform the plaintiffs of their actions in the 2004-05 Moss v. Bush election lawsuit, especially of the attorneys’ decision to dismiss the lawsuit.
According to the court’s opinion in Moss v. Bush, sanctions were brought against the same two attorneys handling the King-Lincoln case because they failed to adequately research the law and failed to adhere to the procedures and time requirements. They escaped sanctions by dismissing the lawsuit. Moss v. Bush, 105 Ohio St.3d 458 (2005) (Motion for Sanctions). A substantial amount of evidence had been gathered for that lawsuit.
Another affirmation was filed with the OEJC motion for reconsideration regarding the plaintiff attorneys raising over $25,000.00 for that past 2004-05 election legal work and then not accounting for the spending of it when asked.
Given the local politics in Ohio and the age of this case, it is likely that multiple conflicts of interest and compromised positions have now occurred at the state level. For example, the assistant Ohio attorney generals currently handling this case are the same attorneys from 2006 responsible for preserving the evidence now destroyed.
The OEJC believes that structural reform of our electoral process, in Ohio and nationally, can be meaningfully accomplished only if there is a thorough investigation, and thus, understanding, of the actions and principals involved in the 2004 election in Ohio. In order to move forward, we need to look to the past. The public is entitled to know the actual history.