Supreme Court won't sanction lawyers who challenged election

JOHN McCARTHY  Associated Press  20 May 2005

COLUMBUS, Ohio - The door is almost closed on the 2004 presidential campaign in Ohio.

Chief Justice Thomas Moyer on Thursday ruled against Ohio Attorney General Jim Petro's attempt to have lawyers sanctioned for filing "a meritless claim" against the vote that gave President Bush a win in Ohio and, as a result, enough electoral votes to win a second term in the White House.

The ruling leaves one active case from last year's presidential election - a challenge of how the recount was conducted.

In legal documents filed with the Ohio Supreme Court, the lawyers had said the challenge they filed on behalf of 37 voters included enough evidence of voting irregularities to back up their allegations of widespread fraud. Neither John Kerry's campaign nor the Democrat Party were part of the challenge. The challenge was later withdrawn.

Petro, a Republican, asked for sanctions against lawyers Cliff Arnebeck, Robert Fitrakis, Susan Truitt and Peter Peckarsky. If the court had sanctioned the lawyers, they could have been forced to repay attorney's fees and court costs.

Fitrakis said the ruling was proper, given that the voters and lawyers were within their rights and had an obligation to bring the irregularities to light.

"How do you sanction public-interest attorneys?" he said. "We should have been congratulated for trying to make sure the election was conducted properly."

Separately, Justice Maureen O'Connor denied a request for sanctions against the same lawyers in a similar challenge of Moyer's own Nov. 2 election, which he won with 53 percent of the vote.

The four lawyers' allegations in the contest of the presidential election were "at best, highly improbable and potentially defamatory, inflammatory, and devoid of logic," Moyer wrote.

Moyer, acting under the court's power to assign election-related complaints to a single justice, said that while the court has the authority to sanction attorneys, the speed with which elections must be challenged allows the court some leeway.

"The General Assembly could have expressly authorized courts to sanction those who pursue frivolous election contests. It has not," Moyer, a Republican, wrote in his decision.

Bush beat Democratic Sen. John Kerry by about 118,000 votes in Ohio, which turned out to be the pivotal state in the Nov. 2 election. The lawyers' election challenge was withdrawn in early January, with those contesting the results saying it was clear their argument would be dismissed as moot with Bush set to be inaugurated.

The lawyers alleged in the contest of election that, among other things:

_ Exit poll results showed that Kerry would win Ohio with 52.1 percent of the vote, while the certified result showed him losing with 48.7 percent, indicating "the inescapable conclusion that there was election fraud in connection with the vote counting."

_ President Bush, Vice President Dick Cheney, Bush political adviser Karl Rove and others "used various means to change fraudulently the legitimate results of the election."

_ Ballots not cast by registered voters were added to ballots that were lawfully cast and that legitimate ballots were destroyed or altered.

_ Absentee ballots were counted for which there was no notation in poll books.

_ Election computers were hacked and vote totals changed.

"By their conduct contestors, their attorneys, and other persons who appeared to be more interested in their own notoriety than in the facts, profoundly disserved Ohioans of both political parties who worked so hard to conduct a fair election," Moyer said.

Arnebeck said Moyer ruled correctly, but said that questions about the election remain unresolved.

"We hope that there will be a proper judicial investigation," Arnebeck said.

Moyer's ruling leaves one remaining case involving the presidential vote in Ohio. Last week U.S. District Judge Edmund Sargus ruled that a Toledo judge had jurisdiction in a challenge by the National Voting Rights Institute of the Ohio recount of the presidential election, which didn't change the outcome.

Peckarsky said the ruling was correct and what the lawyers had sought, but he pointed out that Moyer said that without more evidence than the court had received, he could not conclude that attorney standards were violated.

Truitt said a bill in the Legislature that would change some election rules for provisional voting and allocation of voting machines "needs to be scrutinized by anyone who has concerns about elections in Ohio."

Petro respects Moyer's ruling but noted that the plaintiffs dismissed the case and no case of fraud has been proven, spokeswoman Kim Norris said.