FRAUD! Why Federal Courts require heightened pleading. Skinner is 100% right.

If you sue someone in Federal Court, you ordinarily only have to make out the lower standard of notice pleading.

http://www.law.cornell.edu/rules/frcp/Rule8.htm">Rule 8 of the Federal Rules of Civil Procedure requires you to give:

"(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief."

But http://www.law.cornell.edu/rules/frcp/Rule9.htm">Rule 9 lays out a heightened standard for alleging FRAUD:

"In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally."

Skinner wrote: "The fact remains that if one is to make a claim of fraud, the burden of proof is on those making the claim..."

Skinner could well have added: "... and the burden of proof is higher in claims of fraud."

Ides

And me without my Etch-a-Sketch.

Ides

:bounce:

I get impatient when waiting for verdicts.

Ides

memory card vulnerabilities, the results defy all pre election polls (as, as far as we know, the exit polls) and we have to wait until a politician is willing to put their future on the line by asking for a manual recount before we can demand accountability?

If you want to plead fraud in a Federal Court, you have to meet the heightened pleading standard.

Ides

I'm amazed at how often I have to explain what an election is.

An election in which the government does some voodoo behind the curtain, with vote tabulators run on 'trade secret' code, and comes out and announces who 'won,' is not an election. It is tyranny. Or a Marx Brothers movie. Take your pick.

Elections are like no other process in our democracy. They must be open, visible, transparent, verifiable and verified UP FRONT. Hiding the vote counting from the public is INHERENTLY fraudulent. This is so basic, so obvious, such a no-brainer, it's difficult to explain. It's like having to prove that most people have two legs. Do you have to photograph everybody on earth to establish something like this that everybody knows, that is common sense? Secret vote counting will always result in the powers-that-be reinforcing their own power and control. THEREFORE vote counting is conducted IN PUBLIC VIEW.

...until corporations entered the picture, and started re-writing our laws to permit THEM to count the votes using 'TRADE SECRET,' PROPRIETARY programming code, that the public has no right to review. Now we have an utterly flip-flopped situation in which PRIVATE PROPERTY RIGHTS are interfering with the most basic requirement of democracy: that elections be counted in public. The biggest corporate scam ever.

Let me put this another way. There should be no uncertainty in any election. In elections, the burden of proof is on the GOVERNMENT. Elections are guilty until proven innocent. The burden is not on the citizen to prove fraud. The burden is on the government to prove transparency. And if there is no transparency, the election is INHERENTLY fraudulent.

This is far, far different than any other kind of fraud, in which, first of all, the person accused of fraud is entitled to be presumed innocent. Elections are NOT presumed innocent. They are presumed guilty, until proven otherwise by transparent procedures. Elections MUST be totally open and aboveboard, up front. A person in a fraud case is entitled to privacy unless the government can establish reasonable suspicion of a crime, to invade their documents, phone calls, hard drives, bank accounts, etc. In elections, the OPPOSITE is the case. Election officials have NO right of privacy. They have NO presumption of innocence. All documents and activities--and, most especially the tabulating of the ballots--MUST be entirely visible to the public.

The burden of proof that an election result is valid is on the GOVERNMENT, not on the citizens. And if the government hides the vote counting process--pulls it behind a veil of corporate secrecy--so that the validity of an election cannot be established, up front, the election is FRAUDULENT.

This is the case with virtually every election in the United States starting in 2004--after the cancerous spread of 'TRADE SECRET' vote counting all over the country, during the 2002 to 2004 period, by act (and $3.9 billion electronic voting boondoggle) of Congress.

Thus, citizens--who do not even bear the burden of proof--are forced to gather INFERENTIAL evidence of the specific use of this inherently fraudulent vote counting system, to challenge, a) specific results, and b) the fraudulent SYSTEM.

This is upside down, backwards and inside out. It is Alice in Wonderland. Citizens should not have to do this.

Can people get this now? It is Democracy 101. It is FUNDAMENTAL. The burden of proof is on the government to establish that its counting of the votes is accurate.

But we have had an extremely alarming series of events, including court rulings, that protect the corporate 'TRADE SECRET' code, and not us, the voters, in our FUNDAMENTAL right to transparent vote counting. The incredible FL-13 case shows us how far gone our democracy is. ES&S 'disappeared' 18,000 votes for Congress in Democratic areas, in this '06 election 'won' by the Republican (of course) by only some 350 votes. When the lawyers for the Democrat (Christine Jennings) took the matter to court, and asked to see ES&S's 'trade secret' code, to try to determine what happened to those 18,000 votes, ES&S refused , and argued that their "right" to profit from our elections (and steal our elections) trumps the right of the voters to know how their votes were counted.

And the Jeb judge agreed!

But that isn't even the worst of it. Our so-called Democratic Congress--which has the power to reverse this injustice--has DONE NOTHING ABOUT IT. NOTHING!

NOTHING!

The Democrats love (or fear?) "trade secret," proprietary vote counting by rightwing Bushite corporations! (And ES&S is the worst of the election theft monopolies, as to extremist rightwing ties.)

Nothing! They have done NOTHING to restore our most fundamental right, and the most fundamental basis of our democracy: transparent vote counting.

A lot of people don't realize how WRONG this is--because our Corporate Rulers have tried to slide this brand new "right" for themselves into our legal system, under the radar: their "right" to count all our votes IN SECRET.

They got personhood rights this way--sneakily. They got the right to live forever--and to gobble up property and wealth over generations of time, with no end to it. These are business groups of moneyed interests who were short-lived consortiums, in historic times, tolerated by governments for their common good purposes, licensed by governments, and frequently disbanded by governments. Now they have virtually BECOME our government. And now they are asserting the "right" to profit from our elections, at the cost of election transparency, and to count all our votes--once a public, democratic process--with 'TRADE SECRET,' PROPRIETARY code.

So, where should the burden of proof be? Ye who scoff at, and snicker at, and and ridicule, and try to marginalize those of us who want TRANSPARENT VOTE COUNTING: Who should have to prove what, when it comes to elections?

Why is it so difficult to get a recount, when inferential evidence--the only evidence available to us--points to a wrong outcome? And why is it impossible to GET a recount in one third of the country that doesn't even have a paper trail for vote counting?

Who bears the burden? And why has our political establishment thrown the burden on US--on ordinary citizens, with few resources, funds and time--with a NON-TRANSPARENT vote counting system?

WHY?

We are not likely going to fix this until we answer that question. Why did they do this? Why did they CHANGE our election system so that we CAN'T PROVE fraud, so that we only have INFERENTIAL evidence, and so that, when we go to court--if we can ever get it to court, a rare and difficult undertaking--a PRIVATE CORPORATION can claim PROPERTY RIGHTS over our ELECTION SYSTEM?!

--------------------

A quick rundown on the system:

Touchscreen voting machines (about a third of the country) have no paper ballot. There is no evidence.

Optiscan voting machines have a paper ballot, but 99% of the ballots are never counted. (Totally inadequate "check and balance" in a "TRADE SECRET" system.)

Absentee Ballots, other paper ballots--most are scanned into the riggable electronics, not hand-counted.

The electronics have proven to be--time and again, in numerous tests--extremely insecure and insider riggable. The only improvement that opticans provide is that, if you can get a recount, there is a ballot to recount.

It is extremely difficult--often impossible--for ordinary citizens to get a recount. It is expensive, and blockaded in many ways, and often only the candidate can get a recount, and candidates fear the voting machine corporations and almost never challenge them. Also, it is never a full, or even a big recount. It will be, say, a 3% recount of selected precincts (opening up an whole additional can of worms). The principle of COUNTING EVERY VOTE has been entirely lost.

The 'TRADE SECRET,' PROPRIETARY vote counting code permeates the system--it's in the touchscreens, the optiscans and the central tabulators. With a 1% audit--and often a 0% audit--the vote counting is virtually unmonitored--unverified, unverifiable, non-transparent.

The three main electronic voting corporations--Diebold (now Premier), ES&S and Sequoia--all have very close ties to the Bush regime, far rightwing causes and/or the Republican Party.

BOTH political parties were collusive in installing this egregiously undemocratic vote counting system nationwide.

Note: New Hampshire has a Diebold optiscan system in the urban areas, and hand-counting in the rural areas (very rare in the country). Therefore it is possible to compare a pristine, hand-counted vote with a machine vote. The hand-counted rural areas went for Obama. The urban (Diebold) areas went for (pro-war, pro-corporate) Clinton. Pre-election polls predicted an Obama win of the state by as much as 8%. Clinton 'won' the state by 3%. It is a duplicate of the 2004 election, in many ways, including the exit pollster, Edison-Mitofsky, "weighting" the exit polls, post-election, to force them to MATCH the official results. These same bad actors--Diebold & brethren, and Edison-Mitofksy--together stole the 2004 election for Bush. All evidence points to at least a 5% landslide for Kerry; the real, pre-doctored exit polls gave him a 3% win (but this doesn't count all the suppressed black votes, in Ohio for instance). Edison-Mitofsky CHANGED the exit poll results (Kerry win) to MATCH the results of Diebold/ES&S's secret formulae (Bush win). Thus, a probable landslide for Kerry in 2004, and a probable landslide for Obama in 2006, are buried beneath clouds of obfuscation--corporate "trade secret" code in the voting system, and corporate "trade secret" exit polls, with most of the ballots (approx. 98%) never counted by anybody. Obama is the type of politician who seeks to please the "powers-that-be" with vague "politics of hope" rhetoric. He will not challenge the New Hampshire result. Diebold, ES&S and Sequoia hold his fate in their hands, in the remaining primaries. Whoever gets 'made' by them as the Democratic candidate (probably Hillary), will then face a Bushite in the general election, which will also be tabulated by these Bushite corporations, with virtually no audit/recount controls.

----------------

There really has been only one issue since November 2004: Transparent vote counting. Without it, we don't really have a democracy any more. You wonder why Bush and Cheney are still in office, and not in jail? This is why. You wonder how a Democratic Congress--with 70% of the American people opposed to the Iraq War and wanting it ended--could, instead, ESCALATE the war, and lard Bush/Cheney with billions more of our non-existent tax dollars to keep killing Iraqis until they sign over their oil rights? This is why. You wonder why a great surge of youthful support for Obama came to nothing in New Hampshire, despite polls--even Clinton's own internal polls--saying he would win big? This is why.

Get to work, friends, at your local/state level, to change this circumstance. Demand vote counting that everyone can see and understand. You should NOT have to produce any proof that this fraudulent system came up with a wrong result. It should be obvious--and plain for all to see--who won. There should be NO uncertainty.

Your election officials are guilty until proven innocent. Remember that.

:popcorn:

Ides

WE are the sovereign people of this land. Federal judges are our SERVANTS. If they will not support THE most fundamental condition of democracy--transparent vote counting--then they should be impeached.

But what I am saying, above, is that this is not really a legal matter, nor any kind normal matter of fraud. It is a FUNDAMENTAL MATTER OF THE SOVEREIGNTY OF THE PEOPLE.

It the matter of revolutions. It is why we had a revolution in the first place. And "bought and paid for" Bushite, fascist, corporate judges have no more say in the matter of our sovereignty than the Tory magistrates of King George.

If they were appointed by Bush, they hold power illegitimately, on the basis of two stolen elections. And whoever they were appointed by, they have no right or power to rule that a corporation's 'TRADE SECRET' trumps OUR right to transparent vote counting.

This is a matter of SOVEREIGNTY. Do you understand that? Do you know what it is, and what it means?

Or have you decided that you are not a citizen any longer; you are now a subject of our Corporate Rulers and whomever they appoint to rule over you?

Transparent vote counting is the difference between democracy and tyranny. And if you consider that to be a "bill of goods," and would subject yourself to the ruling of a judge--a public servant--that you have no right to see the counting of our votes, then you have given up on democracy, consciously or unconsciously.

I am not talking here about what seems practical at the moment. I am talking about the very basis of our civilization, our way of life and our mode of governance, which has been radically altered without our consent.

Many, many people have sacrificed and died for our right to vote--a right that INHERENTLY CONTAINS the right to SEE the votes counted. And you would throw that over with a casual phrase like "bill of goods"? And you would bow down to some "bought and paid for" royalist judge who would dare to rule that right out of existence?

I urge you to think about this. I'm not against practical, strategic discussions--for instance, HOW to restore our right to vote, given our circumstances and resources? I understand how corrupt this vote counting system is, how entrenched it is (so quickly!), and what our problems are with our own party leaders, and how difficult it is going to be to change. I know what the strictly legal issues are, and the problems with taking this to court (problems with Bushite judicial appointments, among other things).

But we DO need to agree on fundamental principles. Do you not agree that vote counting should take place in public? Do you not agree that, without public vote counting, we are no longer a sovereign people?

What is the basis of our sovereignty as a people, apart from the counting of our votes? And, if that is no longer in our control, are we not...subjects? Peons? Serfs? Slaves?

Why should Bush care what we think, when his buds at Diebold and ES&S are the ones who count the votes, and we are not permitted to know how? And, if we have lost our only real power over Bush, or any office holder--the power of our vote--we are no longer sovereign. Do you to agree to that loss of sovereignty? And please know that I understand the distinction between what you agree to, and what you think about the prospects for restoring our rights and sovereignty as a people.

If you don't understand the difference, don't expect to have much success in the courts on this issue.

Ides

What about our state legislatures? What about our elected or appointed state/local election officials? What about OUR OWN defense of our sovereignty, as citizens of a democracy that has been gravely compromised by non-transparent vote counting?

The issues is MUCH MORE fundamental than a legal issue of fraud. For instance, it goes to the legitimacy of any Bush-appointed judge to rule on election integrity issues. It may be just fine, with such a judge, for ES&S to assert--as it did in the FL-13 case (18,000 votes for Congress 'disappeared' by ES&S machines, in an election 'won' by the Bushite, by only 350 or so votes)--that the public has no right to review its 'TRADE SECRET,' PROPRIETARY vote counting code, and that its "right" to profit from our elections with its 'TRADE SECRET' code TRUMPS the right of the voters to know how their votes were counted. The Jeb judge in Florida thought that was just hunky-dorey, and agreed with ES&S that ES&S's "trade secrets" overrides the public's right to transparent vote counting. But is it all right with YOU?

That is what I am asking. It's one thing to be realistic about what a Bushite judge may do. It's another thing to understand that Bush was never elected, either time, and that the non-transparent, Bushite-corporate controlled vote counting system installed to "re-(s)elect" him in INHERENTLY fraudulent.

Ergo: Strategy to restore our fundamental right to vote, and its essential underlying right--the right to SEE the votes counted--must focus on...Congress...state/local juridictions...public education...busting collusive corporate media monopolies (who conduct so-called exit polls that are "ADJUSTED" to MATCH the official, "TRADE SECRET" code count)...etc.

I agree. After 8 years of judicial appointments by an illegitimately installed fascist president, and strong evidence that Democratic leaders are at the least fearful of fascist Bushite/corporate power, and are, at the worst, collusive with it--and therefore even Democratic-appointed judges will favor corporate rule--we are forced to pursue more doable strategies to restore our right to vote.

IdesofOctober, we are not far from a revolutionary situation, in which all government systems are in such a stranglehold--controlled by a few fascist billionaires--that our democracy is OVER. Kaput. Non-existent. We cannot expect justice and fairness ANYWHERE within our government/political system--not from the corporate puppets in the White House, not from the corporate puppets in Congress, not from the corporate puppets they appoint as judges, not from the highly corrupted and nazified "justice system," not from our war profiteering corporate news monopolies, not from our corporate-controlled elections. There is no possibility of redress of grievances. Change has been blockaded.

70% of the American people opposed to the Iraq War, and the so-called Democratic Congress, elected by the people to end the war, turns out to be 70/30 FOR it, and ESCALATES it, and lards Bush/Cheney with billions more of our non-existent tax dollars (debt ad infinitum) to keep killing Iraqis until they sign over their oil rights.

Because? A combination of filthy, war profiteer money, and rightwing Bushite corporate-controlled vote counting--that both political parties support.

So, WHO do you take this grievance TO?

Our Democratic leaders? Right. What have they done about non-transparent vote counting? They colluded in it!

Bush appointed judges? Right. Good luck there. Maybe some stray honest judge left over from the Old Republic might understand that democracy is dependent on vote counting IN THE PUBLIC VENUE. But chances are whatever judge you take it to is, a) Bush appointed, or b) appointed by a corporatist Democrat (Clinton), and scared shitless of both the voting machine corporations and Bushite spying.

It's as if our country were now run by the fucking mafia. Courageous leadership, that can't be blackmailed, is very rare.

So what do we do?

We do what we can. We take it to court and hope for the best. We pressure local election officials (the best venue for change--strategically) and demand, a) paper ballots, and b) COUNTING of the ballots. Some people took it to Congress (despite warnings from the rest of us that that was a waste of time, energy and scarce funds--but they had to try, and they really can't be blamed for it). We educate. We agitate. We do our best.

My only beef with you is that saying it's impossible here, or impossible there, DOESN'T HELP. Yeah, we are fucked, everywhere you look. THEN what do we do?

Put it in a thread of its own, and I'll certainly recommend it! :thumbsup:

is that even the right venue?

Remember Florida 2000? First it went to the FL Supreme Court.

/typo

Certain areas of law almost automatically trigger what's known as "removal" to Federal Court. This is rooted in the Constitution.

A very, very carefully crafted complaint might succeed in keeping the matter in a State Court. But just about any lawyer worth its salt could get it removed to Federal Court.

Remember, Federal Judges serve for life. There are many old guard Democrats sitting on the bench, and plenty of Republican-appointed judges I'd rather appear in front of than Clinton-appointed ones, to tell you the truth.

Ides

The best ones would be in tight with the clerks, too.

The assignment of a judge is supposed to be random. But sometimes the clerks can exercise some discretion and assign the case to a judge who might lend a sympathetic ear to the cause.

Ides

of the respective venues. And, yes, it would go to the State first. You're overstating your case.

So the heightened pleading requirement is still there, usually.

Ides

It's a good idea for people to have that information.

However, any allegations of fraud brought in court are going to need to plead with particularity.

Ides

invalidity. For fraud, of course you need to accuse someone. But what if an election is just so hopelessly non-transparent that it is not possible to establish who won. For instance, if there is no paper trail, or if many machines break down and lose data, or if "chain of custody" on recounted ballots is lost, or if Diebold techs trash the memory cards in the losing candidates' strongholds and you suspect they did it deliberately but can't prove fraud--but CAN prove that a new election is necessary to determine who won, or--another possibility--as the in the FL-13 case--the machines simply 'disappeared' 18,000 votes (a determining number of votes) and nobody can establish why it happened or whether or not it was deliberate. Then you would allege hopeless non-transparency, or malfeasance, or some lesser charge that outright deliberate fraud. And--in the Old Republic of the rule of law, not to mention common sense--almost any judge would say: hold another election. (It's comparable to an accident, say a flood, destroying the ballots in the old days--except that the accident is caused by the corporation and its crapass machines, on purpose or not. You can't prove fraud, but you damn well CAN prove that the ballots on there to count, due to machine failure or due to blind, stupid, bought and paid for legislators.)

And in the Old Republic days of justices like Hugo Black and Earl Warren--men of principle--judges would take one look at the Diebold/ES&S garbage--for instance, ES&S refusing to permit review of its secret code in a highly questionable election--and say, "Begone, ES&S! Are you kidding, assholes? Get out of my courtroom before I throw you in the slammer for contempt of democracy."

The circumstance of non-transparent vote counting--of having no ballot to recount, or having a ballot but not counting 99% of them--is so absurd that any decent judge would invalidate any such "election" as fraudulent on its face. That's the point I'm trying to make. Our democracy is so eroded by Corporate Rule that the very principle upon which democracy depends--transparent vote counting--is now treated as some kind of outlandish, leftist assertion.

But my other point is that, knowing this--knowing how few "men or women of principle" we have left in our court system, and within our political establishment (which appoints judges)--we can still take the issue of INVALIDITY to court, on the absence of sufficient evidence of how people voted, or loss of the evidence, or insufficient recount (usually about 3%). There have now been studies of the minimum size of the audit (automatic recount) to insure that a minuscule chance of fraud (it's 5% to 10%, depending on circumstances). THAT could be taken to court. It's not a fraud charge. It's an invalidity (or possibly malfeasance) charge--and/or a matter of statistics experts proving their case (that 3% is insufficient).

I do know that even this lesser allegation could well be treated as a "bill of goods" by a judge who doesn't give a crap about the truth or about democracy--because it has happened. But it is a "lesser standard," as you say, than alleging outright fraud, where someone could go to jail. Your remedy: a new election (with paper ballots, 100% handcounted!).

You should go to law school, if you haven't already.

Ides

There's a damn good reason fraud claims require a strong burden of proof. You're applying a very general FRCP rule as if to say that the government intentionally set that up to hinder vote fraud claims--it did not.

There are many, many things to be outraged about with our screwed-up election system. FRCP 8 isn't one of them.

We're on the same page on this.

Ides