Fitrakis responds to Tokaji's analysis of RFK Jr:

Mods, I have permission to print this entire response from Bob Fitrakis:

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People have asked me to respond to what they perceive as Ohio State Law professor Dan Tokaji’s “balanced” analysis of Robert Kennedy’s Rolling Stone article about the stolen 2004 election. Tokaji’s piece is entitled “Back to Ohio” and he has a section called “A Gran of Salt” that deals with the Mighty Texas Strike Force. Let me suggest that you take Tokaji’s writing with a grain of salt as well. When I talked to Professor Tokaji, he informed me he relied only on the Conyers Report for his analysis and no additional research. What Professor Tokaji did, and I say this as a graduate of Ohio State Law School, was fail in his “due diligence,” that requirement drilled into every first year law student that one should meet reasonable expectations and put forth efforts ordinarlity exercised by a person before they put forth certain statements or claims.

Below is a direct quote from Tokaji’s article:

“A Grain of Salt

There are other aspects of Kennedy's report that would be very disturbing if true, but appear to rest on somewhat weaker evidence. For example:

Kennedy describes a group of Republican operatives known as the "Mighty Texas Strike Force" which allegedly "us pay phones to make intimidating calls to likely voters." Kennedy's source for this allegation is a report produced Democrats on the House Judiciary Committee in January 2005, entitled "Preserving Democracy: What Went Wrong in Ohio," also known as the Conyers Report, which quotes a statement made by an unidentified hotel worker. While this allegation is what we lawyers would call hearsay -- actually, it's triple-hearsay, since the Conyers Report was relying on a statement made at a hearing by someone other than the hotel worker -- if true it's obviously very troubling.”

Now had Tokaji done a five-minute Google search, he would have found the following:

<a href=http://www.freepress.org/departments/display/19/2005/1177>The Mighty Texas Strike Force</a>

<a href=http://www.freepress.org/departments/display/19/2005/1607>With new legislation, Ohio Republicans plan holiday burial for American Democracy</a>

<a href=http://www.msnbc.msn.com/id/6428913/site/newsweek/>Down to the Wire</a>

<a href= HYPERLINK "http://www.humaneventsonline.com/article.php?print=yes&id=5914>Lone" http://www.humaneventsonline.com/article.php?print=yes&id=5914>Lone Stars to the Rescue</a>

and Bob Fitrakis! :yourock:

That's what happens when I try to get things done before I get the kids off to school. Time elapsed.

i must have missed the article by Tokaji, could you post a link? Thanks!

http://moritzlaw.osu.edu/blogs/tokaji/

He is also highly footnoted in the RFK Jr article-FYI.

<a href=http://www.ruf.rice.edu/~gop/newmexico.html>Texas Federation of College Republicans "The Mighty Texas Strike Force"</a>

Here’s what Tokaji could have written: “Kennedy describes a group of Republican operatives known as the "Mighty Texas Strike Force" which allegedly "us pay phones to make intimidating calls to likely voters. Kennedy's source for this allegation is a report produced Democrats on the House Judiciary Committee in January 2005, entitled "Preserving Democracy: What Went Wrong in Ohio," also known as the Conyers Report. The Report is also backed up by a 911 report on file with the Columbus, Ohio police and an affidavit prepared by Jim Branscome, the night clerk at the Columbus Holiday Inn who witnessed the activities of the Mighty Texas Strike Force. Linda Byrket, who documented the long lines at polling sites in Franklin County on Election Day in “Video the Vote” taped Branscome’s statement as well. Branscome described himself as a “conservative” and said that the Mighty Texas Strike Force was using lists of names to make phone calls from pay phones.

"'Look, I know you got out of prison about'...X amount of months ago...I can't remember how many months he gave, but it was earlier this year, the year 2004, and he said, 'It's illegal for you to vote in this state, and if you show up tomorrow at the polls, we're going to have the FBI there waiting for you, and we're going to haul your ass right back into the slammer' he told him or into the 'can' or something like that."
--From a videotaped interview with Robert Fitrakis and Linda Byrket.

The night auditor at the hotel showed the Free Press records confirming that the Strike Force rooms had been paid for by the Ohio Republican Party. The Mighty Texas Strike Force was contacted by the Free Press, and while no wrong-doing was admitted, they did concede they were in Columbus, Ohio two weeks prior to the election and that their actions were directed by Karl Rove at the White House. Both WVKO 1580AM radio and the Columbus Dispatch radio reported calls during this period directing voters to the wrong polling site. Numerous callers to WVKO, the city’s oldest black-owned radio station, reported calls from unidentified people telling them they would be arrested if they attempted to vote.

Tokaji uses the term “triple hearsay” to discredit Kennedy. Instead, he could have easily included the readily available facts. He knew from the Conyers Report that the statement came from me. He could have called me and asked what our evidence was on the Mighty Texas Strike Force. Also, it would be interesting for people to call Mr. Tokaji to ask who funds the Election Institute at the Ohio State College of Law where he works. We know that his boss, Professor Ned Foley who served as State Solicitor under a Republican governor, is the Jones-Day endowed chair. Hence, a direct money flow from one of United States’ largest corporate law firms. Call Tokaji and ask him for the facts.

Readers generally expect footnotes to support the claims made in the text. RFK's footnote cited the Conyers report and unspecified "(a)dditional reporting." It isn't exactly standard practice to cite "additional reporting" in the sense of "if you really care, why don't you Google it?" The burden is ordinarily on the author to substantiate his or her claims -- not on readers to do additional research that may or may not support the claims.

RFK, quoting the Conyers report, writes, "The men were overheard by a hotel worker 'using pay phones to make intimidating calls to likely voters' and threatening former convicts with jail time if they tried to cast ballots." Well, as far as I can tell, the hotel worker overheard one man using one pay phone.

I certainly agree with Tokaji that this particular allegation "would be very disturbing if true, but appear(s) to rest on somewhat weaker evidence" than many of the others. I know that many people consider it poor form to say the obvious, but there it is. Folks, if we aren't willing to distinguish between the evidence and what we think it means, then what is the point of talking about "evidence" at all?

It might be useful for Fitrakis to release a transcript of the entire interview with the hotel worker as, you know, evidence. Fitrakis' latest assertion (downthread) that the hotel worker "said that the Mighty Texas Strike Force was using lists of names to make phone calls from pay phones" seems to go well beyond anything I have managed to verify by checking his links.

Many people aren't interested in talking about evidence, they are interested in pointing fingers and casting blame - with the most creative insults they can come up with at a particular moment - because things didn't go the way they wanted them to.

I agree with you though, evidence is more useful. It also will get more positive attention paid to it.

When someone points out that a claim isn't supported by the evidence presented, the ethical response isn't to offer up innuendo about one of his colleagues, as in Part 2. Ned Foley is an expert legal advocate for campaign finance reform. He clerked for Blackmun (ohmigosh, another Republican!) and Patricia Wald. His professorship is named after the judge who desegregated the Columbus schools.

As the resident lightning rod, maybe I shouldn't even opine. But I think if people step back and look at this one carefully, a lot of them will say it's McCarthyism, and they'll say the hell with it.

hotel worker, and indicates that there is a film of the entire interview. Bob Fitrakis has submitted evidence to John Conyers and the House Judiciary Dem Legal Staff. Do you really think every bit of evidence needs to be submitted here in it's entire form? Why is this so for RFK Jr and Fitrakis, yet not the same is required for Manjoo and Tokaji?

RFK Jr.s piece was one of the most footnoted articles published, that I have read in recent times. Not many publications would allow the amount of space that would meet your requirements. There is the hope that the information put forward will be highly scrutinized. Fitrakis et al DID attempt to bring these allegations into a court of law- the OH Supreme Court, but we all know it was quickly dismissed as "frivolous. They wanted their day in court to bring forward the mountains of evidence.

Do you really think the legal staff on the Dem side of the House Judiciary Committee, and attorneys such as RFK Jr., Fitrakis, Arnebeck, Truitt Peckarsky, Bonifaz would go on record with information they did not check out? THEY ALL WANTED THEIR DAY IN COURT! More than I can say for the other side.

Do I think the evidence has to be "submitted" in its "entire form"? No. I think that the text and the footnotes have to correspond, and they don't. Is this a reason to chuck out the report? No, and Tokaji didn't. Is Fitrakis justified in bitching at Tokaji for some sort of failure of "due diligence," and then sliming someone he works with? Absolutely not. I will be watching to see whether Fitrakis has the class to walk that one back.

Professor Foley is the Director of the Election Law program at OSU. Prof. Tokaji is Associate Director. Both have played pivotal roles in downplaying the documented wrongdoing in the 2004 presidential election. For example, Tokaji dismissed the exit poll disparities following the election as not an indication of possible vote tampering. The AP sent his comments all around the world to assure everyone that things were OK in Ohio. Tokaji admits in his emails that he has no training in advanced statistics. He's a law professor. As a political scientist, I find it unacceptable and disingenuous that an individual with no graduate level background in statistics would be putting himself out as an expert to the media on such a complex issue as exit polling. Recently Tokaji assured everyone that the massive problems with e-voting machines that occurred throughout Ohio, notably in Cuyahoga County, were perfectly acceptable for the use of new technology. While Tokaji is indeed an expert of the first rank on election law, much of what he comments on has little to do with that and he has no proof that he's investigated anything in any detail or observed firsthand the so-called glitches he apologizes away. As for Prof. Foley, who I studied election law with, he is indeed well-versed on precisely that, election law. Part of my disagreement is his disinviting of attorney Cliff Arnebeck to an election forum at OSU, particularly after Cliff's role in exposing the money-laundering into the Ohio Supreme Court race by the U.S. Chamber of Commerce. At the same time, Foley did not disinvite the attorney for the Chamber and the Bush/Cheney campaign. The program at the OSU Moritz College of Law seems to position itself as a reasonable centrist force and make itself appealing to corporate money and in so doing, they claim expertise in areas that are lacking and ignore mountains of evidence easily obtainable in the public record.

Fitrakis is actually the only political scientist I know of who has actually lent his name to the view that the exit polls point to fraud. Many political scientists with impeccable graduate training in statistics are aware of the exit polls. So, what's that about?

I don't really care whether Fitrakis resents Moritz's "reasonable centrist" reputation, or whatever. I just want him to correct his facts and avoid sucker punches.

The following affidavit was prepared in the Moss v. Bush case during a videotaped interview with Jim Branscome, who described himself as a conservative, following the 2004 presidential election. The affidavit was never submitted in court for the case and after editing and approving the affidavit, Branscome left his position at the Holiday Inn shortly thereafter. I've spoken to Linda Byrket (film maker) about releasing the tape of the Branscome interview and she informed me she would work on digitizing for submission. Also, as the co-host of a twice weekly talk show on WVKO 1580AM during this time, callers made me aware of "white people with southern accents" posting fliers and talking to people in the inner city of Columbus telling people that due to the anticipated heavy voter turnout, that Republicans were to vote on Tuesday and Democrats were to vote on Wednesday. I call was made to my house directing me to the wrong polling place, one, by the way, thanks to Ken Blackwell, that is actually closer to my house. Hundreds of documents obtained by public records requests are being released in September in a New Press book I've edited with Harvey Wasserman and Steve Rosenfeld entitled "What Happened in Ohio?
A Documentary Record of Theft and Fraud in the 2004 Election." Hundreds of other documents will be made available on a digital archive online soon. The Free Press has accumulated over 20,000 election documents, including many public records and sworn affidavits from voters. I would be willing to meet Professor Tokaji for a debate anytime he likes, with each of us presenting our evidence and knowledge. I realize that Tokaji is not the problem, the problem is lack of real debate on the issue. As of today, the Free Press staff has looked at precinct data from over 9300 precincts in Ohio and despite massive roadblocks thrown up by local county officials, intends to look at all the more than 11,000 precincts in the state.

Affidavit
I, James Branscome, residing at 115 South XXXX Street, Newark, Ohio, 43055-3682, do swear and affirm the following:

1. I am an employee of the Holiday Inn, 175 E. Town St., Columbus, Ohio 43215. I work the 3:30-12pm shift drivng people to and from the airport. I have personal knowledge of the incidents relayed below.

2. On October 27, 2004, I picked up 7-10 individuals from the airport to drive them to the Holiday Inn. I made two more runs to pick up people from the group, for a total of approximately 25 people.

3. The individuals identified themselves as the Texas Strike Force. Most of them said they were from Texas, one person was from Florida.

4. The individuals stated they had paid their own way to come to Ohio. The Holiday Inn record for payment for their hotel rooms indicated the rooms were paid for by the Ohio Republican Party.

5. Their hotel rooms were in the back of the hotel, directly overlooking the Republican Party headquarters, which was behind the Holiday Inn.

6. On November 1, I overheard one of the Texas Strike Force men talking on the pay phone in the hotel lobby. He was telling someone that he would call the FBI on them if they went out to vote. He had a big “W” on his shirt.

7. Laverne Sanders, night auditor at the hotel, called the police. When the police arrived, they did nothing. One of the female Texas Strike Force individuals told the police about Democrats at the hotel who were “speaking Arabic.”

8. The phone caller from the Texas Strike Force accused the hotel personnel of violating his civil rights. He was staying in room 617 and was identified by another individual in the hotel as an attorney from California.

TO THIS I SWEAR AND AFFIRM,
*******

NOTE: I removed the address of this individual, if anyone wishs to view it for it's authencity they can can contact Robert Fitrakis, Attorney at Law. mod mom

As most know, during the night of the 2004 presidential election, Warren County Ohio had its vote counting center shut due to a preplanned "terrorist alert". It's an infamous event, with the officials claiming they didn't see anything. The Warren County lockdown. The FBI admits there was no such terrorist alert.

Facing facts on Prof Dan Tokaji means this:

the DREs he's successfully litigated for, along with the secret vote counting they directly enable, are the equivalent of a 24/7 Warren County lockdown. But this time the lockdown is on democracy itself and all elections.

These DREs have the addition effect of forcing election activists into debates about "paper records" or Paper ballots on DREs as some kind of attempt to mitigate the effects of the 24/7 DRE lockdown on Democracy, with the debate being between those who argue that "first steps" are needed and those such as myself that say it won't work and that once somebody has jammed their hand down your pants pocket you can't negotiate with them to remove their hand, but only part of the way. This will be explained more in the followup piece to Cramdown, Stripdown Lockdown on US Democracy. See <http://www.scoop.co.nz/stories/HL0604/S00233.htm>

I sent the following email to Prof Tokaji, which received the following reply, indicating that I may have prompted him to blog on an issue he wasn't fully prepared to engage. I wrote back to him and challenged him to a debate, promising to attempt to recruit a large number of my "closest friends." I've heard no response since that time, and it's been around four days now. From what I hear, Prof Tokaji apparently receives EAC grant money for research of some sort.

He's taken what I consider to be a world class election disaster-course by representing the plaintiffs in Stewart v Blackwell (6th Cir. 2006) in which, as the suit is framed by Tokaji, none other than Ken Blackwell gets to argue the anti-DRE position!

This debacle led to a published case that upheld the constitutionality of DREs (and precinct count optical scan) and found central count optical scans and punchcards to be unconstitutional violations of equal protection based on Bush v Gore and an analysis of the voting systems' relative "residual vote" rates.

"Residual votes" (the number of people who double-vote on a race plus the number who don't vote it at all) means that past election fraud and disfranchisement, especially when directed at minorities, gets to be used as the excuse to bring us DREs, because the DREs are not particularly amenable to high residual vote rates. Instead of stealing entire votes, DREs via computerization are most amenable to "vote shaving" programs. Thus, why suppress entire votes when you can "conveniently" let every one vote and then just shave the entire election to size?

Although a full explanation of why residual votes are indicative of past fraud and failure will not fit here, past fraud and failure is nevertheless the new excuse for bringing us the brave new world of DREs. How fitting that, although in a slightly different context, you can find Stewart v Blackwell in a legal search using the search phrases "brave new world" and "tokaji"
Paul

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From: tokaji
To: lehtolawyer@hotmail.com
Date: Fri, 2 Jun 2006 10:52:12 -0400
Subject: Re: Rolling stone & Vote counting

I'll post something on the RS piece later today. Though I'm no IP expert, I've posted on the trade secrets and open source issues as well and written about them briefly in my "Paperless Chase" piece.

Daniel P. Tokaji
Assistant Professor of Law
The Ohio State University
Moritz College of Law
614.292.6566
http://moritzlaw.osu.edu/blogs/tokaji/

----- Original Message -----
From: Paul Lehto <lehtolawyer@hotmail.com>
Date: Friday, June 2, 2006 4:14 am
Subject: Rolling stone & Vote counting

>
> Wondering when you will blog on the Rolling Stone article hitting
> newsstands today (Friday). Nice reference to yourself
> there.http://www.rollingstone.com/news/story/10432334/was_the_2004_election_stolen
>
> And, wondering if you've already written something responsive to
> DRE ballots being counted in trade secrecy -- which is more than
> tantamount to secret vote counting it is secret vote counting. If
> people can't do this in Warren County with a terrorist alert (fake
> or not) why can corp vendors do the secrecy thing 24/7 with claims
> of "trade secrecy"? From the standpoint of democratic practice
> and theory, DREs write the public as a check and balance out of
> the equation. Have never had a person disagree with me on this
> subject, trusting you'll be the one to either puncture the
> argument or renounce your position in favor of DREs. ; )
>
> Paul Lehto
> Attorney at Law

together a field of experts to debate Prof Tokaji, if he was interested. After the Palast event, we will be working to bring together a froup of these experts for a conference in the fall. You might want to consider coming to the scene of the crime.