King Lincoln Bronzeville Neighborhood Association et al v. J. Kenneth Blackwell et al

Filing 107

REPLY to Response to 102 MOTION for Reconsideration re 101 Opinion and Order and Request for Emergency Hearing filed by Plaintiffs Willis Brown, Miles Curtiss, Paul Gregory, King Lincoln Bronzeville Neighborhood Association, League of Young Voters/Columbus, Ohio Voter Rights Alliance for Democracy, Matthew Segal & Harvey Wasserman. (Arnebeck, Clifford)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION

KING LINCOLN BROWNSVILLE
NEIGHBORHOOD ASSOCIATION, ET AL.
CASE NO. 2:06-CV-745
PLAINTIFFS,
V.

JUDGE MARBLEY
MAGISTRATE JUDGE KEMP

OHIO SECRETARY OF STATE
JENNIFER BRUNNER, ET AL.

PLAINTIFFS’ REPLY TO STATE OF OHIO MEMORANDUM CONTRA PLAINTIFFS’
MOTION FOR RECONSIDERATION OF THE MAGISTRATE JUDGE’S DECISION
AND ORDER QUASHING PLAINTIFF’ SUBPOENA TO THE OHIO CHAMBER OF
COMMERCE
Introduction
This is a discovery matter. Neither the merits of plaintiffs’ case, nor their document hold notices
in anticipation of a possible organized crime count in a second amended complaint, are at issue
at this time. In reply to the Ohio Attorney General’s Memorandum Contra Plaintiffs’ Motion for
Reconsideration of the Magistrate Judge’s Decision presented on behalf of defendant the State of
Ohio, the State of Ohio again does not contradict plaintiffs’ trial attorney’s verified assertions of
fact that he was directed by Ohio Secretary of State Jennifer Brunner to communicate directly
with her in regard to matters of fraud in a current election, and that in such communications

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Ohio Secretary of State Jennifer Brunner agreed to and authorized the discovery deposition of
Karl Rove and records subpoenas to the Chamber of Commerce.1
Plaintiffs’ Verified Representations of Fact
Plaintiffs’ trial attorney’s verified assertions of fact were presented in his initial November 2,
2010, Memo Contra the Chamber’s Motion to Quash filed on November 1, 2010.
The factual premises presented in both the Plaintiffs’ Memo Contra the Chamber’s Motion to
Quash and Plaintiffs’ Motion for Reconsideration of the Magistrate Judge’s Decision granting a
motion to quash, were obscured by the Attorney General’s responses on behalf of the State of
Ohio to the effect that the Ohio Secretary of State merely “had no objection” to the discovery.
In the November 2, 2010, telephone conference among the plaintiffs’ trial counsel, Brad Smith
as counsel for the Ohio Chamber and Assistant Attorney General Richard Coglianese on behalf
of the State of Ohio, Assistant Attorney General Coglianese confirmed that plaintiffs’ trial
attorney was authorized to communicate directly with Ohio State Secretary of State Jennifer
Brunner at the meeting referred to above.
Plaintiffs’ requests were framed as discovery with respect to impending election fraud activity
by Rove and the Chamber of Commerce. That is the basis upon which they were agreed to, and
the basis upon which plaintiffs’ counsel was authorized to directly communicate with the
Secretary of State.

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Permission of counsel for communication with a person is not required as to matters in which
counsel has not been engaged.
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Coordinated Expenditures
Coordinated third-party spending was part of the fraud of the 2004 presidential election. Swift
Boat Veterans for Truth, in which both Connell and Rove were involved, is an example of such
spending in the 2004 election. But this activity in 2004 was minimal compared to what occurred
in the 2010 election cycle in which Rove and the Chamber took Citizens United v Federal
Elections Commission, 130 S. Ct. 876 (2010), as license to create an avalanche of proRepublican/anti-Democratic commercial advertising--most of it using front groups in which the
names of contributors and amounts of contributions were concealed both from election
authorities and the public. This spending was illegal because it was coordinated by Rove, acting
defacto as the national campaign coordinator for the Republican Party candidates, and the
Chamber and its various manifestations.
Plaintiffs have presented evidence on the basis of which they have reason to believe the
Chamber’s expenditures in 2010 were coordinated with Karl Rove. The requested discovery is
necessary and relevant to proving that is the case and that such spending is integral to the
ongoing civil rights conspiracy plaintiffs have alleged.
The Assistant Attorney General’s statement that he did not give his consent for plaintiffs’ trial
attorney to communicate with Secretary of State Jennifer Brunner outside his presence ignores
the fact that Ohio Secretary of State Jennifer Brunner, as the Constitutional Chief Election Law
Enforcement Officer of the State, stated in effect that she was not authorizing the Attorney
General to represent her with respect to complaints of election fraud in regard to a current

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election. And, further she, in the presence of the Ohio Attorney General, was directing outside
counsel to communicate directly with her in regard to fraud in a current election.
Background
The intervention of the State of Ohio in this case was on behalf of the Senate Republicans acting
under the policy direction of Karl Rove from his pivotal senior policy position in the White
House. Plaintiffs amended their complaint, shortly followed by a similar claim by the Northeast
Ohio Coalition of the Homeless, to assert the unconstitutionality of House Bill 3's voter ID
requirements which were adopted on an entirely partisan basis. The Senate Republicans were
concerned that Blackwell, then the Republican candidate for Governor would consent to a court
order finding the partisan voter ID bill unconstitutional.
J. Kenneth Blackwell as Ohio Secretary of State had implemented voter suppression
administratively in the 2004 election. Blackwell, individually, continues to be a defendant in
this case represented by the office of the Ohio Attorney General.2 Republican John Husted who
will shortly become Secretary of State currently serves as an Ohio Senator, and, at the time of
the passage of House Bill 3, served as Speaker of the Ohio House.3 Both the defendants for
whom the Assistant Attorney General now appears to be speaking in regard to plaintiffs’

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Blackwell was a principal figure in the Buckeye Institute’s involvement in the use of the Ohio
Corrupt Practices Act to shut down ACORN and its grassroots work to counter the ongoing voter
suppression activities in favor of the Republican candidates in the 2010 election cycle. Miller v.
Association of Community Organizations for Reform Now, Inc. a.k.a. ACORN et al., U.S.
District Court SDOH Case No. 1:08-cv-797.
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The voter suppression strategy of rejecting voters using drivers licenses with different
addresses from those on their registration continued in the 2010 election–requiring those voters
to either provide other forms of identification or to vote provisionally.
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attempted discovery targeting fraud in the 2010 election are targets of the plaintiffs’ civil rights
complaint. They are also targets in the racketeering conspiracy asserted on July 17, 2008 in
connection with the document hold notices that were issued in the name of the plaintiffs to the
U.S. Attorney General’s office in his capacity in representing the government in connection with
Karl Rove’s e-mails and to the United States Chamber of Commerce. Ohio Secretary of State
Jennifer Brunner, a civil right hero and recipient of the Kennedy Profiles in Courage Award, is
not.
A 2010 Election Heist
The 2010 election cycle may have been a bigger election heist than either that of the 2000 or
2004 presidential election. Control of the United States House of Representatives may have
been stolen along with control, not just of state governments around much of the country, but
also the reapportionment process by which districts for Congress and state houses will be
determined for the next 10 years. This preliminary assessment is indicated by the exit polls
monitored by the Election Defense Alliance. Exit polls, in spite of Karl Rove’s campaign of
defamation over the past decade, remain the international gold standard for detecting election
fraud. Exit polls have continued to be conducted on a scientific basis and, in their unadjusted
form, show that a “red shift” continued to operate in 2010.
If the preliminary assessment by Jonathan Simon, Executive Director of the Election Defense
Alliance (See electiondefensealliance.org) is correct, then the avalanche of spending orchestrated
by Rove and the Chamber of Commerce was sufficient only to bring the polls within a range that
an applied margin of stealing was necessary to produce a landslide in the reported result for

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Rove’s Republican Party. The predominant coordinated spending was not sufficient by itself to
produce the reported Republican victory.
Conclusion
This is a civil rights suit against an alleged “ongoing conspiracy” targeting African-Americans
and young voters because of their demographic proclivity to vote for Democratic candidates.
The specific conduct of the members of the conspiracy – those known and unknown– was a
moving target. The 2004 presidential election with respect to which two of plaintiffs’ counsel
and plaintiff Rainbow PUSH Coalition played a leading role in contesting in court, before the
Congress, and in books and documentary movies, is but one example of an ongoing conspiracy
that began before 2004 and continues through the most recent 2010 election.
Based upon the agreed order that lifted the stay for limited purposes, plaintiffs should be
permitted to conduct the discovery they initiated with the agreement of Ohio Secretary of State
Jennifer Brunner. That is the only issue now before the court.
The Magistrate’s Opinion and Order denying plaintiffs’ proposed discovery was the result of the
mistaken impression that Ohio Secretary of State Jennifer Brunner had not agreed to it, which
the Magistrate Judge correctly concluded was the essential prerequisite to further discovery
beyond the deposition of Michael Connell under the court order agreed to by plaintiffs and
Secretary of State Jennifer Brunner.
Respectfully submitted,
/s/Clifford O. Arnebeck, Jr.
Clifford O. Arnebeck Jr. (0033391)
Trial Attorney for Plaintiffs
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[e-mail]
1021 East Broad Street
Columbus, Ohio 43205
614-224-8771
Robert J. Fitrakis (0076796)
[e-mail]
1021 East Broad Street
Columbus, Ohio 43205
614-374-2380
Henry W. Eckhart (0020202)
[e-mail]
50 West Broad Street, Suite 2117
Columbus, Ohio 43215
614-461-0984
Counsel for Plaintiffs

CERTIFICATE OF SERVICE

A copy of the foregoing was served upon counsel for the parties and respondent through
the court’s electronic filing system, this 3rd day of January 2011.

/s/ Clifford O. Arnebeck, Jr.
___________________________
Clifford O. Arnebeck, Jr.

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