CANADA vs. USA, at least regarding elections

I was recently perusing my internet news feed and found a CBC article about an interesting election result for Parliament in Quebec province.

Patrick O’Hara defeated an incumbent member by 286 votes in recent national elections. O’Hara’s opponent conceded and congratulated him, but soon thereafter, based on a ballot box error giving O’Hara 410 votes, rather than the correct 40, filed a judicial appeal for recount. This recount gave the incumbent, Ms. Shanahan, 18,029 and Mr. O’Hara 18,017, a difference of 12.

O’Hara was informed that he lost the election driving to his home from an introductory program of Parliament, in Ottawa. Mr. O’Hara left me speechless with his comments in response, to wit:

“There’s a feeling of… what just happened? You’re in awe and shock.” Said Mr. O’Hara. He further stated, “Every vote counts and I’m living proof”, “…. And then you’re trying to figure out who are the 13 people that didn’t make it to the voting.”

Finally, the most powerful comment of all: it was a clean contest “before, during and after.”

Note Mr. O’Hara’s words. No claim of the election stolen, systems hacked, voter fraud and the like. It was a clean contest. This from a candidate, first declared the winner, but losing the election.

Would that reaction have occurred in the US? A civil response, respecting the electoral process? I vote no way. That being said, Mr. O’Hara, if I can ever vote for you, you’ll have my vote, with respect and admiration.

  • Allan Opsitnick

VETERANS DAY THOUGHTS

According to the Department of Veterans Affairs, of the 16 million World War II Veterans, about 240,000 survive today and, on average, 234 die each day.

I am lucky. My father, Joe Opsitnick, a WWII Navy vet, is alive and vital at 97. I was privileged to drive dad in the Pittsburgh Veterans Day parade on November 11 and then spend the weekend with him, my son and my cousins on an annual guys cards and more weekend.

My childrens’ other grandfather, John LoAlbo, deceased, was a WWII Navy vet as well, being born about six weeks after dad. My wife’s father, Joseph Kmetz, deceased, was a WWII Army combat vet.

It was said of the World War II generation that these were ordinary people performing extraordinary things. One cannot disagree with that statement.

There have been numerous armed conflicts after WW II and the service of all personnel must be recognized and honored.

– Allan Opsitnick

YER OUT!!!! of $500,000

As baseball season draws to a close, a brief discussion is in order regarding the intersection of law and our national pastime.

Early in the season, a defamation suit brought by veteran umpire Joe West against former major leaguer Paul LoDuca, a catcher with the New York Mets, concluded with a $500,000 award in favor of West and against LoDuca in the New York Supreme Court. Here’s what happened.

On a 2019 podcast, LoDuca said that West gave a larger strike zone to Mets’ pitcher Billy Wagner, in exchange for West using Wagner’s 1957 Chevy, when West was in town. According to LoDuca, when Wagner was on the mound and West and LoDuca were behind the plate, numerous pitches, well outside of the strike zone we called strikes.

West learned of this statement and sued. West met the elements of a successful defamation claim. The statement was untrue, the statement was “published”, i.e., made on a podcast and therefore broadcast along the internet, and harm occurred. West established that he was behind the plate on only 2 occasions in 2006 and 2007, the only seasons where LoDuca and Wager were Mets teammates and Wagner did not pitch on either occasion.

West claimed that the defamatory statement would hurt his changes of enshrinement into the Baseball Hall of Fame. West has been an MLB Umpire since 1976. The Court agreed, awarding West $250,000 for past mental anguish and $250,000 to “compensate for expenses he will need to incur in retaining a public relations firm to formulate and operationalize a sufficient reputation remediation plan.”

One should watch one’s words on a podcast.

PS – Another defamation note. Eric Coomer, an executive with Dominion Voting Systems, a major supplier of voting systems throughout the US, sued the Newsmax company for defamation. Newsmax claimed that Coomer took part in an “Antifa conference call” to fix last year’s presidential election. Coomer and Newsmax settled this case.

Newsmax issued a retraction and apology on its website, confirming that there was no evidence to its claim regarding Coomer. The full terms of the settlement between Coomer and Newsmax were not revealed, common in such cases.

Allan Opsitnick

WHOOPS!

“To err is human, to forgive is divine.” – Alexander Pope.

Let us consider the first part of Pope’s phrase. We all make mistakes; some bigger than others. Does a day pass when we make a mistake, error, boo boo, screw up or faux pas? Ok, you understand. For me, my first goof up of the day is often before I finish my morning coffee.

But we can all take solace from this monumental error. Citibank erroneously wired $500 million, by accident. And cannot recover it. Yes, that’s right. Half a billion dollars!

Citibank personnel accidentally wired almost $500 million to lenders of cosmetic maker Revlon. Citibank was Revlon’s loan agent. The actual error was around $900 million, but some firms returned the erroneous deposits. As to the $500 million payment, it was to be “only” an $8 million interest payment. Instead, the huge improper overpayment was applied to Revlon’s loans, being treated as a monstrous pre-payment. This, despite a “six eyes” security safeguard, where three people were required to review and approve the wire transfer. Despite the security measures, a contractor checked the wrong box on a digital payment form. Whoops!

Citibank sued in Federal Court in New York and lost, based on a New York rule of law known as the “discharge for value defense”. As the money was due the lenders, the mistaken overpayment did not have to be returned but was applied to the underlying debt. The Court’s ruling is on appeal and the money is frozen, but nonetheless, likely some Citibank folks are looking for employment elsewhere.

I can’t speak for you, but the fact that I didn’t shovel some snow from the walk is not such a big thing, is it?

  • Allan Opsitnick

THE MOST WONDERFUL TIME OF THE YEAR!

We all agree that 2020 has been… trying (there are more descriptive words and phrases, but let’s leave at that). But, I just experienced an event that puts our holiday season in perfect perspective.

We just completed an adoption hearing. The adoptee is a young lady, of Pre-K age, who has been with a loving and nuturing family (mom, dad and big sister) for quite some time. Our hearing was, of course virtual, but nonetheless was attended by 20 or so family and friends. Over the course of half an hour, heart-shaped hand signs abounded, as did signs, balloons and a few tears. Our Judge indicated that it was his great pleasure to enter the Decree approving adoption.

So, for however brief a period of the hearing, kindness, love and peace prevailed. Nothing more be said.

Allan Opsitnick

MY LAST ELECTIONS BLOG POST… until the next one…

Many of you know that I’ve spent most of my legal career involved with elections administration and law. So, after resolving some 700 Provisional Ballot challenges at a Saturday hearing, on November 14th, I have some thoughts:

  1. AIN’T NO ELECTION FRAUD!!! Not in Allegheny County, PA, the other 66 PA Counties or anywhere else in the US where we voted on November 3. Baseless allegations and reports to the contrary, there might be inadvertent errors, which will be corrected upon final tabulation, but no fraud, scheme, conspiracy, skullduggery and/or chicanery. None
  2. Anyone who assets that there was fraud in last week’s elections is a lying fool, to assert these things or believe these things
  3. It might be good for business, for media or others but these fraud allegations, insult and defame tens of thousands of people, who have taken sworn oaths, to process voters and votes properly, according to law. I count myself as one of the people who have been defamed and whose integrity has been questioned
  4. One may not like the results of an election, but just because “your” candidate lost, does not indicate fraud. Consider the simple proposition that the candidate that receives the most votes wins the election. Basic functioning of the American electoral system
  5. Attacks on the validity of our elections system over the years has and continues to undermine confidence in our system of elections and vote tallying
  6. Elections are like buses. Another one is coming along, with a new set of candidates and issues

With Thanksgiving fast approaching, do your best to appreciate and protect our system of selecting our representatives, locally and nationally. Please.

– Allan Opsitnick

Q: THE POLLS HAVE CLOSED. NOW WHAT? A: YOUR PANTS… KEEP THEM ON!!!!

Media reports and statements of public officials are creating an avalanche of perception that whatever vote totals exist on Tuesday night are somehow dispositive of the November 3 Election. NOT EVEN CLOSE TO TRUE.

Every state and each of Pennsylvania’s 67 Counties has a formal vote tabulation process. Pennsylvania requires that the Friday after the Election a “Return Board” be sworn and seated to commence the formal and official vote count. In Allegheny County, the Return Board is comprised of Elections Division employees for the most part.
Does that mean that everything that we see and hear on Tuesday night, into Wednesday, is unofficial? YES!

Taking Allegheny County, PA for example, Tuesday begins a scanning and count of approximately 350,000 mail-in ballots, that are securely stored, in addition to a like number of in person votes on Election Day, with polls remaining open until 8:00 PM. While this is a monumental task and will take some time, it is likely that by end of day Wednesday these votes will be tabulated and posted on the Elections web page. BUT WAIT,THERE’S MORE!

Certain military ballots need not be returned for an additional week to be counted. Thousands of Provisional Ballots that will be cast on Election Day will be examined by the Return Board to see if they are counted and, if so, to what extent. And, at least for Tuesday’s Presidential Election, the PA Supreme Court has ruled that mail-in ballots received after the 8:00 PM close of polls, but postmarked on or before November 3, and received by November 6, at 5:00 PM shall be counted. That count, of course, cannot begin before Friday at 5:00.

You get the picture, I certainly hope. There is much to do after the whistle blows at 8:00 PM on Tuesday. So, as always, patience is a virtue.

Allan Opsitnick

USE THOSE NOISE CANCELING HEADPHONES

Many folks swear by noise canceling headphones for flying. Well, I suggest a more important use… between now and Election Day on November 3rd.

I’m not advocating tuning out candidate messages. Put these headphones on to block out the confusing, incorrect, misleading, intentional and inadvertent messages about voting Tune it out and simply do this. A few easy steps, as follows:

1) Register to vote. Registration deadlines for a few states are as follows:
a) Pennsylvania – October 19, 2020
b) New York – October 9, 2020
c) Ohio – October 5, 2020
d) Alaska – October 4, 2020

2) Vote. Vote for whomever you prefer, but the important thing is to vote. All voting procedures in all states make voting easy. There are two options:


A) Vote in person. Poll hours on November 3 are:
i) Pennsylvania: 7:00 AM – 8:00 PM (EST)
ii) New York: 6:00 AM – 9:00 PM (EST)
iii) Ohio: 6:30 AM – 7:30 PM (EST)
iv) Alaska: 7:00 AM – 8:00 PM (ATZ)

As to voting in person, and taking Allegheny County as an example (and one where I’m most familiar, having practiced elections administration law for 30+ years), there are 1,323 voting districts in the county. In other words, everyone can vote in person at a neighborhood polling place. Poll workers will be masked and COVID related precautions will be in effect. All other counties in Pennsylvania have neighborhood voting districts and COVID precautions will be used.

My understanding is that the other states mentioned above also have local polling locations and, as you can see, a lengthy period of time to vote in person.

B) Voting by mail:
i) Pennsylvania legislation, enacted in 2019, makes voting by mail available to all voters. Pennsylvania provides for both absentee voting and mail in voting. Absentee voting requires a statement of either disability or absence from one’s municipality on Election Day. BUT, mail in voting is truly no fault and requires no reason to vote by mail. Voters can apply for absentee and mail in ballots either online or by mailing a paper form. The application deadline is October 27, with ballots to be returned by November 3, by 8:00PM, the close of polls
ii) New York permits absentee voting, but recent legislation permits an absentee ballot to be used if someone is unable to vote in person due to risk of contracting or spreading a communicable disease, including COVID-19. In other words, New York is a mail in ballot state, with minimal explanation required to vote by mail. October 27 is the last day to apply. Mail in ballots must be postmarked by November 3 and received by the County Elections Office by November 10
iii) Ohio permits no fault absentee voting, applications due by noon on October 31. Ballots must be postmarked by November 2 and received by November 13. Additionally Ohio permits early voting, by absentee ballot, between October 6 and November 2 at the County Board of Elections. The times vary by date, so go online to check the applicable times
iv) Alaska permits absentee voting. Applications by mail must be received by October 24 and online by November 2. Early absentee voting begins on October 19 and ends on November 3.Hours vary by location, so go online to check. Absentee voting is “no excuse”, so anyone can vote by absentee ballot.

Keep those noise canceling headphones on and REGISTER AND VOTE. If voting by mail, complete your ballot and mail IMMEDIATELY to avoid any USPS delays. Exercising your franchise is simple.

Now, perhaps you may want to keep those noise canceling headphones on for the candidate ads as well…

– Allan Opsitnick

CONSIDERING OUR FLAG

As of late, there has been a lot of talk in the country about what is and is not disrespectful to the American flag, initiated by athletes “taking a knee” during the national anthem. As such, I think it’s important to take a look at the language of the Flag Code and see just what’s going on.

The Flag Code is federal legislation, developed by the American Legion in 1923 and enacted in 1942. However the Flag Code is advisory only and is not enforced. The Flag Code provides as follows:

– The flag should never be flown upside down except as a signal of dire distress in instances of extreme danger to life or property

– The flag shall never touch anything beneath it (e.g. the ground, water, merchandise, etc.)

– The flag shall never be carried horizontally or flat, but always aloft and free

– The flag shall never be used as any sort of apparel, bedding or drapery. The red, white and blue bunting that we see on podiums and other areas as a decoration is permitted with the blue on top, white in the middle and red on the bottom

– The flag shall not be used as a ceiling cover

– The flag shall not have any mark, insignia, drawing, design, etc. placed upon it

– The flag shall never be used as a receptacle to carry or receive anything

– The flag shall not be used for any advertising purposes of any kind. It shall not be embroidered on napkins, cushions, etc., and it shall not be printed on anything that is designed for temporary use and then discarded. No advertising signs should be attached to a staff or halyard from which the flag is flying

– When flying multiple flags, the American flag shall be placed at the highest height of them all, with the exception of other nations flags during a time of peace. Each national flag shall be flown from a separate pole, be of the same size and flown at the same height

– The flag cannot be used as a costume or athletic uniform, though a flag patch may be affixed to the uniforms of military personnel, firemen, policemen or members of a patriotic organization. A lapel flag pin must be worn on the left side close to the heart, as the flag is considered a living entity

– When the flag reaches a condition that is no longer fit for display, it should be disposed of in a dignified way, preferably by burning

Looking at all of the above provisions, which incidentally are not comprehensive, it is clear that the flag is treated and has become an item of merchandise, something far from the actual purpose of the flag. Perhaps people cherry pick their instances of disrespect to the flag, becoming enraged at kneeling and flag destruction, but ignoring numerous other actions in contravention of the flag code. There is no prohibition against kneeling at a flag presentation.

Also, flag burning or other desecration has been held lawful by the US Supreme Court as these acts are protected speech within the First Amendment. Those cases are Texas v Johnson, 1898 and US v Eichman, 1990.

With the above to be considered, in my opinion, the most important thing to remember is that you should know what is and isn’t disrespectful to the flag, and what is legal, before taking to social media or otherwise to denounce anyone else.

Zach Opsitnick