UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ROBERT L. SCHULZ; DOUG BERSAW; AMANDA ) MOORE; ARTHUR GROVEMAN; JAMES CONDIT, ) JR., FRED SMART; PAM WAGNER; TROY D. REHA; ) GREGORY GOREY; SUSAN MARIE WEBER; and ) MARY D. FARRELL, ) ) Plaintiffs ) VERIFIED COMPLAINT ) ) -against- ) No._______________ ) STATE OF NEW YORK, Lorraine Cortes-Vazquez, ) Secretary of State; STATE OF NEW HAMPSHIRE, ) William Gardner, Secretary of State; STATE OF ) SOUTH CAROLINA, Mark Hammon, Secretary of ) State; STATE OF FLORIDA, Kurt S. Browning, ) Secretary of State; STATE OF OHIO, Jennifer Brunner, ) Secretary of State; STATE OF ILLINOIS, Jesse White, ) Secretary of State; STATE OF IOWA, Michael Mauro, ) Secretary of State;; STATE OF TEXAS, Phil Wilson, ) Secretary of State; STATE OF CALIFORNIA, Debra ) Bowen, Secretary of State; STATE OF OREGON, Bill ) Bradbury, Secretary of State, ) ) Defendants )
JURISDICTION AND VENUE
8. DOUG BERSAW is a citizen and registered voter. He is qualified to vote in the 2008
New Hampshire primary and general elections. He resides in New Hampshire at 139
Tully Brook Rd., Richmond NH 03470
9. ARTHUR GROVEMAN is a citizen and registered voter. He is qualified to vote in the
2008 Florida primary and general elections. He resides in Florida at 4521 Hidden River
Road Sarasota, Florida 34240.
10. SUSAN MARIE WEBER is a citizen and registered voter. She is qualified to vote in the 2008 California primary and general elections. She resides at 43-041 Buttonwood Dr.,
Palm Desert CA 92260.
11. GREGORY GOREY is a citizen and registered voter. He is qualified to vote in the 2008 Texas primary and general elections. He resides at 3828 Arrow Drive, Austin Texas 78749.
12. MARY D. FARRELL is a citizen and registered voter. She is qualified to vote in the 2008 Oregon primary and general elections. She resides at 1117 Northeast Hancock St., Portland, Oregon 97212.
13. FRED SMART is a citizen and registered voter. He is qualified to vote in the 2008 Illinois primary and general elections. He resides at 3242 Harrison St., Evanston, Ill 60201.
14. AMANDA MOORE is a citizen and registered voter. She is qualified to vote in the 2008 South Carolina primary and general elections. She resides at 2117 Savannah Highway
Charleston, South Carolina 29414.
15. STATE OF NEW HAMPSHIRE is one of the 50 States of the United States of America; William Gardner is the duly elected Secretary of State.
16. STATE OF IOWA is one of the 50 States of the United States of America; Michael Mauro is the duly elected Secretary of State.
17 STATE OF FLORIDA is one of the 50 States of the United States of America, Kurt S. Browning is the duly elected Secretary of State.
18. STATE OF OHIO is one of the 50 States of the United States of America; Jennifer Brunner is the duly elected Secretary of State.
19. STATE OF SOUTH CAROLINA is one of the 50 States of the United States of America; Mark Hammon is the duly elected Secretary of State.
20. STATE OF CALIFORNIA is one of the 50 States of the United States of America, Debra Bowen is the duly elected Secretary of State.
21 STATE OF TEXAS is one of the 50 States of the United States of America, Phil Wilson is the duly elected Secretary of State.
22. STATE OF ILLINOIS is one of the 50 States of the United States of America; Jesse White is the duly elected Secretary of State.
23. STATE OF OREGON is one of the 50 States of the United States of America, Bill Bradbury is the duly elected Secretary of State.
24. STATE OF NEW YORK is one of the 50 States of the United States of America, Lorraine Cortés-Vázquez is the duly elected Secretary of State.
26. An accurate vote count is of critical importance. Everything reasonable must be done to eliminate the potential for confusion, deception, frustration and fraud.
27. The voting processes to be used by Defendants will not be open, verifiable or transparent, and will rely on machines and computers for vote counting, all of which means the possibility for error and human fraud will be unnecessarily and unreasonably heightened.
28. If the primary and general election voting processes are to pass constitutional muster, there can be no substitute for a People’s "chain of custody" and the manual allocation and counting of all ballots in full public view, at each voting station, followed by a public announcement of the results, before those ballots are ever removed from public view.
At the end of the voting period, the ballots will NOT be removed from their machines or counted. Instead, a button on the machine will be pressed. In response, the machine will eject a slip of paper showing the number of votes recorded by that machine for each candidate. The numbers will be communicated to government officials in a centralized "tabulation" room. On information and belief, the door to the tabulation room will be closed to the public. The results will then be publicly announced.
39. There have been a number of comprehensive, university level studies in the last several years regarding the accuracy, reliability, security and accessibility of the "high-tech" machines and computers that Defendant States now have been positioned, or are on their way to positioning in their municipalities for use in the 2008 primary and general elections.
40. On information and belief, each study has concluded that the machines, computers, and software studied should not be used for elections.
41. Some of these studies are as follows:
contract authorized by the Secretary of State of California, Debra Bowen. The
results of the study caused Secretary of State Bowen to decertify the four major
companies providing computers, machine, and software to the state of California.
2006 The study by Princeton University’s Center for Information Technology Policy and Department of Computer Science, entitled, "Security Analysis of the Diebold Accuvote-TS Voting Machine." This full paper can be seen here: http://itpolicy.princeton.edu/voting/ts-paper.pdf
2001 Caltech-MIT Voting Technology Project (2001) Voting - What Is, What Could Be? - July 2001 Report of the Caltech-MIT Voting Technology Project.
In addition, such university studies were preceded by this important government sponsored study:
1988 Roy G . Saltman, Accuracy, Integrity, and Security in Computerized Vote- Tallying, preprint, (Washington, D.C.: U.S. Department of Commerce, National Institute of Standards and Technology [formerly National Bureau of Standards], NBS Special Publication 500-158, 1988)
PLAINTIFFS’ FIRST CAUSE OF ACTION:
FAILURE TO PROVIDE THE VOTERS WITH A VERIFIABLE "CHAIN OF CUSTODY" AND THE MANUAL ALLOCATION AND COUNTING OF ALL BALLOTS IN FULL PUBLIC VIEW, AT EACH VOTING STATION, BEFORE
THOSE BALLOTS ARE EVER REMOVED FROM PUBLIC VIEW
VIOLATES THE VOTING RIGHTS OF PLAINTIFFS
"The Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."
Article I, Section 4, cl. 1
"The House of Representatives shall be composed of members chosen every second year by the People of the several states, and the Electors in each state shall have qualifications requisite for Electors of the most numerous branch of the State Legislature."
Article I, Section 2, cl. 1,
58. In U. S. v. Classic, 313 U.S. 299 (1941), the Supreme Court said,
"Pursuant to the authority given by 2 of Article I of the Constitution, and subject to the legislative power of Congress under 4 of Article I, and other pertinent provisions of the Constitution, the states are given, and in fact exercise a wide discretion in the formulation of a system for the choice by the people of representatives in Congress. In common with many other states Louisiana has exercised that discretion by setting up machinery for the effective choice of party candidates for representative in Congress by primary elections and by its laws it eliminates or seriously restricts the candidacy at the general election of all those who are defeated at the primary. All political parties, which are defined as those that have cast at least 5 per cent of the total vote at specified preceding elections, are required to nominate their candidates for representative by direct primary elections. Louisiana Act No. 46, Regular Session, 1940, 1 and 3.
"The primary is conducted by the state at public expense. Act No. 46, supra, 35. The primary, as is the general election, is subject to numerous statutory regulations as to the time, place and manner of conducting the election, including provisions to insure that the ballots cast at the primary are correctly counted, and the results of the count correctly recorded and certified to the Secretary of State, whose duty it is to place the names of the successful candidates of each party on the official [313 U.S. 299, 312] allot. The Secretary of State is prohibited from placing on the official ballot the name of any person as a candidate for any political party not nominated in accordance with the provisions of the Act. Act 46, 1…
"The right to vote for a representative in Congress at the general election is, as a matter of law, thus restricted to the successful party candidate at the primary, to those not candidates at the primary who file nomination papers, and those whose names may be lawfully written into the ballot by the electors. Even if, as appellees argue, contrary to the decision in Serpas v. Trebucq, supra, voters may lawfully write into their ballots, cast at the general election, the name of a candidate rejected at the primary and have their ballots counted, the practical operation of the primary law in otherwise excluding from the ballot on the general election the names of candidates rejected at the primary is such as to impose serious restrictions upon the choice of candidates by the voters save by voting at the primary election. In fact, as alleged in the indictment, the practical operation of the primary in Louisiana, is and has been since the primary election was established in 1900 to secure the election of the Democratic primary [313 U.S. 299, 314] nominee for the Second Congressional District of Louisiana.
"Interference with the right to vote in the Congressional primary in the Second Congressional District for the choice of Democratic candidate for Congress is thus as a matter of law and in fact an interference with the effective choice of the voters at the only stage of the election procedure when their choice is of significance, since it is at the only stage when such interference could have any practical effect on the ultimate result, the choice of the Congressman to represent the district. The primary in Louisiana is an integral part of the procedure for the popular choice of Congressman. The right of qualified voters to vote at the Congressional primary in Louisiana and to have their ballots counted is thus the right to participate in that choice. …
"Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted at Congressional elections. This Court has consistently held that this is a right secured by the Constitution. Ex parte Yarbrough, supra; Wiley v. Sinkler, supra; Swafford v. Templeton, supra; United States v. Mosley, supra; see Ex parte Siebold, supra; In re Coy, 127 U.S. 731 , 8 S.Ct. 1263; Logan v. United States, 144 U.S. 263 , 12 S.Ct. 617. And since the constitutional command is without restriction or limitation, the right unlike those guaranteed by the Fourteenth and Fifteenth Amendments, is secured against the action of individuals as well as of states. Ex parte Yarbrough, supra; Logan v. United States, supra. …
"…Moreover, we cannot close our eyes to the fact already mentioned that the practical influence of the choice of candidates at the primary may be so great as to affect profoundly the choice at the general election even though there is no effective legal prohibition upon the rejection at the election of the choice made at the primary and may thus operate to deprive the voter of his constitutional right of choice. This was noted and extensively commented upon by the concurring Justices in Newberry v. United States, supra, 256 U.S. 263 -269, 285, 287, 41 S.Ct. 476-478, 484.
"Unless the constitutional protection of the integrity of 'elections' extends to primary elections, Congress is left powerless to effect the constitutional purpose, and the popular choice of representatives is stripped of its constitutional protection save only as Congress, by taking over the control of state elections, may exclude from them the influence of the state primaries. 3 Such an expedient would end that state autonomy with respect to elections which the Constitution contemplated that Congress should be free to leave undisturbed, subject only to such minimum regulation as it should find necessary to insure the freedom [313 U.S. 299, 320] and integrity of the choice. Words, especially those of a constitution, are not to be read with such stultifying narrowness. The words of 2 and 4 of Article I, read in the sense which is plainly permissible and in the light of the constitutional purpose, require us to hold that a primary election which involves a necessary step in the choice of candidates for election as representatives in Congress, and which in the circumstances of this case controls that choice, is an election within the meaning of the constitutional provision and is subject to congressional regulation as to the manner of holding it. …
"Conspiracy to prevent the official count of a citizen's ballot, held in United States v. Mosley, supra, to be a violation of 19 in the case of a congressional election, is equally a conspiracy to injure and oppress the citizen when the ballots are cast in a primary election prerequisite to the choice of party candidates for a congressional election. In both cases the right infringed is one secured by the Constitution. The injury suffered by the citizen in the exercise of the right is an injury which the statute describes and to which it applies in the one case as in the other…
"The right of the voters at the primary to have their votes counted is, as we have stated, a right or privilege secured by the Constitution…" (Plaintiffs’ emphasis).
59. The federal Constitution condemns state restrictions such as those to be implemented by Defendant States "that, without justification [no compelling state interest], significantly encroach upon the rights to vote [and have the vote counted] and to associate for political purposes." Unity Party v. Wallace, 707 F. 2d 59, 62 (2d Cir. 1983), or that enhance rather than prevent voter confusion, deception, frustration and fraud. Storer v. Brown, 415 U.S. 724, 732 (1974).
60. Voting procedures that are not open, verifiable, transparent and machine and computer free abridge the right to cast an effective vote. Williams v. Rhodes, 393 U.S. 23, 30 (1968).
61. Defendants’ voting procedures impose an impermissible burden upon fundamental rights under the First and Fourteenth Amendments. Burdick v. Takusi, 112 S. Ct. at 2063.
62. Defendants’ voting procedures violate a right encompassed within the Equal Protection Clause of the Fourteenth Amendment. Williams v. Rhodes, 393 U.S. 23, 29 (1968).
63. Defendants’ voting procedures heavily burden the right to vote; due to the possibility of machine error (intentional and unintentional) and human fraud, they may result in votes being cast only for party favorites at a time when party insurgents are clamoring for a place on the ballot. Williams v. Rhodes, 393 U.S. 23, 41 (1968).
64. Due to the enhanced probability of machine error and human fraud, Defendants’ voting procedures may deprive a party insurgent of the right to have his voice heard and his views considered. Williams v. Rhodes, 393 U.S. 23, 41 (1968).
65. Due to the enhanced probability of machine error and human fraud, Defendants’ voting procedures may restrict real as opposed to theoretical votes, ballot access and voter choice downstream in the election process. American Party v. White, 415 U.S. 767, 783 (1974).
PLAINTIFFS’ SECOND CAUSE OF ACTION:
FAILURE TO PROVIDE THE VOTERS WITH A VERIFIABLE "CHAIN OF CUSTODY" AND THE MANUAL ALLOCATION AND COUNTING OF ALL BALLOTS IN FULL PUBLIC VIEW, AT EACH VOTING STATION, BEFORE
THOSE BALLOTS ARE EVER REMOVED FROM PUBLIC VIEW
VIOLATES THE CONTRACT RIGHTS OF PLAINTIFFS
66. Formally registering with the State to vote and as a member of a political party is a contract. On the one hand the registrant agrees to be listed as a voter and a member of that party with eligibility to vote in that political party’s primary election. On the other hand the State and the political party agree that the votes will be counted accurately.
67. Offer and Acceptance. A contract is based upon an agreement. An agreement arises when one person, the offeror, makes an offer and the person to whom the offer is made, the offeree, accepts. An offer may be made to a particular person or it may be made to the public at large.
68. Agreement. In law, a concord of understanding and intention between two or more parties with respect to the effect upon their relative rights and duties, of certain past or future facts or performances.
69. Article 1, Section 10 of the Constitution reads as follows:
Section 10 - Powers prohibited of States
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
70. All contracts must contain mutual assent. Anderson, 540 N.W.2d at 285. This assent is usually given through an offer and acceptance. An offer is a "manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." Id. (quoting Restatement (Second) of Contracts § 24). An offer also must be certain as to its terms and requirements. See Audus v. Sabre Communications Corp., 554 N.W.2d 868, 871 (Iowa 1996); 17A Am. Jur.2d Contracts § 192, at 202.
71. The execution of a Voter Registration Card is the execution of the contract between Defendants and those participating as voters.
74. Indeed, lacking the integrity of an open, verifiable, transparent, machine and computer free election with hand counting of all votes and a "People’s chain of custody," Defendants’ voting procedures have the appearance of a rigged gambling table or game show where the "house" determines who wins. Unfortunately for the Plaintiffs, and the balance of America, the outcome of this particular electoral event poses a very real threat affecting the choices of the American voters in 2008 and potentially altering the future of the nation itself.
75. That Defendant States have lent their imprimatur and assistance to this contract fraud is indefensible and unconstitutional.
THIRD CAUSE OF ACTION
IF THE CONSTITUTION REQUIRES EVERYTHING POSSIBLE
BE DONE TO ASSURE ALL VOTES ARE EFFECTIVE,
THE CONSTITUTION REQUIRES UTILIZATION OF ANY
AVAILABLE VOTING PROCEDURE
THAT IS OPEN, VERIFIABLE AND TRANSPARENT, I.E.,
NO MACHINE OR COMPUTERIZED VOTE COUNTING
76. The following eleven step voting procedure is practical and available for adoption by all Defendant States. If the Constitution requires everything possible to done to assure all votes are counted and effective, and there is no compelling state interest that would argue against the adoption of the following voting procedure, the procedure must be adopted and followed by each Defendant during the 2008 primary and general elections.
1. All votes are to be cast on paper ballots.
2. From the time the voter votes to the time the results of the vote are publicly announced, all paper ballots shall never be out of the view of the public.
3. Each completed paper ballot is to be deposited into a numbered, transparent container that is in clear public view throughout the voting period. The numbers are to be at least 4 inches high, black on white.
4. Each candidate on the ballot shall have the Right to have a representative present for an inspection of each container ten minutes before the voting period begins.
5. A rope shall surround each vote station at a distance of 6-10 feet from the numbered transparent container, beyond which any person can quietly stand to quietly observe and record by video recording device the transparent containers and the number of voters.
6. As the voting period ends, each ballot box is to be set on one of several 6-8 foot long cafeteria-style tables that have been set up at each of the voting stations. There, the ballots are to be separated and hand-counted.
7. Aside from two representatives of the State Defendants, each candidate on the ballot may have a representative participate in the vote counting process. All State and candidate Vote Counters must agree on the candidate allocation of each vote and the count. Once the Vote Counters are in agreement on the allocation and the count of the votes, the result of the count is to be read aloud for public consumption. After tallying the ballots for each candidate, the appropriate State Vote Counters will then each certify, under penalty of perjury, the vote totals for each candidate cast at their vote station.
8. The paper ballots at each vote station are to be returned to the numbered, transparent containers immediately after the vote are counted. The containers are to be sealed pursuant to State law and transported to a central warehouse according to State law, along with the certifications of the vote station's totals. A copy of the certified tally sheets shall be kept at the local precinct, ward, or polling station.
10. As each certified vote total arrives at the central warehouse, the identification number of the voting station, the ballot container number and the results of the hand-counted vote will be read aloud by the State and entered into a computer spreadsheet for live video projection onto public viewing screens within the room. The spreadsheet will consist of (1) column for each candidate, (1) row for each voting station, and will contain automated total fields for each row and column that will update automatically as vote data is entered. Immediately after the entry of data from each voting station, a separate, individually and sequentially named copy of the master spreadsheet file will be saved to the computer's hard drive and to a separate CD-ROM disc. Additionally, a hard-copy of the spreadsheet will be printed out following the entry of each vote station's data, signed by a State Auditor with the time/date noted, and preserved as part of the official election record.
11. After the results of the vote from each of the vote stations are received, entered and read aloud, and the cumulative (grand) totals from the hand-counts are agreed to by the state and candidate representatives, the final totals will then be immediately certified by the State, publicly read aloud and pronounced as the final election result. Copies of the final vote spreadsheet in both electronic format and hard copy will then be made immediately available to Candidate representatives and those interested members of the public and/or media within the room. Following the election, the ballots, certifications, totals and computer spreadsheet will be turned over to the custody of the State for secure storage, pursuant to State law for General Elections. The state will make copies of the vote certifications and spreadsheet(s) available to the public for a nominal copying cost. The state will post the vote spreadsheet and appropriate certifications of the totals on its websites as soon as is practicable.
77. Only a manual count of the ballots that have not been out of public view will provide 100% assurance that all voters have cast an effective vote – that is, that all votes have been properly and legally counted. The vote is the cornerstone of our democratic, constitutional republic. If every person should vote and one vote can make a difference, then any system that heightens the possibility of error and fraud must be avoided. The Constitution demands it.
78. Only a manual count of the votes can provide the 100% assurance that the votes will be accurately counted.
79. Defendants’ intended voting procedures will place a severe burden upon or deny the Fundamental Rights of the Plaintiffs by conducting what is in scale, form, substance and practical effect, a sham Election without any of the procedural controls or legal safeguards that are otherwise mandated by the Constitution and state law.
80. Beyond the discredited voting equipment that Defendants intend to use for the primary and general elections, the Defendants' voting procedures are so deficient and inviting of fraud and corruption as to be unconscionable.
81. A constitutionally compliant voting procedure is available.
WHEREFORE, based on the above, plaintiffs respectfully request a final order:
DATED: September 11, 2007