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View Diary: Revote in Ohio -- More Votes Than Voters Recorded on Diebold machines (199 comments)

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  •  thanks! (none)
    You never know how these things are gonna go.

    I'm always surprised.

    "Nordic, one of the most obnoxious people at Daily Kos." -- DHinMI

    by Nordic on Mon Feb 06, 2006 at 11:25:04 PM PST

    [ Parent ]

    •  Copy to help Lynn Landes w/ Amicus Briefs (4.00)
      Help Lynn Landes with this crucial lawsuit!

      Anything you can do to give my lawsuit some publicity would be much appreciated.

      It would also be great if others filed amicus curiae briefs on my behalf.

      Lynn Landes

      Voting Systems Lawsuit Reaches U.S. Supreme Court

      Washington DC, Jan 30 / PR Newswire (link) - A little-noticed voting rights lawsuit has made its way to the U.S. Supreme Court (Docket No. 05-930). It constitutes the first legal challenge to the widespread use of nontransparent voting systems. Specifically, the lawsuit challenges the use of voting machines and absentee voting in elections for public office.

      The lawsuit was originally filed by freelance journalist Lynn Landes in July of 2004 in Philadelphia federal court (U.S. District Court for the Eastern District of Pennsylvania). The Third Circuit Court of Appeals ruled against Landes on November 2, 2005.

      In her lawsuit Landes claims that, as a voter and a journalist, she has the right to direct access to a physical ballot and to observe the voting process unimpeded. Voting by machine or absentee, Landes claims, introduces obstacles and concealment to a process that must be accessible and transparent in a meaningful and effective manner.

      Landes is representing herself in this action.

      "I tried to get civil rights organizations interested in this case, but had no luck. Their disregard for this issue is incredible. It's clear to me that without direct access to a physical ballot and meaningful transparency in the process, our elections have no integrity whatsoever," says Landes.

      The defendants in the Landes lawsuit are Margaret Tartaglione, Chair of the City Commissioners of Philadelphia; Pedro A. Cortes, Secretary of the Commonwealth of Pennsylvania; and Alberto Gonzales, Attorney General of the United States.

      Attorneys for the defendants have successfully fought Landes, claiming that she did not prove an injury and therefore does not have standing. Landes counters that she has the right to challenge the constitutionality of acts of the legislative branch under federal statute and case law, most significantly under Marbury v. Madison, 5 U.S. 137 (1803).

      Early American history seems to favor the Landes position. Prior to the Civil War, voting was a public and transparent process. It was only after the war, as the elective franchise expanded to minorities and women, three changes to state and federal election laws were adopted that eventually made the voting process a private and nontransparent enterprise: absentee voting was allowed (1870's), the Australian secret ballot method was adopted (1880's), and voting machines were permitted by Congress (1899).

      Today, 94.6% of all votes are processed by machines and approximately 30% of all voting is conducted early or by absentee.

      The defendants' response is due at the Supreme Court no later than February 24, 2006.

      The Landes lawsuit can be found at the following url: (Editor: No password should be required to see the document, but I've received a comment that one is being asked for. I don't understand it, but try typing in anything and you should get in anyway.)

      Docket no:
      Lynn Landes, publisher



      Does the right to vote and to have votes counted properly apply to all citizens?

      Does the use of voting machines and absentee ballots in elections for public office violate appellant's right to vote and to have votes counted properly?

      Does appellant have the right to a physical (i.e., paper) ballot?

      Is voting by machine and absentee an inherently nontransparent process that unlawfully denies meaningful oversight by appellant as a journalist?

      Must appellant prove fraud or discrimination in order to gain standing?

      Does appellant's right to vote and have votes counted properly supersede the privacy and convenience considerations of election officials, absentee voters, and disabled voters?

      Did the Third Circuit Court of Appeals abuse their discretion by taxing defendants' costs against plaintiff and despite the fact that the District Court had not done so?



      Appellant challenges the constitutionality of federal and state laws and policies that allow voting by machine or absentee in elections for public office.  

      Appellant asserts that the use of voting machines and absentee voting is a violation of her constitutional right to vote, to have votes counted properly, and to have those rights fully enforced under Article I § 2 of the U.S. Constitution, First Amendment, Fourteenth Amendment, and other federal laws.

      Appellant is a U.S. citizen, resident, registered voter, and a freelance journalist in the City and County of Philadelphia. Appellant was also a poll watcher in Philadelphia in the 2004 presidential election.

      For elections in the city and county of Philadelphia, the City Commissioners use absentee ballots and DREs (direct recording electronics) push button computerized voting machines.  These machines are made by the Danaher Corporation (Delaware).  Computerized ballot scanners, also from Danaher, are used to count absentee ballots.  Hart Intercivic (Texas) provides the software for the ballot scanners.

      Appellant asked the U.S. Court for the Eastern District of Pennsylvania to declare unconstitutional actions, laws, and regulations by the City and County of Philadelphia, the Commonwealth of Pennsylvania, and the U.S. Congress that allow or approve the use of voting machines and absentee ballots in elections for public office, including, but not limited to: 25 P.S. §3031.1, 25 P.S. §3547, 4 PA Code 171.11, 42 U.S.C. 1973ff-2(a) and 2 U.S.C. §9, and to enjoin the Philadelphia City Commissioners from using voting machines and absentee ballots in elections for public office, to enjoin the Secretary of the Commonwealth from approving voting  machines in elections for public office, and to order the U.S. Attorney General to enforce voting rights in the City and County of Philadelphia.  

      The District Court had jurisdiction under 28 U.S.C. §§ 2201 & 2201; and by Rules 57 and 65 of the Federal Rules of Civil Procedure.  Venue was proper pursuant to 28 U.S.C. §1391(b).  The Court ruled against her on standing.  Appellant appeal the decision.  The Third Circuit Court of Appeals had jurisdiction pursuant to 28 U.S.C. §1291.  The Court of Appeals affirmed the District Court's decision.  The Third Circuit also taxed defendants' costs against appellant.  Appellant filed a motion requesting that all parties pay their own costs.  Her motion was denied. Appellant has filed a timely appeal of the Court's Opinion and Judgment.


      1.  BACKGROUND

      From the beginning of this nation to the end of the Civil War, voting was a public and transparent process.  After the war, as the elective franchise expanded to minorities and women, three changes to state and federal election laws were adopted that eventually made the voting process a private and nontransparent enterprise: a) absentee voting was allowed (1870's), b) the Australian secret ballot method was adopted (1880's), and c) voting machines were permitted by Congress (1899).  

      The use of voting machines and absentee voting has made vote fraud easy to commit and impossible to detect.  Today, two corporations (ES&S and Diebold), which were started by two brothers (Bob and Todd Urosevich), electronically process via computerized ballot scanners or touchscreen computers approximately 80% of all votes in America.  Approximately 30% of all votes are cast early or by absentee and 96.4% of all votes are processed by voting machines (lever, computerized ballot scanners, or touchscreen computers).  In contrast, 95% of the world's democracies, including most of Europe, vote on hand-cast and hand-counted paper ballots.

      2. VENUE and STANDING

      Federal court is the proper venue.  A state's discretion and flexibility in establishing the time, place, and manner of electing its federal representatives has only one limitation, the state system cannot directly conflict with federal election laws on the subject. (McDonald v. Board of Election, 394 U.S. 802 (1969).  Appellant asserts that the federal and state laws that allow for the use of voting machines and absentee ballots (which are inherently non-transparent and therefore deny effective voter participation, meaningful oversight, and full enforcement of voting rights), directly conflict with federal laws and the Constitution.

      The District Court ruled, "Such concern involve questions of wide public significance that are most appropriately addressed by the legislative branch."  Appellant respectfully disagrees. First, appellant has the right to challenge acts of the legislative branch (Marbury v. Madison, 5 U.S. 137 (1803), Reno v. American Civil Liberties Union, 521 US 844, 871(1997)).  Second, appellant has the right to file a complaint in federal court before other remedies are exhausted (Title 42, Chapter 20, §1971(d)).  Third, the Congress and state legislatures initiated the injury by passing laws that conflict with the Constitution and other federal laws.  It does not follow that appellant must seek a remedy from the very parties who caused the injury.

      The federal courts have the right and obligation to hear and appellant has the right to challenge the constitutionality of federal and state laws.  In Marbury v. Madison the Supreme Court ruled,

      "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society."

      "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."

      The Appeals Court ruled on Page 2, "...we agree with the District Courts' conclusion that Landes does not allege a "concrete and particularized" injury, and thereby lacks standing."  The District Court ruled that Plaintiff's alleged injury amounts to a "generalized grievance" shared in "substantially equal measure by all or a large class of citizens" and is not sufficient to confer standing.

      Plaintiff respectfully disagrees.  Appellant's injury is not a `grievance', but rather a `violation' of civil rights.. Under the court's reasoning (equating a 'violation' of federal law to a 'grievance'), standing could be denied on all issues of national significance, including gun control, prayer in school, abortion rights, and countless other issues that routinely come before the federal courts. The fact that third parties or a large class of citizens hold the same rights and suffer the same violation does not constitute grounds to dismiss.  There is nothing in federal law or the Constitution that limits access to the courts in this manner.

      The District Court's ruling appears to suggest that appellant can only assert a violation of voting rights if she has been the only victim or one of a small class of victims.  Under that same reasoning, appellees argued that appellant must prove discrimination took place in order to invoke laws under 42 U.S.C. Chapter 20, Sub. I-A-Enforcement of Voting Rights.  However, according to 42 U.S.C §1973a, "Proceeding to enforce the right to vote (2) as part of any final judgment if the court finds that violations of the Fourteenth or Fifteenth Amendment  justifying equitable relief have occurred in such State or subdivision." (Emphasis added by appellant)  This means that under the Fourteenth Amendment, voting rights belong to all voters.  

      There is no place in federal law where it states that only small select classes of voters may enjoy federal enforcement of their right to vote while others may not. Literacy tests have been ruled unconstitutional for all voters, not just for a specific racial group.  When states or counties require voters to use computers in order to vote and require election officials to use computers in order to count votes, their actions amount to mandating a modern day literacy test, except it is 'computer literacy' that is the test.

      The Court does not say, but appellant theorizes, that the evidence the Court considers concrete could also be proof of vote fraud. Requiring such proof when the use complained of precludes the gathering of such evidence constitutes a Catch-22.  Appellant's complaint is a constitutional challenge to laws and government policies.  Under this circumstance she is not obligated to prove fraud or discrimination.

      Is appellant's voting record relevant?  No, not to appellant's knowledge, although the District Court made it an issue and ruled that appellant, "...fails to allege that she has ever voted in any prior election either by voting machine or by any means."  On the contrary, appellant described herself as a registered voter in her original complaint and fully answered this allegation in both of her responses to Defendants Cortes and Ashcroft's Motion to Dismiss. Appellant has voted by machine and absentee in past elections in Philadelphia, although she has no proof that her vote was counted correctly for all the reasons stated in her complaint, responses, and appeals.

      Does the Eleventh Amendment grant immunity from lawsuits?  Appellee Cortes' counsel claimed to the District Court, "The Eleventh Amendment bars plaintiff's state law claims to the extent she seeks to compel Secretary Cortes to comply with state law." (Page 6)  Appellant is not suing the state of Pennsylvania, but rather Appellant Cortes in his official capacity as the Secretary of the Commonwealth.  Even if appellant were suing the state or its agencies, the Supreme Court recently decided that such suits are permissible.  (Tennessee v. Lane, 541 US 509 (2004) and Nevada v. Hibbs 538 U.S. 721 (2003)).

      Lastly, appellant could find little to connect appellant's complaint to the cases cited by the Appeals Court (Anjelino v. New York Times, 200 F.3d 73, 87 (3d Cir. 1999), Storino v. Borough of Point Pleasant Beach, 322 F. 3d 293, 296 (3d Cir.2003), and Raines v. Byrd, 521 U.S.811, 818-20 (1997)).  None of these cases challenge the constitutionality of federal or state laws as in appellant's case.  Anjelino involves claims of employment discrimination on the basis of sex with respect to compensation and assignment of work at the New York Times; Storino is a takings case and involves the decision of a local zoning board and residents' concerns about the potential loss of the value of real estate; and Raines is about patients' rights, health care providers, and insurance companies.


      The use of voting machines and absentee voting denies the appellant as a voter and journalist the right to meaningful participation in the voting process, effective public oversight of that process, and full enforcement of those rights, constituting a "Deprivation of Civil Rights" under 42 U.S.C. §1983.

      The right to vote is given under the Constitution to all qualified citizens (Reynolds v. Sims 377 U.S. 533, 1964, 42 U.S.C. § 1971) and guaranteed under Article I, § 2 of the U.S. Constitution, Fourteenth and 15th Amendments, and other Amendments and federal laws.  To secure that right, Congress and the Courts set two strict requirements for the voting process: a) that voters qualified to vote shall be allowed to vote, and b) that their votes shall be counted properly. (Allen v. Board of Elections 393 U.S. 544, 1969, Wesberry v.Sanders, 376 U.S. 1, 1964, U.S.C. § 1973l c(1)).

      Appellee Tartaglion's counsel described laws governing Philadelphia's voting systems as "reasonable" and "even-handed".  However, these assurances and counsel's further claims of "safeguards" as described in appellee's brief (Pages 22 and 23) do not provide unobstructed access to a ballot or bring meaningful transparency to the voting process, and therefore do not comply with the federal laws and the Constitution.

      Access to and use of a secure polling place is not only a right, but an obligation.  In Burson v. Freeman, 504 US 191, 206 (1992) the Court said,

      "In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud.  After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments. We find that this widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States' compelling interests in preventing voter intimidation and
      election fraud."

      Voting by absentee provides no protection from intimidation, threats, or coercion.  Voter intimidation is prohibited under 42 U.S.C. §1973i. Prohibited acts,

      "(b) Intimidation, threats, or coercion - No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 1973a (a), 1973d, 1973f, 1973g, 1973h, or 1973j(e) of this title."

      Voting by machine stands in violation of 42 U.S.C. § 1973i(a) "Failure or refusal to permit casting or tabulation of vote".   In United States v. Mosley, 8 U.S. 383, (1915) the Court decided, "The right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box."  The use of DREs, Internet voting, and lever machines constitutes "refusal to permit casting" or "put a ballot in a box" as these machines do not allow the voters access to physical ballot, to directly mark a ballot, or to cast a ballot. The voters can make inputs to the machine, but it is the machine - not the voter - that produces the results (i.e., records the inputs and counts the votes).

      Voters have the constitutional right to vote free from obstacles such as literacy tests and other practices and devices that once were required by state legislatures and election officials as a prerequisite or precondition to voting. (South Carolina v. Katzenbach, 383 U.S. 301(1966) and Allen v. Board of Elections, 42 U.S.C. § 1973b).  Voting machines constitute just such an obstacle.  A voting machine, such as a DRE, can be an unfamiliar and inhibiting device, unlike a pen or pencil. The use of voting machines is a precondition for voting in that citizens must be able to operate the machine in order to vote.  These machines stand as a physical and emotional obstacle between the voter and their ballot.

      "The terms 'vote' or 'voting' includes all action necessary to make a vote effective in any primary, special, or general election." (42 U.S.C. § 1973l (c)(1).  In Bush v. Gore the Supreme Court wrote, "A 'legal vote,' as determined by the (Florida) Supreme Court, is one in which there is a 'clear indication of the intent of the voter'."  The Court accepted that definition as, "unobjectionable as an abstract proposition and a starting principle."  The use of absentee ballots (where the absentee voter can be intimidated by others and ballots can be easily tampered with) and voting machines (which are obstructive, non-transparent, easy to rig, and impossible to safeguard), prevent citizens from making their votes "effective" or knowing if their votes were counted at all.  The use of lever machines or DREs (touchscreens or push buttons) prevents the voter from directly creating or casting a "legal vote" as a "clear indication" of their intent. The same could be said of the output of a ballot scanner. Any result produced by a voting machine is evidence that the machine did something.  However, it is circumstantial or "not clear" evidence of the voter's intent.

      A ballot is the official record of an individual voter's votes.  A machine-produced record or list of all the citizens' votes is not a ballot.  Implicit in the Constitution is the right to a recount of ballots. In Roudebush v. Hartke, 405 U.S. 15 (1972), the U.S. Supreme Court ruled,

      "... one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount. Despite the fact that a certificate of election may be issued to the leading candidate within 30 days after the election, the results are not final if a candidate's option to compel a recount is exercised."

      The issue of ballots and contested elections (recounts) is also addressed in 1 U.S.C. § 5 and in 26 Am Jur 2nd § 444,

      "In an election contest the ballots themselves constitute the highest and best evidence of the will of the electors, provided they have been duly preserved and protected from unauthorized tampering, and recourse may be had to the ballots themselves in order to determine how the electors actually voted. However, one who relies on overcoming the prima facie correctness of the official canvass by a resort to ballots must first show that the ballots as presented to the court are intact and genuine." (Emphasis added by appellant).

      Does failure to comply with federal voting requirements violate the Equal Protection Clause?  Yes, the Supreme Court found in Bush v. Gore, 531 US 98 (2000), "...whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.  With respect to the equal protection question, we find a violation of the Equal Protection Clause."    In Roudebush v. Hartke, 405 U.S. 15 (1972) the U.S. Supreme Court ruled, " procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount".  The use of paperless voting technology (which does not produce ballots), not only represents a "standardless manual recount"; it represents no ability to recount ballots in any meaningful manner since no intact ballots exist; in fact no ballots exist at all, just a record or list of votes.

      Congress also set clear requirements for observing the voting process in the oversight function of Federal observers in 42 U.S.C. § 1973f,

      "Observers at elections; assignment; duties; reports: Whenever an examiner is serving under subchapters I-A to I-C of this title in any political subdivision, the Director of the Office of Personnel Management may assign, at the request of the Attorney General, one or more persons, who may be officers of the United States, (1) to enter and attend at any place for holding an election in such subdivision for the purpose of observing whether persons who are entitled to vote are being permitted to vote, and (2) to enter and attend at any place for tabulating the votes cast at any election held in such subdivision for the purpose of observing whether votes cast by persons entitled to vote are being properly tabulated."

      However, when voting machines and absentee ballots are used it is physically impossible for Federal Observers to observe "whether persons who are entitled to vote are being permitted to vote, and ...whether votes cast by persons entitled to vote are being properly tabulated."

      This point was affirmed by Nelldean Monroe, Voting Rights Program Administrator for the U.S. Office of Personnel Management (OPM) who addressed the issue of oversight of the voting process in a November 21, 2002 e-mail to Plaintiff.  Her agency is responsible for recruiting and training Federal Observers who are sent by the Department of Justice (DOJ) to monitor elections. Monroe wrote,

      "The only observance of the tallying of the votes is when DOJ specifically requests observers to do so. This rarely occurs, but when it does, it is most often during the day following the election when a County conducts a canvass of challenged or rejected ballots. In this case, Federal observers may observe the County representatives as they make determinations on whether to accept a challenged or rejected ballot. Federal observers may also observe the counting of the ballots (or vote tallying) when paper ballots are used."  (Emphasis added by appellant).  

      In an earlier phone conversation with appellant, Ms. Monroe said that she could not train Federal Observers to observe if voting machines manipulate or switch votes because the functioning of the machines is inherently unobservable.

      As a journalist, appellant has a First Amendment right to observe the voting process in a meaningful manner.  Poll watchers perform a similar function.  Transparency is essential for the integrity and legality of the process. In Tiryak v. Jordan, 472 F. Supp. 822, 824 (ED Pa. 1979), the Court ruled, "...the poll-watcher's function is to guard the integrity of the vote.  No activity is more indelibly a public function than the holding of a political election."  The roll of the poll watcher to oversee the voting process and to ensure the proper administration of the voting process is amply supported under federal law.  That roll is reported in U.S. Constitution: Annotations p.18, § 4. Elections, Clause 1. Congressional Power to Regulate, Federal Legislation Protecting Electoral Process,

      "More recently, Congress has enacted, in 1957, 1960, 1964, 1965, 1968, 1970, 1975, 1980, and 1982, legislation to protect the right to vote in all elections, federal, state, and local, through the assignment of federal registrars and poll watchers, suspension of literacy and other tests, and the broad proscription of intimidation and reprisal, whether with or without state action."

      Although appellant did not attempt to prove specific vote fraud in Philadelphia, she did provide substantial material in her complaint, attachments, responses, and appeal that the use of voting machines and absentee ballots destroys the integrity of the election process, including the following government reports:

      a) The Government Accounting Office (GAO), October 2001, state, reports "...some officials promote reforms such as early voting to enhance the accessibility of the electoral process to the general public, while others claim such a move could open the door to voter fraud and thus may come at the price of the integrity of the election system."

      b) The Congressional Research Service Report to Congress, September 25, 2003, stated, "While the percentage of votes cast by absentee or mail ballot has been increasing in recent elections, some observers have expressed concerns that the method is more vulnerable to certain kinds of fraud and coercion of voters than is balloting at the polling place. Some have criticized early voting as distorting the electoral process and being open to certain kinds of fraud and abuse."

      c) The Congressional Research Service (CRS), November 4, 2003 concluded in a report, "Given the worsening threat environment for information technology and the findings of several studies and analysis discussed in this report, at least some current DREs clearly exhibit security vulnerabilities. The potential threats and vulnerabilities associated with DREs (touchscreen and push button) are substantially greater that those associated with punchcard or optical scan readers, both because DREs are more complex and because they have no independent records of the votes cast."


      Considerations of increased voter participation, privacy, or convenience for absentee voters and disabled voters do not supersede appellant's voting rights.  Although voting machines and absentee voting have been promoted as a convenience for election officials and voters alike, the U.S. Supreme Court has decided that convenience does not supersede a citizen's fundamental rights.  Writing for the majority in Tennessee v. Lane (2004), Justice John Paul Stevens ruled, "...states may not justify infringement on fundamental rights by pointing to the administrative convenience or cost savings achieved by maintaining barriers to the enjoyment of those rights."

      Voting is a right and a responsibility, very similar to performing jury duty where citizens must be present in order to participate.  For example, military personnel can serve on a jury if they are `in town', but no one has ever suggest that they have right to be on a jury via satellite or participate through some other remote process.  State can take steps to make voting as convenient as possible without violating the law by make the process unobservable.


      In 1905 the Michigan Supreme Court concluded that a vote cast by use of a voting machine, where it was secret, a free choice of candidates given, and a correct record of the vote made, was a vote given by ballot. (Detroit v. Board of Inspectors, 139 Mich. 548; 102 N.W. 1029; (1905)). The same conclusion was reached in 1914, Empire Voting Machine Company v. Carroll., 78 Wash. 83; 138 P. 306; (1914)), "We do not deem it necessary to rehearse these discussions or to treat the question other than as a proposition settled by the great weight of authority; that is, that a vote registered by a machine is a vote by ballot."  For all the reasons stated in this appeal, appellant respectfully disagrees with these two decisions.  

      Recent litigation against states and counties over the issue of voting machines has been based on the citizens' right to a voter-verified paper ballot or trail. (Weber v. Shelly, 347 F.3d 1101, 9th Cir. (2003)) However, voter verification of the output of a machine is not the same as the voter actually voting.  For poll watchers, Federal Observers, or journalists, there is no effective opportunity to determine if a vote produced by a machine is a clear indication of the intent of the voter or the result of a machine (which may be adding, subtracting, or switching votes either by accident or design). Whatever is produced by a machine is circumstantial evidence, not direct evidence, of what the voter intended.

      Other lawsuits have claimed discrimination based on voting equipment usage, contending that some voting machines are more accurate than others. (Southwest Voter Registration Education Project v. Shelley,344 F.3d 914 (9th Cir.2003)).  Appellant believes that these cases miss the point in law. There has been considerable public discussion and claims made as to the accuracy of voting machines.  The accuracy of paperless voting machines is impossible to determine as no hard evidence exists when the ballots are electronic and the voting is in secret.  Although qualified voters have the right under federal law to have ballots "properly counted", appellant could not find that the accuracy of the count enjoys the same degree of legal protection under federal statutes or case law.

      In Davidowitz v. Philadelphia County, 324 Pa. 17 (1936) the Court stated, "These (voting) machines expedite the count, are helpful in reducing the possibility of election frauds, and their employment should be encouraged." Although no evidence supporting this allegation is evident in the case, this quote was used in 25 Am Jur 2nd § 96 and in 2004 by the Ninth Circuit in Weber v. Kevin Shelley.  In Davidowitz v. Philadelphia, the Court went on to claim, "They (voting machines) have been installed in the various counties at great expense and by vote of a majority of the electors thereof.  A court, therefore, should not restrain their use unless a legislative or constitutional provision is clearly violated."  Appellant asserts that such a violation has taken place and convenience of cost does not supersede the right to vote and to have votes counted properly.


      The Third Circuit Court of Appeals abused their discretion by taxing appellees' costs against appellant.  The Court did not refer to the U.S. Supreme Court's interpretation of the Rule 54 standard and Title 42 § 1973l(e) in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) and Fogerty v. Fantasy, Inc. (92-1750), 510 U.S. 517 (1994).  The U.S. Supreme Court stated in Christiansburg that losing plaintiffs are not to be penalized in civil rights cases unless,

      "...the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith....To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII."

      That position was reaffirmed by the Chief Justice of the U. S. Supreme Court Justice William Rehnquist in Fogerty v. Fantasy,

      "We had earlier held, interpreting the cognate provision of Title II of that Act, 42 U.S.C. § 2000a-3(b), that a prevailing plaintiff "should ordinarily recover an attorney's fee unless some special circumstances would render such an award unjust." Newman v. Piggie Park., 390 U.S. 400, 402 (1968). This decision was based on what we found to be the important policy objectives of the Civil Rights statutes, and the intent of Congress to achieve such objectives through the use of plaintiffs as "`private attorney[s] general.' " Ibid.  In Christiansburg, supra, we determined that the same policy considerations were not at work in the case of a prevailing civil rights defendant. We noted that a Title VII plaintiff, like a Title II plaintiff in Piggie Park, is "the chosen instrument of Congress to vindicate `a policy that Congress considered of the highest priority.' " 434 U. S., at 418.  We also relied on the admittedly sparse legislative history to indicate that different standards were to be applied to successful plaintiffs than to successful defendants."

      To tax costs against the appellant is against the spirit and intent of federal legislation and U.S. Supreme Court decisions.  What is the point of allowing plaintiffs access to the courts, as well as cost relief and cost containment through such mechanisms as declaring pauper status and proceeding pro se, if plaintiffs are to be taxed with the defendants' costs if they do not prevail?   It would clearly have a chilling effect on future civil rights litigation.


      Meaningful voter participation, effective oversight, and full enforcement of voting rights are the keys to a functioning and transparent democracy. Although Americans have been using voting machines and absentee ballots for well over a century, the longevity of any custom or practice does not confer legitimacy.  The use of voting machines and absentee ballots are potent weapons that can be used to manipulate election results and control the government.

      The U.S. Congress, Commonwealth of Pennsylvania, and City of Philadelphia have enacted laws and adopted policies that unlawfully deny Plaintiff the most important right of citizenship, the right to vote and to have votes counted properly.

      The use of voting machines and absentee voting should be declared a violation of the U.S. Constitution and federal law.  The Plaintiff is the proper person and federal court is the proper place to seek this remedy.

      For all the foregoing reasons, Plaintiff respectfully requests that the decision of the Third Court of Appeals be overturned.

      please pardon non-response to hidden messages, I have not been able to read them for many months. many blue, yellow and green dogs are a majority

      by Prove Our Democracy with Paper Ballots on Tue Feb 07, 2006 at 07:57:04 AM PST

      [ Parent ]

      •  Thanks, Mark (none)
        I saw this yesterday and I want to try to help throw some light on it between Boston & Washington.

        Isn't this business getting a little TOO tiresome?  At some point we have to be expected to either quit voting and participating in government, or moving to another country.

        What's worse:  an avowed fascist dictatorship
                       a phony democracy?

        The so-called, "Global War On Terror" IS Terrorism!

        by november3rd on Tue Feb 07, 2006 at 08:23:49 AM PST

        [ Parent ]

        •  copied from Mark Crispin Miller's Site (none)

          please pardon non-response to hidden messages, I have not been able to read them for many months. many blue, yellow and green dogs are a majority

          by Prove Our Democracy with Paper Ballots on Tue Feb 07, 2006 at 08:46:55 AM PST

          [ Parent ]

        •  a new way to attack these machines (4.00)
          We are all suspicious that these machine are Biased.  the problem with that argument is that the bias helps one party, and so this get quickly dismissed as a partisan issue that Mr. and Mrs. Middle America tune out.

          So why not apply a little Political Ju-jitsu ad take advantage of the "terrorists lurking on every corner" meme the Bush administration pushes so hard?

          Put simply: Paperless voting Machines are especially vulnerable to terrorist attack or for that matter any crazy with a grudge and access to a Radio Shack.

           Because of a Phenomenon known as Electromagnetic Pulse or EMP.   Put simply ANY electronic device that is not specifically shielded will be destroyed if Caught in an EMP wave.

          Once Upon a time, the only practical way to create such a wave was to Detonate a nuclear device; and thus if an EMP pulse occurred, people had a lot bigger fish to fry than worrying about their electronics.

          But not any more.  Science has marched on and the DOD is rumored to have actually used EMP weapons in Bosnia and Iraq.  But  You don't even have to have a Billion Dollar R&D budget to create your own EMP havoc

          .   From the research about EMP has come the concept of a High Energy Radio Frequency (HERF) weapon, which creates an EMP-like effect in a small targeted area.   Worse yet HERF guns, are Incredibly EASY to build.  In fact you can do it right now with parts from a small stereo and Radio Shack:

          The HERF gun is not particularly high-tech, either. The device uses technology dating back to Tesla, essentially pushing a 20 megawatt burst of undisciplined radio noise through an antenna. The energy is enough to interfere with sensitive computer components nearby, creating unpredictable results ranging from minor anomalous behavior, to complete burnout.

          Schriner said he's built larger HERF guns capable of crashing computers and disabling automobiles at a range of 100 feet, with a cost as low as $300.

          And if that's too much trouble you can Buy one off the shelf

          Now remember that HREF set up would set off no known security device, not metal detectors, bomb snifters , etc; and could be easily disguised as a boombox or bullhorn.  Moreover the attack would be completely invisible to anyone in the room until after it had occurred.

          Now Imagine what utter havoc a single person or a team of determined terrorists could do by wiping out banks of voting machines in Key electoral districts during a close election.

          This then is our opening to get these infernal machines banned from our elections.  Its party and ideology neutral, and resonates with people whose eye glaze over when you talk about statistical samples.  

          Our Frame  needs to be :

          "The fact is in the "post 9/11" world unshielded Diebold Machines without a paper back up are simply too easily attacked and destroyed to be safe.   They present a soft target to terrorist who could wreak enough havoc to make Bush v. Gore look like a tea party.

          Before these machines can be used,  We must  insist that they either provide a paper reciept,  spend $1000's of dollars per machine to harden them against attack. Otherwise we must demand they be scrapped entirely in favor of less vulnerable methods"

          Knowledge is power Power Corrupts Study Hard Be Evil

          by Magorn on Tue Feb 07, 2006 at 09:22:16 AM PST

          [ Parent ]

        •  Amen (none)
          Voting "irregularities" are getting old.

          I am disgusted by the pervasive apathy. Don't "those people" who don't see the elephant in the living room understand what it means to be a patriotic American?

          Wake the fuck up!

          Now I laugh and make a fortune off the same ones that I torture and a world says, "Kiss me, son of god." ~ They Might Be Giants

          by misscee on Tue Feb 07, 2006 at 10:03:12 AM PST

          [ Parent ]

          •  Just more proof (none)
            Of what I have been saying since this freak Dubya stole office for the second time.

            There are NEVER going to be any honest elections in this country again until Diebold, ES&S and every other company like them is full investigated, culprits put in prison for LIFE and a constant vigil from here on out on election results.

            In 06' we (Democrats)will gain NOTHING if we are still voting on RIGGED machines.

            Basically we no longer live in a democracy,, the sooner every American realizes that little tidbit the better off we will be.

      •  Supreme Court (4.00)
        Voting Systems Lawsuit Reaches U.S. Supreme Court

        Good thing the court is packed with liberal judges who are committed to upholding the constitution, civil rights, sepatation of powers...

        And all because we had the incredible foresight to "keep our powder dry" for when we really needed it.

        Now we can just focus all our efforts on taking back Congress in 2006... 'cause the polls are looking like it sure as hell ours to win. And as we all know, polls don't ever lie. Except for those damn exit polls.

        Oh wait... what? What's that you say?

        the AP reports that this fall 4 out of 5 Americans will vote on these machines.

        Yeah, but don't worry. Ain't none of those machines in any swing states.  No way.

        What we Kossacks need to do is keep our focus on fighting elections, and don't pay any attention to that "conspiracy theory" stuff. We can't afford to take our eye off the ball, right? That's what our leaders say. Right?

        I'm just sayin'

        [By the way --talking straight now-- I'm not saying it's an either/or issue. I will never neglect electoral campaigns to focus exclusively on verifiable voting. I canvassed in NH, and I just pledged to Ned Lamont. But the whole idea that we should squelch any conversation about vote fraud just because it takes attention away from Ned Lamont, Paul Hackett, and [insert your favorite Dem here] is just total BS.]

        •  4 out of 5 (none)
          I'm floored by that.  I had no idea.  I thought we were making progress on getting rid of these Diebold machines, after the incident with certifications in FL and NC.

          Is anyone in Congress addressing this issue?  I though Howard Dean was on it too.

          On Bush: "He has all the virtues I dislike and none of the vices I admire." --(borrowed from) Churchill

          by joanneleon on Tue Feb 07, 2006 at 03:59:32 PM PST

          [ Parent ]

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