Election Guardians

1. This case is brought under 42 U.S.C. §1983 and the Fourteenth Amendment to the United States Constitution. This court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343. Plaintiff’s action for declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202; and by Rules 57 and 65 of Federal Rules of Civil Procedure.

2. Venue is proper pursuant to 28 U.S.C. §1391(b) because a substantial part of the events or omissions giving rise to the claims herein occurred in this district, and because Defendant resides in this district.

3. This case challenges violations of the voting rights of Riverside County, California citizens arising from the use of so-called “Direct Recording Electronic” voting machines (DRE).

4. Plaintiff SUSAN MARIE WEBER is a resident of Riverside County, is a registered voter who voted in the most recent election using the DRE system, but has serious doubts as to whether her vote was accurately counted.

5. Defendant BILL JONES is the Secretary of State of California. He is sued in his official capacity in connection with actions taken under color of state law. As Secretary of State, Defendant JONES is the chief election officer of the State of California and has responsibility for general supervision and administration of the election laws, including approval of and setting standards for voting machines. Under California Elections Code §19100 et. seq., the Secretary of State must set specifications and establish regulations for voting machines and devices. Among the statutory criteria is that the machines or devices be suitable for their intended purposes and be safe from fraud or manipulation. The Secretary of State also has the responsibility to obtain and maintain uniformity in the application, operation and interpretation of the election laws, and to provide technical assistance to local supervisors of elections on voting systems. He also has the duty to set and enforce specific standards and procedures to govern the conduct of manual recounts.

6. Defendant MISCHELLE TOWNSEND, in her capacity as Riverside County Registrar of voters, is responsible for providing a system of voting safe from fraud and manipulation. She negotiated with Sequoia Pacific to bring DRE voting machines to Riverside County.

7. The right to vote is fundamental to our constitutional democracy.[1] At the heart of the right to vote is the principle that every legal vote must be accurately counted and recorded, and equal weight must be accorded to each vote and equal dignity to each voter.

8. This constitutional principle is embodied in California Elections Code §19205:

The Secretary of State shall establish the specifications for and the regulations governing voting machines, voting devices, vote tabulating devices, and any software used for each, including the programs and procedures for vote tabulating and testing. The criteria for establishing the specifications and regulations shall include, but not be limited to, the following:

(a)The machine or device and its software shall be suitable for the purpose for which it is intended.

9. Plaintiff does not contend that California Elections Code 19205(c), which requires the Secretary of State to assure that any voting machine system "shall be safe from fraud or manipulation," imposes a standard of perfection or infallibility. Many computer experts, however, after studying the DRE and other computer voting systems, believe that the DRE system is not only the LEAST safe from fraud or manipulation, but provides the greatest opportunities for undetectable fraud and manipulation. These experts include Rebecca Mercuri, Peter Neumann, Edward Tenner, and The Caltech/MIT Voting Project.

10. The DRE system – both in its hardware and proprietary software --violates fundamental Constitutional principles. It is completely hidden from public scrutiny; the DRE machines hide the recording and counting of the vote from the voters behind its “proprietary” software, thereby violating voters’ rights to have their vote counted publicly and as equally accurately as other counties with constitutionally adequate standards and procedures for voting equipment.

11. There is no paper ballot whatsoever, converting “recounts” from an actual re-counting of the ballots cast by voters to a split-second electronic re-enactment of previously-generated computations.

12. With billions of dollars hanging on the outcome of every election, the temptation for “fraud and manipulation” is great, and the risks are overwhelming when the elections are conducted behind closed cyber-doors.

13. One source of pressure for computer voting seems to be the media, who clamor for “instant” results. But as a Sequoia Pacific spokesman put it, “It [is] more important to know that we [are] accurate than to finish quick [sic].”[2] Indeed, recounts and canvassing requirements mandated by state law make it impossible to know the outcome of an election for days after Election Day. The integrity of the full electoral process is too often minimized by the media, and the State has no compelling interest in instant gratification of media demands.

14. Thus, the DRE voting system disproportionately denies some citizens the right to have their votes counted accurately, and dilutes the collective political power of certain election districts, such as Riverside County, and are therefore anathema to the one-person, one-vote basis of our representative government.

15. As a direct result, voters in some California counties have disproportionately been denied their right to have their votes counted by a system that is "safe from fraud or manipulation." Counties in the State of California use a variety of voting mechanisms with widely disparate levels of effectiveness in accurately recording votes as cast.

16. In the most recent general election, occurring November 7, 2000, Riverside County registered voters used Sequoia Pacific Touch Screen computer voting systems that result in unobservable, unverifiable, non-recountable, untestable, non-public voter tallies.

17. Compounding the absence of a real hard copy original paper trail is the absence of any legally binding standards to govern procedures for keeping a trail of evidence of original voter choices in the case of manual recounts. The absence of mandatory specific standards to ensure equal application of recount procedures exacerbates the inequalities resulting from the use of voting systems with widely disparate and/or unknowable error rates for purposes of federal, state, and local elections.

18. The voting machines that Defendants have approved for use and that are in fact used in the State of California are not uniform, either in their operation or in their reliability in terms of accurately recording votes.

19. There are four types of voting systems used in California: pre-scored punch cards, Datavotes, optical scans, and touch screens. All of these systems except the touch-screen have a paper hard-copy ballot trail to recount in the event of machine failure or software fraud or manipulation.

20. The use of paperless touch-screen machines lacking transparency to observe the actual recording of the vote dilutes the collective votes of people in those counties that use touch-screen voting machines. No legitimate or compelling state interest is served by the differential treatment accorded to voters in those counties as the result of the continued approval of these machines by Defendants and their failure to establish standards that would ensure equal treatment to all voters statewide.

21. There exist in California no legally binding standards to govern procedures for determining the choices of voters in the case of manual recounts. The absence of binding specific standards exacerbates the problems created by the use of differing voting systems in different California counties. While the County Clerks' Association and the Secretary of State's office have jointly issued guidelines for determining the voters’ choices in manual recounts, those procedures are not legally binding. The formulation of uniform and legally binding standards and rules to determine voter intent is practicable and necessary so that all votes are accorded equal treatment.

22. Riverside County’s voting system as described herein, by the use of paperless touch-screen voting machines, has a disparate and adverse impact upon the voters of Riverside County. Riverside’s DRE voting system substitutes closed-door programming for publicly observable counting of ballots, replaces manual recounts with computer reenactments, and eliminates a paper trail to validate the choices made by voters.

23. Plaintiff has suffered and will continue to suffer irreparable harm as the result of the unequal system of voting approved by Defendant. Plaintiff has no adequate remedy at law for the deprivation of her rights, privileges, and immunities.

24. Plaintiff hereby realleges and incorporates by reference each of the foregoing paragraphs.

25. Defendant, acting under color of state law, has approved and administers an unequal system of voting, which denies equal treatment and equal dignity to voters residing in counties that use DRE voting system machines.

26. The absence of any requirement for manual recounts at public expense in close races and the absence of uniform, binding standards for manual recounts exacerbate the inequalities caused by the use of DRE voting system machines in some California counties but not others.

27. The absence of adequate standards and procedures for voting machines and recounts can result in the disproportionately unobservable and unrecountable tabulation and recording of the votes of people residing in counties that use DRE voting system machines.

28. Defendant, acting under color of state law, has deprived and threatens to deprive Plaintiffs, of their fundamental right to vote and have that vote recorded and counted as equally and as observably as other counties in California and the United States.

29. Defendants’ acts and omissions violate Plaintiff’s rights to equal protection, due process, and the privileges or immunities of citizens of the United States guaranteed by the Fourteenth Amendment to the United States Constitution.

WHEREFORE, PLAINTIFF respectfully request that this Court enter judgment in her favor:

(1) Declaring that Defendant's failure to set adequate standards for voting equipment, and in particular the continuing approval of Sequoia Pacific touch-screen voting systems for use in Riverside County California, denies and abridges Plaintiff's rights under the Fourteenth Amendment;

(2) Declaring that the failure to establish adequate standards and procedures to govern manual recounts, including the circumstances under which recounts are required, denies and abridges Plaintiff’s rights under the Fourteenth Amendment;

(3) Enjoining the continuing application of the standards, specifications, and regulations that Defendants have set for voting machines in the State of California to the extent that they permit the use of paperless DRE voting system machines;

(4) Ordering Defendants to withdraw approval of current DRE voting system machines and to promulgate specifications, regulations, standards, guidelines, and procedures that will protect the voting rights of all Californians;

(5) Requiring Defendants to ensure that DRE voting system machines are replaced or supplemented at the earliest possible moment with more reliable systems that have an original hard copy paper ballot as the primary record of the vote cast;

(6) Awarding Plaintiffs their expenses, costs, fees, and other disbursements associated with the filing and maintenance of this action, including reasonable attorneys fees pursuant to 42 U.S.C. § 1988;

(7) Awarding such other equitable and further relief as the Court deems just and proper.

[1] “In Westberry v. Sanders, 376 U.S. 1, 17 (1964), the Court testified to the fundamental character of the right to vote: ‘No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” L.H. Tribe, American Constitutional Law, 737n.1, (1978)

[2] Laurie Koch Thrower and Imran Ghori, “Glitch Slows Voting,” [Riverside] Press-Enterprise, November 9, 2000, B-5.

SUSAN MARIE WEBER	)
Plaintiff,	)
	)	Case No.CV01-11159-SVW (RZx)
vs	)
	)	COMPLAINT FOR INJUNCTIVE AND
BILL JONES, in his official	)	DECLARATORY RELIEF
capacity as California	)
Secretary of State,	)
MISCHELLE TOWNSEND, in her	)	[Fourteenth Amendment to the
Official capacity as Riverside	)	United States Constitution;
County Registrar of Voters	)	42 U.S.C. § 1983]
Defendants.	)
	)
	)