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This is a long post, but we election reformers here in the Orange State are moving fast to file a lawsuit to declare paperless electronic voting in direct violation of our state constitution. For that reason, I am attaching the second draft of the lawsuit in hopes that some of you (lawyers and otherwise) can give us your feedback quickly.
This lawsuit will be filed shortly in Memphis/Shelby County, Tennessee. Memphis is our largest city and it now uses Danaher Shouptronics push-button machines and is leaning toward Diebold for no logical reason, but likely plenty of $$ ones. This lawsuit declares that paperless electronic voting systems violate our state constitution on several grounds. The attorney has been in contact with Land Shark to discuss the Washington state case, but he has decided to argue the case strictly on state constitutional grounds here in the Orange State.
Tonight, I will begin working to encourage attorneys from around the state (Nashville, Knoxville, Chattanooga, etc.) to file similar lawsuits. Our Memphis attorney would appreciate any comments that any of you might have on this draft, which is why I have attached the whole cannoli. We are moving quickly so if you have any feedback, please post it on this thread or PM me and I will get it to the attorney ASAP. Thanks for any advice and suggestions you might have.
Lots of good things come out of Memphis: Elvis, the blues, barbeque, "Hustle and Flow".
And maybe now a judicial remedy from the Orange State to combat electronically stolen elections.
I look forward to your comments.
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IN THE CHANCERY COURT OF SHELBY COUNTY, TENNESSEE
30TH JUDICIAL DISTRICT
(One good-guy attorney)
VS. NO.____________________
SHELBY COUNTY ELECTION COMMISSION
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COMPLAINT
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<> The Plaintiff, XXXXX, an attorney licensed to practice law in the state of Tennessee and a resident of Shelby County, Tennessee, brings this cause of action against the Defendant, the Shelby County Election Commission, and would show the court the following:
PARTIES AND JURISDICTION
1. The Plaintiff is an attorney licensed to practice in the state of Tennessee, who lives and has an office in Shelby County and who is a registered voter.
2. The Defendant, the Shelby County Election Commission, may be served with process by serving XXX, Chairman, at 157 Poplar Avenue, Memphis, Tennessee.
3. The Plaintiff has standing to bring this Declaratory Judgment action pursuant to TCA 29-14-103.
4. This court has jurisdiction to hear this Declaratory Judgment action pursuant to TCA 29-14-102.
BACKGROUND
5. Shelby County Tennessee now requires its citizens to vote on electronic voting machines that produce no paper ballot or no paper verification of the vote cast.
6. The Plaintiff has been required, as have most, if not all of Shelby County residents, to vote on these paperless machines for the last several elections.
7. The Plaintiff, and the other citizens of Shelby County have no means of verifying that their votes are actually being properly recorded when their votes are cast on paperless mechanical or electronic voting machines.
8. The Plaintiff, as well as other citizens of Shelby County, knows that when the ballot is paperless, poll workers have no means to review a questionable vote to determine the intent of the voter.
9. The Plaintiff, as well as the other citizens of this county, knows that with paperless mechanical or electronic voting, the poll workers or interested citizens have no means to statistically estimate whether the votes are being properly recorded and tabulated.
10. The Plaintiff, as well as other citizens of this county, knows that with paperless mechanical or electronic voting there is only one system of tabulation and that no secondary system of tabulation exists to verify or check the one and only system of tabulation.
11. The Plaintiff, as well as other citizens of this county, knows that with paperless mechanical or electronic voting, since no secondary system of cross-tabulation exists, there is no verifiable means of performing a legitimate recount of any election that might be questionable, close, or suspicious.
12. Upon information and belief, the Plaintiff avers that these electronic voting systems may also disenfranchise voters in the event that voter turnout is far greater than expected; since each voter must wait his turn to use the machine, the possibility of too few machines, causing discouraging delays, is quite real.
13. Upon information and belief, the Plaintiff avers that electronic voting systems may disenfranchise voters when there are power outages or other malfunctions of the paperless machines during the election process.
14. Upon information and belief, the Plaintiff would aver that even in a state election contest, a paperless voting machine’s cumulative tabulations are not a sufficient evidentiary replacement for paper ballots, making even meaningful judicial review of state election contests unlikely.
15. Upon information and belief, the Plaintiff also avers that due to the time constraints imposed by federal law, in the most important election of all, the election for President of the United States, the Presidential electors from Shelby County and Tennessee must cast their ballots for President within a few short weeks following the national election; however, the Plaintiff would further aver that no meaningful process exists in Shelby County to ensure an accurate, speedy recount of the votes in a Presidential election, (much less any meaningful process for a speedy election contest) and thus there exists no way to adequately ensure that Shelby County and Tennessee send the proper electors to Washington, D.C., to vote for the President of the United States.
16. At present, these systems are truly faith-based and require the citizens of this county to have unwarranted faith in the integrity of the system.
17. Upon information and belief, the Plaintiff avers that one or more private corporations manufacture the electronic voting systems used by the Shelby County Election Commission and that the software used in these electronic systems remains the proprietary trade secret of the manufacturer.
18. Upon information and belief, the Plaintiff avers that the Shelby County Election Commission does not independently possess the means or the ability to produce its own software for these machines and must rely upon the training, skill and integrity of private corporations or citizens to determine whether the software running these machines can properly record and count the votes cast on these machines.
19. Upon information and belief, the Plaintiff avers that in order to operate the electronic voting machines which record and count the votes of the citizens of Shelby County, the Shelby County Election Commission must rely upon the technical expertise of individuals and corporations who are not elected, who are not appointed, who are not sworn to uphold the Constitutions of the United States or the state of Tennessee; and perhaps without realizing it, the Shelby County Election Commission may even be relying upon persons or corporations who may not, or could not, have passed criminal background checks, or may be relying upon persons who could even be citizens of a foreign country, or, in the worst possible case, relying on enemies of the state.
20. Upon information and belief, the Plaintiff also avers that the central tabulators, which compile the votes from each precinct, are also privately owned and also have proprietary software that the manufacturers claim to be a trade secret, and are also subject to most of the same problems as the electronic voting machines themselves.
21. The Plaintiff brings this cause of action to have this court declare that the voting methodology and process currently in use in Shelby County by the Shelby County Election Commission, along with the statutes that permit this voting methodology and process, are in violation of the Tennessee Constitution and are therefore respectively illegal and unconstitutional.
22. The pertinent parts of the Tennessee Constitution and the Tennessee Election Code are attached to this Complaint as Exhibit “A” and incorporated herein by reference.
THE TENNESSEE CONSTITUTIONAL REQUIREMENTS
23. Article I, Section 5 of the Tennessee Constitution states in relevant part: “The elections shall be free and equal…”
24. However, the General Assembly, when it enacted the Tennessee Election Code, made two systems of voting possible: one with a paper ballot, and one without.
25. Plaintiff avers that the two systems are vastly unequal in the rights the systems grant to the voters and candidates of this state; moreover, Plaintiff avers that the voters in Shelby County, who must vote on paperless systems have vastly inferior voting rights when compared with those other citizens of other counties whose election officials have opted to use paper ballots.
26. Article IV, Section 1 of the Tennessee Constitution states in relevant part: “The General Assembly shall have the power to enact laws … to secure … the purity of the ballot box.”
27. However, the General Assembly, when it enacted the Tennessee Election Code made a curious change in tracking the language of the Constitution when it made the following legislative enactment in TCA 2-1-102:
“The purpose of this title is to regulate the conduct of all elections by the people so that: (1) The freedom and purity of the ballot are secured;” …
When referring to the purity of the ballot box, the General Assembly omitted the word “box.”
28. Plaintiff avers it was perhaps the omission of the word “box” that has led the General Assembly in the direction of paperless voting; without a box to put the ballot in, paper is no longer required.
29. Plaintiff avers that the image invoked by a ballot box requires that a tangible ballot must be placed into it; without a box, the ballot need not be tangible.
30. Plaintiff further avers that it is this tangible quality that makes a ballot verifiable to the voter; the voter can observe the name of the candidate he has selected and/or observe his vote for or against any particular referendum.
31. It is also the tangible quality of the paper ballot that allows humans to statistically estimate the accuracy of any tabulation, whether the tabulation is human, mechanical or electronic.
32. It is also the tangible quality of the paper ballot that allows humans to ascertain the will of the voter, should a recount or review be deemed necessary.
33. Take away the tangible paper ballot, and its inherent self-verification, and the “purity of the ballot box” is no longer pure and the election process no longer possesses the security of this inherent verification process.
34. The road to paperless voting began innocently enough with mechanical voting machines which recorded votes by pulling a lever after selections were made and which tallied the votes as they occurred; these machines and how they worked were far beyond the comprehension of the average voter and poll worker.
35. But if the mechanical voting machine was beyond the comprehension of the average voter, the electronic voting machines are far beyond the comprehension of the average voter and poll worker.
36. With electronic voting machines we are now at the point to where the average voter and poll worker has turned the entire election process over to highly technical persons and must have blind faith that these persons are of the utmost honesty and integrity, causing a crisis of confidence in the election process.
CLAIMS OF UNCONSTITUTIONALITY
FIRST CLAIM: A PAPERLESS BALLOT PRODUCED IN THE INTERNAL BELLY OF A VOTING MACHINE IS NOT EQUAL TO A PAPER BALLOT AND ITS BALLOT BOX
37. Paragraphs 30-36 make it abundantly clear that the two different systems the General Assembly created are not equal systems and that the rights of the voters who vote on paperless systems are vastly inferior to the rights of the voters who are permitted to vote on paper systems.
38. Ensuing paragraphs will make the inequality of these systems even more apparent.
SECOND CLAIM: A PAPERLESS BALLOT FAILS TO SECURE THE PURITY OF A TANGIBLE PAPER BALLOT AND ITS BOX BY FAILING TO PERMIT VOTER VERIFICATION OF HIS BALLOT
39. A voter can examine a tangible paper ballot before it is put in the ballot box to be certain his intentions have been properly recorded, but with a paperless system, a voter can unknowingly make a mistake he may not be able to catch and retract.
40. Moreover, with a paperless system, there is no way for a voter to know whether the internal belly of the equipment has properly recorded his vote.
THIRD CLAIM: A PAPERLESS BALLOT FAILS TO SECURE THE PURITY OF A TANGIBLE PAPER BALLOT AND ITS BOX BY FAILING TO PERMIT A POLL WORKER THE ABILITY TO DISCERN THE INTENT OF THE VOTER IN THE EVENT OF A QUESTIONABLE BALLOT
41. With a paper ballot, a poll worker can examine a questionable ballot to see if the intent of the voter can be discerned; this cannot be done with a paperless system.
FOURTH CLAIM: A PAPERLESS BALLOT FAILS TO SECURE THE PURITY OF A TANGIBLE PAPER BALLOT AND ITS BOX BY FAILING TO ENABLE POLL WORKERS OR CONCERNED CITIZENS A MEANS TO ESTIMATE WHETHER A TABULATION IS CORRECT
42. Statistical analysis of a sufficient number (perhaps as little as five percent) of randomly chosen ballots is a highly accurate means of quickly verifying the validity of final tabulations within certain parameters.
43. Paperless systems do not provide a means of such statistical analysis; paper systems do.
FIFTH CLAIM: A PAPERLESS BALLOT FAILS TO SECURE THE PURITY OF A TANGIBLE PAPER BALLOT AND ITS BOX BY FAILING TO PERMIT A POLL WORKER WITH A SECONDARY RECOUNT CAPABILITY
43. The paperless ballot cannot produce a meaningful recount.
44. The paperless ballots produced by the mechanical parts of a mechanical voting system or by the software running an electronic voting system cannot recount the paperless ballot by any secondary means so there is no ability to crosscheck for the accuracy of the initial tabulation; recounts are just a virtual copy of the original tabulation.
45. In stark contrast, a tangible paper ballot can always be counted by different scanning system or by hand and by different individuals.
SIXTH CLAIM: A PAPERLESS BALLOT FAILS TO SECURE THE PURITY OF A TANGIBLE PAPER BALLOT AND ITS BOX BY FAILING TO PROVIDE A CANDIDATE OR REFERENDUM ADVOCATE WITH A MEANS OF MEANINGFUL JUDICIAL REVIEW
46. The usage of these modern voting systems has been enacted by the General Assembly and are set forth primarily in TCA 2-5-206, 2-8-104, 2-8-110, 2-8-113, 2-9-101, 2-9-110, and 2-17-110.
47. Perhaps the statute most illustrative of the loss of the purity of the ballot box caused by paperless voting is TCA 2-17-110, which allows for a voting machine to be used as evidence in the event of an election contest.
48. No longer is the evidence of the will of the voter on a paper ballot; out of necessity it is stored in the belly of a machine that now must become evidence of the voter’s intent.
49. Since a paperless voting machine cannot produce a single ballot to evidence the intent of a single voter, singular examination of each ballot is impossible.
50. Paper ballots allow for the physical examination, in court, of any singular ballot that may be questionable; in fact, courts can instruct citizens to examine each and every ballot and to audit them.
51. But TCA 2-17-110 states the machines themselves can be brought to court and examined by the parties as evidence and that the total votes shown on the machines shall be conclusive unless the court determines otherwise.
52. But what if there are 1000 machines that need examination?
53. Must the parties have them all brought to court or must they be forced to travel to wherever the machines are located to examine them?
54. Moreover, checking out a mechanical machine to ensure proper mechanical operation is one thing, checking out an electronic system is quite another.
55. This is especially true if all electronic voting machines are operated by proprietary software and the manufacturer insists on refusing to subject the software to analysis or insists on a protracted legal battle to determine its rights to keep its software a trade secret.
56. What if multiple software systems are required and all must be checked?
57. It is easy to see how any election contest which has to resolve the highly complicated legal issues and evidence brought about by electronic paperless voting could not be concluded in any expedient manner.
58. Moreover, there is no adequate remedy for a situation where the Shelby County Election Commission fails to anticipate high voter turnout and there are not enough machines, or where there are electrical outages during the voting process, or where there are machines that malfunction during the voting process or where there is no real way to know whether failures such as these would have made a difference in the outcome of the election.
SEVENTH CLAIM: A PAPERLESS BALLOT FAILS TO SECURE THE PURITY OF A TANGIBLE PAPER BALLOT AND ITS BOX IN PRESIDENTIAL ELECTIONS BECAUSE THERE IS LIKELY NO JUDICAL REVIEW POSSIBLE THERE AT ALL
59. In an election for President of the United States, the most important election of all, the ability to verify election results in a timely manner is of extraordinary importance.
60. Within mere weeks of the national election, Shelby County, and Tennessee, and all other counties and states in the United States, must by federal law have their Presidential Electors chosen to send to Washington, D.C. to elect the President.
61. While electronic paperless voting systems may be exceedingly fast at calculating initial results, any attempts to have timely judicial review of voting systems this complex, is “virtually” impossible.
62. The statutes provide for no expedited means of judicial review for verifying Presidential elections; without it, no judicial review is even possible before Presidential Electors must be chosen.
63. The winning party can simply run out the “federal clock” before any real review takes place; in fact, answers to complaints need not be expedited, nor does pre-trial discovery need to be expedited, and the case under the present law could hardly be begun before electors had to report to Washington, D.C.
64. Add to this process, the legal challenges that paperless voting brings, and there is no security at all in the purity of the ballot box in Presidential elections.
EIGHTH CLAIM: A PAPERLESS BALLOT OF ELECTRONIC VOTING SYSTEMS FAILS TO SECURE THE PURITY OF A TANGIBLE PAPER BALLOT AND ITS BOX BECAUSE THE VIRTUAL BALLOT BOX PRIVATIZES ELECTIONS THAT WERE EXCLUIVELY MEANT TO BE GOVERNMENTAL FUNCTIONS
65. In paragraphs 17-20 the Plaintiff has averred that electronic voting systems are so technically complex as to require an inordinate amount of technical support to run them.
66. In the same paragraphs he has averred that this technical help must come from outside the Shelby County Election Commission itself and that it must contract with the manufacturers of these voting systems to run them.
67. This means that, perhaps without realizing it, the Shelby County Election Commission, which is now so very dependent on the private sector, has abdicated the responsibility of the election process to the private sector.
68. This abdication of governmental responsibility is even more apparent, (assuming the Plaintiff’s information and belief is true) if the contracts between these private entities and the Shelby County Election Commission have provisions that ensure that the software, which runs both the voting machines and the central tabulators, remains proprietary and a trade secret of the manufacturer.
69. The purity of the ballot box cannot be secure when the process is privatized.
PRAYER
Wherefore, premises considered, the Plaintiff prays that the Defendant, the Shelby County Election Commission, be cited to appear and this Court to review the process of elections in Shelby County Tennessee.
The Plaintiff, would request that this Court, after thorough review, make a determination that the Shelby County Election Commission has chosen to use an unconstitutional election system and to declare that such system is illegal and must be changed.
The Plaintiff would also request this Court to make a declaration that those provisions of the Tennessee Election Code, which allow for the usage of a paperless ballot, are unconstitutional under the Tennessee Constitution.
The Plaintiff would further ask this Court to require that the Shelby County Election Commission henceforth use a system of voter verified, tangible, paper ballots that are capable of being placed by the voters into an appropriate ballot box for later tabulation.
The Plaintiff would ask this Court to make a declaration that the election process is a governmental function and that all essential processes of the election process remain in governmental control and not be subject to private usurpation.
The Plaintiff would further ask this Court to require that any system of future vote tabulation be a system that does not use technology that usurps the governmental election process.
Specifically, the Plaintiff would further ask this Court to require the Shelby County Election Commission not to enter into any contracts with the private sector that preserve the usage of proprietary technology and for which trade secrets are claimed.
The Plaintiff prays for other relief, general and special, at law or in equity, to which he may show himself justly entitled.
Respectfully submitted,
(One brave, smart, barbeque-eating, blues-swaying, patriotic Memphis attorney)
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OK, folks, any comments, suggestions, words of encouragement, etc -- let 'er rip (by posting or PMing me).
I will get your comments to the attorney post-haste. Peace out.
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