Susan Marie Weber

43041 Buttonwood Dr.

Palm Desert, CA 92260-2605

760 340-2213

In propria persona

 

 

 

 

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

SUSAN MARIE WEBER                                )

Plaintiff,                        )

                        )

vs.                                )

                                    )

BILL JONES, in his official                               )

     capacity as California                                   )

     Secretary of State,                                       )

MISCHELLE TOWNSEND, in her    )

     Official capacity as Riverside                        )

     Country Registrar of Voters                         )

                        )

Defendants.                  )

_________________________

 

 

Case No. CV 01-11159 SVW(RZx)

 

 

PLAINTIFF’S MEMORANDUM

IN OPPOSITION TO

DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

 

Date:    May 6, 2002

Time:    1:30 p.m.

Courtroom 6

 

Before the Hon. Stephen V. Wilson

 

 

INTRODUCTION

Plaintiff contends that the Direct Record Electronic (“DRE”) touchscreen voting system manufactured by Sequoia Voting Systems and approved for use in Riverside County by the Defendants violates Plaintiff’s fundamental right to vote by

(1)    preventing her from casting a ballot which Plaintiff can verify is an accurate reflection of her intent,

(2)    failing to permit a needed independent audit of system integrity, and

(3)    failing to permit a recount of her voter-verified ballot.


STATEMENT OF FACTS

Defendant contends that “One benefit of touchscreen voting systems is the improved ability to audit the election process and conduct recounts.” (Defendant’s Statement of Uncontroverted Facts, p. 2, line 18)  Plaintiff disputes this material fact, contending not only that the touchscreen systems do not improve the ability to audit and recount, but in fact eliminate the possibility entirely. See Declaration of Rebecca Mercuri.) Other facts in dispute are set forth in Plaintiff’s Statement of Genuine Issues, accompanying this Memorandum.

 

ARGUMENT

The disputed ability of Touchscreen voting systems to conduct independent audits of system integrity and voter intent arises primarily as a result of Defendant’s employment of standards that are constitutionally inadequate for use on paperless Touchscreen systems, standards which violate Plaintiff’s fundamental rights. Plaintiff is by profession an accountant, and is familiar with the normal usage of the word “audit.” She knows that a corporation cannot self-audit. Simply reprinting a spreadsheet or pressing the “refresh” button on the spreadsheet software does not constitute an “audit.” An audit requires an independent examination of the underlying source documents. In the case of accounting, this means receipts and checks. In the case of elections, this means voter-verified ballots.

Black's Law Dictionary, Rev. 4th ed., p. 166, offers the following:

 

Audit

     An audience; a hearing; an examination in general; a formal or official examination and authentication of accounts, with witnesses, vouchers, etc. GreenBoots Const. Co. v. State Highway Commission, 165 Okl. 288, 25 P.2d 783

     Sometimes restricted to a mere mathematical calculation or process, but, in its generally accepted sense, includes an investigation and weighing of the evidence and deciding of whether entries in books are true and correct. Lumber Mut. Casualty Ins. Co. of New York v. Horowitz, 1 N.Y.S.2d 191, 193, 165 Misc. 506. (emphasis added)

 

Defendants’ certification standards substitute “a mere mathematical calculation” for an audit that meets constitutional standards. In a motion for Summary Judgment, Fed. R. Civ. Proc. 56(c) requires the moving party to show not only the absence of a disputed issue of fact, but also that he is entitled to judgment as a matter of law. His showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. (Calderone v. United States (6th Cir. 1986) 799 F2d 254, 259). The Defendant has by no means made such a showing. Plaintiff contends that Defendant’s definition of “audit” would not be “generally accepted,” and that without such an audit, Defendant cannot discharge his responsibility to assure that voting systems are “free from fraud and manipulation” California Elections Code §19205(c)  thereby denying Plaintiff’s fundamental right to vote.

Plaintiff has assembled a team of experts in the field of computer voting machines who agree that Defendant’s definition of “audit” is wholly inadequate in the realm of electronic voting machines, as it is in accounting. These experts are not “skeptics who have been resistant to change,” (Defendant’s Memorandum in Support of Summary Judgment, p. 2, line 22), but are computer enthusiasts with advanced degrees in the hard sciences from the world’s most prestigious universities, who are on the cutting-edge of sophisticated computer hardware and software development and analysis, are projecting trends in computer science into the coming decades, and have testified in numerous city, state, and national proceedings regarding electronic voting systems. Plaintiff’s experts compare favorably with Defendant’s witness list, which appears to consist entirely of vendors of electronic voting systems. Given these competing sources, a “reasonable trier of fact could find other than for the [Defendants],” therefore Defendant’s motion for Summary Judgment should be denied.

Plaintiff’s opposition to Defendant’s motion for Summary Judgment should prevail notwithstanding any doubts that might remain concerning the verdict of the reasonable trier of fact, because the “burden of establishing that there is no genuine issue of material fact lies initially with the moving party and resolution of all doubts should be in favor of the party opposing the motion.” (British Airways Board v. Boeing Co., (9th Cir., 1978) 585 F.2d 936, 951)

Plaintiff further contends that the significance of her complaint has been vastly underestimated by Defendants. There is little evidence that Defendants have sought input from those who are both rigorously and broadly grounded in the field of computer science, and can see beyond the claims of voting system vendors. Their motion for Summary Judgment does not refer in any substantive way to the questions that the experts are raising, and which in months to come will be the talk of “the man on the street.” Plaintiff’s issues were raised in a July 2001 Report of the Caltech-MIT Voting Technology Project, a prestigious group of computer experts:

 

A Provocative Scenario:  A programmer at SlickVotingMachines Corp. adds malicious code to a DRE (Direct Recording Electronic device) machine for the California 2004 Presidential election, so that every fiftieth vote for a Republican candidate is changed to a vote for the corresponding Democratic candidate. This only happens when the machine is in “real” mode as opposed to “test” mode, so the election officials never discover the fraud during their testing. The electronic audit trail made by the DRE machine is also affected, so “recounts” never discover anything amiss.
( http://web.mit.edu/newsoffice/nr/2001/VTP_report2.pdf )

 

Passing by these questions, as Defendant proposes to do, “is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.” Bush v. Gore, 531 U. S. ____ (2000) The Standards upon which Defendant relied in certifying paperless Touchscreen systems do not enable Defendant to detect this kind of external manipulation, which the man on the street has come to expect from contemporary high-priced political campaigns, nor to detect the self-manipulation imposed on voter intent by computer glitches. These potentially self-manipulating glitches have already occurred in New Jersey and Florida, (Declaration of Rebecca Mercuri.) and may be more dangerous than the threat of externally added malicious code. Defendant would have us believe that whenever anything is amiss in a Touchscreen system, the system’s ability to self-test and report will remain 100% functional and accurate, as though that particular component of a broken system will never be broken. (Declaration of Rebecca Mercuri.) And in the end, the inability to conduct an independent audit of the voter’s source documents (voter verified physical ballots) is an unconstitutional flaw in the design of the paperless Touchscreen system.

The vast majority of computer experts seem aware and concerned about the issues raised by Plaintiff; Defendant’s Motion for Summary Judgment does not. It reads more like a vendor’s brochure. The issues raised by the CalTech/MIT project and here by Plaintiff need to be thoroughly examined and adjudicated, and granting Defendant’s motion for Summary Judgment would serve only to bury them.

 

LEVEL OF SCRUTINY

Defendant claims that “the United States Supreme Court has expressly and repeatedly rejected application of the ‘strict scrutiny’ standard to every voting rights case.” Defendant’s Memorandum, p. 11, line 23-25. Plaintiff believes this is an exaggeration. Of a half dozen major voting rights cases reviewed by the court, five have strongly or slightly favored a “strict scrutiny” approach. Harper v. Virginia Board of Elections et al 383 U.S. 663 (1966) clearly adopted a strict scrutiny standard: “We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.” Harper, 383 U.S. at 670. The Court in Kramer v. Union School District, 395 U.S. 621 (1969) relied on Harper and demanded a compelling state interest.

Defendant’s citation of Burdick v. Takushi, 504 U.S. 428 (1992) supports Plaintiff’s case. In Burdick the Supreme Court held that “the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens [fundamental] rights.” Id. at 434. Defendant’s refusal to permit an independent audit of voter-verified ballots is a potentially wholesale negation of Riverside County voters’ intent and thus their right to have their votes counted. The magnitude of the warnings raised by the CalTech/MIT Report trigger Burdick’s requirement that Defendants’ standards “be narrowly drawn to advance a state interest of compelling importance.” Id. Thus, even Burdick would call for strict scrutiny.

Even granting Defendants’ standard of review, it will be found unable to justify Defendants’ certification of voting systems which are not subject to an independent audit of voter-verified ballots. Defendant claims that the advantages of the Touchscreen system are rationally related to the government’s legitimate interest in “efficient” elections. But none of these advantages would be lost, and no government interest sacrificed, by attaching a printing device to these same Touchscreen systems to provide an independently auditable paper trail. See Plaintiff’s Statement of Genuine issues, in which Defendant’s advantages are weighed against a true audit. There comes a line when “efficiency” (multi-language, talk-back, “oo neat-o” computer buttons) in an election that does not count voters’ ballots converts an election into a mere façade.

CONSTITUTIONAL FOUNDATIONS

Plaintiff has campaigned for political office as a candidate for the Libertarian Party, which advocates radical cuts in the size of government. Plaintiff has sometimes heard it said that we must trust our government to solve social problems, because (to use the words of James Madison) “If men were angels we need not have a government.” (Federalist, #51) In context, Madison was saying the exact opposite: that because power corrupts, we need checks and balances and a separation of powers to guard the government. Madison was limiting government, not extolling its virtues. The modern application of Madison’s message in Federalist 51 is clear: “If candidates and their supporters were angels, we wouldn’t need internal audits of voter-verified paper ballots.”

In a public forum on voting machines, Defendant Townsend, when asked how voters can be assured their votes will not be negated by fraud or manipulation in a paperless voting system, told the audience that they would have to trust her, because she had taken an oath to support the constitution.

Nothing herein is intended to cast aspersions on the personal character of either defendant in this case. Madison and the Founders spoke of human nature in general. It is un-American to ask voters to “trust” election officials. Our entire system of government is based on “the consent of the governed” and a distrust of politicians.

Plaintiff would have this court extend the analysis of previous courts to apply Madison’s insights to the rights of voters. Courts have said plainly that the People have the right to vote Reynolds v. Sims, 377 U.S. 533, 561-62 (1963). Courts have gone further and declared that the People have the right to have their votes counted. United States v. Classic, 313 U.S. 299, 315 (1941). Plaintiff goes further and asserts that the People have the right to count their own votes, without having to rely on bare trust in election officials. Without access to Lexis-Nexis or Westlaw, Plaintiff has not been able to find a court which has discovered this right, but Plaintiff believes it is intuitively true. Imagine George III attempting to pacify colonial dissent by putting The Stamp Act (1765) up for a vote, and inviting the colonies to divide themselves into precincts in any manner they wish, choose any pollworkers they desire, and use any form of ballots they see fit. However, the colonists’ ballots, the king decrees, will be counted exclusively by the Redcoats behind closed doors, in a manner “not detected by human [colonial] eye” (Defendant’s Memorandum in Support of Summary Judgment, p. 14, line 7), and the “results” announced by the king. An “efficient” royal election, in which the colonists were prohibited from counting their own votes, would have generated the Declaration of Independence a decade earlier. Defendants’ certification standards are just as offensive to American values.

The right of the people to vote, to have their votes counted, and to count their own votes is the right to cast a voter-verifed ballot, the right to independently audit the voting system, and to the right to have voter-verified ballots independently audited in event of a recount.

 

CONCLUSION: PRAYER FOR RELIEF

WHEREFORE, PLAINTIFF respectfully requests that this Court deny Defendant’s motion for Summary Judgment on the grounds that

(1)    There are disputed issues of material fact;

(2)    These issues need to be subjected to full litigation with expert testimony.

FURTHER, Plaintiff notes that if this court finds that Defendants “had a full and fair opportunity to ventilate the issues involved in the motion” for Summary Judgment, and also finds as a matter of law that Defendant’s standards of “audit” abridge Plaintiff’s fundamental right to vote, sua sponte judgment in favor of the Plaintiff is appropriate Cool Fuel, Inc. v. Connett (9th Cir. 1982) 685 F2d 309, 311-12.

FURTHER, Plaintiff requests that this Court issue a preliminary injunction against the continued use and further certification of Touchscreen systems until they are modified with a system which generates voter-verified paper ballots, which shall be the original source record of voter intent, especially for recounts, or until Defendant at trial demonstrates an ability to subject the Touchscreen system to an independent audit of voter-verified ballots. Such an injunction is proper on the grounds that

(1)    Plaintiff is threatened with the irreparable injury of a denial of her fundamental right to vote;

(2)    Plaintiff has a fair chance of success on the merits, at the minimum;

(3)    The hardship on Defendant is less than the hardship suffered by Plaintiff’s loss of vote, and less than the hardship Defendant voluntarily accepted in shifting from paper ballots to a paperless Touchscreen system.

(4)    Such an injunction would put Defendants on notice that this Court deems the issues raised by Plaintiff to be significant, deserving of greater attention than evidenced in Defendant’s motion for Summary Judgment, and worthy of vigorous adversarial response;

(5)    Such an injunction would put other Secretaries of State on notice that this Court deems the issues raised by Plaintiff to be significant, and worthy of thorough investigation;

(6)    Such an injunction would help Plaintiff secure counsel to help her litigate these issues effectively at trial;

(7)    Such an injunction would receive widespread press coverage and educate voters on the need to vigilantly guard their precious right to vote, and to volunteer as precinct pollworkers in the event of a manual recount of paper ballots.[1]

Such an injunction should also include any additional relief set forth in Plaintiff’s Complaint that the Court deems proper.

 

DATED: April __, 2001

                                                                                    Respectfully submitted,

                                                                                    Susan Marie Weber

                                                                                    43041 Buttonwood Dr.

                                                                                    Palm Desert, CA 92260-2605

                                                                                    760 340-2213

                                                                                    In propria persona

 

 

                                                                                    By:             ________________________

                                                                                    Susan Marie Weber

 



[1] R. Lerner, The Supreme Court as Republican Schoolmaster, 1967 Sup. Ct. Rev. 127.