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MATULKA FOR SENATE COMMITTEE
916 NORTH 21ST STREET
BEATRICE, NE 68310
December 10, 2002
Mr.
John Gale
Nebraska Secretary of State
State Capitol
Lincoln, Nebraska 68509
Dear
Secretary Gale:
Per
provision of Nebraska statute 32-1121, I request a hand re-count of the vote for
the official election record for the office of United States Senate that
were cast in the November 5, 2002 general election in all of the Nebraska
counties that used any mechanical, electric, and/or
computer device to count ballots. In addition, if any precincts used mechanical,
electric, and/or computer device to cast ballots, I request a re-vote in those
counties.
In
variance with referenced Nebraska statute 32-1119 stating that recounted ballots
shall be first counted with a vote counting device in those counties having such
a device, I request instead a manual recount of all ballots in those counties to
assure a properly tabulated vote count for the official election record.
I
am requesting a manual recount for public audit for this 2002 election for a
host of major problems were reported by the news and print media. In Sarpy
County, the third largest county, there were programming errors, computer
glitches, and printing errors. A major election day problem was also reported in
Adams County where the vote didn't get counted for a full two days after the
election. In addition, we can and will provide three (3) eyewitness accounts
from Douglas and Lancaster Counties, Nebraska's largest voting counties.
Overall, private ownership of voting machines, including proprietary software
programming, has a strong potential for vote manipulation.
Inasmuch
as the proper tabulation of votes is an integral part of the election process,
the costs assessed by the counties for conducting the manual recounts shall be
resolved per my candidate filing affidavit (per Nebraska statute 25-2301) to
file for elective office in forma pauperis per Nebraska statute 32-608 (5).
Under
existing federal case law, citizens have a right to have their votes cast and
counted "properly."
- Allen
v. Board of Elections (1969) "The Act further provides that the
term "voting" "shall include all action necessary to make a
vote effective in any primary, special, or general election, including, but
not limited to, registration, listing . . . or other action required by law
prerequisite to voting, casting a ballot, and having such ballot counted
properly and included in the appropriate totals of votes cast with
respect to candidates for public [393 U.S. 544, 564] or party
office and propositions for which votes are received in an election."
14 (c) (1), 79 Stat. 445, 42 U.S.C. 1973l (c) (1) (1964 ed., Supp. I)."
- Reynolds
v Sims (1964) "Undeniably the
Constitution of the United States protects the right of all qualified
citizens to vote, in state as well as in federal elections. A consistent
line of decisions by this Court in cases involving attempts to deny or
restrict the right of suffrage has made this indelibly clear. It has been
repeatedly recognized that all qualified voters have a constitutionally
protected right to vote, Ex parte Yarbrough, 110 U.S. 651 , and to have
their votes counted, United States v. Mosley, 238 U.S. 383 . In Mosley the
Court stated that it is "as equally unquestionable that the right to
have one's vote counted is as open to protection . . . as the right to put a
ballot in a box." 238 U.S., [377 U.S. 533, 555] at 386. The
right to vote can neither be denied outright, Guinn v. United States, 238
U.S. 347 , Lane v. Wilson, 307 U.S. 268 , nor destroyed by alteration of
ballots, see United States v. Classic, 313 U.S. 299, 315 , nor diluted by
ballot-box stuffing, Ex parte Siebold, 100 U.S. 371 , United States v.
Saylor, 322 U.S. 385 . As the Court stated in Classic, "Obviously
included within the right to choose, secured by the Constitution, is the
right of qualified voters within a state to cast their ballots and have them
counted . . . ." 313 U.S., at 315
- Wesberry
v. Sanders (1964) "It is in
the light of such history that we must construe Art. I, 2, of the
Constitution, which, carrying out the ideas of Madison and those of like
views, provides that Representatives shall be chosen "by the People of
the several States" and shall be "apportioned among the several
States . . . according to their respective Numbers." It is not
surprising that our Court has held that this Article gives persons qualified
to vote a constitutional right to vote and to have their votes
counted."
The
use of mechanical, electric, and/or computer devices that by their very design
and structure "conceal" vote casting and/or counting and therefore
cannot be observed to ensure accuracy, is an apparent violation of the
following:
- 14th
Amendment to the Constitution, Section. 1 - "All persons born or
naturalized in the United States and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of the
laws."
- 15th
Amendment to the Constitution, Section 1 - "The right of citizens
of the United States to vote shall not be denied or abridged by the United
States or by any state on account of race, color, or previous condition of
servitude. Section 2. The Congress shall have power to enforce this article
by appropriate legislation."
- Voting
Rights Act, Section 2. "No voting qualification or
prerequisite to voting, or standard, practice, or procedure shall be imposed
or applied by any State or political subdivision to deny or abridge the
right of any citizen of the United States to vote on account of race or
color."
- U.S.
Code: Title 42 - The Public Health and Welfare, Chapter 20 - Elective
Franchise, Subchapter I-A Enforcement of Voting Rights, Sec. 1973.
- Sec.
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. Such
persons so assigned shall report to an examiner appointed for such
political subdivision, to the Attorney General, and if the appointment of
examiners has been authorized pursuant to section 1973a(a) of this title,
to the court."
- Sec.
1973i. - Prohibited acts: (a) Failure or refusal
to permit casting or tabulation of vote (d) Falsification or concealment
of material facts or giving of false statements
in matters within jurisdiction of examiners or hearing officers; penalties.
Whoever, in any matter within the jurisdiction of an examiner or hearing
officer knowingly and willfully falsifies or conceals a material fact, or
makes any false, fictitious, or fraudulent statements or representations,
or makes or uses any false writing or document knowing the same to contain
any false, fictitious, or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
Although,
to our knowledge, Federal Observers were not sent by the U.S. Department of
Justice (DOJ) to Nebraska to ensure a properly conducted election, it would not have
made any material difference if they had been sent. It has come to our attention
that although Federal Observers are authorized under 1973f, "for the
purpose of observing whether votes cast by persons entitled to vote are being
properly tabulated," this cannot be physically accomplished (as mentioned
above) and is not taking place regardless. Ms. Nelldean Monroe is the Voting
Rights Program Administrator for the U.S. Office of Personnel Management (OPM). OPM is
responsible for the recruiting and training of Federal Observers who are sent by
the DOJ to monitor elections if violations
of the Voting Rights Act are suspected. In an interview with freelance
journalist Lynn Landes, Monroe said that Federal Observers were not trained to
observe voting machines nor could any training accomplish that end. (see
Attachment 1). She elaborated in an e-mail dated Nov. 21, 2002, "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." (see
Attachment 2)
Ms.
Monroe's statement bears repeating..."Federal observers may also observe
the counting of the ballots (or vote tallying) when paper ballots are
used." In effect, we believe that she is saying that machine
tallying devices are not observable, which makes the role of the Federal
Observer moot, and consequently the Voting Rights Act unenforceable.
I
am exercising my constitutional right to an election and voting process in which
citizens have a right to have their votes cast and counted "properly"
and with respect to the above captioned matter, but not limited on any
litigation, future, filing, or appeals.
Sincerely,
Charlie Matulka
Ph. (402) 228-1009
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