Case # 02-56726 Weber v. Jones Rights C. Cal

Amicus Curiae

I believe that I am bringing “to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court.” Rule 37(1), Rules of the Supreme Court of the U.S.

I am a freelance journalist who has been covering the issue of voting technology and democracy for the past year. I believe that I am the foremost expert on this subject in my profession. My articles and reporter's notes can be found at http://www.ecotalk.org/VotingSecurity.htm.

Lynn Landes
217 S. Jessup Street
Philadelphia, PA 19107
(215) 629-3553

I believe that the court should prohibit the use of any voting technology in California elections that is more sophisticated than a pen, paper ballot, and local hand count, because the use of sophisticated voting technology (mechanical or electronic) violates a citizen's right to vote and to have that vote counted properly under the U.S. Constitution, The Voting Rights Act, and federal law. The use of sophisticated voting technology introduces concealment and secrecy to that part of the voting process that depends on public oversight and inspection in order to ensure an honest election, and therefore, renders enforcement of the Voting Rights Act impossible.

Background:

There are three steps to the voting process: the voter's selection of a candidate (example: a checkmark next to a candidate's name), casting the vote (example: putting the ballot into the ballot box), and counting the vote. The first step should be concealed, but the second two steps must be open to public observance and inspection, per federal law. In addition, the hand count must first be conducted locally as a check against vote loss or tampering in the transfer of ballots to a central location. Sophisticated technology and non-local vote counts makes it impossible for the public, poll watchers, or Federal Observers to determine whether the casting and counting of the vote is done properly.

In an interview I conducted with Nelldean Monroe, Voting Rights Program Administrator, for the U.S. Office of Personnel Management, she admitted that there is no training for Federal Observers on how to “observe” voting machines because in her words, “They can’t do that.” She elaborated in the following email to me on page 2. Ms. Monroe is the person responsible for the hiring and training of Federal Observers for the Department of Justice.

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----- Original Message -----

From: Monroe, Nelldean M.

To: Lynn Landes (LynnLandes@earthlink.net)

Sent: Thursday, November 21, 2002 4:06 PM

Subject: Telephone Conversation

To reiterate our telephone conversation:

The determination of whether to use Federal observers during an election is made by the Department of Justice. Under the provisions of the Voting Rights Act of 1965, the Office of Personnel Management has the responsibility to provide the Federal observers to cover elections. Federal observers are placed at polling sites, as determined by DOJ, to observe the full or a portion of the election process and prepare a report to DOJ on their observations. They may observe when voters receive assistance in voting.

You also asked about vote counting. 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 ballots (or vote tallying) when paper ballots are used.

Federal observers are regular OPM employees who volunteer to participate and/or intermittent employees hired under the provisions of the Voting Rights Act. Many of the intermittent observers are hired for their language skills. During the General Election, November 5, 2002, we had approximately 325 observers in nine states.

Nelldean Monroe

Voting Rights Program Administrator

US Office of Personnel Management

303-236-8003

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Voting machines and electronic technology constitute a secret or 'concealed' casting and counting of the vote which cannot be observed by Federal Examiners (as authorized under federal law), which makes the examiner's role in that regard - moot, and federal law - unenforceable. Therefore, all voting machines and electronic technology are a violation of the following three laws and regulations:

1) The Voting Rights Act of 1965, SEC. 2, states, "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."

2) U.S. Code: Title 42 - The Public Health and Welfare, Chapter 20 - Elective Franchise, Subchapter I-A Enforcement of Voting Rights, 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."

3) 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.

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The right to have your vote cast and counted properly has been affirmed in the following three cases:

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

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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."

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