Here is the most recent update on the VoterGA E-Voting Machine Lawsuit from Garland Favorito:
VOTER GA CASE HISTORY
Our Georgia Supreme Court
case is picking up some national attention and as a result, several people have
asked for a brief history of the case and its status so here it is: In 2002,
Georgia became the first (and now only) state to conduct statewide elections
with unverifiable voting equipment that has no means to the audit vote
recording of actual ballots cast on Election Day.
Unbeknownst to us, the law
at the time required that any new voting machines "shall have an independent audit
trail of each vote cast". None of the voting machines procured, piloted,
allegedly certified, and acquired with $54 million of tax money had any form of
audit trails that are independent of the vote recording process such as
standard Voter Verified Paper Audit Trails that were available even at that
time.
Prior to the acquisition, the
need for audit capabilities, voter verification and recount retention had
already been documented in Senate meetings, by the Fulton County Elections
chief, in the state's 21st Century Voting Commission report, by the
general public and in plaintiff Emails that were authenticated under oath by
the former Assistant Elections Director. Therefore, the acquisition could not
have been a mistake.
In July of 2006, after
attempts fell short to resolve the problem through the legislature, a politically
diverse group of plaintiffs filed a voting rights suit against former Secretary
of State Cathy Cox and other officials. The Plaintiffs chose to file the case
in Fulton County Superior State Court rather than federal court because there
were more obvious violations of state law than federal law.
The lawsuit challenged the
legality and constitutionality of the Diebold AccuVote TS R6 voting machines, state
election procedures and Georgia Election Code laws used to conduct the
elections. During the discovery period as the parties received documents and
admissions from each other, more potential violations of law were identified,
including those that involved both the Georgia and U.S. Constitutions. The suit
was eventually expanded to include 13 counts. Some of the key Constitutional
counts include:
·
Failure to
require elections by ballot according to the Georgia Constitution;
·
Violation of
Constitutional due process by not protecting the vote count;
·
Failure to
provide protection equal to that for absentee voters in regards to voter
verification, recount completeness and discrepancy investigation;
Two of those counts were
filed to prevent the state from purchasing AccuVote TSX machines temporarily used
in a 2006 audit trail pilot because, as the current Secretary's own 2007 Voter
Verified Audit Trail report admitted: "the sequential printing of the VVPAT
paper ballots does not guarantee voter anonymity as required by Georgia law". Those
machines rolled up elections results sequentially into a sealed canister rather
than cutting the ballots and dropping them into a secured ballot box.
The lawsuit was drawn up so
that if the Plaintiffs won any single other single count against the currently
used voting machines, procedures and election code, the state would be enjoined
from using all of the machines and any procedures that violated the rights of
the voters. When deposing the Defendants' witnesses during the extensive discovery
period, the Plaintiffs obtained key admissions that were over and above what
was expected. Therefore, In March of 2008, the Plaintiffs filed a Motion for
Summary Judgment on five of the counts, contending that there was no need for a
trial since the Defendant's own witnesses had admitted key elements of the case
as necessary for a favorable judgment.
Immediately afterwards, the
Defendants also filed a Motion for Summary Judgment requesting that all counts be
dismissed without a trial. If a court is to uphold any such motion by either
side there must be no dispute of material facts.
Oral arguments were eventually
scheduled for September 8, 2008. These arguments are a formality since a
judge's decision must be based on the briefs that were previously submitted. That
day, Judge Michael Johnson denied our Motion for Summary Judgment and upheld
the Defendant's motion to dismiss all counts. He also stated in court that he
would produce a Final Order stating the rationale for his decision by the end
of that week.
For the next few months Plaintiffs,
media representatives, interested parties and even a state legislator repeatedly
contacted the Judge's staff attorney, Steven Jones, to get a copy of the order.
During that time, Judge Johnson was reelected to another term while running
unopposed. On February 20, 2009, one hour after a legislator called the judge's
office for the second time, the order was released.
After a quick review of the
fairly simplistic order we were amazed to find that the court:
· Never considered in its order, a
shred of the extensive evidence we provided;
· Made at least 6 conclusions that
were in direct conflict with the evidence we presented in the case;
· Made at least another 9 conclusions
citing facts that were actually in dispute and thus should have required the
court to conduct a trial;
· Never ruled on nearly all of the
arguments we presented;
· Failed to rule or even understand
several counts of the case;
· Repeatedly lacked rationale as to
why our arguments were invalid;
· Misinterpreted key case law that confirms
our constitutional arguments;
Because of this bizarre ruling, we have never been able to
publicly present our evidence in an open court of law. Since there were
Constitutional issues at stake, we prepared an appeal straight to the Georgia
Supreme Court.
The appeal that was filed on June 1, 2009 cites two main
thrusts of errors committed by the lower court. These are:
·
The court
unjustly denied our right to a trial when it upheld the Motion to Dismiss and
made 17 conclusions that were not supported by, or in direct conflict with, the
evidence of the case.
·
The Court
misapplied case law when it denied our Motion for Summary Judgment and ruled in
conflict with all U.S. Supreme Court case law for ballot counting and
recounting.
On June 30, 2009 the Defendants
(known as Appellees) filed their response. On July 13, 2009, exactly three
years after our initial filing, the Georgia Supreme Court heard oral arguments.
At that hearing, we provided a supplemental brief, filed on July 17, 2009,
citing 41 disputes of facts that were contained in the Defendants' Supreme
Court brief.
During the hearing, one of
the justices requested a letter from the Defendants to detail a ballot access case
that they cited as a U.S. Supreme Court ruling in their favor. We responded with
our own letter explaining that:
·
The case cited was
immaterial because it was not about ballot counting;
·
The Defendants
have yet to cite a single U.S. Supreme Court ruling regarding ballot counting
that is in their favor;
·
Virtually all
U.S. Supreme Court case law regarding ballot counting and recounting is in our
favor.
The Georgia Supreme Court is
now in a difficult position. To rule against us, the justices will have to
conclude that:
·
None of the 41 factual
disputes that we have cited are valid;
·
All U.S. Supreme
Court case law that strictly scrutinizes the fundamental right of ballot
counting and recounting does not apply to this case;
We
will soon learn if there is any justice left in Georgia.
