Help -I'm looking for case law about getting out of Contracts w/DRE vendor

[FogerRox]

about getting out of Contracts w/DRE vendors
In my county Essex, NJ the SOE has signed on to buy Seqioua DRE's.

Over my dead body.

[Deep13]

1. What's SOE and DRE?

[garybeck]

13. answer

Direct Recording Electronic voting machine (aka election theft device)

Secretary of Elections (not positive on that one)

[Freedom_from_Chains]

2. The law library, Westlaw.

Or are you looking for particular cases that people already have?

[FogerRox]

3. yeah--who won and how they did it.

[davidgmills]

5. I have discussed this before

First of all, you must have legal standing to sue. I am not sure whether a single individual has legal standing to attempt to void a contract between a governmental entity and a private party. To me, that is the hard part. Getting a court to allow you as a citizen to challenge a contract that a governmental entity engaged in with another private party is extremely difficult.

Ordinarily, a private citizen or citizen's group does not have this right. If you are unhappy that your local governmental entity hired contractor X to build a bridge, what can you do legally to stop the building of the bridge? Most of the time, not much. Why? Because there is always someone who doesn't want the bridge to be built. If we allowed any person to challenge these governmental actions every single time, the government would never get any projects completed.

If you can get standing to sue on behalf of the citizenry, then you have a chance.

[FogerRox]

8. Sorry wrong tactic

[davidgmills]

12. Maybe Not.

Sorry if I suggested that this was impossible to do and made you give up before you even got started.

I did not mean to suggest it was impossible. I guess what I meant to suggest is that getting a group of citizens together that is large enough and significant enough for the court to give them standing to sue, to me, is the hardest part.

By himself John Q Citizen can't do much. But if there are enough of you then maybe you can. There are many ways to void a contract or legally breach one, so once your foot is in the courthouse door, that could be done. Even the government could renig on the contract. The worst that would happen is that the government would have to pay damages to the vendor. But that is small potatoes. Arguing that the vendor misrepresented what it's product would do would lessen these damages considerably. Arguing that the vendor's product was insufficient to comply with election laws might be a complete defense to the purchase.

[FogerRox]

26. Johnny Q Public may not be able to do much

BUt I can--and do and will--

SO stop the lecture right there

[Wilms]

4. EFF List of Cases - Past and Present

http://www.eff.org/Activism/E-voting

[Senator]

6. On the EFF list posted above...

...there is an ongoing NJ case.

One option for you may simply be to ask for an injunction against the purchase until the pending case is decided.

Actually, it might not hurt to try pushing this position politically (without suing - yet) to the players involved. The SOE may not be so quick to jump on the DRE bandwagon if they see that it's about to be run off the road.

Also, if you haven't already, you should contact Paul Lehto in WA (and I think here at DU sometimes - Paul!?!). He's filing suit to have the DREs declared unlawful, due to the fact that they violate existing open gov't/sunshine laws. (Dunno what NJ has in this regard.)

The benefit of this approach is that vaporware vendors won't be entitled to the buyout/remedy compensation they build into these contracts, as an unlawful contract is simply null and void.

----

[FogerRox]

9. YES-bingo-dont rememeber where (AAR?) i had heard that

Always one of the best ways to get out of a contract is make it null and void, I do know enuf law about that.

And I know about the pending case in NJ--I know Irene Goldman who's group filed that case and for some unknown reason didnt make the COnnection (ERF!)

Senator said--"The SOE may not be so quick to jump on the DRE bandwagon if they see that it's about to be run off the road."

Exactly !!!! YES !!!! ! ! ! !
And if other Counties see some crap being started in ESSEX COunty. Other Counties will know they can fight the same fight against DRE's.

ANd if we win in Essex County---we send a message to all the Counties in NJ, that the tide has turned.

DO it at the local level--set the example--set the standard--for others.

[adolfo]

22. Turn the tide

Edit: Post #6 has a better alternative. If it doesn't work then....

Disclaimer, this is NOT legal advice.

If I wanted to have the contract cancelled Here is what I'd do. There are 2 main elements to consider:

1.) Prove that the vendor did not disclose important fact(s) that would affect the SOE's decision. This can be done with reliable data gathered from different sources on the Internet. A list of all their fuckups (pardon my french) and how they handled it would probably do fine. Knowing what the SOE knows is also important.

2.) Prove the contract can harm the public. (See #1)

Above all, I'd get everything on record. If they are allowed to continue the contract, their claim of ignorance won't help them when the shit hits the fan.

First step would be to research local/state laws and check with a few lawyers for viability.

[Land Shark]

23. WA lawsuit to cancel Sequoia contracts at this website

www.votersunite.org (look in box)
there are two exhibits to the complaint, one is a 29 page scientific study of irregularities and the other is the Sequoia contract itself with the govt, illustrating the provisions requiring the govt to go along and cooperate with vendor legal positions...

[Wilms]

7. Are the Sequoia's VVPAT?

If it'll help, here's what's up in Trenton.

New Jersey

Assembly Bill 33 (Senate Bill 2400)
http://www.njleg.state.nj.us/2004/Bills/A0500/33_I1.PDF
An Act requiring that all voting machines produce a voter-verified paper record.
Sponsor: Rep. Reed Gusciora
Status: In-Committee (House Appropriations)

Senate Bill 2400 (Assembly Bill 33)
http://www.njleg.state.nj.us/2004/Bills/S2500/2400_I1.PDF
An Act requiring that all voting machines produce a voter-verified paper record.
Sponsor: Sen. Wayne Bryant
Status: In-Committee (Senate State Government)

Assembly Bill 2627 (Senate Bill 1583)
http://www.njleg.state.nj.us/2004/Bills/A3000/2627_I1.HTM
An Act requiring all voting machines to produce a voter-verified paper record and amending R.S.19:48-1 and P.L.1973, c.82.
Sponsor: Gusciora, et. al.
Status:

Assembly Bill 1583 (Assembly Bill 2627)
http://www.njleg.state.nj.us/2004/Bills/S2000/1583_I1.HTM
Requires all voting machines to produce a voter-verified paper record.
Sponsor: Shirley Turner
Status:

[FogerRox]

10. thanks --but I got that. We are not going to wait for Trenton.

The contract in Essex County does not include VVPT printers. they would have to be purchased ata later date. And the VVPT looks like its good to go in NJ--BUT this is my reasoning.

It seems that Repub election officials prefer DRE's Even knowing they will be getting VVPT at some point in the future, that seems to be the weapon of choice. OP scans? dont seem to be as popular.

NOw why is this? FRAUD my friends. They are afraid of the paper ballots that would exist if they used the OPscan system.
*Roj holds up a pretend paper ballot as if to a vampire*

I can only gather that a DRE's w/VVPT is prefered over the opscan.

SOOOOO by extension--the purchase of the DRE must be halted. Why let them have their first choice of weapon?

I intend to play off the VVPT advocacy in NJ/Trenton. DRE's are 3 times more expensive than the next cheapest systen available that also qualifies for $$$ under HAVA. The county SOE is spending our tax dollars on the most costly system in a time of County, state and Federal deficits. That is unacceptable.

A DRE processes up to 10 ballots /hour
OPscan processes up to 360 ballots/hour

So the Opscan would have to cost 36 times what the DRE does to even think about it from a Fiscal standpoint.

This from my last letter to the membership:

Do you want to vote into a 100%unverifiable Corporate owned
ballot box? Not me, "give me a paper ballot or give me death". No it
was "Vote free or die". Didnt one of the Founding Fathers say that?
Or maybe it was Archie Bunker, anyway enough of the goofing around,
back to the Revolution.

This is the task........
Everyone needs to look at the list of questions to ask
Carmine. Familiarize yourself with them. Is there one one you
particularly like? Here's Carmines contact info:
Superintendent of Elections
Mr. Carmine P. Casciano
33 Washington Street
Newark, NJ 07102
Phone: [phone]
Fax: [phone]
Its now time for Carmine to get some phone calls, and its your turn
to call Carmine and ask him your favorite question. Or 2 or 3 or 5.
And dont be afraid to use your own words, make the questions your own.
Hopefully our phone banking project can be completed by April 5th or
6th.

Carmines Dozen Questions
1) How many ballots can a DRE process in an hour? (Answer: up to 10)
A) In a presidential cycle with a large ballot?
2) How many ballots can an optical scanner process in an hour?
(Answer: up to 360)
A) In an presidential cycle with a large ballot?
3)Are you aware that DRE's are as much as 3 times more expensive to
purchase and operate compared to the next least expensive
system, Optical scanners. Which by the way are eligible for HAVA
funds.
4) What is the comparitive cost of the Seqioua DRE with and without
printer vs. an optical scanner system.
A) On a cost per vote basis?
5) What are maintenance, preparation and storage costs for DRE's, and
for Optical Scanners?
6) Will the Seqioua DRE's be equipped with modems?
A)Has the county previously purchased any DRE's equipped with
modems?
B) Will the tabulators be equipped with modems?
C)Has the county previously purchased any tabulators's
equipped with modems?
7) What is the cost of making a large ballot, in a presidential cycle
for a DRE?
A)Who will be in charge of that process, a public official or
a Seqioua employee?
8) Is each Individual ballot represented digitally in a DRE?
A)Does the DRE only keep a running tally?
B)And the tabulator?
9) How is ballot spoilage documented when using a DRE?
10) What is the status of the decision to purchase DRE's from Seqioua?
11) Is there a contract that has already been signed?
12) If the contract has been signed, how do we change it ?

Now if you called Carmine give yourself a pat on the back.
Thats participatory Democracy. Now what you need to do is to send me
an email me at graspvip@..., saying you called Carmine, and
what day & time it was. If his phone was busy at 11 am, let me know.
Most importantly give me some feedback on what Carmine's answers
were. By you letting me know how many phone calls we generate, we can
then judge when to proceed to the next step. Hey Ed, then can I kick
the front door down?


Roger Fox
GRASP Voting Issues Project
graspvip@...

[Wilms]

15. Voting Machines: Constitutional Issues, Federal & Case Law

Voting Machines: Constitutional Issues, Federal & Case Law

http://www.ecotalk.org/VotingMachines-ConstitutionalIssues&FederalLaw.htm

[garybeck]

14. yeah, sequoia's new machines have VVPAT printers

however, these should be purchased over your dead body too.

This is my interpretation of how the vendors view their new VVPATs:

"Here's your piece of paper you idiot. And if you think you actually voted for the same person you see on that paper, well, why don't you stick around and wait for a recount. Oh yeah, there probably won't be a recount. So why don't you just shut up and let us decide who should run this country. Enjoy your VVPAT."

[Wilms]

16. Yep.

And there's a ton of VVPAT Legislation right now.

Wouldn't surprise me if we become a VVPAT nation...without a real count.

[Ellipsis]

11. Go Foger! ... 360/10 ... n/t

[FogerRox]

17. Neo Cons weapon of Choice is the DRE w/wo paper

DOnt give your opponent their 1st choice of weapon--make them go at least---for Opscans--that have an actual PAPER BALLOT

Which may be like garlic to a vampire

I am now in contact with 2 lawyers----- Time to rock and roll

[Amaryllis]

18. Land Shark's lawsuit, which he should be filing any day now, takes the

position that these contracts are void "ab initio" (from the beginning" since they violate a number of laws; secret vote counting is illegal.

[FogerRox]

19. right- like open Gov. and sunshine laws --- te he

[davidgmills]

25. He still has to get standing to sue

See my post above. But with the right citizens group, I believe it is possible to get standing and there is ample law to set aside this kind of thing.

To begin with, there is something the law calls an "ultra vires" act. It means acting without authority.

When government officials or corporate officials approve contracts that violate the law, or where the entity does not give its executing officials the authority to approve the kinds of contracts in question, contracts executed by governmental or corporate officials under these circumstances are usually not binding.

For a public official to approve of a voting system that does not comply with election law, i.e., a paper trail, to me at least, would be the ultimate ultra vires act.

[mgr]

20. Governments have very specific laws regarding the contracting of vendors

If they violated these, the contract can be considered void. How many vendors vied for the contract?

See if there have been any reports of contracting irregularities or short cuts within the county agency that have made the news. You may want to look over case law involving Waste Management.

See if there is some 'loose cannon' in the local government, or a 'muckraking' journalist (trans--whistleblower/investigative journalist)

Mike

[Einsteinia]

21. Why don't you call or email

the California SoS's civil servant attorney Tony Miller to find out if you can get a copy of the case law used to extricate California from Diebold. In our former SoS Shelley's audit hearing, the topic of the $661,000 in legal fees for this work was at issue--not because the work was in question, or the authority to do so--just the fact that any vendor contract over $500,000 needed another bureaucratic form filled out.

Here is Tony Miller's email: [e-mail]

Also, the main SoS office number is: SoS 916-653-6814 (6 then 2)

Also, the main SoS website: www.ss.ca.gov

[FogerRox]

24. We have a number of avenues to pursue

Legal is just one I'll be writing a journal--so other county's can follow the same path--

Thanks all for the support and good words--

Figh Fight Win Win

[FogerRox]

27. Re posts #4 & #6 got in contact w/lawyer who filed those papers

Hopefully will have a talk soon

thanks all

Roj