11-10-26 Schulz Et Al V State of NY Et Al (07-cv-00943) in The US Court, Northern District of New York - Compiled Litigation Records

2231 S Court, Palo Alto, CA 94301 Fax: 323.488.9697; Email: jz12345@earthlink.net Blog: http://human-rights-alert.blogspot.com/ Scribd: http://www.scribd.
com/Human_Rights_Alert
Human Rights Alert
Digitally signed by Joseph Zernik DN: cn=Joseph Zernik, o, ou, email=jz12345@e arthlink.net, c=US Date: 2011.10.26 21:43:40 +03'00'
11-10-26 Schulz et al v State of NY et al (07-cv-00943) in the US Court, Northern District of New York compiled litigation records
In Schulz et al v State of New York et al, the plaintiffs argued that their constitutional rights were violated by the use of electronic voting machines that are not open, verifiable, and transparent. At the conclusion of 4year litigation, Judge Kahn found that the court had no subject matter jurisdiction. However, the litigation was commenced with invalid summons, numerous papers were filed by defendants as Letter Motions, resulting in Order[s] on Letter Motion[s], no minutes were entered in the entire litigation, the July 2011 Judgment is not signed by either a judge or a deputy clerk, and is not listed in the Judgment Index of the court.
Attached:
# 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. Record 11-10-26 PACER Docket Report 11-10-26 Related Transactions report 11-10-26 Status Report 07-09-12 Dkt 001-02 Civil Cover Sheet 07-10-10 Dkt 003 Letter Motion by New York Attorney General 07-11-01 Dkt 020 Summons, as executed, with no seal of the court. 07-11-20 Dkt 038 Letter Motion by New York Attorney General 07-12-06 Dkt 117 Letter Motion by New York Attorney General 07-12-10 Dkt 141 Notice of Appearance by State of Washington 07-12-11 Dkt 151 Memo in Support of Motion to Dismiss by South Dakota Attorney General 07-12-20 Dkt 210 Amended Summons, as executed 07-12-20 Dkt 217 Amended Summons, as executed 08-01-14 Dkt 292 Joinder to Reply by Colorado Attorney General 08-10-20 Dkt 329 Partial Judgment of Dismissal for non New York states 10-12-06 Dkt 367 Motion to dismiss cover by New York Attorney General 10-12-29 Dkt 372 Letter Motion by Plaintiff 11-07-07 Dkt 383 Memorandum Decision and Order of Dismissal 11-07-07 Dkt 384 Judgment 11-07-22 Dkt 385 Motion for Reconsideration Page # 2 119 213 214 215 218 232 234 236 238 241 246 250 252 253 254 255 273 274
Case 1:07-cv-00943-LEK -DRH Document 3
Filed 10/10/07 Page 1 of 2
STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL

ANDREW M. CUOMO Attorney General STATE COUNSEL DIVISION Litigation Bureau
Writer Direct: (518) 474-6801 October 10, 2007 By CM/ECF Hon. David R. Homer United States Magistrate Judge James T. Foley U.S. Courthouse 445 Broadway, Room 441 Albany, NY 12207 Re.: Schulz v. State of New York, 07-CV-0943
Dear Judge Homer: This Office will be representing the State of New York in the above-referenced action. Over the past week, I have been contacted by the Offices of the Attorneys General in a number of the other States that are named as defendants, and I have been asked to request an adjournment of the time in which all of the defendants are to answer or move with respect to the Complaint. Before contacting the Court, I conferred with Plaintiff pro se Robert Schulz. Mr. Schulz indicated that plaintiffs are in the process of preparing an Amended Complaint, which they intend to serve and file within the upcoming weeks. In light of the forgoing, I respectfully request that the obligation of all defendants in this action to answer or move with respect to the Complaint be stayed until after plaintiffs have properly served and filed their Amended Pleading. Mr. Schulz stated that he will be contacting the Court within the day to apprize it of plaintiffs intention to amend their Complaint. With kindest regards. Respectfully submitted, s/ Douglas J. Goglia Douglas J. Goglia Assistant Attorney General Bar Roll No. 302406
Hon. David R. Homer United States Magistrate Judge cc.: Attorneys for Defendants (By E-mail) James Kennedy, Assistant Attorney General Office of the New Hampshire Attorney General C. Havird Jones, Jr. Senior Assistant Attorney General Office of the South Carolina Attorney General Michael Casper Assistant Attorney General Office of the Oregon Attorney General
October 10, 2007 Page 2 of 2 Plaintiffs pro se (By First-Class Mail)
James Condit, Jr. 4575 Farview Lane Cincinnati, OH 45247 Mary D. Farrell 1117 Northeast Hancock St. Portland, OR 97212 Gregory Gorey 3828 Arrow Drive Austin, TX 78749 Arthur Groveman 4521 Hidden River Road Sarasota, FL 34240 Amanda Moore 2117 Savannah Highway Charleston, SC 29414 Troy D. Reha 2525 County Line Road Des Moines, IA 50321 Robert L. Schulz 2458 Ridge Road Queensbury, NY 12804 Fred Smart 3242 Harrison St. Evanston, IL 60201
Richard N. Coglianese Pearl M. Chin Assistant Attorneys General Office of Ohio Attorney GeneralDoug Bersaw 139 Tully Brook Rd. Richmond, NH 03470
The Capitol, Albany, NY 12224-0341 (518) 474-4441 Fax (518) 473-1572 * NOT FOR SERVICE OF PAPERS
Case 1:07-cv-00943-LEK -DRH Document 3-2
DECLARATION OF SERVICE I, DOUGLAS J. GOGLIA, do hereby certify that I electronically filed the foregoing document with the Clerk of the District Court using the CM/ECF system, and that I caused a true and correct copy to be served by First-Class mail, upon the persons and addresses listed below: James Condit, Jr. 4575 Farview Lane Cincinnati, OH 45247 Mary D. Farrell 1117 Northeast Hancock St. Portland, OR 97212 Gregory Gorey 3828 Arrow Drive Austin, TX 78749 Arthur Groveman 4521 Hidden River Road Sarasota, FL 34240 Amanda Moore 2117 Savannah Highway Charleston, SC 29414 Troy D. Reha 2525 County Line Road Des Moines, IA 50321 Robert L. Schulz 2458 Ridge Road Queensbury, NY 12804 Fred Smart 3242 Harrison St. Evanston, IL 60201
I declare under penalty of perjury pursuant to 28 U.S.C. 1746 that the foregoing is true and correct. Executed on October 10, 2007
DOUGLAS J. GOGLIA Assistant Attorney General Bar Roll No. 302406 douglas.goglia@oag.state.ny.us
Case 1:07-cv-00943-LEK-DRH
Document 151
Filed 12/11/2007
Page 1 of 3
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ROBERT L. SCHULZ, et al., Plaintiffs, v. STATE OF NEW YORK, et al., Defendants. ) ) ) ) ) ) ) ) ) Case No. 07-CV-0943 LEK/DRH
SOUTH DAKOTA DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
COME NOW, the South Dakota Defendants, State of South Dakota and Chris Nelson, Secretary of State, by and through their attorney, Sherri Sundem Wald, Deputy Attorney General for the State of South Dakota, and in support of their Motion to Dismiss state as follows: 1. This Honorable Court lacks personal jurisdiction over the South
Dakota Defendants because the South Dakota Defendants do not have the minimal contacts necessary to subject them to the jurisdiction of New York courts. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). See attached Affidavit by South Dakota Secretary of State Chris Nelson. 2. The Northern District of New York is not the proper venue for
Plaintiffs action against the South Dakota Defendants. Leroy v. Great Western United Corp., 443 U.S. 173, 184 (1979). 3. The action against the State of South Dakota is barred by the
Eleventh Amendment to the United States Constitution. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
Document 151
Filed 12/11/2007
Page 2 of 3
4.
In support of their Motion to Dismiss, the South Dakota
Defendants adopt the arguments made by numerous other states and state election officials and specifically those arguments set forth in Sections A, B, and E of the Memorandum of Law in Support of the New Hampshire Defendants Motion to Dismiss filed by the New Hampshire Defendants on November 14, 2007. WHEREFORE, the South Dakota Defendants respectfully request that this Honorable Court grant their Motion to Dismiss. Dated this 11th day of December, 2007. Respectfully submitted, LAWRENCE E. LONG ATTORNEY GENERAL
/s/ Sherri Sundem Wald Sherri Sundem Wald, No. 106480 Deputy Attorney General 1302 E. Highway 14, Suite 1 Pierre, SD 57501-8501 Telephone: (605) 773-3215 sherri.wald@state.sd.us Attorneys for South Dakota Defendants
pld1207_ssw(dh)
2 2
Document 151
Filed 12/11/2007
Page 3 of 3
CERTIFICATE OF SERVICE I, Sherri Sundem Wald, do hereby declare that I electronically filed the foregoing South Dakota Defendants Memorandum in Support of Motion to Dismiss with the Clerk of the District Court using the CM/ECF system, and that I caused a true and correct copy to be served by first class mail, upon Robert L. Schulz, 2458 Ridge Road, Queensbury, New York 12804. Dated this 11th day of December, 2007.
/s/ Sherri Sundem Wald Sherri Sundem Wald, No. 106480 Deputy Attorney General
pld1207_ssw(dh)
3 3
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ROBERT L. SCHULZ and JOHN LIGGETT, Plaintiffs, -againstDOUGLAS KELLNER, Individually and as Commissioner of the New York State Board of Elections; EVELYN AQUILA, Individually and as Commissioner of the New York State Board of Elections; HELENA MOSES DONAHUE, Individually; JAMES A. WALSH, as Commissioner of the New York State Board of Elections; and GREGORY P. PETERSON, as Commissioner of the New York State Board of Elections,1 Defendants. ___________________________________ MEMORANDUM-DECISION and ORDER I. INTRODUCTION Presently before the Court is a Motion to dismiss Plaintiffs amended complaint (Dkt. No. 21), filed by Defendants Douglas Kellner, Evelyn Aquila, Helena Moses Donahue, James A. Walsh, and Gregory P. Peterson (Defendants), all of whom are former or current Commissioners of the New York State Board of Elections (the Board). Dkt. No. 367 (Motion). Plaintiffs filed a 1:07-CV-0943 (LEK/DRH)
On June 4, 2008, the Court dismissed Plaintiffs claims against all Defendants except the then-State Commissioners of Elections in New York in their official and individual capacities. See Dkt. No. 303. On November 20, 2009, the Court granted Plaintiffs Motion to substitute Defendants James A. Walsh and Gregory P. Peterson as party-defendants for Defendants Douglas Neil Kelleher and Helena Moses Donahue in their official capacities pursuant to FED . R. CIV . P. 25(d). Dkt. No. 344 at 2. The Court also ordered Plaintiffs action against Defendant Kelleher terminated entirely on account of his death. Id.
Response in opposition to the motion (Opposition) (Dkt. No. 374) on January 5, 2011, and Defendants filed their Reply on January 18, 2011 (Defs. Reply) (Dkt. No. 377). For the reasons that follow, the Court grants Defendants Motion. II. BACKGROUND This action originated as a multi-state suit that included claims filed by over one hundred and fifty pro se Plaintiffs from all fifty states against their respective states, those states boards of elections, and individuals involved in their states election process. Dkt. Nos. 22-24, 36, 39, 70, 94, 95, 99, 108, 111, 128, 135, 136 140, 144, 147, 149, 152, 154, 162-64, 166-72, 175, 179, 180, 18386, 188-90, 192, 194-200, 203-05. Plaintiffs filed their Amended Complaint on November 1, 2007, asserting that the vote counting process for the 2008 elections violated their voting rights, contract rights, and constitutional rights. See Amended Complaint (Am. Compl.) (Dkt. No. 21) 228-62. Specifically, Plaintiffs allege that (1) Defendants voting procedures constitute an impermissible burden upon their rights under the First and Fourteenth Amendments; (2) Defendants failure to manually count all ballots in public view at each polling station impair[s] the obligation of contracts in violation of the Constitution, based on the assertion that [f]ormally registering with the State to vote . . . is a contract; and (3) Defendants are required by the Constitution to follow a set of voting procedures submitted by Plaintiffs and have failed to do so. Id. 247, 252, 262. The initial Defendants filed fifty-two Motions to dismiss the amended complaint, and Plaintiffs filed a Cross-Motion for summary judgment and in opposition to Defendants motions to dismiss. Dkt. No. 223 (Plaintiffs Cross-Motion). Instead of filing a duplicative motion, the present Defendants joined in the other co-Defendants Motions, and specifically joined thenDefendant State of Wisconsins Motion to dismiss (Wisconsin Motion) (Dkt. No. 162) on the
-2-
grounds that the out-of-state Plaintiffs lacked standing. Todd Valentine Declaration (Dkt. No. 1992) 21. The affidavit filed by Defendants attorney further stated that none of the plaintiffs except Robert Schulz, Arthur Berg and John Liggett has any standing to sue the New York defendants . . . . Id. 20. On June 4, 2008, the Court issued an Order granting fifty-one of Defendants fifty-two Motions to dismiss while staying Plaintiffs Cross-Motion. Dkt. No. 303 (June 4, 2008 Order). The Court agreed with those Motions to dismiss that argued that Plaintiffs lacked standing to sue Defendants that were located outside of Plaintiffs states. Id. at 3-4. The Court concluded that each of the Plaintiffs standing is limited so as to only have standing against the Individual Defendants in the Plaintiffs own state. Id. at 4. The main focus of the June 4, 2008 Order was on the issue of personal jurisdiction, which the Court concluded it only had over the New York Defendants.2 Id. at 4-9. As a result, only New York Plaintiffs3 and Defendants who were then State Commissioners of Elections in New York (Election Commissioners) remain as parties to this action, with the addition of two more Election Commissioners pursuant to FED . R. CIV . P. 25(d). Id.; Dkt. No. 344 at 2. The Court denied Plaintiffs Cross-Motion on September 22, 2008, and discovery in this matter has since proceeded.4 Dkt. No. 328.
The Court also concluded that the States and their respective Election Boards could not be sued because of Eleventh Amendment immunity. June 4, 2008 Order at 9-10. A third New York Plaintiff, Arthur Berg, was stipulated out of the litigation on June 5, 2009. Dkt. No. 337. According to Plaintiffs, they have provided Defendants with 106 documents in response to Defendants demands, and Plaintiffs have received documents totaling 44, 414 pages from Defendants. Plaintiffs Memorandum of law opposing dismissal of amended complaint (PML) at 4; Pl.s Letter Motion requesting extension of discovery deadline (Dkt. No. 365) at 2. Discovery was scheduled to end on June 1, 2011, although Plaintiffs have filed a Motion requesting an extension, which U.S. Magistrate Judge David R. Homer has ordered will be addressed pending a -34 3
On October 13, 2009, Defendants filed an Amended Answer asserting as affirmative defenses (1) that Plaintiffs fail to state a claim upon which relief can be granted; (2) that their actions and conduct at all relevant times have been fully in compliance with all applicable federal and state constitutional provisions, statutes and regulations; and (3) that they are entitled to qualified immunity from suit. Dkt. No. 343 15-17. Over a year later, on December 6, 2010, Defendants filed this Motion to dismiss for lack of subject matter jurisdiction pursuant to FED . R. CIV . P. 12(b)(1). Dkt. No. 367. III. STANDARD OF REVIEW In considering a motion to dismiss pursuant to FED . R. CIV . P. 12(b)(1), a court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff. Jaghory v. N.Y. State Dept of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief. Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004). However, it is the plaintiff who bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Aurrechione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Furthermore, subject matter jurisdiction may not be established by drawing inferences from the pleadings favorable to the plaintiff. Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); see also London v. Polishook, 189 F.3d 196, 199 (2d Cir. 1999) (the party invoking subject matter jurisdiction must proffer the necessary factual predicate not just an allegation in a complaint to support jurisdiction.). Thus, the district court may refer to evidence outside the pleadings, including affidavits or other evidence submitted by the parties, in determining
decision on the Motion at hand. See Dkt. No. 382. -4-
whether subject matter jurisdiction exists. Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002); Arndt v. UBS AG, 342 F. Supp. 2d 132, 137 (E.D.N.Y. 2004). Finally, [i]f the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action. FED . R. CIV . P. (h)(3). IV. DISCUSSION Defendants assert that (1) Plaintiffs lack standing to bring this lawsuit; (2) Plaintiffs constitutional claims are moot; and (3) in the absence of any viable federal claims, the Court lacks jurisdiction over Plaintiffs breach of contract claim.5 Defs. Memorandum of law in support of dismissal of Pls. amended complaint (DML) at 4. Article III of the Constitution grants federal courts limited jurisdiction over only [c]ases and [c]ontroversies. U.S. CONST . art. III, 2, cl. 1; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). One element of this case-or-controversy requirement requires a plaintiff to establish that he has standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997) (citing Lujan, 504 U.S. at 561). Another element requires that an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is filed. Arizonans for Official English v. Ariz., 520 U.S. 43, 67 (1997) (citing Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). If either of these elements is lacking, the Court must dismiss the action for lack of subject matter jurisdiction. FED . R. CIV . P. 12(h)(3);
5
The Court noted in its June 4, 2008 Order that it was unclear whether Plaintiffs are raising a constitutional claim under the contract clause or a state-law claim for breach of contract. June 4, 2008 Order at 13. The Court also held that Plaintiffs claim failed to the extent that it alleged a constitutional violation, but that Plaintiffs Complaint could be read to allege a plausible state law claim. Id. at 15-16. Plaintiffs make it clear in their Opposition, however, that their claims are not grounded in breach of contract, but in Article I, section 10 of the Constitution. Am. Compl. 255; PML at 19. The Court will treat this claim as a constitutional one accordingly; as the Court finds that the action warrants dismissal on the other grounds cited by Defendants, though, the Court will address Plaintiffs Contract Clause claim only in brief. -5-
see also Lujan, 504 U.S. at 560 ([T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III); Preiser, 422 U.S. at 401, 404. As a threshold matter, Plaintiffs claim that Defendants may not move to dismiss the case for lack of subject matter jurisdiction at this juncture because they did not raise the issue in earlier pleadings. PML at 1-4. However, courts have an independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte. Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006). Indeed, Rule 12(h)(3) of the Federal Rules requires that [i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. FED . R. CIV . P. 12(h)(3) (emphasis added). This Motion to dismiss for lack of subject matter jurisdiction is therefore properly before the Court, and the Court addresses each of Defendants arguments therein. A. Standing Defendants argue in their Motion that this case should be dismissed because Plaintiffs meet none of the requirements necessary to establish standing under Article III. DML at 7-13. In their Opposition, Plaintiffs contend that (1) the law of the case doctrine applies to this question, and therefore the Courts finding in its June 4, 2008 Order that Plaintiffs had standing to sue Defendants forecloses a finding to the contrary; and (2) in the alternative, Plaintiffs have satisfied all of the constitutional requirements to establish standing under Article III. PML at 1-9. 1. Law of the Case The law of the case doctrine is premised on the principle that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Ariz. v. Cal., 460 U.S. 605, 618 (1983). At the same time, the law of the case doctrine is a discretionary rule of practice and generally does not limit a courts power to resolve an issue.
-6-
Liona Corp. v. PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991); see also Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 564 (2d Cir. 1998); Doctors Assocs., Inc., v. Distajo, 107 F.3d 126, 131 (2d Cir. 1997). Plaintiffs argue that the law of the case doctrine applies here, because the June 4, 2008 Order addressed the standing issue when it dismissed the Amended Complaint with respect to the out-of-state Plaintiffs for lack of standing.6 PML at 3-4 (citing June 4, 2008 Order at 17). Defendants insist that Plaintiffs misconstrue the June 4, 2008 Order, arguing that it does not contain any discussion of any motion addressed to the in-state Plaintiffs and the issue of subject matter jurisdiction over the claims of the Plaintiffs. Defs. Reply at 6. While it is true that both the Wisconsin Motion and the June 4, 2008 Order primarily addressed Plaintiffs lack of standing with respect to the out-of-state Defendants, the Court explicitly stated in the June 4, 2008 Order that each of the Plaintiffs standing is limited so as to only have standing against the Individual Defendants in the Plaintiffs own state. June 4, 2008 Order at 4. Defendants joined in the Wisconsin Motion and purported to adopt its argument that Plaintiffs in the case only had standing to sue Defendants in their own states. Valentine Decl. 20-21. The Court plainly adopted this argument in its June 4, 2008 Order, albeit in passing, and Defendants cannot contort the statement from that Order to signify otherwise.
6
Plaintiffs also point to a statement in the Valentine Declaration that [N]one of the plaintiffs except Robert Schulz, Arthur Berg and John Liggett has any standing to sue the New York defendants, and the claims of all the plaintiffs except Robert Schulz, Arthur Berg and John Liggett should be dismissed as to all the New York defendants. PML at 3 (citing Valentine Decl. 20) (emphasis added by Plaintiffs). Even if Defendants intended to admit as much, the statement in the Valentine Declaration is irrelevant for purposes of establishing subject matter jurisdiction. Parties may not waive defects in subject matter jurisdiction. Ins. Corp. of Ireland v. Compagnie Des Bauxites de Guinee, 456 U.S. 694, 702 (1982); United States v. 27.09 Acres of Land, 1 F.3d 107, 111 (2d Cir. 1993); Cable Television Assn of N.Y. v. Finneran, 954 F.2d 91, 94 (2d Cir. 1992) ([T]he parties may not confer subject matter jurisdiction on the court by consent.). -7-
Nonetheless, Plaintiffs argument that the law of the case doctrine applies here an argument which Plaintiffs cite no cases to support fails as well. Courts in this Circuit have found that questions of subject matter jurisdiction are generally exempt from law of the case principles, and that a federal court cannot assert jurisdiction over a claim that is outside the scope of the courts jurisdiction merely by relying on the courts own prior decision that jurisdiction over such a claim was proper. Walsh v. McGee, 918 F. Supp. 107, 112 (E.D.N.Y. 1996) (citing 18 WRIGHT , MILLER & COOPER, 4478, at 799, n.32); see also Canadian St. Regis Band of Mohawk Indians v. N.Y., 388 F. Supp. 2d 25, 36 (N.D.N.Y. 2005) (holding that law of the case doctrine did not preclude reconsideration of subject matter jurisdiction question); Allah v. Juchnewioz, No. 93CIV8813, 2003 WL 1535623, at *3 (S.D.N.Y. Mar. 24, 2003) (citing Marcella v. Capital Dist. Physicians Health Plan, Inc., 293 F.3d 42, 47 (2d Cir. 2002)). These findings are consistent with the rule, both embodied in the Federal Rules and articulated by the federal courts, that Article III precludes a federal court from adjudicating a case over which it lacks subject matter jurisdiction. FED . R. CIV . P. 12(h)(3); FW/PBS, Inc., 515 U.S. 737, 742 (1995) (The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines.) (citations and quotations omitted); Ins. Corp. of Ireland, 456 U.S. at 702 ([N]o action of the parties can confer subject-matter jurisdiction upon a federal court . . . and a party does not waive the requirement by failing to challenge jurisdiction early in the proceedings.) (internal citations omitted); Cent. States Southeast & Southwest Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 197 (2d Cir. 2005). Indeed, the Supreme Court held as early as 1799 that [s]ilence, inadvertence of consent cannot give jurisdiction, where the law denies it. Turner v. Bank of N. Am., 4 U.S. 8, 8 (1799). The Court
-8-
therefore rejects Plaintiffs argument that the law of the case doctrine must govern, and finds that it is obligated to consider Defendants Motion. See also Doe v. Immigration & Customs Enforcement, No. M-54, 2006 WL 1294440, at *3 (S.D.N.Y. May 10, 2006) (addressing newly raised standing argument on the grounds that since the issue of subject matter jurisdiction is never waived, the timing of the Governments objection, while unfortunate, is beside the point.). 2. Constitutional Standing Requirements In order to meet the irreducible constitutional minimum of standing under Article III, a plaintiff must satisfy three elements: first, that he has suffered an injury in fact; second, that there is a causal connection between the injury and the conduct complained of; and third, that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560 (internal citations and quotations omitted). In responding to a motion to dismiss, the plaintiffs allegations of standing need not be crafted with precise detail, Baur v. Veneman, 352 F.3d 625, 631 (2d Cir. 2003), but the plaintiff bears the burden of establishing each of these elements. Lujan, 504 U.S. at 560 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth v. Seldin, 422 U.S. at 508 (1975)). To establish an injury in fact, a plaintiff must show (1) an invasion of a legally protected interest that is (2) concrete and particularized and (3) actual and imminent rather than conjectural or hypothetical. Lujan, 504 U.S. at 560; Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). [T]he bare existence of an abstract injury is not enough to confer standing. Matter of Appointment of Indep. Counsel, 766 F.2d 70, 76 (2d Cir. 1985). Rather, the party asserting the interest or injury must have a direct and personal stake in the controversy, lest the judicial process be converted into a vehicle for the vindication of the value interests of concerned bystanders. Sullivan v.
-9-
Filed 07/07/11 Page 10 of 18
Syracuse Hous. Auth., 962 F.2d 1101, 1107 (2d Cir. 1992) (citing Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 473, 477-78, 486 & n.22 (1982)) (citations and quotations omitted). Defendants assert that Plaintiffs Amended Complaint is insufficient to allege any of these elements necessary to show an injury in fact. DML at 7-9. First, they argue that Plaintiffs have no legally protected interest in having their votes counted manually and in public at each and every polling station. Id. They also argue that Plaintiffs Amended Complaint, which alleges that Defendants voting procedures will result in an inaccurate counting of Plaintiffs votes, sets forth no injury that is anything more than conjectural or hypothetical. Id. at 9. Plaintiffs respond that they have suffered an injury because [t]hey were unable to know that their votes were accurately counted, and that this injury will persist in future elections absent relief from the Court. PML at 45. The Court agrees with both of Defendants arguments. Plaintiffs correctly point out that they have a legally protected interest in having their votes counted accurately. Am. Compl. 238, 241, 243-44 (citing United States v. Saylor, 322 U.S. 385, 388 (1944); United States v. Classic, 313 U.S. 299, 315 (1941); United States v. Mosley, 238 U.S. 383 (1915)). However, Plaintiffs Amended Complaint makes clear that they are not alleging a legally protected interest only in having their votes counted accurately. Rather, Plaintiffs are alleging a legally protected interest in having their votes counted in a very particular way namely, in having their votes counted manually and in full public viewing at every polling station in the state of New York. The Amended Complaint explicitly states: Voting procedures that are not . . . machine and computer free, with paper ballots that are hand marked and hand counted, abridge the right to cast an effective vote.
-10-
Filed 07/07/11 Page 11 of 18
Am. Compl. 246 (citing Williams v. Rhodes, 393 U.S. 23, 30 (1968)). In order to find that Plaintiffs have established a legally protected interest here, then, the Court would be required to conclude that they have a legally protected interest in having their votes counted manually and in full public viewing. The Court is unable to reach such a conclusion here. First, the Court notes that Plaintiffs reliance on Williams in support of the above assertion is misplaced. The Supreme Court held in Williams only that voters have the right to cast their votes effectively; it did not hold that manual counting of votes is required to protect that right. See Williams, 393 U.S. at 30. Second, at least one other court in this Circuit has held that [t]here is no constitutional right to any particular method of registering and counting votes. Green Party of State of N.Y. v. Weiner, 216 F. Supp. 2d 176, 191 (S.D.N.Y. 2002). In doing so, the court noted that while the plaintiffs in the case may be correct that it would be desirable for New York to purchase more or newer voting machines, or to adopt some more modern technology for conducting elections . . . that debate is for the elected representatives of the people to decide . . . . Id. at 19091. The Court also considers that the Supreme Court has instructed the federal courts to be mindful of adjudicating issues that are more appropriately left to the executive or legislative branch: Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury. Valley Forge, 454 U.S. at 471 (1982). As the Court here does not find that Plaintiffs have a legally protected interest in having their votes counted manually and in full public view, the Court cannot find such cognizable injury here, and adjudication of Plaintiffs constitutional claims is thus
-11-
Filed 07/07/11 Page 12 of 18
unwarranted.7 Furthermore, the Court finds that Plaintiffs have not alleged a sufficiently concrete and particularized harm to establish standing. The Second Circuit has joined other circuits in holding that a voter fails to present an injury-in-fact when the alleged harm is abstract and widely shared. Crist v. Commn on Presidential Debates, 262 F.3d 193, 195 (2d Cir. 2001). Not only is the alleged injury of which Plaintiffs complain widely shared by all voters in the state of New York, it is an abstract one and as such cannot constitute an injury in fact. Plaintiffs argument that [t]hey were unable to know that their votes were accurately counted is not the kind of informational injury that has previously been found to establish standing, for instance, when voters are unable to obtain information that would help them evaluate candidates for office. Cf. Fed. Election Commn v. Akins, 524 U.S. 11, 21 (1998). Plaintiffs allegations in the Amended Complaint that the
7
Plaintiffs call to the Courts attention, and extensively discuss, a recent decision from the German Constitutional Court holding that electronic voting machines used in that countrys 2005 election violated the constitutional principle of transparency of elections. Dkt. No. 374-4, Bundesverfassungsgericht [BverfG] [Federal Constitutional Court] Mar. 3, 2009, Entscheidungen des Bundesverfassungsgerichts [BverfGE] (Ger.), available at http://www.bundesverfassungsgericht.de/en/decisions/rs20090303_2bvc000307en.html. The Court notes that the German Constitutional Court did not find that voting machines in general violated Germanys constitutional principles. See id. 123, 28. Nor did the court invalidate the election results in question, because it concluded that the complainants failed to allege with sufficient specificity that the voting machines actually worked incorrectly or were manipulated in any way, or that the election result would have been different but for the use of the machines in question. Id. 160-64. Moreover, the court expressly declined to order the implementation of any specific voting procedures on the grounds that regulations relating to the deployment of voting machines are reserved for parliamentary decision, and [t]he more detailed preconditions for the approval of voting machines and the procedures to be complied with here, the details of the use of the voting machines in the elections and the guarantee of the principles of electoral law in the concrete deployment of voting machines . . . can be regulated by the institution adopting the ordinance. Id. 137. In any event, the Court acknowledges the helpful comparative perspective that decisions from other nations courts may offer and the extent to which they may suggest approaches to various legal issues that United States courts have failed to consider. Nonetheless, the German Constitutional Courts decision is not binding on this Court, given that the issues here involve questions of interpretation of the United States Constitution and the law of the state of New York. -12-
Filed 07/07/11 Page 13 of 18
inevitability of machine error and human fraud will result in votes being cast for party favorites and disfavor party insurgents also fail to establish concrete or particularized harm. Am. Compl. 249-51. These abstract insurgent candidates are not a party to this lawsuit, and Plaintiffs do not have standing to sue on their behalf. See Crist, 262 F.3d 193, 195 (2d Cir. 2001) (adopting the view of other circuits that a voter fails to present an injury-in-fact when the alleged harm . . . is only derivative of a harm experienced by a candidate). Moreover, even construing their Amended Complaint to mean that the machine error and human fraud resulting from Defendants voting procedures will also harm Plaintiffs whose votes will allegedly not be counted accurately the Court finds that these allegations are merely conjectural and hypothetical and do not demonstrate a concrete or particularized injury to Plaintiffs. Plaintiffs have not presented any concrete or specific factual allegations from which the Court could infer, for instance, that their votes were diluted, that they are being disfavored by a gerrymandering scheme, or that they were unfairly denied access to a polling station. See In re United States Catholic Conference, 885 F.2d 1020, 1028 (2d Cir. 1989) (finding a lack of injury in lawsuit challenging Roman Catholic Churchs tax exempt status, where plaintiffs had not alleged vote dilution, gerrymandering that disfavored them as voters, that anyone stuffed the ballot box with votes for Church-backed candidates, or that anyone had prevented them from voting); Landes v. Tartaglione, No. Civ.A. 04-3163, 2004 WL 2415074, at *3 (E.D.Pa. Oct. 28, 2004) (dismissing complaint of plaintiff alleging unconstitutionality of voting machines because plaintiff offered only speculative allegations that machines were vulnerable to manipulation or failure). Plaintiffs allegations instead fall within the category of generalized grievances in this case, against the voting procedures adopted by the state of New York and which Defendants are charged with
-13-
Filed 07/07/11 Page 14 of 18
implementing. See Valley Forge, 454 U.S. at 475 ([T]he Court has refrained from adjudicating abstract questions of wide public significance which amount to generalized grievances, pervasively shared and most appropriately addressed in the representative branches.) (citations and quotations omitted); U.S. Catholic Conference, 885 F.2d at 1026; Forjone v. California, No. 1:06-CV-1002, 2010 WL 653651, at *4 (N.D.N.Y. Feb. 19, 2010) (Kahn, J.) (dismissing voters suit alleging noncompliance with the Help America Vote Act [HAVA] on the grounds that Plaintiffs allege non-particularized injuries and generalized grievances.); Landes, 2004 WL 2415074, at *3 (finding plaintiffs allegation of injury where machines prevented her from knowing whether her vote was actually cast amounts to a generalized grievance shared in substantially equal measure by all or a large class of citizens and is not sufficient to confer standing.) (citing Warth, 422 U.S. at 499) (internal quotations omitted). Finally, Plaintiffs have highlighted in bold in their Opposition that they have suffered an injury in fact because [t]heir votes were counted in secret. PML at 4 (emphasis in original). As the Court has discussed above, Plaintiffs do not have a legally protected interest in having their votes counted manually and in public viewing. Defendants cite in their Motion, and the Court considers persuasive, a case in which the Ninth Circuit held that it is the job of democraticallyelected representatives to weigh the pros and cons of various balloting systems, and found that the legislatures decision to use paperless, touchscreen voting systems did not unduly restrict the right to vote. Weber v. Shelly, 347 F.3d 1101, 1106-07 (9th Cir. 2003). Nor, in the view of this Court, does a failure to manually and publicly count all of the ballots in the state of New York unduly restrict Plaintiffs right to vote. Even if Plaintiffs allegation that their votes were counted in secret is true, it does not give rise to a concrete and particularized injury that is actual and imminent. Because
-14-
Filed 07/07/11 Page 15 of 18
Plaintiffs have failed to establish a cognizable injury in this case, the Court finds that they lack standing to bring this case. B. Mootness Although this case must be dismissed for lack of standing, the Court will also briefly address the issue of mootness raised by Defendants in their Motion. Arizonans for Official English, 520 U.S. at 66-67 (question of whether there is a live case or controversy may be determined absent a determination of standing because that issue relates to the Courts Article III jurisdiction and not to the merits of the case). Defendants contend that Plaintiffs claims are moot, both with respect to (1) the lever voting machines that were in use at the time Plaintiffs filed their Amended Complaint in 2007, because they are no longer in use as a result of the Boards certification of new HAVAcompliant voting machines; and (2) all other voting systems that may be implemented by Defendants in future elections, because Plaintiffs did not allege in their Amended Complaint that they intended to vote in any elections after the primary election in 2008. DML at 14-17. Plaintiffs argue that their claims with respect to the lever voting machines are not moot [u]nless the Commissioners are willing to stipulate that they will never reintroduce the lever machines should the Court ban the electronic computer-controlled vote counting machines that are also under challenge in this case. PML at 18. They also contend that the portion of their Amended Complaint requesting relief for the 2008 election cycle and beyond was another way of saying they intended to vote in 2008 and beyond. Id. Like standing, the doctrine of mootness is derived from Article III, which gives federal courts subject matter jurisdiction only over live cases and controversies. [A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. Preiser, 422
-15-
Filed 07/07/11 Page 16 of 18
U.S. at 401 (citations and quotations omitted). A case is deemed moot when interim relief or events have eradicated the effects of the defendants act or omission, and there is no reasonable expectation that the alleged violation will recur. Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998). The mootness doctrine is subject to one exception, however, whereby a case may be deemed capable of repetition, yet evading review. Fed. Election Commn v. Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007). This exception applies if (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. Spencer v. Kemna, 523 U.S. 1, 17 (1998). The Court finds Plaintiffs claims relating to the lever voting machines are not sufficiently capable of repetition to constitute a live case or controversy at this point. Plaintiffs cite to no cases, nor does the Court find any, that would require Defendants to stipulate to an agreement never to repeat conduct or events that have occurred in the past but since ceased, and where Plaintiffs can offer no reason to presume that said conduct or events will recur, before Plaintiffs claims may be found moot. See Libertarian Party v. Dardenne, 595 F.3d 215, 217 (2d Cir. 2010) (dismissing as moot and finding political parties failed to establish their case was capable of repetition where they had demonstrated merely a physical or theoretical possibility that the Secretary of State of Louisiana would have future opportunities to unilaterally change filing deadlines for qualifying papers because of hurricane) (citing Murphy v. Hunt, 455 U.S. 478, 482 (1982)). Whether Plaintiffs claims with respect to other voting procedures are capable of repetition is a closer call. Upon reviewing the Amended Complaint, the Court agrees with Defendants that Plaintiffs failed to allege that they intended to vote in future elections; indeed, there is no mention of
-16-
Filed 07/07/11 Page 17 of 18
future elections beyond 2008 until the final paragraph requesting injunctive relief relating to the 2008 elections and beyond. See Am. Compl. 268. The Court does not consider this final paragraph sufficient to establish a direct relationship between Plaintiffs and all future elections that occurred and will occur after 2008, and which are not referenced anywhere but the final paragraph of the Amended Complaint. See Van Walsh v. Allen, 370 Fed. Appx. 235, 238 (2d Cir. 2010) (finding plaintiffs claim moot where the election that he sought to affect has passed and he has made no allegation that he intends to campaign or attempt to reconstitute the country committee in the future), affg Van Allen v. Walsh, 1:08-CV-00876 (N.D.N.Y. Sept. 8, 2008) (Kahn, J.); Van Wie v. Pataki, 267 F.3d 109, 115 (2d Cir. 2001) (dismissing as moot claims brought by registered voters who were disallowed from taking part in primary election, on grounds that voters had failed to adequately demonstrate[] that they will again try to enroll in a political party for purposes of voting in a primary election.). Moreover, dismissing the Amended Complaint without prejudice with respect to this claim and granting Plaintiffs leave to amend would be fruitless in light of the above finding that Plaintiffs do not have standing to bring such claims. For these reasons, the Court also finds that the Amended Complaint does not present a live case or controversy over which the Court may exercise jurisdiction. C. Contract Clause Claim Plaintiffs claim that Defendants voting procedures violate Article I, Section 10 of the Constitution, which provides that [n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts. U.S. CONST . art. I 10. In light of the Courts findings above, the Court finds it unnecessary to address these claims, except to note that in its June 4, 2008 Order, the Court held explicitly that [t]o the extent that [Plaintiffs] claim is a constitutional one under the contract
-17-
Filed 07/07/11 Page 18 of 18
clause, it fails. June 4, 2008 Order at 13. Neither party has requested the Court to reconsider that portion of its opinion, and the Court finds no reason to do so here. Defendants are not legislative bodies and therefore are not proper parties in an action pursuant to the Contracts Clause. See Kinney v. Conn. Judicial Dept, 974 F.2d 313, 314 (2d Cir. 1992) (prohibition in the Contracts Clause is aimed at the legislative power of the State, and not at the decisions of its courts, the acts of administrative or executive boards or officers, or the doings of corporations or individuals.) (citing New Orleans Water-Works Co. v. La. Sugar Ref. Co., 125 U.S. 18, 30 (1888)); Jamaica Ash & Rubbish Removal Co., Inc., v. Ferguson, 85 F. Supp. 2d 174, 177 (E.D.N.Y. 2000) ([T]he Contracts Clause applies only to legislative bodies.). Finally, Plaintiffs Contracts Clause claim warrants dismissal in light of the Courts findings above that (1) Plaintiffs have failed to establish an injury because they do not have a legally protected interest in having their votes counted manually and in public viewing, and therefore lack standing to sue; and (2) their claims are moot under Article III. V. CONCLUSION Accordingly, it is hereby: ORDERED, that Defendants Motion (Dkt. No. 367) is GRANTED; and it is further ORDERED, that Plaintiffs Amended Complaint (Dkt. No. 21) is DISMISSED with prejudice for lack of subject matter jurisdiction; and it is further ORDERED, that the Clerk serve a copy of this Order on all the parties. IT IS SO ORDERED.
DATED:
July 07, 2011 Albany, New York -18-
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ROBERT L. SCHULZ and JOHN P. LIGGETT, Plaintiffs, -against1:07-CV-0943 (LEK-DRH)
RETURNABLE: Sept 2, 2011

DOUGLAS KELLNER, Individually and as Commissioner Of the New York State Board of Elections; EVELYN AQUILA, Individually and as Commissioner Of the New York State Board of Elections; HELENA MOSES DONAHUE, Individually; JAMES A. WALSH, As Commissioner of the New York State Board of Elections; and GREGORY P. PETERSON, as Commissioner of the New York State Board of Elections, Defendants.
;;,;.L}.
\\I '""
0f'
\ ,I\...
hi.
l\t .
Y"
FILED
JLll' :)
J _
Q '1_
'in'" l.U II
LAWRENCE K. BAERMA.h ALBAI\l'Y
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR RECONSIDERATION

Pursuant to Local Rule 7.1 (g), Plaintiffs (hereinafter "Voters") submit this Memorandum in support of Plaintiffs' motion for reconsideration of the Court's July 7, 2011 MEMORANDUMDECISION AND ORDER granting Defendants' (hereinafter "State") motion to dismiss. This motion also rests on all prior paper and proceedings in this case.
A motion for reconsideration is filed to meet "the need to correct clear error of law or prevent manifest injustice." See North River Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
"A district court abuses its discretion if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact." Milanese v. Rust-Oleum Corp., 244 F. 3d 104, 110 (2d Cir. 2001)
"Under the arbitrary and capricious standard of review, we may overturn a decision ... if it was without reason, unsupported by substantial evidence or erroneous as a matter of law." See generally Pagan v. NYNEX Pension Plan, 52 F3d 438, 442 (2d Cir. 1995)
PLAINTIFF-VOTERS HAVE CONSTITUTIONAL STANDING

Dismissal of this case on the basis of Voters' failure to satisfy the constitutional standing requirements was erroneous as a matter of law.
As the Court correctly noted, "In order to meet the 'irreducible constitutional minimum of standing' under Article III, a plaintiff must satisfy three elements: first, that he has suffered 'an injury in fact'; second, that there is a 'causal connection between the injury and the conduct complained of; and third, that it is 'likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'" Memorandum-Decision and Order, page 9 (internal citations and quotations omitted). The Court correctly noted, "To establish an injury in fact, a plaintiff must show (l) an invasion of a legally protected interest that is (2) concrete and particularized and (3) actual and imminent rather than conjectural or hypothetical. 'The bare existence of an abstract injury is not enough to confer standing.' Rather, the party asserting the interest or injury must 'have a direct and personal stake in the controversy,' lest the judicial process 'be converted into a vehicle for the vindication of the value interests of concerned bystanders.'" Memorandum-Decision and Order, page 9 (internal citations and quotations omitted). The Court correctly noted, "Plaintiffs [argue] that they have suffered an injury because '[t]hey were unable to know that their votes were accurately counted,' and that this injury will
persist in future elections absent relief from the Court. PML at 4-5." Memorandum-Decision and Order, page 10. The Court correctly noted, "Plaintiffs correctly point out that they have a legally protected interest in having their votes counted accurately. Am. Compl.
~~
238, 241, 243-44
(citing United States v. Saylor, 322 U.S. 385,388 (1944); United States v. Classic, 313 U.S. 299, 315 (1941); United States v. Mosley, 238 U.S. 383 (1915))." Memorandum-Decision and Order, page 10. However, the Court incorrectly said, "Plaintiffs' Amended Complaint makes clear that they are not alleging a legally protected interest Oilly in having their votes counted accurately. Rather, Plaintiffs are alleging a legally protected interest in having their votes counted in a very particular way - namely, in having their votes counted manually and in full public viewing at every polling station in the state of New York." Memorandum-Decision and Order, page 10. (emphasis added by Plaintiffs). Plaintiffs have claimed a protected interest in having their votes counted manually and in full public view at only their polling stations. Under the circumstances of this case and Voters' principle argument, the Court abused its discretion or was arbitrarily and capricious in omitting three key words when it said, "The Amended Complaint explicitly states: 'Voting procedures that are not ... machine and computer free, with paper ballots that are hand marked and hand counted, abridge the right to cast an effective vote.' Am. Compl. ~ 246 (citing Williams v. Rhodes, 393 U.S. 23,30 (1968))." Memorandum-Decision and Order, page 10-11. In fact, the Amended Complaint explicitly states: "Voting procedures that are not open, verifiable, transparent and machine and computer free, with paper ballots that are hand marked
and hand counted, abridge the right to cast an effective vote. Williams v. Rhodes, 393 U.S. 23, 30 (1968)." (emphasis added by Voters). This is a significant omission by the Court in light of Voters' oft- repeated reference to and reliance on the principle of the public nature of elections emerging from our basic law (the Constitution for the United States of America) and the mandate in Williams that all 50 states shall recognize "the right of qualified voters, regardless of their political persuasion, to cast their votes effectively." (internal citations and quotations omitted) (emphasis added by Voters). Voters have a right to know that their votes, when cast, will produce a definite and desired result; they will be accurately and honestly counted. Williams goes on to recognize that this right "of course, rank[s] among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States (internal citations and quotations omitted). Similarly we have said with reference to the right to vote: 'No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. '" (internal citations and quotations omitted). Having separated and placed out of its view Voters' principle constitutional argument (the constitutional principle of the public nature of elections, which requires each essential step in the voting process, particularly the vote counting step, be open, verifiable and transparent), the Court mistakenly and erroneously went on to say, "In order to find that Plaintiffs have established a legally protected interest here, then, the Court would be required to conclude that they have a legally protected interest in having their votes counted manually and in full public
viewing. The Court is unable to reach such a conclusion here." Memorandum-Decision and Order, page 11.
The Court's abusive decision continued, saying, "First, the Court notes that Plaintiffs' reliance on Williams in support of the above assertion is misplaced. The Supreme Court held in
Williams only that voters have the right 'to cast their votes effectively'; it did not hold that
manual counting of votes is required to protect that right."
It is impossible for elections that rely on machines and computers to count votes to
be open, verifiable and transparent. In point of fact, as discovery in this case has been demonstrating, before being interrupted by the instant motion to dismiss, only a voting process that includes the manual counting of votes in full public view can protect the constitutional principle of the public nature of elections and the Voters' right to cast their votes effectively - i.e., where vote counting is open, verifiable and transparent. Only a voting process that includes the manual counting of votes in full public view can protect the constitutional principle of the public nature of elections and Voters' right to a state that protects the integrity of the political process, as mandated by the Supreme Court in Storer v.
Brown, 415 U.S. 724,732 (1974) (Am. Complaint, par. 231).

Only a voting process that includes the manual counting of votes in full public view can protect the constitutional principle of the public nature of elections and Voters' right to "participate in an electoral process that is necessarily structured (by state regulations] to maintain the integrity of the democratic system." Burdick v. Takusi, 112 S. Ct. at 2063. (Am. Complaint, par. 236).
Only a voting process that includes the manual counting of votes in full public view can protect the constitutional principle of the public nature of elections and Voters' right to a state that structures elections in a way that avoids confusion, deception and even frustration of the democratic process, as mandated by the Supreme Court in Larouche v. Kezer, 990 F.2d at 442 (2d Cir. 1993) (Am. Complaint, par. 232). Only a voting process that includes the manual counting of votes in full public view can protect the constitutional principle of the public nature of elections and Voters' right to have their votes [accurately and honestly] counted, as mandated by the Supreme Court in United
States v. Mosley, 238 U.S. 383 . (Am. Complaint, par. 238).

"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)." Reynolds v. Sims, 377 U.S. 533, 555 (1964).
"And history has seen a continuing expansion of the scope of the right of suffrage in this country. The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." 377 U.S. 533, 556. Only a voting process that includes the manual counting of votes in full public view can protect the constitutional principle of the public nature of elections and Voters' right to have their votes "honestly counted" as mandated by the Supreme Court in United States v. Saylor, 322 U.S. 385. (Am. Complaint, par. 243).
The Court's abusive decision continued by relying on Green Party o/State olN Y v.
Weiner, 216 F Supp. 2d 176 (2002). Only a voting process that includes the manual counting of
votes in full public view can protect the constitutional principle of the public nature of elections and Voters' right to have their votes accurately and honestly counted, notwithstanding the facts, circumstances and decision in the federal district court for the Southern district of New York in Green Party. Contrary to the Court's finding on page 11 of its Memorandum-Decision and Order, Voters have demonstrated they have suffered a sufficiently concrete, cognizable injury, traceable to tht: State's action, and will continue to suffer the injury absent relief from the Court. The Court's erroneous decision continued, basing its ruling on a mistaken application of the law, saying, "Furthermore, the Court finds that Plaintiffs have not alleged a sufficiently concrete and particularized harm to establish standing. The Second Circuit has joined other circuits in holding that 'a voter fails to present an injury-in-fact when the alleged harm is abstract and widely shared.' (internal citations and quotations omitted). Not only is the alleged injury of which Plaintiffs complain widely shared by all voters in the state ofNew York, it is an abstract one and as such cannot constitute an injury in fact. Plaintiffs' argument that '[t]hey were unable to know that their votes were accurately counted' is not the kind of 'informational injury' that has previously been found to establish standing, for instance, when voters are unable to obtain information that would help them evaluate candidates for office. Cf Fed Election Comm 'n
v.Akins, 524 U.S. 11,21 (1998). Memorandum-Decision and Order, page 12.
The Court erred by failing to consider the principle of law laid down in Akins, considering merely the parties and the facts of Akins.
In point of fact, the Akins Court held, "Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found 'injury in fact.' See Public Citizen, 491 U.S. at 449-450 ... Thus the fact that a political forum may be more readily available where an injury is widely shared ... does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an 'injury in fact.' This conclusion seems particularly obvious where (to use a hypothetical example) ... large numbers of voters suffer interference with voting rights conferred by law [including the constitutional principle of the public nature of elections] (internal citations and quot&.tions omitted).We conclude that similarly, the informational injury at issue here, directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts." Cf Fed Election Comm 'n v.Akins, 524 U.S. 11, 24-25 (1998). "To the extent that Akins requires some additional 'plus' -- some reason that plaintiffs need the information ... that requirement is liberally construed. " it is difficult to imagine what information would not make a citizen a better-informed voter, or would not affect her ability to participate in some workings of government. See Akins, 524 U.S. at 21; Pub. Citizen, 491 U.S. at 449 ... In determining whether an informational injury is sufficiently concrete, the universe of interests that will create a 'plus' is larger than those that would support standing on their own (as evidenced by Akins's reliance on voting, which is an interest shared by every citizen in America)." American Canoe Assoc. v City of Louisa, 389 F.3d 536,546. Plaintiffs are unable to find anything in any Act of Congress intending to exclude Voters from the benefits of the constitutional principle of the public nature of elections, with its demand
that every essential step in the election process be open, verifiable and transparent, even if that were possible. Plaintiffs have suffered a genuine injury in fact, and will continue to do so absent relief from the Court. The injury in fact is their inability to know their votes have been accurately counted, i.e., their inability to obtain information critical to their peace of mind, confidence and trust that they are casting an effective vote, that the election process and democracy they are participating in is not operating in contrast to the way it is designed to work by the Basic Law - the Constitution for the United States of America and that the State has dO:J.e everything in its.power to eliminate frustration, confusion, error and fraud.
1
Plaintiffs are claiming injury to a particular Right of their own, as distinguished from the public's interest in the administration of the law.
The hann asserted has been traced to the State and the Courts can redress Plaintiffs' "injury in fact," notwithstanding the State's assertions to the contrary. See Plaintiffs' Memorandum in Opposition to the instant Motion to Dismiss, pages 5-8. The Court's reliance on Weber v. Shelly, 347 F.3d 1101, 1106-07 (9 Cir. 2003) is misplaced. The record in this case demonstrates that most, if not all states have, on constitutional grounds, abandoned consideration and deployment of the any type of touch screen voting system, including the type which was the subject of Weber. In addition, unlike the voters in Weber, both Plaintiffs in the instant case (and all other voters in New York State, except the disabled) are required to cast their votes by marking paper ballots by hand. The problem is their
th
I Plaintiffs have never relied primarily on any claim of injury from machine error and fraud, which injury would only be added to Plaintiffs' primary injury caused by the counting of their votes in secret and could be considered conjectural and hypothetical, although almost always undiscoverable.
Filed 07/22/11 Page 10 of 19
paper ballots must then be inserted into a machine where their vote is allegedly recorded accurately and allegedly counted accurately, in secret, out of public view. In their Brief in Opposition to the State's motion to dismiss, Appendix A, Voters summarized their arguments in support of their constitutional standing, all clearly based on the principle of the public nature of elections emerging from the Constitution for the United States of America. Those arguments are repeated here. Voters' principal argument right along in this case, which is now approaching four years in the making, has been that the mechanical lever and electronic voting systems violate the public nature of elections in our democratic, constitutional Republic by counting votes in secret, and requiring Plaintiffs to have a special expert knowledge to even KNOW how their votes are counted, to say nothing of the valid security questions surrounding such voting systems. Voters have argued that to be consistent with the constitutional principle of the public nature of elections, ALL essential steps in the voting process must be subject to public examination; it must be possible for the Voters to check the essential steps in the election act and in the ascertainment of the results, reliably and without special expert knowledge (unless other constitutional interests justify an exception, and there are none). While it can be argued that HAVA facilitated the deployment of unconstitutional computer-controlled voting machines in New York State, HAV A, itself, is not unconstitutional as written. The Voting System consisting of paper ballots, hand marked and hand counted (with a ballot marking system available and accessible for individuals with disabilities), as called for by Plaintiffs in their complaint, is fully compliant with HAVA.
The use of the Dominion and ES&S machines to count the votes cast by Voters is to be reviewed by this Article III Court against the standard of the public nature of elections (Article I, 10
Filed 07/22/11 Page 11 of 19
Section 2 and 3 and the Seventeenth Amendment of the Constitution for the United States of America).
Plaintiffs have argued that the public nature of elections is a fundamental precondition for democratic political will-formation. It ensures the correctness and verifiability of the election events, and hence creates a major precondition for the well-founded trust of the Plaintiffs in the
correct operation of the elections. The state form of congressional democracy, in which the
rule of the people is mediated by elections, demands that the act of transferring state responsibility to congressmen and Presidents is subject to special public monitoring. The fundamentally required public nature of the election procedure covers the electoral proposal (primaries and ballot preparation) procedure, the election act (broken regarding the ballot by
the secret nature of elections) and the ascertainment of the election result.
The basis for public elections is formed by the fundamental constitutional options for democracy, the republic and the rule oflaw (Article I, Sections 2 and 4 and the Seventeenth Amendment to the Constitution for the United States of America). In a representative democracy, the elections ofthe people's representation constitute the fundamental act of legitimization. The ballot in the elections to the United States Congress and the President forms the major element of the process of will-forming from the people to the State bodies, and hence at the same time constitutes the basis for political integration. Compliance with the election principles applicable to this, and Plaintiffs confidence in compliance with
them, therefore, constitute preconditions for a viable democracy. Only by the possibility of
monitoring whether the elections comply with the constitutional election principles, including the principle of the public nature of elections that emerges from our Constitution, is it possible for Plaintiffs to ensure that the delegation of State power to the people's representatives (which 11
Filed 07/22/11 Page 12 of 19
forms the first and most important part of the uninterrupted legitimization chain of the people to the bodies and office-holders entrusted with State tasks), does not suffer from a shortcoming. The democratic legitimacy of the elections demands that the election events be controllable so that manipulation can be ruled out or corrected and unjustified suspicion can be refuted. This is the only way to facilitate the well-founded trust of the sovereign Plaintiffs in the correct formation of the representative body. The obligation incumbent on the legislature and on the executive to ensure that the election procedure is designed constitutionally and is implemented properly is not sufficient by itself to impart the necessary legitimacy, trust and confidence to Plaintiff voters. Only if Voters can reliably convince themselves of the lawfulness of the transfer act, if the elections are therefore implemented "before their eyes" is it possible to guarantee the trust of the sovereign Voters in Congress and the Presidency being composed in a manner corresponding to the will of the voters, necessary for the functioning of democracy and the democratic legitimacy of state decisions. In our Republic, elections are a matter for the entire people and a joint concern of all citizens. Consequently, the monitoring of the election procedure must also be a matter for and a task of the citizen, including Plaintiffs. To avoid constitutional injury, Voters must be able to comprehend and verify the central steps in the elections reliably and without any special prior technical knowledge. The public nature of the elections is also anchored in the principle of the rule of law. The public nature of the State's exercise of power, which is based on the rule of law, serves its transparency and controllability. It is contingent on the citizen being able to perceive acts of the State bodies. This also applies as to the activities of the election bodies.
12
Filed 07/22/11 Page 13 of 19
The principle of the public nature of elections requires that all essential steps in the elections are subject to public examination unless other constitutional interests justify an exception. Particular significance attaches here to the monitoring of the counts, the voting act at the polling place and the tabulation or ascertainment of the election result.
An election procedure in which Plaintiffs cannot reliably comprehend whether their vote
is accurately recorded and included in the ascertainment of the election result, and how the total votes cast are assigned and counted, excludes central elements of the election procedure from public monitoring, and hence does not comply with the constitutional principle of the public nature of elections in America, the constitutional requirements of Article I, Sections 2 and 4 and the Seventeenth Amendment. The requirements as to the fully transparent examination of each of the principal election steps by Voters, apply to the implementation of elections regardless of the responsibility of the state, notwithstanding the state's constitutional structure.
Voters have argued, in effect, that while the State Legislature is entitled to broad latitude when lending concrete shape to the principles of election law within which they must decide whether and to what degree deviations from individual principles of election law are justified in the interest of the uniformity of the entire election system and to ensure the state policy goals which they pursue, it is the role of the Court to check whether the State has remained within the boundaries of the latitude granted to them by the Constitution, or whether they have violated a valid constitutional election principle by overstepping these boundaries.
13
Filed 07/22/11 Page 14 of 19
Voters's principle argument has been that when voting, it must be possible to check the integrity of the essential steps in the election act and in the ascertainment of the results reliably and without special expert knowledge.
The necessity of such monitoring emerges principally from the public nature of elections, but also in part from the susceptibility to manipulation of electronic voting machines and their amenability to error. In these, the acceptance of the voters' votes and the calculation of the election result is based on a calculation act which cannot be examined from outside or by persons without special computer knowledge. For instance, errors in the voting machine software are hence difficult to recognize. Over and above this, such errors can affect not only one individual election computer, but all the devices used. While manipulations or election falsifications are virtually impossible in classical elections with voting slips under the conditions of the valid provisions, including the provisions on the public nature of elections - or at least are only possible with considerable effort and with a very high risk of discovery which has a preventive impact - a major impact may in principle be achieved with relatively little effort by encroachments on electronically controlled voting machines. Manipulations of individual voting machines can already influence not only individual voters' votes, but all votes cast with the aid of this device. The scope of the election errors which are caused by accidental alteration, criminal tampering and malfunctions of a single software program affecting multiple devices is even wider. The major scope ofthe effect of possible errors in the voting machines or targeted election falsifications requires special precautions to be taken in order to comply with the principle of the public nature of elections.
14
Filed 07/22/11 Page 15 of 19
Voters must be able to verify - also without a more detailed knowledge of computers whether their vote as cast is recorded truthfully as a basis for counting or - if the votes are initially counted with technical support - at least as a basis for an automatic, full, mandatory, publicly funded, manual re-count, before any ballots are removed from public view. It is not
sufficient if they must rely on the hidden functionality of the system without the possibility of personal inspection. It is hence inadequate if they are initially informed by an electronic
display or computer generated "receipt" that their ballot has been accurately registered. This
does not facilitate sufficient monitoring by Voters.
Whether there are technical possibilities which create trust on the part of the Voters in the correctness of the proceedings in ascertaining the election result based on verifiability, and which, therefore, comply with the principle of the public nature of elections, need not be decided here.
***
Restrictions on possibilities for Schulz and Liggett to monitor the election events cannot be compensated for by sample machines and devices prior to their deployment being subjected to certification and verification testing by an official institution as to their compliance with certain security requirements and their proper technical performance.
For this reason, a comprehensive set of other technical and organizational security measures (e.g. monitoring and safekeeping of the voting machines, comparability of the devices used with an officially checked sample at any time, criminal liability in respect of election falsifications and locally organized elections) is also not suited by itself to compensate for a
15
Filed 07/22/11 Page 16 of 19
lack of monitoring and controllability of the essential steps in the election procedure by the citizen.
Accordingly, neither participation by Voters in procedures ofthe examination or approval of the voting machines, nor a publication of examination reports or construction characteristics (including the source code of the software with computer-controlled voting machines) makes a major contribution towards ensuring the constitutionally required level of controllability and verifiability of the election events. Technical examinations and official approval procedures, which in any case can only be expertly evaluated by interested specialists or technicians, relate to a stage in the proceedings which is far in advance of the ballot. The participation of the public in order to achieve the required reliable monitoring of the election events is, therefore, likely to require other additional precautions.
When deploying computer-controlled voting machines, no contrary constitutional principles are recognizable which are able to justify a broad restriction of the public nature of elections and hence the controllability of the election act and the ascertainment of the results.
The deployment of computer-controlled voting machines for the purpose of ruling out inadvertent incorrect markings on voting slips, unwanted invalid ballots, unintentional counting errors or incorrect interpretations of the voters' intention when votes are counted, does not justify abandoning the principle of the public nature of elections and the requirement that Voters be able to know, reliably, that their votes are being accurately counted.
16
Filed 07/22/11 Page 17 of 19
There is no "conflict of interest" between the principle of secret vote casting and the principle of the public nature of elections which might justify a broad restriction of the principle of counting Plaintiffs' votes in public and tabulating all votes in public..
The impact of the principle of the private vote is not to restrict the principle of public counts. It does not justify a restriction of public monitoring in the casting of the - previously secretly marked - vote carrier or in the ascertainment of the results. This follows from the fact that the principle of the private vote does not oppose additional precautions enabling Voters to monitor whether their vote is recorded in an unfalsified manner as a basis for any subsequent recount.
Voters here have argued that there is no constitutional requirement for the election result to be available shortly after closing the polling stations, and as federal elections in New Hampshire and across Canada have proven, the preliminary official final result of the elections can as a rule be submitted in a matter of hours, without the deployment of voting machines. The interest in rapidly clarifying the composition of the Congress or the Presidency is not a constitutional interest that justifies the imposition of restrictions on the constitutional principle of the public nature of the election event.
PLAINTIFFS' CLAIMS ARE NOT MOOT

The Court is moved to reconsider to prevent a manifest injustice. The Court said, "Upon reviewing the Amended Complaint, the Court agrees with Defendants that Plaintiffs failed to allege that they intended to vote in future elections; indeed, there is no mention of future elections beyond 2008 until the final paragraph requesting injunctive relief relating to the 2008 elections 'and beyond.' See Am. CompI. ~ 268. The Court
17
Filed 07/22/11 Page 18 of 19
does not consider this final paragraph sufficient to establish a direct relationship between Plaintiffs and all future elections that occurred and will occur after 2008, and which are not referenced anywhere but the final paragraph of the Amended Complaint." In fact, Schulz and Liggett's claims were obviously directed at the 2008 election cycle and beyond, not only as evidenced by the relief requested in their Amended Complaint, where each request was for ''the 2008 election cycle and beyond," but voter registrations in New York State is not an annual affair and has no fixed registration period. Schulz and Liggett were registered to vote in the 2008 elections and beyond. Schulz and Liggett have decades of life to live. Requesting relief for 2008 and beyond is another way of saying they intended to vote in 2008 and beyond and wanted to know their votes would be accurately counted without requiring special expert knowledge. In any event, the violations and harm Plaintiffs experienced in 2008 was repeated in 2010 and there is every reasonable indication that those violations and harm will recur in every future election unless the requested relief is granted. This case has been nearly four years in the making, due to extensive discovery and motion practice, etc. The record shows Plaintiffs' extensive voting record. To dismiss this case, with prejudice, because Plaintiffs did not identify every primary and every general election allegedly scheduled to occur in the future, including the upcoming primary in 2012, would be manifestly unjust.
CONCLUSION
Based on the above, and all prior proceedings, Plaintiffs move the Court to Reconsider its Decision filed July 7, 2011, and on reconsideration, deny Defendants' Motion to Dismiss.
18
Filed 07/22/11 Page 19 of 19
Dated: July 21, 2011
ROBERT 1. SCHULZ 2458 Ridge Road Queensbury, NY 12804
JOHN LIGGETT 1040 1st Ave #351 New York, NY 10022
19

11-10-26 Schulz Et Al V State of NY Et Al (07-cv-00943) in The US Court, Northern District of New York - Compiled Litigation Records

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

11-10-26 Schulz Et Al V State of NY Et Al (07-cv-00943) in The US Court, Northern District of New York - Compiled Litigation Records

Uploaded by

Copyright:

Available Formats

2231 S Court, Palo Alto, CA 94301 Fax: 323.488.9697; Email: jz12345@earthlink.net Blog: http://human-rights-alert.blogspot.com/ Scribd: http://www.scribd.

Human Rights Alert

Case 1:07-cv-00943-LEK -DRH Document 3

Filed 10/10/07 Page 1 of 2

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL

Case 1:07-cv-00943-LEK -DRH Document 3

Filed 10/10/07 Page 2 of 2

October 10, 2007 Page 2 of 2 Plaintiffs pro se (By First-Class Mail)

Case 1:07-cv-00943-LEK -DRH Document 3-2

Filed 10/10/07 Page 1 of 1

SOUTH DAKOTA DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

In support of their Motion to Dismiss, the South Dakota

Case 1:07-cv-00943-LEK -DRH Document 210

Filed 12/20/07 Page 1 of 2

Case 1:07-cv-00943-LEK -DRH Document 210

Filed 12/20/07 Page 2 of 2

Case 1:07-cv-00943-LEK -DRH Document 210-2

Filed 12/20/07 Page 1 of 3

Case 1:07-cv-00943-LEK -DRH Document 210-2

Filed 12/20/07 Page 2 of 3

Case 1:07-cv-00943-LEK -DRH Document 210-2

Filed 12/20/07 Page 3 of 3

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 1 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 2 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 3 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 4 of 18

decision on the Motion at hand. See Dkt. No. 382. -4-

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 5 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 6 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 7 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 8 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 9 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 10 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 11 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 12 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 13 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 14 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 15 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 16 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 17 of 18

Case 1:07-cv-00943-LEK -DRH Document 383

Filed 07/07/11 Page 18 of 18

July 07, 2011 Albany, New York -18-

Case 1:07-cv-00943-LEK -DRH Document 385

Filed 07/22/11 Page 1 of 2

Case 1:07-cv-00943-LEK -DRH Document 385