ELECTION CONTEST

Kenneth L. Simpkins, Esq. SBN: 204843
LAW OFFICE OF KENNETH L. SIMPKINS
3631D Village Circle
Carlsbad, CA 92008
(760) 420-5488
Fax (866) 841-5420

Paul R. Lehto, Esq. SBN 25103
LAW OFFICE OF PAUL R. LEHTO
P.O. Box 254
Everett, WA 98206-0254
(425) 422-1387
Fax (425) 645-7380

Attorneys for Barbara Gail Jacobson,

Lillian Ritt

)))))))))))))

Contestants allege:

1. Contestants named above in the caption are, and at all times mentioned herein

and otherwise qualified to bring this action.

2. The verified statements of the Contestants are attached hereto and incorporated by

reference herein.

3. Defendant Brian P. Bilbray is the declared winner of the election contested.

4. Defendant Bilbray was sworn into office on June 13, 2006, before the election was

certified.

5. Defendant Mikel Haas is the registrar of voters for the County of San Diego and

responsible for the conduct of the election contested.

6. Diebold Election Systems, Inc., (Diebold) is a corporation in the business of

manufacturing electronic voting machines, and is the manufacturer of the voting

machines at issue in this case.

7. Contestants are not presently aware of the true names, identities, or capacities of

Defendants DOES 1 through 50, inclusive. Contestants therefore sues those defendants

under their fictitious names. Contestants will amend this complaint on learning the true

names, identities, or capacities of these defendants.

8. At all relevant times, each of the Doe Defendants have been, and are now, the

agent or employee of the remaining defendants, and each was acting within the course

and scope of such agency or employment.

9. The actions of defendants, as described in this complaint, occurred within San

Diego County, California, and constitute “state action” as that term has been interpreted

by relevant case law.

10. This contest relates to the special election conducted on June 6, 2006, and

Defendant Bilbray’s right to hold and fill the office of United States Congressman to the

11. The date of the declaration of the result of the special election by the body

canvassing the returns thereof, namely the San Diego County Registrar of Voters, was

June 29, 2006.

12. Pursuant to California Election Code, section 16401, subdivision (d), this Contest

is timely filed.

13. Jurisdiction is proper in San Diego County Superior Court pursuant to California

Election Code, section 16500, and venue is proper in San Diego County.

14. On July 25, 2006, Contestants demanded in writing that the Registrar of Voters

and others preserve all relevant records, in response to reports that Defendants and others

were considering the destruction of records, in violation of Procedures of use, Public

Records laws, and 42 USC § 1974.

15. Mikel Haas and other San Diego County elections officials have conspired, and

aided and abetted in the suppression, non-collection, and the destruction of relevant

evidence and election materials concerning the June 6, 2006 election, under a variety of

pretenses. The pretenses include, but are not limited to, (a) asserting claims of

“confidential,” “proprietary,” and “trade secrecy” claims on behalf of Diebold to avoid

producing electronic programs, electronic ballots and electronic audit logs and system

files and other computerized records necessary to a proper and complete audit of the

electronic voting systems (both optical scan and touchscreen) used in San Diego County,

(b) failure to fulfill timely, or at all, public records requests filed on April 14, 2006, and

logs, system logs, ballot definition files, security logs, seal logs, ballot envelopes,

electronic ballots, paper ballots, provisional ballots, pollbooks/signature logs, etc.

16. Mikel Haas, as an official policy, directed that security procedures and chain of

custody be abandoned on voting machines, by directing that essentially all voting

machines, both optical scan and touchscreen, be released to the personal possession of

pollworkers for overnight “sleepover” stays ranging from several days to over a week.

During these sleepovers, the voting machines were unsecured, subject to access by

innumerable neighbors, strangers and family members, and stored without records or

proof of actual chain of custody, eliminating the ability of any person to detect whether

or not fraud or improper access to the voting machines occurred.

17. Certain Defendants and Precinct Board officials permitted and authorized keys for

touchscreen voting machines to be released to and retained by pollworkers between

elections, with said keys remaining in “authorized” circulation to this date. This

authorization is in violation of state and federal law, voting machine industry standards,

18. The actions of Defendant Haas, as Registrar of Voters, and Does 1-50, constitute

such reckless indifference and intent to obscure the chain of custody, and frustrate

reconciliation of ballots and other accountability for election mistakes, as to constitute

aiding and abetting fraud or attempts at fraud and aiding and abetting, in violation of

California Election Code, section 18500.

19. While Diebold prohibits the opening of the “boxes” of its voting machines by

contract and/or on pain of “voiding the warranty,” evaluations of Diebold TS voting

machines just in the last several weeks prior to the filing of this contest has revealed a

heretofore unknown switch in the circuitry of the voting machine that allows the voting

machine to boot from an external flash memory source rather than an internal flash

memory source, allowing all certified software and other alleged safeguards to be totally

circumvented and rendered ineffective. This renders nugatory all pre- and post-election

testing, certification, and so forth, by constituting an “end around” all such alleged

safeguards.

20. State law requires that election officials conduct a one per cent audit of the

canvass. The one per cent audit in this case revealed discrepancies in the canvass as

alleged herein.

21. Contestants incorporate by reference herein the verified statements of Contestant

Jacobson and Contestant Ritt filed herewith and served with this pleading. Contestants

will file the declarations of additional fact witnesses at the appropriate time.

22. Based on the verified statements filed herewith, this statement is filed pursuant to

Elections Code, Section 16400, on the following grounds:

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23. Contestants restate each of the allegations above and below as if set forth fully

herein.

24. The precinct board members and/or election officials responsible for supervision

of the election, including Mikel Haas, Registrar of Voters, and Does 1-50, were guilty of

malconduct in that the officials knew, or should have known, that the voting machines

they authorized for use in the election had serious security flaws and failed to address the

security issues by, among other things, releasing the voting machines into the hands of

persons not properly trained to protect the voting machines from tampering; by allowing

the voting machines to remain in unsecured locations, such as pollworkers’ car trunks

and residential garages, for as long as seven days, or more, prior to the election; by

failing to provide tamper-proof seals on ports in the machines that subject the machines

to hacking of the software that counts the vote; by failing to maintain a chain of custody

of the machines; by allowing keys to the machines to be possessed by persons not

authorized to possess them; and by violating the conditions under which the voting

machines were certified by the Secretary of State. The malconduct resulted in an election

subject to fraud, without credibility, and which, therefore, cannot be relied on as an

expression the will of the people. The malconduct affected each precinct in the District.

The malconduct occurred throughout the election cycle.

25. Defendants, Mikel Haas, and Does 1-50, deliberately concealed and frustrated the

ability of the public to determine whether or not fraud occurred such that, in addition to

the affirmative evidence of fraud pleaded herein and in verified statements filed herein,

there has been such a radical departure from the expected chain of custody and

compliance with recordkeeping requirements that the ability of the public to detect fraud

has been radically frustrated or eliminated.

26. The Mississippi Supreme court, even though specifically denying that fraud had

occurred via elections officials, nevertheless ruled that because the opportunity to detect

ELECTION CONTEST

whether fraud had occurred or not was removed (because of missing seals on ballot

boxes) the remedy of a new elections was warranted. The Mississippi Supreme Court

concluded their opinion by quoting itself from 1983, showing it’s continuing relevance

to this 2005 opinion:

Although there is a strong public policy in attempting to preserve the will of the

electorate as reflected by the tabulation of all of the votes, we take this opportunity

to remind throughout the state that they invite election contests, uncertainty and

the opportunity for fraud by failing to pay close heed to the election statutes

whether they be mandatory or directive. Any expense or burden such compliance

creates is trivial when compared to the value of the goal of maintaining our

Republic. Integrity of our government can be no greater than the integrity of

elections which put our government officials in office. It is therefore the duty of

every registrar to endeavor to comply with the election statutes regardless of the

personal inconvenience it may create.

441 So. 2d 1322, 1328 (Miss. Sup. Ct. 1983).)

27. On information and belief, all errors alleged herein were sufficient to change the

result of the race.

28. Contestants restate each of the allegations above and below as if set forth fully

herein.

29. A voter who casts a vote in an election in accordance with the laws of this state

shall have that vote counted.

30. As the results of acts and omissions as alleged herein, Defendants Haas and Does

1-50, failed to take all action necessary to make the votes effective in the election by

failing to ensure proper voter registration, and by failing to comply with all prerequisites

to voting, casting a ballot, and having the ballot counted properly and included in the

appropriate totals of votes cast with respect to the candidates.

31. The actual conditions of the election, unknown to contestants until the day of the

election or thereafter, violated the conditional certification of the Diebold Voting

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machines by the Secretary of State, attached hereto as an Exhibit, such that the

certification of the voting machines became void, resulting in the casting of illegal votes.

All votes on Diebold voting systems, both optical scan and touchscreen were rendered

illegal as a result of the violations of the conditional certification.

32. Contestants restate each of the allegations above and below as if set forth fully

herein.

33. A sufficient number of eligible voters who attempted to vote in accordance with

the laws of the state were denied their right to vote, and that had those voters been

permitted to vote, Defendant would not have received as many votes as other candidates.

34. Polling places in San Diego County were scheduled to open at 7 a.m., on June 6,

2006, but some did not open until as late as noon on election day denying hundreds of

people the right to vote.

35. Over five hundred absentee voters ballots were mailed late and/or not received

timely, denying those voters the right to vote.

36. In violation of California Election Code, section 18568, officials added to or

mixed other ballots with the ballots of given precincts, with the intent to change the

result of the election and obfuscate reconciliation attempts matching registered voters

and ballots, particularly with regard to all absentee voter precincts.

37. Contestants restate each of the allegations above and below as if set forth fully

herein.

38. The precinct board members and/or election officials responsible for conducting

the election and canvassing the returns made errors sufficient to change the result of the

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election in which Defendant Bilbray has been declared elected. The errors included

reported election results exceeding registered voters by several thousand percent in

numerous precincts, as further set forth in the declarations and exhibits attached hereto.

39. Contestants restate each of the allegations above and below as if set forth fully

herein.

40. Ballot definition involves the process by which signals initiated by a voter are

tracked or correlated to data files on the optical scan or touchscreen computer. If any

accidental or deliberate error in the ballot definition files occurs, votes intended for one

candidate will be assigned to the wrong candidate.

41. Ballot definition errors are historically frequent with Diebold voting programs.

42. On information and belief, ballot definition errors resulted in the flipping of votes

between candidates Bilbray and Busby, changing the result of the race.

43. Contestants restate each of the allegations above and below as if set forth fully

herein.

44. Contestants have no plain, speedy or adequate remedy at law, and for that reason,

seeks injunctive relief.

45. By acting as alleged herein, Defendants Haas and Doe Defendants, deprived

Contestants of their right to be governed by persons duly elected without due process of

law and the equal protection of the law, in violation of the Fourteenth Amendment to the

United States Constitution.

46. By setting the cost of a recount of the votes at $1.00 or more per vote recounted

Haas and Doe Defendants effectively barred or punitively burdened Contestants from

seeking a recount without due process of law and violating equal protection of the law,

in violation of the Fourteenth Amendment to the United States Constitution. (See

47. Contestants rights were violated relative to both electors of other counties who are

assessed lower recount costs as well as relative to other requests for public records,

which are assessed costs at lower fees and rates pursuant to the Public Records Act,

when public policy and other considerations dictate that election records should be

available at lower than typical cost, or at no cost, notwithstanding California Election

Code, section 15630, et seq. Exemptions thereunder must be narrowly construed. (See

California Government Code, sections 6250 - 6276.48.) In particular, access to public

must be prompt. (California Government Code, section 6257.) Precinct boards are

“boards” within the meaning of covered agencies for purposes of the Public Records act.

Moreover, on information and belief, access to these election records has been granted

on more favorable terms to others. The Fourteenth Amendment of the U.S. Constitution,

section 6254.5 of the Government Code, requires that Contestants be afforded equal

protection of the law.

48. Contestant’s rights were also violated relative to the class of other public records

requesters in that Defendant Mikel Haas, and Does 1-50, restricted or attempted to

restrict the right of Contestants by limiting the scope of records produced. Defendant

Haas arbitrarily limited the production of records to those that, in his judgment, are

“relevant” when the law of public records and California public policy does not allow

Haas to make an arbitrary determination about what records are “relevant” or what

Contestants will be allow to know about their election of government representatives.

ELECTION CONTEST

49. Contestants restate each of the allegations above and below as if set forth fully

herein.

50. California Constitution, Art. II, § 2.5, provides a right to have one’s vote counted.

Section 2.5 states: “A voter who casts a vote in an election in accordance with the laws

of this state shall have that vote counted.”

51. California Election Code further defines “Vote” by stating:

For purposes of Section 2.5 of Article II of the California Constitution, “vote”

includes all action necessary to make a vote effective in any primary, special, or

general election, including, but not limited to, voter registration, any other act

prerequisite to voting, casting a ballot, and having the ballot counted properly and

included in the appropriate totals of votes cast with respect to candidates for

public office and ballot measures.

(California Election Code, section 15702.)

52. Ballots were not included in the appropriate totals of votes cast, in that absentee

ballots were lumped into large precincts and separated from their proper registered

precincts, making reconciliation of the ballots impossible. Said reconciliation is

particularly important in that a public claim that 10,000 absentee ballots were forwarded

in the final days of the election on behalf of the allegedly prevailing candidate Bilbray is,

on information and belief, a pretextual claim for election fraud and irregularity including

absentee precincts reported as having turnouts of 4,750% and higher, relative to

registered voters reported for those same precincts.

53. Contestants restate each of the allegations above and below as if set forth fully

herein.

34. The public has historically, traditionally and constitutionally had a role in the

governance and supervision of elections which is beyond the power of government to

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eliminate short of a constitutional amendment approved by the people. The people have

a decisive role in all government ranging from determining liability in civil cases and

guilt or innocence criminal trials to directing the policies of government to holding

public officials accountable for their actions. In order to protect that role, public officials

have the duty of public recordation of debate and votes in the legislative branch for the

purpose of facilitating public review and control of those branches of government.

35. With regard to elections, the sum total of the changes effected by the use of

electronic voting by San Diego county rise to the level of such fundamental change in

the system of elections so as to necessitate a Constitutional amendment rather than a

legislative change.

36. These fundamental changes include, but are not limited to, the count of the vote in

secret, not only by public officials, but by corporations unaccountable to voters, thereby

eliminating the public’s right to observe and obtain information regarding the processing

of the vote; the inability of election officials to actually prove and substantiate certified

election results requiring the public and officials to simply take the machine totals based

such to constitute a fundamental change and elimination of the public’s role in elections.

37. The Constitutionally prescribed role for the public in elections cannot be

undermined by legislative or ministerial acts any more than can the terms of the

government representatives of the people be limited. As explained by the U.S. Supreme

Court with regard to term limits:

Allowing these changes to the franchise related to elections for federal office

would effect a fundamental change in the constitutional framework. Any such

change must come not by legislation adopted either by Congress or by an

individual State, but rather -- as have other important changes in the electoral

process n50 -- through the amendment procedures set forth in Article V. The

Framers decided that the qualifications for service in the Congress of the United

States be fixed in the Constitution and be uniform throughout the Nation. […] In

the absence of a properly passed constitutional amendment, allowing individual

States to craft their own qualifications for Congress would thus erode the structure

envisioned by the Framers, a structure that was designed, in the words of the

Preamble to our Constitution, to form a “more perfect Union.” (n50, See, e. g.,

Amdt. 17 (1913) (direct elections of Senators); Amdt. 19 (1920) (extending

suffrage to women); Amdt. 22 (1951) (Presidential term limits); Amdt. 24 (1964)

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(prohibition against poll taxes); Amdt. 26 (1971) (lowering age of voter eligibility

to 18).)

38. Because the election of June 6, 2006, (the first federal election after legislatively,

but not constitutionally, mandated changes in elections pursuant to the Help America

Vote Act) required a constitutional amendment to approve the changes in the public’s

role, it was an unconstitutional election, and therefore void and invalid.

39. Contestants restate each of the allegations above and below as if set forth fully

herein.

40. Contestants have alleged sufficient errors and circumstances to be entitled to an

ordered recount under the facts above, including the verified statements and declarations

submitted herein.

WHEREFORE, Contestants pray for relief as set forth below:

1. That a hand-count of each and every vote be conducted;

2. That all documents necessary to validating the canvass pursuant to applicable

audit standards be produced;

3. That the Court set the actual cost of a hand-count;

4. That the candidate with the most votes be judged elected;

5. For Contestant’s costs of suit herein, including attorney’s fees pursuant to Code of

Civil Procedure, section 1021.5, and 42 U.S.C.A. § 1988, and other proper grounds;

6. For such other and further relief as may be proper.

Dated: Signed:

Kenneth L. Simpkins, Esq.

Attorney for Contestants