00592-gusciora Appellate Brief

____________________________________________________________________________ __________________________________________ :SUPERIOR COURT OF NEW JERSEY Assemblyman Reed Gusciora, Stephanie :APPELLATE DIVISION Harris, New Jersey Coalition for :DOCKET NO.: A-002842-04T1 Peace Action, New Jersey Peace : Action, : : CIVIL ACTION Plaintiffs/Appellants, : : v. : : : ON APPEAL FROM Richard J. Codey, Governor of the State : SUPERIOR COURT OF NEW JERSEY of New Jersey (in his official capacity) : LAW DIVISION, MERCER COUNTY and Peter C. Harvey, Attorney General of : the State of New Jersey (in his official : capacity), : SAT BELOW :Linda R. Feinberg, A.J.S.C. Defendants/Respondent. : ____________________________________________

PLAINTIFFS’/APPELLANTS’ BRIEF

Penny Venetis, Esq. Frank Askin, Esq. Rutgers Constitutional Litigation Clinic 123 Washington Street Newark, New Jersey 07102 (973) 353-5687 Attorneys for Plaintiffs/Appellants

PRELIMINARY STATEMENT / STATEMENT OF THE FACTS1

1

In an effort to conserve space and avoid repetition, specific facts relevant to the insecurities of electronic voting machines, and the inadequacy of New Jersey testing to detect software flaws and manipulation will be discussed in the points of the argument that are related to those issues.

On Election Day 2004, 7,699 electronic voting machines, otherwise known as Direct Recording Electronic voting machines (“DREs”) were available for use in fifteen of New Jersey’s twenty-one counties.2

Currently there are

4,814,970 registered voters in New Jersey; 3,494,193 of them are registered to vote on DREs.3

By the time this appeal is heard, Essex and Warren

counties may also be using DREs, adding another 462,461 to the total of voters who can cast their ballots electronically.4 Even though millions of votes are cast on DREs each election day, DREs are not regulated.

This lack of regulation is remarkable given the level of

detail contained in Title 19 for almost every aspect of voting.

The lack of

regulation means that county officials are left to their own devices in conducting elections with DREs.

There is no uniformity in dealing with

2

Office of the Attorney Gen., N.J. Dep’t of Law and Public Safety, Division of Elections Voting Equipment Inventory, at http://www.state.nj.us/lps /elections/Voting_Machine_invent_11.1.04.pdf (last visited June 4, 2005), (60a-61a). Hereinafter this document will be referred to as “Attorney General’s DRE Inventory List.” 3

Office of the Attorney Gen., N.J. Dep’t of Law and Public Safety, Registered Voters as of the Close of Registration for the Primary Election to be Held on June 7, 2005, at http://www.state.nj.us/lps/elections/05primaryelection/2005primary_elect_byc ounty.pdf (last visited June 4, 2005). 4

Id.

2

routine voting procedures, or with special situations such as machine malfunctions, vote manipulations and recounts. Many reputable studies written by computer scientists (who are uniquely qualified to evaluate the security of DREs), have shown that DREs are unreliable and prone to errors.5

Indeed, there is no way to determine

whether DRE software in New Jersey DREs is functioning properly, or if it has been corrupted to manipulate election results.

Certification of Andrew

Appel ¶ 70, (October 14, 2004), (376a-377a); Certification of Rebecca Mercuri ¶¶ 9, 12, 35, summ. (a),(c), (October 17, 2004), (306a-307a, 308a, 317a, 325a, 326a).

This is especially true in New Jersey because the DRE-

software testing procedures used here are inadequate to detect flawed and/or fraudulent software. Id. ¶¶ 63-70,(372a-377a); Supplemental Certification of Andrew Appel ¶¶ 1-8, 10-13, (Oct. 25, 2004), (417a-421a, 421a-422a); Mercuri Certif. ¶¶ 30-37, (315a-319a). As will be discussed throughout this brief, Plaintiffs’ expert witnesses, computer security experts, have certified that votes cast on New Jersey DREs can be fraudulently manipulated if an unscrupulous person has 5

See Rebecca Mercuri, Humanizing Voting Interfaces, at http://notablesoftware.com/Papers/UPAPaper.html, Jul. 11, 2002 (last visited Jun. 4, 2005); RABA Technologies, LLC, Trusted Agent Report: Diebold AccuVote-TS Voting System, Jan. 20, 2004, (87a-112a); Aviel Rubin et al., Analysis Of An Electronic Voting System, IEEE Symposium On Security And Privacy 2004, IEEE Computer Society Press, May 2004 (commonly known as the “Hopkins Report”), (63a-86a); Science Applications International Corporation (“SAIC”), Risk Assessment Report: Diebold AccuVote-TS Voting System and Processes, Sep. 2, 2003, at http://www.dbm.maryland.gov/dbm_publishing/public_content/dbm_search/technol ogy/toc_voting_system_report/votingsystemreportfinal.pdf (last visited Jun. 4, 2005). 3

unobserved access to DREs for as little as five to ten minutes. Appel Certif.

See, e.g.,

50, 53, (367a-368a); Supplemental Certification of Andrew

Appel ¶ 15 (Oct. 25, 2004), (423a-424a); see also Mercuri Certif.

18-29,

(310a-315) (discussing vulnerabilities of DREs to tampering). DREs alter vote totals not only as a result of malicious manipulation, but also as a result of inadvertent error (by a poll worker, DRE transporter or software writer), or defective software.

Appel Certif. ¶¶ 9-13, 45-54,

60 (347a-349a, 365a-369a, 371a); Appel Supp. Certif. ¶¶ 3, 10-11, 15, (418a, 421a-422a, 423a-424a); Mercuri Certif. ¶¶ 10-14, 19-21, 23-25 (307a-308a, 310a-311a, 311a-313a). Because it is impossible to know whether New Jersey’s DREs are counting votes correctly, they violate the right to vote and to have one’s vote counted accurately, guaranteed by the New Jersey Constitution and Title 19 of the New Jersey Code.

See New Jersey Democratic Party v. Samson, 175 N.J.

178, 187 (2002)(citing Reynolds v. Sims, 377 U.S. 533, 555 (1964)(implicit to right to vote is right to have vote counted as cast)); N.J.S.A. §§ 19:481(h), 19:61-1(b) (2005). Notably, the same makes and models of DREs used in New Jersey have been rejected as insecure and unreliable by California,6 Nevada,7 Ohio,8 and New 6

Office of the Sec’y of State of Cal., Decertification and Withdrawal of Approval of AccuVote-TSx Voting System as Conditionally Approved November 20, 2003, and Rescission of conditional Approval, at http://www.ss.ca.gov/elections/ks_dre_papers/decert.pdf (April 30, 2004). 7

Geoff Dornan, Heller: Clerks Must Use Sequoia Voting Machine, NEVADA APPEAL, Dec. 11, 2003, available at http//:www.nevadaappeal.com/apps/pbcs.dll/article?AID=2003112110010 (lasted visited Jun. 5, 2005). 8

Tom Chansky, Comprehensive Study Charts Path To Success, Spirit of Citizenship & Democracy, Winter 2004, at 4. Available at 4

York City,9and are no longer used there.http://www.ss.ca.gov/elections/ks_dre_papers/decert1.pdf; Additionally, on April 7, 2005, Pennsylvania’sSecretary of State announced that Pennsylvania’s DREs were too insecure to trust with the right to vote. [I]t was discovered during the reexamination that an intruder could conduct malicious activities on the personal computer at the central location . . . and erase any evidence that such activity had taken place because its electronic log is an unencrypted file. Commonwealth of Pennsylvania, Dep’t of State, Reexamination Results of Unilect Corporation’s Patriot Direct Record System, at 3, Apr. 7, 2005.10 While the Unilect machines are not currently used in New Jersey, they are on New Jersey’s list of “certified machines,” and could be purchased by any county in New Jersey.

Certified Voting Machines/Devices In New Jersey at

4.11 Additionally, despite paying $24.5 million for DREs, the Election Supervisor of Miami-Dade County in Florida recently recommended discontinuing DRE use.

McNelly Torres and Chrystian Tejedor, 2004 Election

Problems Cited; Advocacy Group Studies Miami-Dade; Errors, Machine Malfunctions Found In Review, Sun-Sentinel (Florida), May 26, 2005, at 48. By filing this lawsuit, Plaintiffs ask that the New Jersey judiciary

http://www.sos.state.oh.us/sos/pubAffairs/spirit/winter2004.pdf. (last visited Jun. 4, 2005). 9

Frank Lombardi, Suit Aims to Rescue Electronic Voting, Daily News, Mar. 24, 1996, at 28; Certification of Douglas Kellner, (Oct. 12, 2004), (433a438a). 10

Available at http://www.dos.state.pa.us/dos/lib/dos/20/dos_report_unilect_syst em.pdf (Last Visited Jun. 4, 2005). 11

Available at http://www.state.nj.us/lps/elections/Certified_Voter_ Machine_Listings_7_16_04.pdf (last visited Jun. 4, 2005). 5

enjoin the use of all DREs in the State until they can satisfy the New Jersey Constitution’s and Title 19's requirements that all votes be counted accurately and as cast.

The most efficient and effective way to do this is

through the “Mercuri Method,” otherwise known as a voter-verified paper ballot. Mercuri Method - a paper ballot is prepared using an electronic voting system and displayed behind a transparent window. The voter is provided with an opportunity to verify the choices printed on the paper ballot prior to performing an action that deposits the ballot into a secured ballot box. The voter must also be provided with a way of voiding the ballot prior to casting if it is incorrect and, in such a case, must be provided with another opportunity to verify and cast a ballot. Mercuri Certif. ¶ 42, (320a-321a).

Voter verified paper ballots have been

endorsed by voting technology research studies conducted across the country. See, e.g., RABA Technologies, LLC., Trusted Agent Report: Diebold AccuVoteTS Voting Systems at 23 (2004), (109a)(unanimous agreement among security review team members that “introduction of voter-verifiable paper receipts is absolutely necessary in some limited form”); Aviel Rubin et al., Analysis of an Electronic Voting System at 21 (2004), (83a).

Additionally, four states

(Alaska,12 California,13 Maine,14 and Ohio15) require that all votes cast on DREs produce a voter verified paper ballot to secure the integrity of the franchise.16

Three states (Illinois,17 New Hampshire18, and Vermont19)

12

Alaska Stat. § 15.15.032 (c). 13

Cal. Elec. Code § 19250 (2005).

14

21-A M.R.S. § 812 (10) (2004).

15

Ohio Rev. Code Ann. § 3506.10 (P)(Anderson 2005).

16

Plaintiffs’ Complaint and brief submitted in support of their motion for a TRO erroneously state that Oregon requires that all 6

require that voting be performed exclusively by paper ballot, because they believe that DREs are too insecure to trust with the right to vote. Although legislation has been introduced in New Jersey to require that DREs produce a voter verified paper ballot, that legislation is in its nascent stages, and is certainly not law.

Because the integrity of the

right to vote is being compromised by DREs, this Court should reinstate this lawsuit.

It is incumbent upon the judiciary to protect the franchise in the

event that the legislature continues to remain silent on DRE safety.

PROCEDURAL HISTORY An understanding of the procedural history of this case is critical to votes cast on DREs be required to produce a voter-verified paper ballot. Compl. ¶¶ 10, 68, (4a, 32a); Pl. Br. at 50-51,(237a238a). Oregon’s legislation requiring a voter-verified paper ballot is still pending. H.B. 2169, 73rd Or. Leg. Assembly, Reg. Sess. (Or. 2005). When this lawsuit is reinstated, Plaintiffs will amend the Complaint to correct this error. 17

10 Ill. Comp. Stat. 5/24A-16 (4) (2005).

18

N.H. Rev. Stat. Ann. § 656:41 (2004).

19

17 V.S.A. § 2478 (e) (2004).

7

this Court’s comprehending the many ways Judge Feinberg erred in dismissing the Complaint, and in converting Defendants’ motion to dismiss into a motion for summary judgment.

I.

THE COMPLAINT. The Complaint was filed on October 19, 2004, is 45 pages long, and

contains four exhibits.

(1a-45a).

The Complaint discusses in detail how

DREs violate the New Jersey Constitution and Title 19 of the New Jersey Code.

Below appears a summary of portions of most of the Complaint to

demonstrate that it provides enough information to have survived Defendants’ motion to dismiss. ï

Paragraphs 26-33, (11a-14a), fall under the subheading “The DRE Machines Scheduled For Use In New Jersey Are Insecure.”

These

paragraphs detail why New York City rejected the Sequoia Pacific AVC Advantage, and Ohio, California, and Nevada rejected the ES&S iVotronic and Sequoia Pacific AVC EDGE as insecure and unreliable.

These

paragraphs also discuss findings of the California and Ohio Secretaries of State that the iVotronic and the AVC EDGE can be tampered with very easily, and are too insecure to be trusted with the right to vote. This section also specifies that 160 AVC EDGEs, over 6,500 AVC Advantages, and 361 iVotronics are used in New Jersey. ï

Paragraphs 34-49, (14a-25a) fall under the subheading “Electronic Voting Machines Have Failed To Accurately Read Votes Cast In Elections

8

Throughout The Country.”

This section contains specific examples of

how the Sequoia Pacific AVC Advantage DREs malfunctioned in South Brunswick and in Mercer County, and disfranchised Plaintiff Stephanie Harris, Mercer County resident Glenn Cantor, and other voters. ï

Paragraph 43 (which is eight pages long, single-spaced), (17a- 23a), gives examples from around the country of how the very same makes and models of DREs used in New Jersey have failed to record votes accuracy. There are eighteen incidents discussed in the following categories: (A)

DREs Have Failed To Register Properly All Votes Cast, (17a-19a);

(B)

Flawed DRE Software Has Lost Votes, (19a-20a);

(C)

DRE Cartridges Failed To Record Votes, (20a-21a);

(D)

Vote Tabulation Systems Used With DREs Have Failed To Provide Accurate Vote Totals, (21a-23a);

(E)

Poorly Trained Poll Workers And DRE Industry Technicians Have Jeopardized Votes, (23a); and

(F)

DRE Hardware Has Hampered Voting, (23a).

ï

Paragraphs 44-57, (24a-28a), identify three DRE models used in New Jersey (the Sequoia Pacific AVC Advantage, Sequoia Pacific AVC EDGE, and ES&S iVotronic), and discuss in detail how those machines are insecure, vulnerable to manipulation, and how they cannot be trusted with our votes.

ï

Paragraphs 58-60, (28a-29a), fall under the heading “Testing Of The DREs Is Insufficient To Detect Programs That Manipulate Votes” and discuss critiques of New Jersey’s DRE testing offered by renown computer science experts.

ï

Paragraph 61-66, (29a-31a), fall under the heading “The Process For 9

Certifying Voting Machines Under N.J.S.A. §§ 19-48 Et Seq. And 19:53A-1 Et Seq. Is Not Sufficient to Ensure that DREs Will Be Secure and Capable of Recording Every Vote.”

These paragraphs discuss in detail

how there are no guidelines whatsoever in Title 19 for certifying DREs. All references in Title 19 to “electronic voting machines” are to optical scanners that count paper ballots! Seq. ï

See N.J.S.A. 19:53 A-1 et.

They also discuss how New Jersey DREs are completely unregulated.

Paragraph 67-73, (31a-33a), fall under the heading “New Jersey Seriously Lags Behind Other States and Counties That Have Recognized the Insecurity of DREs and Have Decertified Them and Disallowed Their Use.”

This section discusses how eight U.S. states have passed

legislation requiring either that voting machines produce voter verified paper ballots,20 or that all votes be cast on paper ballots, and how two countries (Ireland and Venezuela) decommissioned the same DREs being used in New Jersey because the DREs were too insecure. ï

Paragraphs 74-89, (33a-39a), discuss in detail the efforts made by Plaintiffs and other New Jersey citizens to persuade the Attorney General and Governor to make New Jersey DREs more secure and to require that they produce a voter verified paper ballot to independently audit the DREs to ensure that they tabulate votes accurately.

ï

Paragraphs 90-108, (40a-44a), list the causes of action under which Plaintiffs seek relief.

20

See footnote 16. 10

COUNT ONE, (40a), alleges that the Defendants have failed to implement basic security measures to ensure that every vote is counted as cast, in violation of the New Jersey Constitution.21 COUNT TWO, (41a-42a), alleges that the Defendants violated the New Jersey Constitution’s guarantee of equal protection. In event of a recount, DRE voters have no assurance that their votes will be treated the same as ballots cast on paper ballots, optically scanned ballot cards or lever machines. In the event of a recount, elections will be determined by those votes that can be independently audited - non-DRE votes. COUNT THREE, (42a), alleges that because DREs cannot be audited independently and no instructions exist in Title 19 on how to conduct recounts, that DREs violate State guidelines concerning recounts (N.J.S.A. § 19:28-1 et seq.) COUNT FOUR, (43a), alleges that DREs violate the statutory right specified by N.J.S.A. § 19:48-1(d),(f) and § 19:53A-3(b) that voters be permitted to cast their vote for the candidates or ballot issue of their choosing. COUNT FIVE, (43a-44a), alleges that DREs violate the statutory right that voting equipment be secure, as guaranteed by NJSA § 19:53A-3(g). COUNT SIX, (44a), alleges that DREs violate the statutory requirement guaranteed by N.J.S.A. § 19:481(h) and § 19:53A-3(h) that all votes be counted accurately. It is clear from the above-detailed description that Counts One through Six are supported strongly by the factual data contained in the rest of the Complaint.

21

Plaintiffs discovered an error in the Complaint. Count One alleges that New Jersey’s DREs violate Article III ¶ 3(a) of the Constitution, rather than Article II, Sec. I, Para. 3. When this lawsuit is reinstated, Plaintiffs will amend their Complaint to correct this error. 11

II.

PLAINTIFFS’ MOTION FOR A TRO TO ENJOIN THE USE OF DREs.

A.

PLAINTIFFS’ BRIEF SUPPORTING THEIR MOTION FOR A TRO.

In addition to filing their Complaint on October 19, 2004, the Plaintiffs also moved for a temporary restraining order to enjoin the use of New Jersey’s insecure DREs. The Plaintiffs’ brief in support of their TRO is 115 pages and provides detailed support for all the claims in the Complaint, (170a-302a). The structure of the brief mirrors the structure of the Complaint. Even a quick glance of the brief’s table of contents reveals the thoroughness and soundness of Plaintiffs’ legal analysis. See Pl. Br. I-vi, Table of Contents, (171a-176a). B.

CERTIFICATIONS SUPPORTING PLAINTIFFS’ MOTION FOR A TRO. Plaintiffs submitted several certifications in support of their TRO.

Those certifications, listed below, give ample support to Plaintiffs’ legal claims of how DREs violate the New Jersey Constitution and Title 19. Professor Andrew Appel of Princeton University is an expert in computer security. His certification discusses the insecurity of DREs in general, and the insecurity of specific DREs used in New Jersey. Two Sequoia Pacific DREs– the AVC Advantage (by far the most prevalent DRE in New Jersey) and the AVC EDGE– can be reprogrammed, without detection, to throw an election in as little as five to ten minutes. Appel Certif., (343a-416a). Rebeca Mercuri, Ph.D., of Harvard University is a computer security expert who specializes in the security of electronic voting machines. Dr. Mercuri discusses the insecurity of DREs in general, and the insecurity of specific DREs used in New Jersey, especially the Sequoia Pacific AVC Advantage. Mercuri Certif., (303a-342a). Plaintiff Stephanie Harris discusses how in 2004 she was disenfranchised by a DRE in Mercer County. Certification of Stephanie Harris (Oct. 13 2004), (425a-428a). Glenn Cantor discusses how he was disenfranchised by a DRE in Mercer County in 2004. Certification of Glenn Cantor (Oct. 17, 2004), (429a432a). Douglas Kellner, Commissioner of Elections for New York City, discusses how, upon his urging, in 1995 Mayor Giuliani canceled NYC’s contract to buy 7,000 Sequoia Pacific AVC Advantage machines because the machines 12

are too insecure to trust with counting votes. 438a).

Kellner Certif., (433a-

Beth Feehan of Mercer County, discusses how she collected 20,000 signatures of New Jersey residents opposing DREs that do not produce a voter verified paper ballot, and presented the signatures to then Governor McGreevey in the summer of 2004. Certification of Beth Feehan (Oct. 14, 2004), (439a-440a). C.

DEFENDANTS’ FIRST MOTION TO DISMISS (OCTOBER, 2004).

On October 25, 2004, the Defendants opposed Plaintiffs’ motion for a TRO. They filed 48 certifications (approximately 300 pages, (444a-767a)) to bolster their opposition to Plaintiffs’ TRO. Defendants also moved to dismiss the Complaint. D.

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS. On October 25, 2004, Plaintiffs filed a reply brief in support of their

motion for a TRO, and a response to Defendants’ motion to dismiss. Plaintiffs also filed a supplemental Certification of Professor Andrew Appel who refuted statements contained in the Defendants’ certifications. 424a).

(417a-

Specifically, Professor Appel found that the security procedures

described in Defendants’ certifications for the handling of DREs were lax and facilitated malicious tampering of DRE software. 1-15, (417a-424a).

Appel Supp. Certif. ¶¶

He also found that the testing for DREs described in the

Defendants’ certifications was inadequate to detect malicious software that can throw an election.

E.

Id.

DENIAL OF THE PLAINTIFFS’ AND DEFENDANTS’ MOTIONS On October 26, 2004, in a fifty-five page opinion, Judge Feinberg

13

denied Defendants’ motion to dismiss (without prejudice), and Plaintiffs’ motion for a TRO.

See Gusciora v. McGreevey, No. MER-L-2692-04 (Law Div.

Oct. 26, 2004)(768a-823a).22

III. DEFENDANTS’ SECOND MOTION TO DISMISS. A.

DEFENDANTS’ DECEMBER 2004 MOTION TO DISMISS. On December 7, 2004, the Defendants again moved to dismiss the

Complaint, in lieu of filing an answer.

Defendants raised the following

legal arguments in support of their motion to dismiss:

separation of powers

(Point I); lack of ripeness (Point II); failure to include indispensable parties (Point III); and lack of standing of the Plaintiff organizations (Point IV).

See Table of Contents, Defs.’ Motion To Dismiss, December 7,

2004, I, (825a). Most relevant to this appeal, is that nowhere in their brief or their motion to dismiss did Defendants refer to any of the certifications that they had filed with the court in October 2004, upon which the Court relied heavily to dismiss the Complaint.

B.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ SECOND MOTION TO DISMISS. Plaintiffs opposed the Defendants’ second motion to dismiss.

In their

brief, Plaintiffs stated that Judge Feinberg’s analysis of the Defendants’ 22

Shortly after she issued her October 26th opinion, Plaintiffs filed a motion and brief to modify the Court’s opinion, as it was rife with errors. Judge Feinberg denied this motion. 14

motion should be limited solely to the four corners of the Complaint. Plaintiffs also submitted the certification of Daniel Preston, the Chair and Challenger-at-Large for the Democratic Party in Princeton Township, to let Judge Feinberg know that on Election Day 2004, DREs in Mercer County failed to register votes.

Certification of Daniel Preston, Dec. 21, 2004 at ¶¶ 1-

20, 24, (828a-834a, 835a).

IV.

JANUARY 27, 2005 CONVERSION OF MOTION TO DISMISS INTO A MOTION FOR SUMMARY JUDGMENT, AND DISMISSAL OF COMPLAINT. On January 27, 2005 Judge Feinberg granted Defendants’ second motion to

dismiss.

She issued a thirty page opinion (dated January 13th) supporting

the dismissal.

Gusciora v. McGreevey, MER-L-2691-04, slip op. (Law Div.

Jan. 13, 2005) (hereinafter “Jan. 2005 Op.”), (136a-166a). Pages eleven through twenty-two of the opinion, (147a-158a), discuss in detail certifications that were never submitted by Defendants in their December motion to dismiss.

As the Court concedes, these certifications

were offered by the State “[i]n opposition to the application for injunctive relief[.]” Id. at 11, (147a)– which was disposed of by the Court on October 26, 2004. Thus, without telling the parties, she effectively converted Defendants’ motion to dismiss into a motion for summary judgment.

In

considering the motion for summary judgment, Judge Feinberg made all inferences of fact in favor of the Defendants, and weighed the evidence presented.

While her opinion discusses extensively Defendants’

15

certifications, Judge Feinberg barely mentions Plaintiffs’ submission in support of their motion for a TRO.

Judge Feinberg dismissively summarizes

the Plaintiffs’ submissions to the Court as follows: “Plaintiffs rely on newspaper articles and other publications regarding alleged voting machine problems in other jurisdictions, and theoretical dissertations of the possibility of voting machine failure.”

Jan. 2005 Op. at 10, (146a).

This characterization shows that Judge Feinberg failed to acknowledge the certifications of disfranchised New Jersey voters Plaintiff Stephanie Harris and Glenn Cantor, or Daniel Preston’s discussion of Election Day 2004 disfranchisement of voters by DREs.

She

also ignored the certifications of computer security experts Dr. Mercuri and Professor Appel, who comment specifically on the insecurity of New Jersey DREs, and the ease with which they can be manipulated to throw an election without detection.

Plaintiffs filed this appeal because

Judge Feinberg erred in converting the December 7, 2004 motion to dismiss into a motion for summary judgment.

She also erred in

dismissing the Plaintiffs’ valid Complaint.

ARGUMENT I.

THE TRIAL COURT IMPROPERLY DISMISSED THE COMPLAINT BECAUSE THE COMPLAINT CLEARLY SUGGESTS A CAUSE OF ACTION.

A.

THE COMPLAINT ARTICULATES A CAUSE OF ACTION UNDER TITLE 19 AND THE NEW JERSEY CONSTITUTION. 16

The dismissal of Plaintiffs’ Complaint was premature and clearly erroneous.

Under New Jersey Court Rule 4:6-2(e), “the test for

determining the adequacy of a pleading [is] whether a cause of action is ‘suggested.’”

Printing Mart-Morristown v. Sharp Electronics Corp., 116

N.J. 739, 746 (1989).

A reviewing court’s evaluation of a dismissal is

“limited to examining the legal sufficiency of the facts alleged on the face of the complaint . . . For purposes of analysis plaintiffs are entitled to every reasonable inference of fact.”

Id.

The Printing Mart

rule necessitated a denial of Defendants’ motion to dismiss. In their Complaint, Plaintiffs made claims under New Jersey’s Constitution and Title 19 of the New Jersey Code. contains six causes of action.

The Complaint

It alleges that New Jersey’s insecure,

and easily-tampered-with DREs violate the New Jersey Constitution (the right to have one’s vote counted as cast, and the right to have one’s vote given equal weight in the event of a recount) (Counts One and Two), (40a-42a).

The Complaint also alleges that New Jersey’s insecure DREs

violate various provisions of Title 19 that guarantee the right to have one’s vote counted as cast, counted accurately in a re-count and that voting machines be secure.

(Counts Three, Four and Five), (42a-44a).

Each claim is clearly defined, and is supported by the allegations contained throughout the Complaint. A full discussion of almost every paragraph of the Complaint appears in the “PROCEDURAL HISTORY” section of this brief, on pages 717

12, and need not be replicated here.

As demonstrated above, Plaintiffs

not only articulated their six causes of action, but, in the eighty-nine paragraphs preceding the counts, they provided example after example of how the causes of action were violated.

These examples include: DRE

disenfranchisement in New Jersey, Complaint ¶¶ 35-41, (14a-16a); disenfranchisement elsewhere caused by the same DREs used in New Jersey, Complaint ¶¶ 43, (17a-23a); a thorough discussion about the insecurity of New Jersey and other DREs, Complaint ¶¶ 26-33, 44-57, (11a-14a, 24a28a); and the inadequacy of New Jersey’s DRE testing and certification process to detect flawed and fraudulent software, Complaint ¶¶ 58-66, (28a-31a).

This analysis more than satisfies Rule 4:6-2(e)’s

requirement that the Complaint merely suggest a cause of action. Judge Feinberg erred in dismissing this lawsuit.

She disregarded

the thorough presentation in the Complaint that clearly suggested causes of action.

B.

Thus, this Court should reinstate this lawsuit.

JUDGE FEINBERG FUNDAMENTALLY MISUNDERSTOOD PLAINTIFFS’ CLAIM AND MISAPPLIED A SEPARATION OF POWERS ANALYSIS TO DISMISS THE COMPLAINT. In dismissing the Complaint, Judge Feinberg improperly used a

separation of powers analysis.

Even though on page 6 of her Opinion,

(142a), Judge Feinberg quoted N.J.S.A. 19:48-2 as authorizing a cause of action for challenging the approval process for voting machines, she nonetheless clearly misunderstood the Plaintiffs’ claims.

18

Section

19:48-2 reads: The certificate of approval, or a certified copy thereof, shall be conclusive evidence that the kind of machine so examined complies with the provisions of this subtitle, except that the action of the Secretary of State in approving such machine may be reviewed by the Superior Court in a proceeding in lieu of prerogative writ. (emphasis added). Despite her acknowledgment of § 19:48-2's cause of action, Judge Feinberg repeatedly stated in her opinion that Plaintiffs were challenging the constitutionality of Title 19.

See Jan. 2005 Op. at 5-

6, 24-26, 29-30, (141a-142a, 160a-162a, 165a-166a).

She then invoked

the separation of powers doctrine several times to find that the legislature should determine whether New Jersey voters should vote using DREs.

Id.

She stated that “it is the job of [the legislature] to weigh

the pros and cons of various balloting systems.”

Id. at 24, (160a)

(quoting Weber v. Shelley, 347 F.3d 1101, 1107 (9th Cir. 2003)). Judge Feinberg’s invocation of the separation of powers doctrine demonstrates a fundamental misunderstanding of this lawsuit.

Plaintiffs

are not challenging the constitutionality of any portion of Title 19.23 23

Thus, Judge Feinberg's citation to cases supporting a presumption of the constitutionality of Title 19 are completely inapposite. See Jan. 2005 Op. at 5-6, (141a-142a). Those cases are also irrelevant because they do not deal with the right to vote. When a constitutionally protected right is burdened by a statute, higher scrutiny is involved, any presumption of the 19

The Plaintiffs, rather, ask the Court to protect the franchise because of the gaping hole in Title 19, which is silent on how to vote using DREs. As Plaintiffs repeatedly stated, Title 19 of N.J.S.A. does not discuss DREs anywhere or even contemplate the use of DREs. 61-2, 66, (29a, 30a-31a); Pl. Br. at 76-9, (263a-266a).

Compl. ¶¶

Indeed, the

only reference to “electronic voting systems” in Title 19 is to optical scan machines that count paper ballots! N.J.S.A. §§ 19:53A-1 et seq. defines an electronic voting machine as one “in which votes are recorded on ballot cards, and such votes are subsequently counted and tabulated by automatic tabulating equipment at one or more counting centers.” N.J.S.A. 19:53A-1(e) (emphasis added).

Chapter 53A governs the physical

requirements of optical scan machines only, and does not contemplate the use of other types of electronic voting systems such as DREs. Pl. Br. at 76-77, (263a-264a).24 Because Title 19 is silent on how to conduct elections using DREs, each county using DREs is left to its own devices every election day. There are no guidelines whatsoever in the event DREs malfunction (like failure to count votes or mis-allocate votes) or are tampered with; nor is there any instruction on how to conduct a recount. validity of the statute disappears. Stafford, 110 N.J. 384, 395 (1988). 24

See Bell v. Township of

This portion of Title 19 was last modified in 1973, ten years before Atlantic County purchased the first DRE in New Jersey. Oct. 2004 Op. at 36, (804a). 20

That is why Plaintiffs brought this lawsuit.

They asked the Court

to protect the right to vote because the legislature and executive failed to do so.

Plaintiffs did not ask Judge Feinberg to overturn any

portion of Title 19 or to exert unauthorized power over the legislature. Rather, they asked her to find that the unregulated use of DREs violated the Constitution and Title 19's requirements that all votes be counted as cast, and that all votes be given equal weight in the event of a recount.

Judge Feinberg’s separation of powers analysis is clearly

erroneous; and her dismissal of the Complaint is reversible error.

C.

THE LEGISLATURE MANDATES JUDICIAL INVOLVEMENT IN THIS LITIGATION. Contrary to Judge Feinberg’s findings, the legislature requires

her to rule on the issues presented in this lawsuit.

N.J.S.A. 19:48-1

states that: “Any thoroughly tested and reliable voting machines may be adopted, rented, purchased or used, which shall be so constructed as to fulfill the following requirements . . . .”

The statute lists fifteen

specific statutory requirements that must be fulfilled in order for voting machines to be “thoroughly tested and reliable.”

See N.J.S.A. §

19:48-1 (a)-(o). Although the Attorney General’s approval of a voting machine presumes its compliance with the requirements of N.J.S.A. § 19:48-1, 21

"the action of the [Attorney General]25 in approving such machine may be reviewed by the Superior Court in a proceeding in lieu of prerogative writ."

N.J.S.A. § 19:48-2.

Thus, Title 19 expressly provides for

judicial review of the Attorney General’s evaluation system to ensure that approved voting systems do indeed comply with the security standards of Title 19. Through this lawsuit, Plaintiffs do exactly what is authorized by the legislature.

Plaintiffs challenge DREs as being unreliable, not

secure, and not thoroughly tested, in violation of N.J.S.A. § 19:481(d),(f),(h), and § 19:53A-3(b),(g),(h). 44a).

See Compl. ¶¶ 100-108 (43a-

Plaintiffs also challenge, through the statutorily authorized

motion in lieu of prerogative writ, see N.J.S.A. § 19:48-2, the certification process used by the Attorney General to certify DREs. Compl. ¶¶ 61-66, (29a-31a). Plaintiffs’ allegations that DREs are insecure and not adequately tested thus triggered the Court’s obligation, under § 19:48-2, to scrutinize DREs to ensure that they comply with Title 19. Contrary to Judge Feinberg’s findings, there is ample authority for the judiciary to rule on the issues raised by this lawsuit.

In

Samson, the New Jersey Supreme Court filled in a gap in a portion of

25

Although Title 19 lists the Secretary of State as the chief election officer, in 1993, the Attorney General was assigned this task. N.J.S.A. 19:31-6(a). Thus, statutory references to the Secretary of State, should be read as pertaining to the Attorney General. 22

Title 19 that was silent about balloting procedures.

175 N.J. at 184.

N.J.S.A. § 19:30-20 states that if a vacancy among the candidates occurs 51 days before the general election, a State committee must select a replacement candidate at least 48 days before the general election.

The

statute does not discuss what happens with ballots when a candidate withdraws from a race less than 51 days before an election. Despite this legislative silence, the New Jersey Supreme Court permitted another candidate’s name to be printed on the ballot when then-Senator Torricelli withdrew from the Senate race only 36 days prior to the 2002 election.

Id. at 199-200.

The Samson court held that

unless there is actual statutory language preventing the judiciary from filling-in statutory holes in election laws, the judiciary is obligated to do so.

Id. at 190 (contrasting Title 19's silence to New York and

Colorado statutes that expressly prohibit the replacement of a candidate’s name on a ballot a certain number of days prior to an election).

The Samson court justified its actions by stating that:

[e]lection laws are to be liberally construed, so as to effectuate their purpose. They should not be construed so as to deprive voters of their franchise or so as to render an election void for technical reasons. Id. at 189 (quoting Kilmurray v. Gilfert, 10 N.J. 435, 440 (1952)). Samson, is directly applicable to this lawsuit.

As Title 19 is

silent on the use of DREs, there is no express language preventing New Jersey courts from taking measures to protect voters from unregulated and unreliable DREs.

Judge Feinberg acted improperly by failing to 23

recognize the special role New Jersey courts play in protecting the right to vote, and by citing the separation of powers doctrine to dismiss the Complaint.

D.

Thus, this Court should reinstate this lawsuit.

THE COURT CREATED AN INAPPROPRIATELY HIGH STANDARD OF REVIEW IN CONSIDERING DEFENDANTS’ MOTION TO DISMISS. In dismissing the Complaint, Judge Feinberg applied a standard of

review that is not authorized by the New Jersey Court Rules. was clearly erroneous.

Rule 4:6-2(e) requires that a complaint merely

“suggest a cause of action” to survive a motion to dismiss. Mart, 116 N.J. at 746.

Doing so

Printing

Courts should not be concerned with Plaintiffs’

ability to prove their case at such an early stage in the litigation. Id. [A] reviewing court searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary. Id. (quotation marks omitted).

See also Grobart v. Society for

Establishing Useful Mfgs., 2 N.J. 136, 151-2 (1949)(“The grand objective of the movement for simplified procedure by rules of court is the elimination of the interminable prolixity and absurd technicalities of special pleading . . . .”).26 26

New Jersey’s standard for analyzing motions to dismiss is consistent with F.R.Civ.P. 8(a). In striking down a heightened standard of review created by some lower federal courts to evaluate civil rights cases, the U.S. Supreme Court stated: “We think that it is impossible to square the ‘heightened pleading 24

Despite the clearly-defined and permissive standard for evaluating motions to dismiss, Judge Feinberg used a much more stringent standard of review (of her own making) to dismiss the Complaint.

In dismissing

the Complaint, Judge Feinberg stated: Although N.J.S.A. 19:48-2 expresses that the findings regarding voting machines are conclusive, the statute provides a mechanism for review by the Superior Court. The language in the statute evidences intent by the legislature to, at a minimum, establish a rebuttable presumption in favor of the Secretary of State’s approval, thereby placing the burden on plaintiffs in this case to prove otherwise . . . . [T]his court finds that plaintiffs have not overcome its presumption in demonstrating that there are no conceivable grounds to support Title 19's validity. Jan. 2005 Op. at 6-7, (142a-143a)(emphasis added); see also Id. at 24, (160a)(“Plaintiffs have not overcome the presumption in demonstrating that there are no conceivable grounds to support Title 19's validity . . . .”). Even if a presumption exists that the Attorney General’s certification of a DRE means that it complies with Title 19's security requirements, that presumption is rebuttable because § 19:48-2 specifically authorizes judicial review of the certification process. Thus, challenges to the certification of voting machines (such as in this lawsuit) were contemplated and endorsed by the legislature. Implicit in this endorsement is the endorsement of the rules of procedure governing litigation.

This includes the standard for courts

standard’ . . . in this case with the liberal system of ‘notice pleading’ set up by the Federal Rules.” Leatherman v. Tarrant County Narcotics and Coordination Unit, 507 U.S. 163, 168 (1993). 25

to evaluate complaints on a review of a motion to dismiss. The “no conceivable grounds” standard created by Judge Feinberg requires Plaintiffs to prove their case in their Complaint, and ignores that Plaintiffs need only suggest a cause of action to survive a motion to dismiss.

Requiring Plaintiffs to show in the Complaint that “there

are no conceivable grounds” to support the certification process raises the bar for pleading requirements to an unacceptable standard.

See

Printing Mart, 116 N.J. at 746; Leatherman, 507 U.S. at 160. Judge Feinberg’s creation and application of a new standard for evaluating the Complaint in a motion to dismiss is clearly erroneous and warrants reinstatement of this case.

II.

THE COURT ERRED IN CONSIDERING EVIDENCE OUTSIDE THE PLEADINGS, AND IN CONVERTING DEFENDANTS’ MOTION TO DISMISS INTO A MOTION FOR SUMMARY JUDGMENT. In addition to ignoring strong evidence that clearly suggests

a cause of action, the Court improperly converted Defendants’ motion to dismiss to a motion for summary judgment, without ever notifying the parties.

Her actions were clearly erroneous.

Conversion of the motion to dismiss into a motion for summary judgment was improper.

Rule 4:6-2 states:

If, on a motion to dismiss [“failure to state a claim granted”], matters outside not excluded by the court,

based on the defense numbered (e) upon which relief can be the pleading are presented to and the

motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all 26

material pertinent to such a motion. N.J. Court Rules, 1969 R. 4:6-2; see also Luiz v. Sanjurjo, 335 N.J. Super. 279, 280 n.1 (App. Div. 2000). Defendants raised only legal arguments in support of their December 7, 2004 motion to dismiss.

The headnotes of Defendants’ brief

read as follows: I.

THE COURT LACKS JURISDICTION OVER THIS MATTER BECAUSE PLAINTIFFS ARE CHALLENGING THE FINAL DETERMINATIONS OF A STATE OFFICER AND SUCH REVIEW LIES ONLY IN THE STATE APPELLATE DIVISION.

II.

EVEN IF THIS COURT HAD JURISDICTION OF THIS MATTER, THE COMPLAINT WOULD HAVE TO BE DISMISSED AS UNTIMELY UNDER R. 4:69-6(a).

III. THE RIGHTS AND OBLIGATIONS OF VARIOUS COUNTY OFFICIALS WHO ARE NOT NAMED AS DEFENDANTS ARE DIRECTLY AT STAKE IN THIS MATTER. IN ADDITION, EFFECTIVE RELIEF CANNOT BE GRANTED TO PLAINTIFFS UNLESS THOSE COUNTY OFFICIALS ARE JOINED AS PARTIES TO THIS SUIT. THIS MATTER, THEREFORE, SHOULD BE DISMISSED FOR PLAINTIFFS’ FAILURE TO INCLUDE INDISPENSABLE PARTIES. IV.

THE ORGANIZATIONAL PLAINTIFFS LACK STANDING TO BRING THIS ACTION AND THE INDIVIDUAL PLAINTIFFS ONLY HAVE STANDING TO CHALLENGE THE UTILIZATION OF ELECTRONIC VOTING MACHINES IN MERCER COUNTY.

Def. Br. at I-ii, (825a-826a).

Nowhere in the brief supporting their

December 7, 2004 motion to dismiss do Defendants refer to the certifications they had filed in October 2004. Nonetheless, twelve out of thirty pages of Judge Feinberg’s opinion dismissing the Complaint are devoted to discussing the validity of these very certifications.

Jan. 2005 Op. 11-23, (147a-159a).

27

Judge

Feinberg clearly did not realize the reversible error she was committing when she considered the October certifications in deciding the December 7, 2005 motion to dismiss, as she readily admits to using the certifications for her deliberations.

See Jan. 2005 Op. at 11,

(147a)(“In opposition to the application for injunctive relief, the State offered the certifications of election officials, employed by county and state election offices.”)(emphasis added). The Court’s analysis of and reliance on the Defendants’ October certifications in addressing the December motion to dismiss was erroneous.

See Leon v. Rite Aid Corp., 340 N.J. Super. 462, 471-72

(App. Div. 2001).

Had Defendants submitted certifications in support of

the motion to dismiss, the Court could have converted the motion to dismiss into a motion for summary judgment.

But, here, Defendants did

not submit “facts beyond the pleadings” in their motion to dismiss. Thus, the conversion to summary judgment was improper. This Court should thus reinstate this lawsuit.

III. EVEN IF THE COURT’S EXAMINATION OF OUTSIDE EVIDENCE AND THE CONVERSION OF THE MOTION TO DISMISS INTO A MOTION FOR SUMMARY JUDGMENT WERE PROPER, IT WAS STILL CLEARLY ERRONEOUS FOR THE COURT TO DISMISS THE COMPLAINT. Even if the conversion of the motion to dismiss into a motion for 28

summary judgment had been proper, the granting of summary judgment to Defendants and the dismissal of the Complaint would still be clearly erroneous.

Summary judgment:

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact. N.J. Court Rules, 1969 R. 4:46-2(c)(emphasis added). In granting summary judgment to Defendants, the Court erred in three ways.

First, the Court failed to grant every reasonable inference

of fact to Plaintiffs in determining whether genuine issues of material fact were raised.

The Court completely ignored all the evidence that

Plaintiffs presented that DREs are insecure, unreliable and not thoroughly tested.

Additionally, the Court accepted Defendants’

assertions as irrebuttable fact. Second, the Court erred by weighing the evidence presented in the parties’ pleadings, rather than in just determining whether the triable issue of fact existed.

But, Judge Feinberg also erred in the way she

weighed the evidence.

Her justification for dismissing the Complaint

were based on her faulty reading of Defendants’ three-month old certifications. Third, the Court erred in dismissing this case (involving a threat 29

to the fundamental right to vote by unregulated DREs) at such an early stage, where Plaintiffs were not given the opportunity to develop a record.

See Slohanda v. United Parcel Service Inc., 193 N.J. Supper

586, 594 (App. Div. 1984)(cautioning against granting summary judgment of a meager record where the ruling would have a broad social and legal effect).

A.

JUDGE FEINBERG ERRED IN FAILING TO GRANT PLAINTIFFS EVERY REASONABLE INFERENCE OF FACT IN DETERMINING WHETHER GENUINE ISSUES OF MATERIAL FACT EXISTED. In dismissing the Complaint, Judge Feinberg failed to grant

Plaintiffs every reasonable inference of fact. [T]he motion judge [must] consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party . . . . Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995). Judge Feinberg completely ignored strong evidence submitted by the Plaintiffs that New Jersey DREs are unreliable, insecure, not properly tested, and can be manipulated easily to throw elections. She also ignored evidence that New Jersey voters were disfranchised. Instead, she took as fact her erroneous reading of certifications submitted by Defendants in conjunction with a motion that was no longer before the court. 1.

Judge Feinberg Ignored All Examples Of DRE Disfranchisement Of New Jersey Voters, And All Examples Of DRE Malfunctions That Led To The Disfranchisement Of Voters.

The Complaint discusses three instances of voter

30

disenfranchisement.

Plaintiff Stephanie Harris, who used an AVC

Advantage DRE to vote in the 2004 primary was not able to cast her vote. Compl. ¶¶ 36-37, (15a).

She was instructed by a poll worker to press

the DRE’s “CAST VOTE” button four times.

Id. ¶ 36, (15a).

But the poll

worker was not certain whether Plaintiff Harris’s vote was ever cast. Id. ¶ 37, (15a). (15a-16a).

The same happened to Glenn Cantor.

Id. at ¶¶ 38-41,

He too was instructed by a poll worker to press the “CAST

VOTE” button four times when the DRE he was using switched his vote, and lost power. the DRE.

Id.

He is not sure if his vote was registered properly by

Id. ¶ 41, (16a).

Moreover, in opposition to Defendants’ December motion to dismiss, Plaintiffs provided the court with a certification that stated that on Election Day 2004, at least twenty voters were disenfranchised by DREs in Mercer County.

Preston Certif. ¶ 2, (828a-829a).

More would have

been disenfranchised if Mr. Preston, a Challenger-At-Large for the Democratic Party, had not intervened.

Id. at ¶¶ 1, 5-22, (828a-835a).27

Additionally, in their Complaint and brief supporting the motion for a TRO, Plaintiffs devoted significant space to examples where the exact make and model of DRE used in New Jersey malfunctioned elsewhere. See Compl. ¶¶ 34-43, (14a-23a); Pl. Br. 31-43, (218a-230a).

27

These

Judge Feinberg mischaracterizes Mr. Preston’s certification, saying that, at most, two voters were disenfranchised in Mercer County on Election Day. Jan. Op. at 11. Mr. Preston certified that at least twenty voters were disenfranchised. Preston Certif. ¶ 2. 31

malfunctions involved failure to properly register all votes cast, loss of votes, failure of DRE memory cartridges to record votes, and failure of tabulation systems to provide accurate vote totals.

Id.

These

malfunctions were significant enough for New York City, California, Nevada, and even Ohio to decommission their DREs (for a full discussion of the decommissioning of these DREs, see Compl. ¶¶ 67-73, (31a-33a); Pl. Br. at 52-58, (239a-245a)). Yet, Judge Feinberg did not consider these examples of voter disfranchisement important.

She dismissed them, in passing, merely

stating “[t]he reality, albeit unfortunate, is that there exists no guarantee of a perfect voting system.” This was erroneous.

Jan. 2005 Op. at 11, (147a).

As Plaintiffs pointed out, Pl. Br. at 3-4, (190a-

191a), every vote manipulation, no matter how small, must be taken seriously.

Yale University researchers concluded that the manipulation

of simply one vote per machine would have been enough to change the outcome of the 2000 presidential election.

Anthony DiFranco et al.,

Small Vote Manipulations Can Swing Elections, Communications of the ACM, Oct. 2004, at 43-45, (127a-129a). The examples of disenfranchisement discussed in the Complaint are also relevant because DREs of the same make and model allegedly contain the same software.28

That means that flaws in one version of the

28

Through this suit, Plaintiffs show that it is impossible to verify this allegation, and that every DRE needs to be carefully and independently audited through the use of voter verified paper ballots. 32

software exist in all machines containing the same software.

Thus, any

mis-allocation of votes anywhere in the world by the same DRE software that is contained in New Jersey DREs means that New Jersey DREs also mis-allocate votes.

The examples of DRE disenfranchisement offered by

Plaintiffs are thus not “hypothetical,” as Judge Feinberg stated, but rather, highly relevant to this lawsuit and should have been of great concern to the Court. DRE malfunctions can compromise the constitutional and statutory guarantees that all votes be counted as cast.

It was clearly erroneous

for Judge Feinberg to ignore the gravity of the examples of disfranchisement that the Plaintiffs presented.

2.

Judge Feinberg Ignored Strong Evidence Presented By Computer Security Experts That DREs Are Unreliable, Insecure, Not Adequately Tested, And Have Mis-allocated Votes.

Plaintiffs submitted to the Court over seventy pages of expert certifications (plus exhibits) from renowned computer scientists Rebecca Mercuri and Andrew Appel who discuss the unreliability and insecurity of New Jersey DREs.29 29

These experts also discuss with specificity how the

Dr. Mercuri is a Fellow at the Radcliffe Institute for Advanced Study at Harvard University. Mercuri Certif. ¶ 1 (Oct. 17, 2004), (303a-304a). Her field of expertise is computer security. Id. ¶ 1-2, (303a-304a). Her impressive credentials appear in Mercuri Certif. Ex. A, (329a). Professor Appel is a professor of computer science at Princeton University. Appel Certif. ¶ 1, (343a-344a). His areas of expertise are “computer security, software engineering and design, programming languages, computer architecture, operating 33

testing procedures used in New Jersey are inadequate for detecting whether DREs have been maliciously manipulated. Ignoring these certifications, Judge Feinberg relied instead on the boilerplate language of certifications submitted by county employees, including low-level county employees, in dismissing this lawsuit.

Judge Feinberg devotes twelve pages out of her thirty page

opinion discussing and analyzing Defendants’ certifications.

Jan. 2005

Op at 11-23, (147a-159a). By contrast, the only thing she says about the Plaintiffs’ experts’ substantive discussions about DRE insecurity was that Plaintiffs’ submitted “newspaper articles and other publications regarding alleged voting machine problems in other jurisdictions, and theoretical dissertations of the possibility of voting machine failure.” Id. at 10, (146a).

This statement is wrong.

Plaintiffs’ computer

security experts offered their highly relevant opinions on how DREs in general, and New Jersey DREs specifically, are vulnerable to fraud, and how the voting machine testing process used in New Jersey cannot detect this fraud.

a.

DREs Are Inherently Insecure And Vulnerable.

systems, and other areas.” Id. ¶ 2, (344a). His impressive credentials appear in Appel Certif. Ex. A, (382a-390a).

34

Plaintiffs’ experts have certified that it is not difficult to write a computer program that can sabotage an election, and then cover its tracks.

Indeed, any individual with basic knowledge of computer

programming can write code that would cause a computer to display “A” on the screen, record “B” in its hardware, and “lie” to the tester by stating that it recorded “A” (when it had in fact recorded “B”). Mercuri Certif.

38, (319a); see also Appel Certif.

27, (356a-357a).

If a program is stored on a medium that is writable, such as an ordinary hard disk or a RAM memory cartridge, then it can modify itself. This means that a fraudulent program can be programmed to throw an election, and then at 7:55 p.m. on election day, overwrite itself with a copy of the certified, non-fraudulent program. This property of software-the inherent erasability [sic] of the medium-is unlike mechanical machines or paper. Appel Certif.

31, (359a).

It is a tenet of computer science theory that it is impossible to know for certain that any computer is performing a certain set of tasks, and no more.

Mercuri Certif.

9, (306a-307a).

Indeed, it is

impossible to prove that any computer is not infected with malicious code.

Id.

This also holds true for DREs.

“The impact of this

fundamental flaw on voting systems means that no matter how stringent the testing and certification may be, this can not guarantee that the system will be 100% secure and 100% reliable.” New Jersey DREs are insecure.

Id.

Plaintiffs’ experts certified that

anyone with physical access to a Sequoia Pacific AVC EDGE machine for as little as five minutes and who knows the user password (which is not

35

difficult to guess) can install a new program into the machine. Certif.

50, (367a).

Appel

That program can manipulate votes, and can throw

an election without being detected.

Id.

12, 14, (349a).

They also certified that the Sequoia Pacific AVC Advantage is an insecure system. (310a-312a).

Appel Certif.

53, (368a); Mercuri ¶¶ 18-19, 21-23,

Anyone with access to an AVC Advantage for as little as

ten minutes can replace the chip that contains the program that runs the machine, and change the behavior of the machine to throw an election. Appel Certif. (423a-424a).

53, (368a); Appel Supp. Certif.

15, (Oct. 25, 2004),

Judge Feinberg did not even acknowledge the computer

scientists warnings about the insecurity of these New Jersey DRES. Judge Feinberg also ignored Professor Appel’s discussion of the grave security risks to the franchise posed by county practices discussed in Defendant’s certifications.

Many DREs in New Jersey are

delivered up to two weeks before an election (Bergen, Burlington, Gloucester, Hunterdon, Union).30

The remainder of the DREs are

delivered within a week before the election (Hudson, Mercer, Middlesex, Ocean, Somerset, Salem, Atlantic).31

Specifically referencing

30

See Certification of Patricia DiCostanzo ¶ 16, (no date), (479a); Certification of Joanne Nyikita ¶ 12, (Oct. 12, 2004), (488a); Certification of Mark Harris ¶ 11 (Oct. 24, 2004), (498a); Certification of Richard Lynch ¶ 11, (Oct. 25, 2005), (516a); Certification of Dennis Kobitz ¶ 12, (Oct. 23, 2004), (575a). 31

See Certification of Lisa Gentile ¶ 12, (Oct. 22, 2004), (508a); Certification of Robert Lester ¶ 13, (no date), (526a); Certification of Richard Plantec ¶ 11, (Oct. 23, 2004), (535a); 36

Defendants’ certifications, Professor Appel stated that “[d]uring this advance period people could have unobserved access to the machines for several hours at a time.

Machines could be tampered with.”

Certif. at ¶ 10, (348a).

Software that will manipulate elections can be

installed in a period of five to ten minutes. (367a-368a); Appel Supp. Certif.

Appel Supp.

Appel Certif. ¶¶ 50-53,

15, (423a-424a).

Judge Feinberg did

not even acknowledge Professor Appel’s warnings that the early transport of voting machines could lead to election tampering. Judge Feinberg also ignored Professor Appel’s findings that the alleged “tamper proof seals” described in the counties’ certifications32 do not protect against the installation or use of fraudulent software. It is possible to fraudulently replace the tamper proof seals after loading malicious software. Certification Certification Certification Certification

of of of of

Appel Certif. ¶ 52, (367a-368a); Appel

Robert Giles ¶ 16, (Oct. 24, 2004), (546a); Edward Mach ¶ 14, (Oct. 24, 2004), (566a); John Burke ¶ 13, (Oct. 23, 2004), (610a); Joann Armbruster ¶ 14, (Oct. 25, 2004), (626a).

32

See DiCostanzo Certif. ¶ 24, (481a); Nyikita Certif. ¶ 19, (490a); Harris Certif. ¶ 18, (500a); Gentile Certif. ¶ 19, (509a510a); Lynch Certif. ¶ 18, (518a); Lester Certif. ¶ 19, (527a528a); Plantec Certif. ¶ 18, (537a); Certification of Alfonso Santoro ¶ 24, (no date), (558a); Kobitz Certif. ¶ 19,(577a).

37

Supp. Certif. ¶¶ 5, 10, (419a, 421a).

Instead of finding that a genuine

issue of material fact existed, Judge Feinberg accepted the insecure “tamper proof” seals as valid safety measures.

Jan. 2005 Op. at 19,

(155a). Judge Feinberg erred by disregarding the concerns and warnings of computer security experts that New Jersey DREs are insecure and can be manipulated easily to throw elections.

b.

The Only Way To Ensure The DREs Are Functioning Properly, Is To Conduct An Independent Audit, Using Voter Verified Paper Ballots.

Plaintiffs’ experts both certify that the only way to ensure that DREs are not manipulating our votes is to conduct an independent audit of election results.

The most reliable method for doing so is by using

a “voter verified ballot system” (or “Mercuri Method”). Mercuri Method - a paper ballot is prepared using an electronic voting system and displayed behind a transparent window. The voter is provided with an opportunity to verify the choices printed on the paper ballot prior to performing an action that deposits the ballot into a secured ballot box. The voter must also be provided with a way of voiding the ballot prior to casting if it is incorrect and, in such a case, must be provided with another opportunity to verify and cast a ballot. Mercuri Certif. ¶ 42, (320a-321a); See also Appel Certif. ¶¶ 14-25, 78-79, (349a-350a, 379a-380a). The paper ballot must not provide any feature that could be used to violate voter privacy or encourage coercion and vote selling. These voter verified paper ballots should be used to produce the certified vote totals and be available for scrutiny in case of election contest or recount. When 38

properly implemented, the "Mercuri Method" ensures that paper ballots will not be removed from the polling place nor added to the ballot box. Mercuri, Electronic Voting: Who Created the Voter Verified Balloting Concept?.33 The use of voter verified paper ballots, as an effective means of independently auditing votes, has been endorsed by voting technology research studies conducted across the country.

RABA Technologies, LLC.,

Trusted Agent Report: Diebold AccuVote-TS Voting Systems 8, 23 (2004), (94a, 109a); Aviel Rubin et al., Analysis of an Electronic Voting System 21 (2004), (83a); Science Applications International Corporation (“SAIC”), Risk Assessment Report: Diebold AccuVote-TS Voting System and Processes (Sep. 2, 2003).34 Judge Feinberg erred in failing to acknowledge Plaintiffs’ experts’ discussion of the voter verified paper ballot as the most effective way to ensure that: each vote is counted as cast, and that all votes will receive equal treatment in the event of a recount. c. Current Testing Procedures Are Insufficient To Guarantee The Accuracy And Performance Of DREs. (1)

New Jersey Testing Process Cannot Detect DRE Software Flaws Or Manipulation.

33

At http://www.notablesoftware.com/evote.html (last modified Mar. 6, 2004)http://www.notablesoftware.com/evote.html. 34

At http://www.dbm.maryland.gov/dbm_publishing/public_content/dbm_sea rch/technology/toc_voting_system_report/votingsystemreportfinal.p df (last visited Jun. 4, 2005). 39

Judge Feinberg ignored Plaintiffs’ certifications that show that testing for New Jersey DREs is inadequate to detect software flaws or manipulation.

Programming errors are very difficult to detect, even

among experts.

Microsoft’s products illustrate this point.

Even though

Microsoft has great financial incentive to produce completely foolproof programs, and hires testers and inspectors to insure that it produces the best product possible, program bugs still slip through and are passed on to the public. two things.

Appel Certif.

25, (354a-355a).

This shows

One, that even well-trained, well-paid, and highly-

motivated computer scientists who are looking for “bugs” cannot produce 100% accurate programs; and two, that unintentional “bugs” are very hard to detect.

Id.

25-26 (354a-356a).

In his Supplemental Certification, Professor Appel addressed and refuted specific assertions in Defendants’ certifications that DREs are tested before their use.

He stated that the DRE tests described in the

certification of Patricia DiCostanzo of Mercer County “are not adequate to detect the integrity and performance of the software installed within Sequoia Pacific AVC Advantage voting machines.” 5, (419a).

Appel Supp. Certif. ¶

He also stated that

[t]he DRE voting system safeguards and testing procedures described in [Defendants’] Brief and the Certifications of various election officials across the State do not address the problem of errors or fraud in the software itself.

40

Id. ¶ 2, (418a). The logic and accuracy tests (LAT) performed in New Jersey are insufficient to guarantee DRE security. 359a); Appel Supp. Certif. C), (326a).

Appel Certif. ¶ 30, (358a-

¶ 2-8, (418a-421a); Mercuri Certif. Summ.

These tests are run using the machine’s software itself.

Appel Certif. ¶ 30, (358a-359a); Appel Supp. Certif. ¶¶ 2-3, 7-8, 13, (418a, 420a-421a, 422a). They can be useful in detecting malfunctioning hardware . . . [h]owever they cannot be relied upon to detect intentionally fraudulent software, for two reasons: First, they are part of the very software that might be fraudulent; and second, . . . the fraud might be programmed to take place only at certain times of day. Appel Certif. ¶¶ 19, 30, (351a-352a, 358a-359a).

Because

computers,

including DREs “know” the time and day, they can be programmed to perform according to expectations during pre-election tests, and then to activate a malicious code on Election Day that will sabotage the election.

Id. ¶ 30, (358a-359a).

Plaintiffs’ experts certified that if unintentional bugs are difficult to detect, malicious bugs implanted in software, that are deliberately hidden, are even more difficult, if not impossible to detect.

Id.

27, (356a-357a).

install in DREs.

Such fraudulent software is easy to

Fraudulent election software can be installed in New

Jersey DREs during the manufacturing stage, or after their manufacture. Appel Certif.

54, (368a-369a).

The voter verified paper ballot is the

most effective way to protect votes against malicious software. 41

Id.

¶¶

14-25, 78-79, (349a-350a, 379a-380a).

(2)

The New Jersey Voting Machine Certification Process Is Incapable Of Detecting DRE Malfunctions Or Tampering.

Judge Feinberg ignored Plaintiffs’ certifications that show that New Jersey’s voting machine certification process does not detect flaws or fraudulent software.

N.J.S.A. 19:48-2 requires the certifying

authority (previously the Secretary of State, now the Attorney General) to subject voting machines to an examination by a committee of three experts, “one of whom shall be an expert in patent law and the other two mechanical experts.”

Certification of Richard Woodbridge ¶¶ 4, 5, 7,

(October 25, 2004), (453-454a).

Those experts must submit a written

report about the machine. Plaintiffs’ experts certified that this requirement is insufficient for DREs, as DREs are not mechanical machines.

Testing

must be conducted by “electrical engineers and computer scientists” who can appreciate the complexities of DRE technology. (372a-373a); Mercuri Certif.

30, (315a-316a).

Appel Certif.

63,

Patent law and

mechanical experts will not be able to properly review “the overwhelming majority of the complexity of a DRE machine,” which is found “in the electronic circuits and . . . computer software.”

Appel Certif.

63,

(372a-373a). Defendants’ Woodbridge certification also states that a machine

42

model, rather than each individual machine, is certified. Certif. ¶ 7, (454a).

Woodbridge

This certification method does not guarantee that

every voting machine of the same make and model (of the tested model) is free of fraudulent software.35 The technology of DREs is such that every single machine must be inspected and certified, especially when the DRE produces no voter verified paper ballot.

Appel Certif.

56-62, (369a-372a).

Examining

a single model of DRE will not ensure that the computer program in each machine can be relied upon to count votes accurately.

Appel Certif.

56, (369a). The Sequoia Pacific AVC Advantage, which was used by at least 2.8 million registered voters in the general election of 2004, is not the same as the one which the Attorney General claims was certified in 1987. Appel Cert. ¶¶ 59, (371a) (Citing AVC Advantage Security Overview 5 (2004), (396a)).

The manufacturer literature of the AVC Advantage

admits that Sequoia Voting Systems’ AVC Advantage has been “significant[ly]” updated since 1987. See AVC Advantage Security Overview 5 (2004), (396a).

Both the hardware and the software of the

AVC Advantage have been updated since then.

35

Appel Certif.

59-60,

This method of certification is akin to stating that if one make and model of a single automobile is tested, then all cars produced by the manufacturer have also been tested, and never have to undergo individual inspections. See Mercuri Certif. 34, 36, (317a-318a). We know that such a blanket endorsement of automobiles would be dangerous, and could lead to the loss of life. Id. 43

(371a-372a).

Thus, the 1987 certification of this DRE is invalid.

The lifetime certification of New Jersey DREs ignores the fact that software is always changing and must be re-checked. Every time a program is updated, the software can be corrupted. Certif.

Appel

60, (371a-372a).

Even the smallest change to a computer program-even a change of just one letter-can radically alter its behavior. It is entirely possible that program bugs (which could miscount the vote) or fraudulent modifications to the program could be inserted into “upgrades”. Therefore it is absolutely necessary that, if the manufacturer makes changes to the software, the new version of the software is subjected to . . . [a] scrupulous certification process . . . . Id.; see also Id.

65, (374a-375a).

When “substantive” changes are

made to a DRE, it is necessary to revoke any certification and re-test and re-certify the machine.

Mercuri Certif.

33, (316a-317a).

Additionally, lifetime certification ignores that election software can be corrupted whenever the software is used in conjunction with a commercial software or ancillary computer equipment such as tabulation software.

Mercuri Certif.

50, (323a-324a).

Despite Plaintiffs’ experts’ detailed analyses of how DREs in New Jersey are insecure, and that New Jersey DRE testing and certification procedures are incapable of detecting flawed or fraudulent software, Judge Feinberg never cited Plaintiffs’ experts’ certifications anywhere; nor did she acknowledge their words of concern about the real possibility of vote tampering using New Jersey DREs.

This failure to

acknowledge Plaintiffs’ experts, let alone give every reasonable 44

inference of fact to Plaintiffs, is reversible error.

3.

Judge Feinberg Erroneously Made All Findings Of Fact In Favor Of Defendants. She Also Made Serious Factual Errors In Her Evaluation Of Defendants’ Certifications.

Judge Feinberg clearly erred in failing to make all reasonable inferences in favor of Plaintiffs.

See Brill, 142 N.J. at 523.

As

discussed directly above, Plaintiffs submitted ample evidence that DREs are insecure, unreliable, not thoroughly tested, and can be manipulated easily to throw elections without being detected.

Plaintiffs also gave

example after example of how voters using DREs were disfranchised. Judge Feinberg, however, ignored this evidence and relied only on the certifications submitted by Defendants to dismiss the Complaint. Moreover, in evaluating Defendants’ certifications, Judge Feinberg made serious factual errors.

She then relied on the factual errors to

improperly make all inferences in favor of the Defendants, and to improperly grant summary judgment to Defendants.

a.

Five Counties Did Not Endorse DREs In Any Way And Said Absolutely Nothing About DREs Being “Accurate And Reliable.”

Judge Feinberg concluded that “[i]n essence, the certifications of election officials and staff assert that the [DRE] machines are accurate and reliable.”

Jan. 2005 Op. at 19, (155a). 45

These conclusions are not

supported by the certifications. The certifications of four county officials lack any endorsement of DREs whatsoever.

See Lester Certif., (522a)(Mercer County); Plantec

Certif., (531a)(Middlesex County); Certification of Rudolph Filko, (Oct. 25, 2004), (616a)(Passaic County); Certification of Abigail McCaw, (Oct. 25, 2004), (470a)(Sussex County).

Moreover, Morris County officials did

not submit any certifications. These five counties use a variety of models and quantities of Mercer County owns 600 AVC Advantage DREs.36

DREs.

(523a).

Middlesex County owns 662 AVC Advantage DREs.37

Certif. ¶ 2, (532a).

Plantec

Morris County owns 805 AVC Advantage DREs.38

Passaic County owns 420 V-2000 DREs.39 DREs.40

Lester Certif. ¶ 3,

McCaw Certif. ¶ 2, (470a).

Sussex County owns 361 iVotronic

None of these 2,858 DRE machines

were endorsed by any county officials.

These 2,85841 DREs make up

37.22% of the total DREs used in New Jersey. (7,679 DREs were used in New Jersey in the 2004 election.)42 Thus, Judge Feinberg erred in concluding that all DREs in New 36

Attorney General’s DRE Inventory List, (60a-61a).

37

Id.

38

Id.

39

Id.

40

Id.

41

Id.

42

Id. 46

Jersey had been used successfully and were accurate and reliable. She also erred in her specific discussion of the AVC Advantage and her finding that all counties that use this specific model of DRE have found those machines to be accurate and reliable. Jan. 2005 Op. at 19, (155a). b.

Judge Feinberg’s Finding That “the election representatives have certified that: . . . no vote count has been changed as a result of a recheck nor has any election been overturned due to a machine malfunction” Is Not Supported By The County Certifications.

Judge Feinberg found that “the election representatives have certified that . . . no vote count has been changed as a result of a recheck nor has any election been overturned due to a machine malfunction.”

Id. at 12, (148a).

But, nothing in the certifications

submitted by Mercer, Middlesex, Passaic, and Sussex counties support this conclusion. certification.

Moreover, Morris County did not submit a

As discussed above, these five counties offered no

endorsement for their 2,858 DREs, which comprise 37.22% of the total number of DREs used in New Jersey. Additionally, officials from six out of fifteen counties using DREs failed to include any language that would support Judge Feinberg’s conclusion that “no vote count has been changed as a result of a recheck.”

Those County officials are from Hudson, Mercer, Middlesex,

Passaic, Salem, and Sussex Counties.

Collectively, these six counties

use the Sequoia Pacific AVC EDGE and AVC Advantage and the ES&S V-2000

47

and iVotronic.43 Judge Feinberg’s global conclusion about the accuracy and reliability of DREs is clearly erroneous because it fails to acknowledge that half of the county officials who submitted certifications did not make any such endorsements.

c.

Judge Feinberg’s Finding That “this is the first time . . . [DRE] use has been challenged” Is Not Supported By The County Certifications.

Based on the statements of only two county officials (Gentile Certif. ¶ 24, (511a)(Hudson); Burke Certif. ¶ 21, (613a)(Salem)), Judge Feinberg drew the universal conclusion that “[a]lthough these voting machines have been used successfully in this State for over a decade, this is the first time their use has been challenged,” Jan. 2005 Op. at 7, (143a), and dismissed the Complaint.

This global conclusion about

the accuracy and reliability of DREs is clearly erroneous and unsupported by the county certifications. As discussed in the sections above, Mercer, Middlesex, Morris, Passaic, and Sussex counties did not certify that their DREs have been used successfully.

The thirteen other counties that submitted

certifications never stated that their DREs performance and accuracy has never been challenged.

43

These counties collectively have 6,939 DREs (out

Attorney General’s DRE Inventory List, (60a-61a). 48

of a total of 7,679 state-wide).44 Most strikingly, Atlantic County’s certification directly contradicts Judge Feinberg’s finding.

See Armbruster Certif. ¶ 31,

(629a) (stating that “[s]pecifically, pursuant to a court order, in 1996 the functionality of a particular machine was challenged”).

Thus, Judge

Feinberg’s unequivocal and bold statement that the use of DREs was never challenged before Plaintiffs filed this lawsuit is clearly erroneous. d.

Judge Feinberg’s Finding That “election officials . . . certify for use each and every voting machine” Is Not Supported By The County Certifications.

In dismissing the Complaint, Judge Feinberg found that “election officials . . . certify for use each and every voting machine.” Jan. 2005 Op. at 12, (148a).

This finding is supported by only four county

certifications.45 Officials from nine out of fifteen counties using DREs omitted any mention of machine certification in their affidavits.46

Based on only

four certifications, Judge Feinberg erroneously made the universal finding that each and every DRE used in New Jersey is certified.

44

Attorney General’s DRE Inventory List, (60a-61a).

45

See DiCostanzo Certif. ¶ 10, (477a)(Bergen); Giles Certif at. ¶ 10, (544a)(Ocean); Santoro Certif. ¶ 10, (554a)(Ocean); Burke Certif. ¶ 11, (610a)(Salem). 46

While the McCaw Certif. ¶¶ 3, 14, 21, (471a-473a)(Sussex) mentions certification, it does not state that election officials certify each and every voting machine. 49

This

global conclusion about the accuracy and reliability of DREs is clearly erroneous.

e.

The Certification Of Richard Woodbridge Does Not State That Every DRE In New Jersey Is Certified.

Judge Feinberg states that the certification of Richard Woodbridge represents that “all of the electronic voting machines in the State are certified voting machines and meet all of the requirements of Title 19.” Jan. 2005 Op. at 21-22, (157a-158a).

This finding is clearly erroneous.

Mr. Woodbridge does not certify that every electronic voting machine is certified.

He states that “[a] voting machine must first be

certified before it may be used in any election in New Jersey.” Ex. C, ¶ 3, (453a).

Def.

He further states that “[o]nce a voting machine is

approved by the State of New Jersey, a certificate of approval is issued, serving as prima facie evidence that the kind of voting machine so examined complies with the spirit of the provisions of N.J.S.A. 19:48-1, et seq.” Def. Ex. C. ¶ 7, (454a) (emphasis added). Mr. Woodbridge’s certification clearly does not support Judge Feinberg’s finding.

First, Mr. Woodbridge does not even certify that

the machines he certifies comply with the law.

He states that the

certified machines comply only “with the spirit” of the law.

Thus, his

certification, on its face, offers no proof whatsoever that the certification process for DREs satisfies Title 19. Second, Plaintiffs’ experts specifically stated that certifying a 50

make or model of computer (as is done in New Jersey) is not equivalent as (a security measure) to certifying each and every machine. See Mercuri Certif. ¶¶ 34, 36, (317a-318a).

Examining one machine does not

reveal details about every machine, because not all machines are exactly alike.

Appel Certif.

56, (369a).

Examining a single model of DRE

will not ensure that the computer program in each machine can be relied upon to count votes accurately.

Id.

Certifying one DRE and stating

that all DREs of the same make and model are certified is like inspecting one car and saying that all cars of the same make and model are also certified.

See Pl. Br. at 81-82, (268a-269a); Mercuri Certif.

¶¶ 34, 36, (317a-318); Appel Certif. ¶¶ 56-62, (369a-372a). Thus, Judge Feinberg’s findings that every DRE in New Jersey is certified is clearly erroneous.

Her reliance on the Woodbridge

certification in any manner is also clearly erroneous, as Mr. Woodbridge never states that any certified DRE complies with the actual requirements of Title 19.

f.

No Evidence Was Submitted To The Court Showing That Computer Experts Are Part Of The State’s Voting Machine Certification Team.

On page 23 of her Opinion (159a), Judge Feinberg states that “the State represents that it has been the administrative practice, for the State’s examination of voting machines since the 1990's, to include experienced personnel in the field of computers. (See generally

51

Woodbridge Certif. [(452a)]).”

This finding is unsupported by any of

Defendants’ certifications. The Woodbridge Certification states that “N.J.S.A. 19:48-2 specifically provides for a three-member Committee (‘Committee’) to consist of a patent attorney and two mechanical experts to examine the machine.” Woodbridge Certif. ¶ 4, (453a).

It does not state anywhere

that the members of the Committee include “experienced personnel in the field of computers.” The exhibits attached to the Woodbridge Certification list the members of the teams that certified the Sequoia Pacific AVC EDGE (Letter from Richard Woodbridge to George Nyktas, May 29, 2001, (461a)) and ES&S VT-2000 (Woodbridge memo 10/8/1998), but do not address their qualifications. Thus, Judge Feinberg’s conclusion that computer experts examine New Jersey’s DREs is clearly erroneous.

g.

Judge Feinberg’s Finding That “all voting machines are equipped with emergency paper ballots” Is Not Supported By The County Certifications.

In dismissing the Complaint, Judge Feinberg found that “all voting machines are equipped with emergency paper ballots.” Jan. 2005 Op. at 12, (148a).

Only one of the fifteen county election officials who

submitted certifications made this statement. (626a)(Atlantic).

52

Armbruster Certif. ¶ 12,

Two certifications make no mention of paper ballots. Certif., (616a)(Passaic); McCaw Certif., (470a)(Sussex).

See Filko The remaining

eleven certifications of county officials state that the “law requires that all voting machines be equipped with emergency paper ballots.”47 They do not state that their DREs actually are equipped with emergency paper ballots. This bland statement about statutory requirements is a far cry from Judge Feinberg’s finding that all DREs are equipped with emergency paper ballots.

Thus, again, her characterization of the Defendants’

certifications is clearly erroneous.

4.

Judge Feinberg Committed A Clear Error When She Weighed All Certifications Equally Regardless Of The Certifier’s Level Of Authority, Equating The Word Of The Superintendents Of Election With Those Of Warehouse Workers.

47

See DiCostanzo Certif. ¶ 27, (482a)(Bergen); Nyikita Certif. ¶ 21, (491a)(Burlington); Harris Certif. ¶ 20, (501a)(Gloucester); Gentile Certif. at ¶ 22, (510a)(Hudson); Lynch Certif. ¶ 20, (519a)(Hunterdon); Lester Certif. ¶ 22, (528)(Mercer); Plantec Certif. ¶ 23, (538a-539a)(Middlesex); Giles Certif. ¶ 27, (549a)(Ocean); Santoro Certif. ¶ 27, (559a)(Ocean); Kobitz Certif. ¶ 21, (577a-578a)(Union); Burke Certif. ¶ 20, (612a)(Salem).

53

N.J.S.A. 19:48-4 requires each county to designate one official to preserve and maintain all voting machines.

In counties that have

Superintendents of Elections, that individual will have and exercise all the powers of, and be charged with all the duties had and exercised and required to be performed by, the superintendent of elections and the commissioner of registration in any county, including the custody and control of voting machines heretofore or hereafter installed in the county in any manner provided by law . . . . N.J.S.A. 19:32-49.

Superintendents have the statutory duty to maintain

the security of the election and the devices used. 49, 19:48-4, 19:48-6.

N.J.S.A. §§ 19:32-

In those counties that lack a Superintendent of

Elections, the county Board of Elections is statutorily responsible for the custody of voting machines.

N.J.S.A. 19:48-4

Of the fifteen counties using DREs, six have Superintendents of Elections.48

But, only four of these six counties submitted a

certification from their Superintendents of Elections: Atlantic, Bergen, Burlington and Passaic.

The Superintendents of Elections from Hudson

and Morris counties did not submit certifications.

This means that the

certifications for Hudson and Morris Counties can be disregarded, as the county employees submitting them do not have the statutory authority to 48

Office of the Attorney Gen., N.J. Dep’t of Law and Pub. Safety, Local Election Officials Index, at http://www.state.nj.us/lps/elections/loc_officials_doe.html#midd (last visited May 10, 2005). 54

comment on voting machines. As discussed above, the certification of Rudolph Filko, the Superintendent of Elections in Passaic County, does not endorse the use of DREs.

Thus, only three Superintendents of Elections submitted

certifications endorsing DREs.

This analysis further exemplifies that

Judge Feinberg erred when she stated “[a]ll of the county election officials that have submitted certifications in those jurisdiction that have utilized DRE technology for prior elections have certified that they have been used successfully.”

Jan. 2005 Op. at 11, (147a).

Judge Feinberg also erred by giving great authority to statements made by low-level county officials who do not have the authority or knowledge to speak about the successes and failures of DREs and/or elections.

Judge Feinberg relied upon the certifications of warehouse

supervisors (Mercer and Middlesex counties) and a voting machine technician (Somerset county).

Id. at 19, (155a).

Moreover, Judge Feinberg relied on the certifications of county employees whose jobs and responsibilities are not defined in the certifications.

Without a description of the certifying employees’

positions in Gloucester, Hudson, Hunterdon, Ocean, Salem, Somerset, Sussex and Union counties, it is impossible to determine whether these employees have knowledge of DREs or the statutory authority to comment on the use of DREs in their counties.

Thus, any statements these county

employees made in endorsing DREs should have held no weight for the

55

court. Thus, Judge Feinberg’s conclusion that all counties’ machines are “accurate and reliable” has no real authority, and is clearly erroneous. We cannot rely on the vast majority of the certifications because their authors are not statutorily authorized to preserve, maintain, or even have knowledge about any voting machines, including DREs.

B.

JUDGE FEINBERG ERRED IN WEIGHING THE EVIDENCE PRESENTED BY THE PARTIES RATHER THAN SIMPLY DETERMINING WHETHER A GENUINE ISSUE OF FACT EXISTED. Judge Feinberg also erred in weighing the evidence in the parties’

pleadings.

“The ‘judge’s function is not himself to weigh the evidence

and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

Id. at 540 (quoting Anderson v. Liberty

Lobby, 477 U.S. 242, 249 (1986)). The motion judge is not permitted to evaluate the "preponderance or credibility" of the evidence presented by the parties.

Rather, upon a defendant's motion for summary

judgment, the motion judge is only to sift through and analyze the evidential materials to ensure that there is sufficient evidence to support each required element of a plaintiff's claim. Assessing the credibility or weight of the evidence is strictly a jury task. Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572, 579 (App. Div.

56

1997) (quoting Brill, 142 N.J. 520).

The Court erred not only in

weighing evidence, but also in making findings of fact based solely on Defendants’ claims, without allowing Plaintiffs the opportunity to engage in discovery, or to challenge the Defendants’ assertions. As discussed directly above in Section III of this brief, Judge Feinberg failed to acknowledge the wealth of information that Plaintiffs provided showing that New Jersey DREs are inaccurate, unreliable, not thoroughly tested, and can be manipulated in a matter of minutes (without detection) to throw elections. Moreover, Judge Feinberg’s actual weighing of the evidence was clearly erroneous.

As also discussed in Section III of this brief,

Judge Feinberg mischaracterized the county certifications as a universal endorsement of the use of DREs.

She relied on these

erroneous conclusions to dismissing the Complaint.

Judge Feinberg also

erred in giving undue weight to the certifications of low-level county officials, who lack the knowledge and statutory authority to comment on voting machines. By ignoring the detailed and thorough certifications by Plaintiffs’ computer security experts, and the certifications of disfranchised voters, Judge Feinberg committed a reversible error. Plaintiffs have clearly shown that a genuine issue of material fact exists for trial that DREs jeopardize the right to vote guaranteed by the New Jersey Constitution and Title 19.

57

C.

JUDGE FEINBERG ERRED IN HASTILY GRANTING SUMMARY JUDGMENT IN A CASE WITH BROAD SOCIAL AND LEGAL IMPLICATIONS. In dismissing the Complaint, Judge Feinberg disregarded the well-

established tenet that “[t]rial courts are cautioned against granting summary judgment on a meager record where the ruling sought on the motion would have a broad social and legal effect.” Slohada, 193 N.J. Super. at 594 (App. Div. 1984) (citing Judson v. Peoples’ Bank & Trust Co. of Westfield, 17 N.J. 67 (1954); Jackson v. Muhlenberg Hospital, 53 N.J. 138 (1969); and Pressler, Current N.J. Court Rules, Comment R. 4:46-2). This lawsuit certainly has “a broad social and legal effect.” protection of the fundamental right to vote is at issue.

The

The outcome of

this case will surely have a significant impact on the public. The chance that a voter’s ballot will not be counted as cast is too great a risk to accept in a democratic society.

Given that the

legislature and executive have failed to act to protect votes cast on DREs, it is incumbent on the judiciary to scrutinize DRE voting systems, which are extremely vulnerable to fraudulent manipulation.

Accordingly,

this Court should reinstate this lawsuit.

IV.

JUDGE FEINBERG’S RELIANCE ON THE NINTH CIRCUIT’S WEBER DECISION TO DISMISS THE COMPLAINT WAS CLEARLY ERRONEOUS. Judge Feinberg cites Weber v. Shelley, 347 F.3d 1101 (9th Cir.

58

2003), fifteen times in her opinion dismissing the Complaint. 2005 Op. at 7-10, 24, 29-30, (143a-146a, 160a, 156a-166a).

See Jan.

Upon first

glance, Weber appears relevant, because in Weber, plaintiffs challenged California’s use of DREs without voter-verified paper ballots.

But this

similarity does not make Weber controlling or even persuasive.

A.

THE WEBER COURT’S ANALYSIS DOES NOT APPLY TO CLAIMS BROUGHT UNDER THE NEW JERSEY CONSTITUTION. 1.

Weber Involved Issues Of Federalism Not Present Here.

The plaintiff in Weber sought relief under the Due Process and Equal Protection clauses of the United States Constitution. 347 F.3d at 1103.

See Weber,

The Weber Plaintiff sought federal court

nullification of state-approved DRE technology.

To determine whether

DREs in California violated the U.S. Constitution, the Weber court applied the test articulated in Burdick v. Takushi, 504 U.S. 428 (1992)(court should weigh a statute’s infringement on Fourteenth Amendment rights against the state’s interests that make the infringement necessary).

Weber, F.3d at 1106. The Burdick test does not

apply to Plaintiffs’ challenge to New Jersey DREs.

Issues of federalism

that were involved in Weber are clearly absent here.

Plaintiffs here

seek relief from New Jersey courts under the New Jersey Constitution and New Jersey statutory law. Additionally, protection of New Jersey constitutional rights may be greater than the protection afforded those same rights under the U.S. 59

Constitution.

See e.g. State v. Schmid, 84 N.J. 535, 553-57 (1980).

Thus, it was improper for Judge Feinberg to apply federal constitutional law to analyze the claims raised in this lawsuit. B.

THE WEBER COURT’S ANALYSIS WAS BASED ON A FULLY DEVELOPED RECORD. NO RECORD HAS BEEN DEVELOPED HERE. Judge Feinberg’s reliance on Weber was also erroneous because that

case was decided on different procedural grounds than this suit.

In

Weber, the record was fully developed, and the Court granted summary judgment in favor of the defendants.

In this case, there was no record.

Judge Feinberg dismissed the case without allowing Plaintiffs to even begin to prove their case.

This was clearly improper, particularly

because this lawsuit raises important constitutional issues that affect most voters in New Jersey. C.

See Slohada, 193 N.J. Super. at 594.

WEBER HAS BEEN RENDERED VOID BY THE DE-COMMISSIONING OF ALL DRES IN CALIFORNIA. Judge Feinberg’s reliance on Weber was also improper because that

decision was subsequently rendered null and void.

Six months after

Weber was decided, California’s Secretary of State decommissioned the state’s electronic voting machines.

Among those decommissioned models

are DREs used in New Jersey (ES&S iVotronic and the Sequoia Pacific AVC EDGE - which was specifically at issue in Weber).49 49

The DREs were

Office of the Sec’y of State of Cal., Decertification and Withdrawal of Approval of Certain DRE Voting Systems and Conditional Approval of the Use of Certain DRE Voting Systems, at http://www.ss.ca.gov/elections/ks_dre_papers/decert1.pdf 60

decommissioned after “problems in the areas of testing and certification of software, reliability, accuracy, training, and security” were discovered.

American Association of People With Disabilities v.

Shelley, 324 F. Supp. 2d 1120, 1124 (C.D. Cal. 2004).

He also

determined that DREs should be required to produce voter-verifiable paper ballots.

Id. at 1128-29.

A U.S. district court in California

upheld DRE decertification, rendering Weber irrelevant.

Id. at 1120.

Judge Feinberg ignored the Shelley case, which Plaintiffs cited in their briefs. See Pl. Br. at 54-5, (241a-242a).

Judge Feinberg failed

to acknowledge that a federal court upheld the decommissioning of the same DRE machines used in New Jersey.

Shelley is highly relevant and

should have provided a counter-weight to Weber, upon which Judge Feinberg relied so heavily to dismiss the Complaint. CONCLUSION For the reasons discussed above, this Court should reinstate the lawsuit.

Plaintiffs should be permitted to litigate their claims

challenging (under the New Jersey Constitution and Title 19), New Jersey’s unregulated, insecure and unreliable DREs. Respectfully submitted, __________________________________ Penny Venetis, Esq. Frank Askin, Esq. Rutgers Constitutional Litigation Clinic 123 Washington Street Newark, New Jersey 07102 (973) 353-5687 61

Attorneys for Plaintiffs Dated: June 6, 2005 Counsel for Plaintiffs thank the following Rutgers Law School students: Rodrigo Armand, Nicole Crifo, Michael Isaac, Jane Jhun, Jack McGhee, Kelly O’Connor, and Devi Shah, and Harvard Law School student Prashant Yerramalli for their help.

62