More from Paul Lehto:
A brand new published case in the 6th Circuit called Stewart v Blackwell holds that punchcards and central count optical scan voting systems are unconstitutional under the Bush v. Gore (2000) Equal Protection analysis, while touch screen DREs are upheld.
The method of analysis the Stewart v. Blackwell case uses distinguishes between “notice” technologies that inform the voter that they have undervoted or overvoted, and “non-notice” technologies like central count optical scan that do not give a special notice. This is generally how the Court distinguished the upheld technologies from the struck down technologies. Note, however, that paper ballots are a “non-notice” technology, in that they do not talk back to the voter and inform them of possible mistakes regarding overvoting or undervoting. Thus, paper ballots appear highly likely to be subject to challenge in a future case where paper ballots are used.
Although a state could have statewide paper ballots and thereby seem on the surface to avoid a direct equal protection challenge, the *separate* HAVA requirement for disabled-accessible voting that is satisfied on a per se basis by one DRE per polling place under a specific HAVA subsection will directly have the effect of re-injecting the Equal Protection issue right back into each and every hand counted paper ballot polling place even in a state composed entirely of paper ballots, because the disabled accessible voting system that supplements the paper ballots is by definition *different* than the nondisabled voting system, just like a person using a wheelchair is a different “locomotion” system than a person walking on two legs. The only system that currently can serve both and avoid equal protection issues while keeping undervoting and overvoting rates the same for the disabled and the nondisabled is DREs.
HAVA was written right on the heels of Bush v. Gore and some people seem to have had that case in mind, perhaps others were not thinking of Bush v. Gore when they voted on HAVA.
Stewart v. Blackwell still found Bush v. Gore to be binding Equal Protection precedent despite the line in Bush v. Gore saying that it ‘wasn’t’ of precedential value.
To fully appreciate Stewart v. Blackwell’s equal protection holding, understanding some basic point is critical, so I ran these points below by even a professor of Constitutional Law who agreed they are accurate:
1. The law does not have to be fair, nor does it have to be just, nor does it have to follow science. It only needs to be Constitutional.
2. Bush v. Gore is grounded on the Equal Protection Clause to the US Constitution
3. The Supreme Court is the last word on interpreting the constitution. Period.
3(a). A non-caveat to the previous sentence: Though Congress can reverse a Supreme Court case that only involves interpretation of a statute (such as by amending the statute in question), nothing Congress says or does can interpret the Constitution contrary to the Supreme Court’s interpretation of it. It is, as stated earlier, the last word on Constitutional matters.
4. In addition to complying with HAVA (the Help America Vote Act) and state law, voting technologies must also comply with Bush v. Gore. These three are all separate sources of law impacting the arena of voting systems, though they occasionally interact, they are still separate sources of law.
The April 21, 2006 Holding in Stewart v. Blackwell, 6th Circuit:
Citing Bush v. Gore and stating that it was precedent even if the US Supreme Court said at one point that it wasn’t precedent, different ways of counting votes that generate different error rates were held to violate the Constitution. Specifically, the Equal Protection Clause is violated when “non-notice” voting systems (punch-cards and central count optical scan) end up with higher residual error rates than “notice” technologies (DREs and precinct count opscans that specifically warn the voter as to overvotes and undervotes)
Note that non-notice systems like central count opscan and paper ballots can comply with HAVA via voter education programs. However, that is totally independent of whether they comply with equal protection. If the problem is defined, as it is in Stewart v Blackwell, as a problem with the TECHNOLOGY’s notice or lack thereof, it does not make sense as a remedy to have voter education, as HAVA does, because it is the technology that needs to be “educated” so to speak. So, while only central count op-scans were technically at issue in this case, the saving clause that protects both central count opscans and paper ballots under HAVA by allowing voter education to substitute was not going to save central opscans from equal protection attack under Bush v. Gore. And, central opscans were in fact struck down in Stewart V Blackwell, while paper ballots were not in the counties challenged or generally used in Ohio.
So, paper ballots will not survive either when their case comes up IF THEY HAVE THE HIGHER RESIDUAL OR ERROR NUMBERS relative to DREs or the technology paper is being compared to.
Another possibility is the recognition that the wrong questions are being asked here, or questions that are too narrow, because notice focuses on what DREs are good at it, and ignores all their problems. For example, a broader notion of “accuracy” could be litigated, that would include other security considerations and so forth. But this, IMHO, is just another structural factor that favors DRes in HAVA, as explained in more Detail in the essay Cramdown, Stripdown, Lockdown Democracy in the United STates. See
The bottom line is that the availability of Equal Protection attack on county by county or precinct by precinct basis will have a powerful effect to “encourage” uniform voting systems throughout a given state. In turn, with federal law supreme that is the force that helps to “encourage” uniformity between all states. With many jurisdictions going with HAVA’s “one DRE per polling place” language, that may well lead to an equal protection challenge, where the disabled and the nondisabled citizens get together and say “hey, we need to be all on the same system to comply with equal protection”. Just the mere threat of such a suit is enough to constitute a pressure on a county making a decision, in addition to all the other pressures they are under.
First the voting system was privatized, under the belief that Bush v Gore was a one time deal. Now Bush v Gore is resuscitated (or it was never dead) and the Equal Protection analysis it offers will federalize our v

oting system. HAVA heavily favoring DREs as explained in the Cramdown piece above, means touch screen DREs will run the table unless activists find a new and better way to fight, and do it fast.


*********HAVA says by statute that HAVA’s accessibility for the disabled provision is “satisfied by one DRE per polling place”. that’s the “safe harbor” or “free pass” for DREs. There’s never a guarantee in the law but that comes close. That one DRE per polling place can then create “equal protection issues” under the overbroad and poorly reasoned Bush V Gore holding if the error rates of the technologies that are being used in said DRE-disabled polling places differ from the other technologies in the polling place or even in other counties, which current research seems to indicate they do. THus, to avoid equal protection challenges, counties and states “should” convert to all DREs. Counties will also want to convert to all DREs for other reasons not fully developed here, including concerns that small numbers of voters on the DREs since only disabled voters will be using them will mean that the privacy of the ballot for disabled voters will be violated. One of the few solutions to that problem is to have more voters or all voters vote on DREs….***********

Yes, there will be stragglers, it will take a few years, there will be holdouts. Many jurisdictions won’t have to have a gun held to their head, their own lawyers will read the statutes and advise as to the risks and the “appropriate” DRE decisions will be made. In addition, we don’t have to reach 100% DREs nationwide in order to in effect be DRE Nation.
As elucidated further in the Cramdown piece above, the only clearly apparent and possible solution is to attack the secret vote counting and lack of transparency, because that can not occur under ANY voting system, of any type.

No Comments to “Groundwork for election fraud from coast to coast”

  • This legal argument can be broken by the work and writings of Lynn Landes. The disabled are as disadvantaged by Non-Evidentiary E-Voting machines as the non-disabled. There exists Audio-assisted Paper Ballot Evidence for the disabled which is easier to use and provides physical proof positive of a vote to the disabled and others who want evidence to count. Lynn Landes is owned thanks for her research.

    This information is listed further down under the Number 1 below.

    I have added more of her introduction also because it is so good.

    Go to her website to look at her information on Parallel and Open Election options, if we do not get these machines out by 2006 election.

    Paper Ballots and Hand Counts ONLY
    (no machines, no audits, no absentees, no early voting)

    By Lynn Landes (6/23/05)


    How did we get to a place where no one knows who is counting our votes, or if our votes are counted at all? It started over one hundred years ago. After the Civil War, two fundamental changes occurred in the voting process that made it far easier to manipulate election results. First, in the 1870’s, states began allowing soldiers to vote by absentee. Then in the 1890’s states began to use voting machines. Today, 20% of all votes are cast early or by absentee and 99.4% of all votes are counted by machines. Meaningful public participation and effective oversight of the voting process has been eliminated.

    Voting should be a 3-step process where ballots are marked, cast, and counted. For this process to be secure, paper ballots must be privately and manually marked by the voter in a voting booth, publicly cast, and then manually counted by election officials on Election Day only. This should be done in the presence of poll watchers and the press, who must be able to watch the process from beginning to end, uninterrupted. This is sometimes called the Australian Ballot Method. Ninety-five of the world’s democracies vote this way. Conversely, only a few countries use voting machines: Argentina, Brazil, Venezuela, India, half of The Netherlands, and half of Belgium. There have been experimental efforts in several countries, but most seem to be rejecting the technology. There are con-cerns that the U.S. funded World Bank and the International Monetary Fund (IMF) could be used to pressure countries into buying voting machines.

    Most Americans are unfamiliar with these facts due to our privately-owned and corporate-controlled news media. When faced with the prospect of machine-free hands-on elections, voters have lots of questions and concerns. Here are some of them:

    1. Don’t some voters need these machines, such as non-English language voters and disabled voters? No. Voters who want a ballot in their own language should be able to order such a ballot in advance of any election. Secondly, voting machines present the same violation of voting rights for disabled voters. And contrary to popular belief, the Help America Vote Act (HAVA) does not require election officials to purchase electronic voting machines. Besides, anecdotal evidence suggests that these machines are difficult for the disabled to use. Election officials and voting machine companies admit that it takes the sight-impaired voters ten times longer to use a touchscreen machine than able-bodied voters. However, there is a way for the sight-impaired to vote privately and independently. They can use tactile paper ballot with audio assistance. Tactile ballots are used around the world and in some states such as Rhode Island. Unfortunately, many disabled voters are unaware of these kinds of ballots. That may not be an accident. Two organizations for the blind, The American Association of People with Disabilities (AAPD) and The National Federation of the Blind (NFB), are ardent supporters of paperless touch-screen voting machines. They also have received over $1 million dollars from the voting machine industry, according to news reports.

    the site for tactile paper ballot with audio assistance–real evidence

    go to site for their additional links

    Global Initiative to Enfranchise People with Disabilities

    Welcome to IFES’ “” – the first and only clearinghouse for information on the participation of people with disabilities in the electoral process. The International Foundation for Election Systems (IFES) is committed to extending the reach of democracy through technical assistance and support to governmental and nongovernmental organizations in new and emerging democracies.

    IFES is the first mainstream democracy organization committed to ensuring that people with disabilities have free and equal access to electoral systems. This website, funded by a grant from the Finnish Ministry of Foreign Affairs, is one outgrowth of this continued effort.

    The website is organized into five sections. In Laws and Regulations, you will find a country-by-country analysis of election laws, constitutions and related regulations conducted by IFES researchers, and analysis of how these laws impact upon citizens with disabilities.

    IFES and partner organizations have drafted global standards on the electoral rights of citizens with disabilities. More information can be found in the Rights and Standards section.

    Over the past few years, certain governments – along with both domestic and international nongovernmental organizations – have undertaken innovative programs to give their citizens with disabilities greater access to the electoral process. Information on such projects can be found under Best Practices.

    A number of reports, papers and news articles have been published on voting rights and accessibility issues for people with disabilities. These have been gathered together under Publications.

    Finally, to learn more about the IFES Global Initiative to Enfranchise People with Disabilities, as well as links to our funders and partner organizations, please see our Contacts and Links.

  • Just in case the case of Lynn Landes helps you, it will therefore help all of us.

    And, if possible, help Lynn Landes with any funding as the Supreme Court let stand the Third Circuit’s judgment to tax court costs against Landes as the plaintiff, an unusual move in a civil rights case.

    Lynn Landes is one of the nation’s leading journalists on voting technology and democracy issues. She has also written on the subject of the environment and health. Readers can find her articles and research at Formerly, Lynn was a news reporter for DUTV and commentator for the British Broadcasting Corporation (BBC).

    Contact info: /
    (215) 629-3553

    The following is from her sites:

    Supreme Court Denies Standing & Allows Costs Against Voting Rights Activist

    Washington DC — April 4, 2006: In an alarming wake-up call to voting rights activists accross the country, the U.S. Supreme Court let stand last week a decision by the U.S. Third Circuit Court of Appeals. The lower court ruled (Landes v Tartaglione, et al) that Philadelphia journalist and voting rights activist, Lynn Landes, had no standing to challenge the constitutionality of election laws which Landes claimed deny direct access to a tangible ballot and meaningful transparency to the election process.

    Specifically, Landes challenged the use of voting machines and absentee voting in elections for public office. The defendants in the lawsuit were Margaret Tartaglione, Chair of the City Commissioners of Philadelphia; Pedro A. Cortes, Secretary of the Commonwealth of Pennsylvania; and Alberto Gonzales, Attorney General of the United States.

    Landes says that the court’s decision does not mean that the use of obstructive and non-transparent voting processes or technologies is constitutional. But, it doesn’t send a good signal, either.

    “Since I represented myself without the support of a voting rights organization, this decision may be a matter of the Court not taking me seriously, rather than any reflection on the case itself,” says Landes. She points out that the Third Circuit based its dubious decision on three cases that had nothing to do with elections, voting rights, or challenges to the constitutionality of state and/or federal law.

    Landes encourages activists to continue to pursue legal action, but adds a strong note of caution. “The Court is now packed with extremely conservative judges who are taking extraordinary steps to discourage civil rights litigants,” she warns.

    In what appears to be a punitive measure, the Supreme Court let stand the Third Circuit’s judgment to tax court costs against Landes as the plaintiff, an unusual move in a civil rights case. The Third Circuit’s ruling ignored previous U.S. Supreme Court’s decisions in Christiansburg Garment Co. v. EEOC (1978) and Fogerty v. Fantasy, Inc.(1994). In the latter case, Justice William Rehnquist stated, “… we found (it) to be the important policy objectives of the Civil Rights statutes, and the intent of Congress to achieve such objectives through the use of plaintiffs as “`private attorney[s] general.'”

    In light of the Court’s action, Landes is again emphasizing the critical need for ‘open voting’. In a January 2005 article, Landes called for activists to conduct Parallel Elections outside of official polling places as a check against official election results. Activists in California, Texas, and Florida did just that and more Parallel Elections are planned for this year. In Parallel Elections, voters are asked to vote twice, once inside the official polling station and again outside in a Parallel Election. Voters write down their name, address, and signature along with their choice of candidates. Unlike exit polling, Parallel Election ballots can and have been used to challenge official election results.

    Landes also suggests that any candidate for elective office request that voters mail that candidate a letter indicating the voter’s name, address, signature, a witness’s signature, and for which candidate they voted. It should be mailed directly after the voter has voted at the polls. Candidates should delay conceding or declaring victory for at least a week after the election in order to allow sufficient time to receive these unofficial ballots.

    Something similar to this idea was put into practice last winter in North Carolina. According to a February 6, 2005 editorial in the Ashville Citizen-Times, “…a voting machine error …caused 4,400 votes to vanish in Carteret County. As (candidate) Troxler led in the count by 2,287 votes in a race that saw more than 3 million votes cast, the missing votes threw the outcome into disarray. Troxler’s campaign rounded up affidavits from more than 1,400 Carteret voters who said they had voted for him.” As a result, his opponent conceded.

    Lastly, since it appears that America’s political parties are particularly vulnerable to the influence of big corporations and the wealthy few (and have only given lip service to the right to vote and to have votes counted properly), Landes is encouraging all voters to consider supporting write-in candidates for political office.


    Lynn E. Landes,
    Plaintiff-Appellant, Pro Se
    MARGARET TARTAGLIONE, in her official capacity as Chair of the City commissioners of Philadelphia; PEDRO A. CORTES, in his official capacity as Secretary of the Commonwealth of Pennsylvania; ALBERTO GONZALES, in his official capacity as the Attorney General of the United States, Defendants-Appellees

    On Petition for Writ of Certiorari to United States Court of Appeals for the Third Circuit, No. 04-4421 & 04-4439

    Petition for Writ of Certiorari


    Does the right to vote and to have votes counted properly apply to all citizens?

    Does the use of voting machines and absentee ballots in elections for public office violate appellant’s right to vote and to have votes counted properly?

    Does appellant have the right to a physical (i.e., paper) ballot?

    Is voting by machine and absentee an inherently nontransparent process that unlawfully denies meaningful oversight by appellant as a journalist?

    Must appellant prove fraud or discrimination in order to gain standing?

    Does appellant’s right to vote and have votes counted properly supersede the privacy and convenience considerations of election officials, absentee voters, and disabled voters?

    Did the Third Circuit Court of Appeals abuse their discretion by taxing defendants’ costs against plaintiff and despite the fact that the District Court had not done so?


    Allen v State Board of Elections, 393 US 544 (1969)

    Anjelino v New York Times, 200 F.3d 73, 87 (3d Cir. 1999)

    Burson v Freeman, 504 US 191, 206 (1992)

    Bush v Gore, 531 US 98 (2000)

    Christiansburg v EEOC, 434 US 412 (1978)

    Davidowitz v Philadelphia County, 324 Pa. 17 (1936)

    Detroit v Board of Election,139 Mich. 548;102 N.W.1029(1905)

    Empire v. Carroll 78 Wash. 83; 138 P. 306 (1914)

    Fogerty v. Fantasy, Inc. (92-1750), 510 US 517 (1994)

    Marbury v. Madison, 5 U.S. 137 (1803)

    McDonald v. Board of Election, 394 US 802 (1969)

    Nevada v. Hibbs, 538 US 721 (2003)

    Newman v. Piggie Park., 390 U.S. 400, 402 (1968)

    Raines v. Byrd, 521 US 811, 818-20 (1997)

    Reno v. ACLU, 521 US 844, 871(1997)

    Reynolds v. Sims 377 US 533 (1964)

    Roudebush v. Hartke, 405 US 15 (1972)

    South Car
    olina v. Katzenbach, 383 U.S. 301(1966)

    Southwest v. Shelley, 344 F.3d 914 (9th Cir.2003)

    Storino v. Point Pleasant, 322 F.3d 293 (2003)

    Tennessee v. Lane, 541 US 509 (2004)

    Tiryak v. Jordan, 472 F. Supp. 822, 824 (ED Pa. 1979)

    United States v. Mosley, 238 US 383 (1915)

    Weber v. Shelly, 347 F.3d 1101, 9th Cir (2003)

    Wesberry v. Sanders, 376 US 1 (1964)


    (U.S. District Court for the Eastern District of Pennsylvania
    and U.S. Court of Appeals for the Third Circuit)

    • Order: Landes v Tartaglione, DC 04-3164, plaintiff’s TRO denied, 10/12/04
    • Order: Landes v Tartaglione, CA 04-4021, on plaintiff’s DC 04-3164, TRO denied, 10/26/04
    • Memorandum & Order: Landes v Tartaglione, DC 04-3164, granted defendants’ motion to dismiss, 10/26/04
    • Memorandum & Order: Landes v Tartaglione, DC 04-3163, denied TRO and granted defendants’ motion to dismiss, 10/28/04
    • Opinion, Order, & Judgement: Landes v Tartaglione, CA 04-4421 & 04-4439, affirmed district court ruling, 11/2/05
    • Order: Landes v Tartaglione, CA 04-4421 & 04-4439, denied appellant’s motion on costs, 11/2/05


    This case (Landes v Tartaglione, CA 04-4421 & 04-4439, 11/2/05, U.S. Court of Appeals for the Third District affirmed the U.S. District Court for the Eastern District of Pennsylvania ruling) is brought under Article I § 2 of the U.S. Constitution, the First Amendment, the Fourteenth Amendment, and 42 U.S.C. §1983 – Civil action for deprivation of rights. This court has jurisdiction of this action pursuant to 28 U.S.C. Section 1253 and Rules of the Supreme Court, Part III, Rule 10 (a) “…has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court,” related to District Court denying standing, and related to Third Circuit Court taxing costs against appellant despite the District Court not having done so, and (c) “an important question of federal law that has not been, but should be, settled by this Court,” as well as an important question of federal law that has been decided “in a way that conflicts with relevant decisions of this Court.” Plaintiff’s action for declaratory relief is authorized by 28 U.S.C. Sections 2201 and 2202.


    Article I § 2 of the U.S. Constitution

    First Amendment

    Eleventh Amendment

    Fourteenth Amendment

    Fifteenth Amendment


    25 PS §3031.1
    25 PS §3547
    4 PA 171.11
    1 USC § 5
    2 USC § 9
    42 USC 1973ff-2(a)
    42 USC 20, Sub. IA—Enforcement of Voting Rights
    42 USC § 1971
    42 USC §1971(d)
    42 USC §1973a
    42 USC § 1973b
    42 USC § 1973l(e)
    42 USC §1973f – the role of the Federal Observer)
    42 USC §1973i
    42 USC § 1973i(a)
    42 USC § 1973l c(1)
    42 USC § 1983


    Appellant challenges the constitutionality of federal and state laws and policies that allow voting by machine or absentee in elections for public office.

    Appellant asserts that the use of voting machines and absentee voting is a violation of her constitutional right to vote, to have votes counted properly, and to have those rights fully enforced under Article I § 2 of the U.S. Constitution, First Amendment, Fourteenth Amendment, and other federal laws. Appellant is a U.S. citizen, resident, registered voter, and a freelance journalist in the City and County of Philadelphia. Appellant was also a poll watcher in Philadelphia in the 2004 presidential election.

    For elections in the city and county of Philadelphia, the City Commissioners use absentee ballots and DREs (direct recording electronics) push button computerized voting machines. These machines are made by the Danaher Corporation (Delaware). Computerized ballot scanners, also from Danaher, are used to count absentee ballots. Hart Intercivic (Texas) provides the software for the ballot scanners.

    Appellant asked the U.S. Court for the Eastern District of Pennsylvania to declare unconstitutional actions, laws, and regulations by the City and County of Philadelphia, the Commonwealth of Pennsylvania, and the U.S. Congress that allow or approve the use of voting machines and absentee ballots in elections for public office, including, but not limited to: 25 P.S. §3031.1, 25 P.S. §3547, 4 PA Code 171.11, 42 U.S.C. 1973ff-2(a) and 2 U.S.C. §9, and to enjoin the Philadelphia City Commissioners from using voting machines and absentee ballots in elections for public office, to enjoin the Secretary of the Commonwealth from approving voting machines in elections for public office, and to order the U.S. Attorney General to enforce voting rights in the City and County of Philadelphia.

    The District Court had jurisdiction under 28 U.S.C. §§ 2201 & 2201; and by Rules 57 and 65 of the Federal Rules of Civil Procedure. Venue was proper pursuant to 28 U.S.C. §1391(b). The Court ruled against her on standing. Appellant appeal the decision. The Third Circuit Court of Appeals had jurisdiction pursuant to 28 U.S.C. §1291. The Court of Appeals affirmed the District Court’s decision. The Third Circuit also taxed defendants’ costs against appellant. Appellant filed a motion requesting that all parties pay their own costs. Her motion was denied. Appellant has filed a timely appeal of the Court’s Opinion and Judgment.



    From the beginning of this nation to the end of the Civil War, voting was a public and transparent process. After the war, as the elective franchise expanded to minorities and women, three changes to state and federal election laws were adopted that eventually made the voting process a private and nontransparent enterprise: a) absentee voting was allowed (1870’s), b) the Australian secret ballot method was adopted (1880’s), and c) voting machines were permitted by Congress (1899).

    The use of voting machines and absentee voting has made vote fraud easy to commit and impossible to detect. Today, two corporations (ES&S and Diebold), which were started by two brothers (Bob and Todd Urosevich), electronically process via computerized ballot scanners or touchscreen computers approximately 80% of all votes in America. Approximately 30% of all votes are cast early or by absentee and 96.4% of all votes are processed by voting machines (lever, computerized ballot scanners, or touchscreen computers). In contrast, 95% of the world’s democracies, including most of Europe, vote on hand-cast and hand-counted paper ballots.


    Federal court is the proper venue. A state’s discretion and
    flexibility in establishing the time, place, and manner of electing its federal representatives has only one limitation, the state system cannot directly conflict with federal election laws on the subject. (McDonald v. Board of Election, 394 U.S. 802 (1969). Appellant asserts that the federal and state laws that allow for the use of voting machines and absentee ballots (which are inherently non-transparent and therefore deny effective voter participation, meaningful oversight, and full enforcement of voting rights), directly conflict with federal laws and the Constitution.

    The District Court ruled, “Such concern involve questions of wide public significance that are most appropriately addressed by the legislative branch.” Appellant respectfully disagrees. First, appellant has the right to challenge acts of the legislative branch (Marbury v. Madison, 5 U.S. 137 (1803), Reno v. American Civil Liberties Union, 521 US 844, 871(1997)). Second, appellant has the right to file a complaint in federal court before other remedies are exhausted (Title 42, Chapter 20, §1971(d)). Third, the Cong
    ress and state legislatures initiated the injury by passing laws that conflict with the Constitution and other federal laws. It does not follow
    that appellant must seek a remedy from the very parties who caused the injury.

    The federal courts have the right and obligation to hear and
    appellant has the right to challenge the constitutionality of
    federal and state laws. In Marbury v. Madison the Supreme Court ruled,

    “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society.”

    “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

    The Appeals Court ruled on Page 2, “…we agree with the District Courts’ conclusion that Landes does not allege a “concrete and particularized” injury, and thereby lacks standing.” The District Court ruled that Plaintiff’s alleged injury amounts to a “generalized grievance” shared in “substantially equal measure by all or a large class of citizens” and is not sufficient to confer standing.

    Plaintiff respectfully disagrees. Appellant’s injury is not a ‘grievance’, but rather a ‘violation’ of civil rights. Under the court’s reasoning (equating a ‘violation’ of federal law to a ‘grievance’), standing could be denied on all issues of national significance, including gun control, prayer in school, abortion rights, and countless other issues that routinely come before the federal courts. The fact that third parties or a large class of citizens hold the same rights and suffer the same violation does not constitute grounds to dismiss. There is nothing in federal law or the Constitution that limits access to the courts in this manner.

    The District Court’s ruling appears to suggest that appellant can only assert a violation of voting rights if she has been the only victim or one of a small class of victims. Under that same reasoning, appellees argued that appellant must prove discrimination took place in order to invoke laws under 42 U.S.C. Chapter 20, Sub. I-A-Enforcement of Voting Rights. However, according to 42 U.S.C §1973a, “Proceeding to enforce the right to vote (2) as part of any final judgment if the court finds that violations of the Fourteenth or Fifteenth Amendment justifying equitable relief have occurred in such State or subdivision.” (Emphasis added by appellant) This means that under the Fourteenth Amendment, voting rights belong to all voters.

    There is no place in federal law where it states that only small select classes of voters may enjoy federal enforcement of their right to vote while others may not. Literacy tests have been ruled unconstitutional for all voters, not just for a specific racial group. When states or counties require voters to use computers in order to vote and require election officials to use computers in order to count votes, their actions amount to mandating a modern day literacy test, except it is ‘computer literacy’ that is the test.

    The Court does not say, but appellant theorizes, that the evidence the Court considers concrete could also be proof of vote fraud. Requiring such proof when the use complained of precludes the gathering of such evidence constitutes a Catch-22. Appellant’s complaint is a constitutional challenge to laws and government policies. Under this circumstance she is not obligated to prove fraud or discrimination.

    Is appellant’s voting record relevant? No, not to appellant’s knowledge, although the District Court made it an issue and ruled that appellant, “…fails to allege that she has ever voted in any prior election either by voting machine or by any means.” On the contrary, appellant described herself as a registered voter in her original complaint and fully answered this allegation in both of her responses to Defendants Cortes and Ashcroft’s Motion to Dismiss. Appellant has voted by machine and absentee in past elections in Philadelphia, although she has no proof that her vote was counted correctly for all the reasons stated in her complaint, responses, and appeals.

    Does the Eleventh Amendment grant immunity from lawsuits? Appellee Cortes’ counsel claimed to the District Court, “The Eleventh Amendment bars plaintiff’s state law claims to the extent she seeks to compel Secretary Cortes to comply with state law.” (Page 6) Appellant is not suing the state of Pennsylvania, but rather Appellant Cortes in his official capacity as the Secretary of the Commonwealth. Even if appellant were suing the state or its agencies, the Supreme Court recently decided that such suits are permissible. (Tennessee v. Lane, 541 US 509 (2004) and Nevada v. Hibbs 538 U.S. 721 (2003)).

    Lastly, appellant could find little to connect appellant’s complaint to the cases cited by the Appeals Court (Anjelino v. New York Times, 200 F.3d 73, 87 (3d Cir. 1999), Storino v. Borough of Point Pleasant Beach, 322 F. 3d 293, 296 (3d Cir.2003), and Raines v. Byrd, 521 U.S.811, 818-20 (1997)). None of these cases challenge the constitutionality of federal or state laws as in appellant’s case. Anjelino involves claims of employment discrimination on the basis of sex with respect to compensation and assignment of work at the New York Times; Storino is a takings case and involves the decision of a local zoning board and residents’ concerns about the potential loss of the value of real estate; and Raines is about patients’ rights, health care providers, and insurance companies.


    The use of voting machines and absentee voting denies the appellant as a voter and journalist the right to meaningful participation in the voting process, effective public oversight of that process, and full enforcement of those rights, constituting a “Deprivation of Civil Rights” under 42 U.S.C. §1983.

    The right to vote is given under the Constitution to all qualified
    citizens (Reynolds v. Sims 377 U.S. 533, 1964, 42 U.S.C. § 1971) and guaranteed under Article I, § 2 of the U.S. Constitution, Fourteenth and 15th Amendments, and other Amendments and federal laws. To secure that right, Congress and the Courts set two strict requirements for the voting process: a) that voters qualified to vote shall be allowed to vote, and b) that their votes shall be counted properly. (Allen v. Board of Elections 393 U.S. 544, 1969, Wesberry v.Sanders, 376 U.S. 1, 1964, U.S.C. § 1973l c(1)).

    Appellee Tartaglion’s counsel described laws governing Philadelphia’s voting systems as “reasonable” and “even-handed”. However, these assurances and counsel’s further claims of “safeguards” as described in appellee’s brief (Pages 22 and 23) do not provide unobstructed access to a ballot or bring meaningful transparency to the voting process, and therefore do not comply with the federal laws and the Constitution.

    Access to and use of a secure polling place is not only a right, but an obligation. In Burson v. Freeman, 504 US 191, 206 (1992) the Court said,

    “In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies,
    settled on the same solution: a s
    ecret ballot secured in part by a restricted zone around the voting compartments. We find that this widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and
    election fraud.”

    Voting by absentee provides no protection from intimidation, threats, or coercion. Voter intimidation is prohibited under 42 U.S.C. §1973i. Prohibited acts,

    “(b) Intimidation, threats, or coercion – No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 1973a (a), 1973d, 1973f, 1973g, 1973h, or 1973j(e) of this title.”

    Voting by machine stands in violation of 42 U.S.C. § 1973i(a) “Failure or refusal to permit casting or tabulation of vote”. In United States v. Mosley, 8 U.S. 383, (1915) the Court decided, “The right to have one’s vote counted is as open to protection by Congress as the right to put a ballot in a box.” The use of DREs, Internet voting, and lever machines constitutes “refusal to permit casting” or “put a ballot in a box” as these machines do not allow the voters access to physical ballot, to directly mark a ballot, or to cast a ballot. The voters can make inputs to the machine, but it is the machine – not the voter – that produces the results (i.e., records the inputs and counts the votes).

    Voters have the constitutional right to vote free from obstacles such as literacy tests and other practices and devices that once were required by state legislatures and election officials as a prerequisite or precondition to voting. (South Carolina v. Katzenbach, 383 U.S. 301(1966) and Allen v. Board of Elections, 42 U.S.C. § 1973b). Voting machines constitute just such an obstacle. A voting machine, such as a DRE, can be an unfamiliar and inhibiting device, unlike a pen or pencil. The use of voting machines is a precondition for voting in that citizens must be able to operate the machine in order to vote. These machines stand as a physical and emotional obstacle between the voter and their ballot.

    “The terms ‘vote’ or ‘voting’ includes all action necessary to make a vote effective in any primary, special, or general election.” (42 U.S.C. § 1973l (c)(1). In Bush v. Gore the Supreme Court wrote, “A ‘legal vote,’ as determined by the (Florida) Supreme Court, is one in which there is a ‘clear indication of the intent of the voter’.” The Court accepted that definition as, “unobjectionable as an abstract proposition and a starting principle.” The use of absentee ballots (where the absentee voter can be intimidated by others and ballots can be easily tampered with) and voting machines (which are obstructive, non-transparent, easy to rig, and impossible to safeguard), prevent citizens from making their votes “effective” or knowing if their votes were counted at all. The use of lever machines or DREs (touchscreens or push buttons) prevents the voter from directly creating or casting a “legal vote” as a “clear indication” of their intent. The same could be said of the output of a ballot scanner. Any result produced by a voting machine is evidence that the machine did something. However, it is circumstantial or “not clear” evidence of the voter’s intent.

    A ballot is the official record of an individual voter’s votes. A machine-produced record or list of all the citizens’ votes is not a ballot. Implicit in the Constitution is the right to a recount of ballots. In Roudebush v. Hartke, 405 U.S. 15 (1972), the U.S. Supreme Court ruled,

    “… one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount. Despite the fact that a certificate of election may be issued to the leading candidate within 30 days after the election, the results are not final if a candidate’s option to compel a recount is exercised.”

    The issue of ballots and contested elections (recounts) is also addressed in 1 U.S.C. § 5 and in 26 Am Jur 2nd § 444,

    “In an election contest the ballots themselves constitute the highest and best evidence of the will of the electors, provided they have been duly preserved and protected from unauthorized tampering, and recourse may be had to the ballots themselves in order to determine how the electors actually voted. However, one who relies on overcoming the prima facie correctness of the official canvass by a resort to ballots must first show that the ballots as presented to the court are intact and genuine.” (Emphasis added by appellant).

    Does failure to comply with federal voting requirements violate the Equal Protection Clause? Yes, the Supreme Court found in Bush v. Gore, 531 US 98 (2000), “…whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause.” In Roudebush v. Hartke, 405 U.S. 15 (1972) the U.S. Supreme Court ruled, “…one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount”. The use of paperless voting technology (which does not produce ballots), not only represents a “standardless manual recount”; it represents no ability to recount ballots in any meaningful manner since no intact ballots exist; in fact no ballots exist at all, just a record or list of votes.

    Congress also set clear requirements for observing the voting process in the oversight function of Federal observers in 42 U.S.C. § 1973f,

    “Observers at elections; assignment; duties; reports: Whenever an examiner is serving under subchapters I-A to I-C of this title in any political subdivision, the Director of the Office of Personnel Management may assign, at the request of the Attorney General, one or more persons, who may be officers of the United States, (1) to enter and attend at any place for holding an election in such subdivision for the purpose of observing whether persons who are entitled to vote are being permitted to vote, and (2) to enter and attend at any place for tabulating the votes cast at any election held in such subdivision for the purpose of observing whether votes cast by persons entitled to vote are being properly tabulated.”

    However, when voting machines and absentee ballots are used it is physically impossible for Federal Observers to observe “whether persons who are entitled to vote are being permitted to vote, and …whether votes cast by persons entitled to vote are being properly tabulated.”

    This point was affirmed by Nelldean Monroe, Voting Rights Program Administrator for the U.S. Office of Personnel Management (OPM) who addressed the issue of oversight of the voting process in a November 21, 2002 e-mail to Plaintiff. Her agency is responsible for recruiting and training Federal Observers who are sent by the Department of Justice (DOJ) to monitor elections. Monroe wrote,

    “The only observance of the tallying of the votes is when DOJ specifically requests observers to do so. This rarely occurs, but when it does, it is most often during the day following the election when a County conducts a canvass of challenged or rejected ballots. In this case, Federal observers may observe the County representatives as they make determinations on whether to accept a challenged or rejected ballot. Federal observers may also observe the counting of the ballots (or vote tallying) when paper ballots are used.” (Emphasis added by appellant).

    In an earlier phone conversation with appellant, Ms. Monroe said that she could not train Federal Observers to observe if voting machines manipulate or switch votes because the func
    tioning of the machine
    s is inherently unobservable.

    As a journalist, appellant has a First Amendment right to observe the voting process in a meaningful manner. Poll watchers perform a similar function. Transparency is essential for the integrity and legality of the process. In Tiryak v. Jordan, 472 F. Supp. 822, 824 (ED Pa. 1979), the Court ruled, “…the poll-watcher’s function is to guard the integrity of the vote. No activity is more indelibly a public function than the holding of a political election.” The roll of the poll watcher to oversee the voting process and to ensure the proper administration of the voting process is amply supported under federal law. That roll is reported in U.S. Constitution: Annotations p.18, § 4. Elections, Clause 1. Congressional Power to Regulate, Federal Legislation Protecting Electoral Process,

    “More recently, Congress has enacted, in 1957, 1960, 1964, 1965, 1968, 1970, 1975, 1980, and 1982, legislation to protect the right to vote in all elections, federal, state, and local, through the assignment of federal registrars and poll watchers, suspension of literacy and other tests, and the broad proscription of intimidation and reprisal, whether with or without state action.”

    Although appellant did not attempt to prove specific vote fraud in Philadelphia, she did provide substantial material in her complaint, attachments, responses, and appeal that the use of voting machines and absentee ballots destroys the integrity of the election process, including the following government reports:

    a) The Government Accounting Office (GAO), October 2001, state, reports “…some officials promote reforms such as early voting to enhance the accessibility of the electoral process to the general public, while others claim such a move could open the door to voter fraud and thus may come at the price of the integrity of the election system.”

    b) The Congressional Research Service Report to Congress, September 25, 2003, stated, “While the percentage of votes cast by absentee or mail ballot has been increasing in recent elections, some observers have expressed concerns that the method is more vulnerable to certain kinds of fraud and coercion of voters than is balloting at the polling place. Some have criticized early voting as distorting the electoral process and being open to certain kinds of fraud and abuse.”

    c) The Congressional Research Service (CRS), November 4, 2003 concluded in a report, “Given the worsening threat environment for information technology and the findings of several studies and analysis discussed in this report, at least some current DREs clearly exhibit security vulnerabilities. The potential threats and vulnerabilities associated with DREs (touchscreen and push button) are substantially greater that those associated with punchcard or optical scan readers, both because DREs are more complex and because they have no independent records of the votes cast.”


    Considerations of increased voter participation, privacy, or convenience for absentee voters and disabled voters do not supersede appellant’s voting rights. Although voting machines and absentee voting have been promoted as a convenience for election officials and voters alike, the U.S. Supreme Court has decided that convenience does not supersede a citizen’s fundamental rights. Writing for the majority in Tennessee v. Lane (2004), Justice John Paul Stevens ruled, “…states may not justify infringement on fundamental rights by pointing to the administrative convenience or cost savings achieved by maintaining barriers to the enjoyment of those rights.”

    Voting is a right and a responsibility, very similar to performing jury duty where citizens must be present in order to participate. For example, military personnel can serve on a jury if they are ‘in town’, but no one has ever suggest that they have right to be on a jury via satellite or participate through some other remote process. State can take steps to make voting as convenient as possible without violating the law by make the process unobservable.


    In 1905 the Michigan Supreme Court concluded that a vote cast by use of a voting machine, where it was secret, a free choice of candidates given, and a correct record of the vote made, was a vote given by ballot. (Detroit v. Board of Inspectors, 139 Mich. 548; 102 N.W. 1029; (1905)). The same conclusion was reached in 1914, Empire Voting Machine Company v. Carroll., 78 Wash. 83; 138 P. 306; (1914)), “We do not deem it necessary to rehearse these discussions or to treat the question other than as a proposition settled by the great weight of authority; that is, that a vote registered by a machine is a vote by ballot.” For all the reasons stated in this appeal, appellant respectfully disagrees with these two decisions.

    Recent litigation against states and counties over the issue of voting machines has been based on the citizens’ right to a voter-verified paper ballot or trail. (Weber v. Shelly, 347 F.3d 1101, 9th Cir. (2003)) However, voter verification of the output of a machine is not the same as the voter actually voting. For poll watchers, Federal Observers, or journalists, there is no effective opportunity to determine if a vote produced by a machine is a clear indication of the intent of the voter or the result of a machine (which may be adding, subtracting, or switching votes either by accident or design). Whatever is produced by a machine is circumstantial evidence, not direct evidence, of what the voter intended.

    Other lawsuits have claimed discrimination based on voting equipment usage, contending that some voting machines are more accurate than others. (Southwest Voter Registration Education Project v. Shelley,344 F.3d 914 (9th Cir.2003)). Appellant believes that these cases miss the point in law. There has been considerable public discussion and claims made as to the accuracy of voting machines. The accuracy of paperless voting machines is impossible to determine as no hard evidence exists when the ballots are electronic and the voting is in secret. Although qualified voters have the right under federal law to have ballots “properly counted”, appellant could not find that the accuracy of the count enjoys the same degree of legal protection under federal statutes or case law.

    In Davidowitz v. Philadelphia County, 324 Pa. 17 (1936) the Court stated, “These (voting) machines expedite the count, are helpful in reducing the possibility of election frauds, and their employment should be encouraged.” Although no evidence supporting this allegation is evident in the case, this quote was used in 25 Am Jur 2nd § 96 and in 2004 by the Ninth Circuit in Weber v. Kevin Shelley. In Davidowitz v. Philadelphia, the Court went on to claim, “They (voting machines) have been installed in the various counties at great expense and by vote of a majority of the electors thereof. A court, therefore, should not restrain their use unless a legislative or constitutional provision is clearly violated.” Appellant asserts that such a violation has taken place and convenience of cost does not supersede the right to vote and to have votes counted properly.


    The Third Circuit Court of Appeals abused their discretion by taxing appellees’ costs against appellant. The Court did not refer to the U.S. Supreme Court’s interpretation of the Rule 54 standard and Title 42 § 1973l(e) in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) and Fogerty v. Fantasy, Inc. (92-1750), 510 U.S. 517 (1994). The U.S. Supreme Court stated in Christiansburg that losing plaintiffs are not to be penalized in civil rights cases unless,

    “…the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith….To take the further step of assessing attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in
    most litigation and wo
    uld undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII.”

    That position was reaffirmed by the Chief Justice of the U. S. Supreme Court Justice William Rehnquist in Fogerty v. Fantasy,

    “We had earlier held, interpreting the cognate provision of Title II of that Act, 42 U.S.C. § 2000a-3(b), that a prevailing plaintiff “should ordinarily recover an attorney’s fee unless some special circumstances would render such an award unjust.” Newman v. Piggie Park., 390 U.S. 400, 402 (1968). This decision was based on what we found to be the important policy objectives of the Civil Rights statutes, and the intent of Congress to achieve such objectives through the use of plaintiffs as “`private attorney[s] general.’ ” Ibid. In Christiansburg, supra, we determined that the same policy considerations were not at work in the case of a prevailing civil rights defendant. We noted that a Title VII plaintiff, like a Title II plaintiff in Piggie Park, is “the chosen instrument of Congress to vindicate `a policy that Congress considered of the highest priority.’ ” 434 U. S., at 418. We also relied on the admittedly sparse legislative history to indicate that different standards were to be applied to successful plaintiffs than to successful defendants.”

    To tax costs against the appellant is against the spirit and intent of federal legislation and U.S. Supreme Court decisions. What is the point of allowing plaintiffs access to the courts, as well as cost relief and cost containment through such mechanisms as declaring pauper status and proceeding pro se, if plaintiffs are to be taxed with the defendants’ costs if they do not prevail? It would clearly have a chilling effect on future civil rights litigation.


    Meaningful voter participation, effective oversight, and full enforcement of voting rights are the keys to a functioning and transparent democracy. Although Americans have been using voting machines and absentee ballots for well over a century, the longevity of any custom or practice does not confer legitimacy. The use of voting machines and absentee ballots are potent weapons that can be used to manipulate election results and control the government.

    The U.S. Congress, Commonwealth of Pennsylvania, and City of Philadelphia have enacted laws and adopted policies that unlawfully deny Plaintiff the most important right of citizenship, the right to vote and to have votes counted properly.

    The use of voting machines and absentee voting should be declared a violation of the U.S. Constitution and federal law. The Plaintiff is the proper person and federal court is the proper place to seek this remedy.

    For all the foregoing reasons, Plaintiff respectfully requests that the decision of the Third Court of Appeals be overturned.

    Lynn E. Landes, Pro Se

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