DEMOCRATIC BALLOTS / PAPER BALLOTS BEING SUBJECTED TO DISCRIMINATORY "SEPARATE BY EQUAL" TREATMENT, EVEN THOUGH DELAYED IN COUNTING BY TWO DAYS. ELECTION NIGHT RESULTS TO BE SKEWED IN FAVOR OF REPUBLICANS.
Please distribute widely and alert media that patience is the only appropriate course of action where provisional ballots or emergency paper ballots are provided at the polls (these are distinct from absentee ballots, though they can also arrive late and present the similar issues).
This brief concerns an emergency appeal filed in the California Court of Appeals, seeking to ensure that all votes are counted equally under the Equal Protection Clause of the United States Constitution. The Registrar of Voters in San Diego County California, while making emergency paper ballots available as required by the California SOS in addition to Diebold touchscreens, has announced an intention to not even start to count said ballots until at least Thursday, two days after the election.
A hearing is requested within hours, which is not unheard of on election day but is neither guaranteed either.
Because Democrats are disproportionately electing paper ballots in this Republican run district, this will inflate Republican numbers on election night. This trend is generally true nationwide since Democrats have largely been more concerned or at least more educated about electronic voting problems, until today, When Foxnews and others are giving much attention to electronic voting problems.
Magnifying that effect in San Diego County is that voters are experiencing, at the rate of 5 per hour in one polling place at which we have an attorney witness, problems with registration addresses that are forcing them into paper ballots. Regardless of whether these address issues are legit or not, they too disproportionately affect Dems (Dems on average move more and thus change address more).
Further problems, though not in the brief, is that a Carlsbad polling place featured Diebold touchscreens subject to sleepovers without any seals on the memory cartridges as required. The pollworkers explain that they were mistakenly taken off in the morning. This breaks chain of custody and provides any pollworker who may have hacked the election with plausible deniability that it was in fact a voter/member of the public who did so. The Registrar was asked to take these machines out of service but he refused. The Registrar says to simply watch those machines to make sure nobody messes with the memory cartridge but that involves invading the secrecy of the ballot to watch voters as the vote, since screens are visible from a distance.
The brief notes that "separate but equal" has been rejected as an equal protection concept by Brown v. Board of Education. bush v. Gore applies equal protection to elections, requiring all voters to be treated with equal dignity. If you doubt whether Thursday ballots have equal dignity since presumably they will be counted anyway, one need only imagine the following:
By royal decree, the ROV declares that Latina votes shall be counted starting Thursday, but white votes shall be counted starting Tuesday night, election night. Because the ROV declares that the votes shall all be counted, he declares that there is no difference and all are treated equally in the end.
Clearly, the ROV is treating voters in a discriminatory way because his employees routinely say that this is an "electronic election". That may be true in part, but CA law provides for both paper and electronic, so they must be provided equally. MOreover, the CA Const as briefed in the attached brief adds further weight to the requirement of equality, making it equality in all the particulars of having the vote counted as well.
Under both federal and state consitutions, there should be no second class citizens or second class ballots.
The attached brief has its most salient parts highlighted in bold, so you can skip 75% of it that is perhaps less important to the public reader, but legally required.
Paul Lehto Attorney at Law
Paul Lehto practiced law in Washington State for 12 years in business law and consumer fraud, including most recently several years in election law, and is now a clean elections advocate. His forthcoming book is tentatively titled DEFENDING DEMOCRACY. In the past, I co-founded but am no longer an active participant in the San-Diego focused election rights organization Psephos, but I nonetheless recommend their work and reference their site here.
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