VoterGA Considering U.S. Supreme Court Appeal

VoterGA, the Georgia election integrity coalition that carried a landmark, constitution-based challenge to computerized voting through the Georgia court system, only to have the Georgia Supreme Court dismiss the case in disregard of undisputed points of evidence, has issued the following public letter to outline case issues and prospects, and to gauge public support, as they consider whether to file an appeal with the U.S. Supreme Court. VoterGA is seeking pledges of financial commitment to see this case through. Initiating the appeal will cost $20,000 to $25,000.

U.S. Supreme Court Appeal Considerations

VoterGA Supporters,

We now are at the most significant crossroads in the history of our landmark voting rights case.  We must quickly make a decision whether or not to appeal the Constitutional arguments of the case to the U.S. Supreme Court. I have tried to assemble the facts with as little bias as possible for your consideration. Some major areas for your consideration are:

    ·    The Georgia Supreme Court Ruling
    ·    The Basis for a U.S. Supreme Court Appeal
    ·    Appeal Costs
    ·    Appeal Benefits
    ·    Appeal Risks
    ·    Other Federal Alternatives
GA Supreme Court Ruling:
In considering whether or not to appeal, it is important to have an understanding of the Georgia Supreme Court decision. The decision had no dissenters and was slightly more substantial than the state superior court ruling but it still had the same basic flaws:

    ·    The court denied our normal right to a trial on all 13 counts of the lawsuit although we factually disputed 41 assertions made to the court by the Attorney General’s office and cited 17 lower court conclusions that had no basis in case evidence;

    ·    The court defied all U.S. Supreme Court case law for ballot counting and recounting by refusing to apply strict scrutiny to our fundamental right of voting;

    ·    The court instead applied a minimal standard of scrutiny and ruled that the former Secretary had a rational basis for implementing the machines in spite of the evidence we presented showing:

    a.    The machines do not have an independent audit trail of each vote cast as the law required. That law was in effect when the machines were procured, evaluated, allegedly certified and purchased;

    b.    The office of the Secretary of State was warned in advance of the need for voter verification, recount retention and audit controls by numerous governmental and public sources including a State Senate Committee, the head of Fulton County Elections and the 21st Century Voting Commission Report;

    c.    There was no compelling need for the Secretary to commit $54 million of taxpayer funds to replace many auditable voting machines with a statewide implementation of voting machines that cannot be properly audited.

    ·     The opinion written by Justice George Carley was cleverly worded to ignore nearly every shred of evidence that we presented, just as the lower court order did.

    ·    The opinion made conclusions with no basis in fact such as: “However, the undisputed evidence shows that the touch screen machines accurately record each vote when they are properly operated.” No such evidence was ever submitted in the case and it is technically impossible to produce the evidence without an independent audit trail.

    ·    The opinion made unsubstantiated conclusions that were in direct conflict with the facts in the case record such as:  “…uncontroverted evidence shows that the Secretary of State has properly certified the DRE voting system pursuant to O.C.G.A. 21-2-379-2.” That code section requires the Secretary of State to produce a “report."  We explained that the certification reports were never produced for the current equipment. Only certificates were provided for them.

In addition, no reports or certificates of any kind were produced for machines used in the 2001-2002 time period. Thus it is impossible for the evidence to be uncontroverted. Furthermore, we showed that the tabulation servers can never be certified according to federal guidelines, as secretary of state policy requires, because the servers cannot prevent fraudulent vote manipulation as the guidelines require.

 In summary, we did everything we needed to do to win this case in the Georgia Supreme Court:

·    Our briefs clearly presented the evidence and case law while refuting all material assertions made by the opposition;
·    Walker did what we believed to be a very good job at the GA Supreme Court oral arguments;
·    Todd followed up with a letter at the request of the Court that clearly applied all U.S. Supreme Court case law to our case and refuted the exact case law presented by the opposition because it was unrelated to ballot counting and recounting.

The court had everything it needed to make a decision based on the merits of the case but chose to ignore those merits. Since the case law and evidence we presented was never refuted by either court, I can only assume that the courts made a biased decision to protect state interests or those involved.
The Basis for a U.S. Supreme Court Appeal:
The basis for a Supreme Court appeal would be essentially similar to the two fold appeal filed in the Georgia Supreme Court. The most likely avenues of appeal are:

    ·    The court failed to apply strict scrutiny to the fundamental right to vote, as required by all U.S. Supreme Court case law concerning ballot counting and recounting. There was not even a rational basis for implementing the voting machines;

    ·    The court violated due process of the 14th amendment by unjustly denying our normal right to a trial on the 13 counts of the suit, after we factually disputed 41 assertions made to the court by the state attorney general’s office, and cited 17 lower court conclusions that had no basis in case evidence;

    ·    The court violated equal protection clauses of the 14th amendment by unjustly requiring all Election Day voters to cast absentee ballots in order to ensure that their votes could be properly verified, audited, and retained for recounts. This places an unnecessary burden on the people to determine how to obtain an absentee ballot, where to obtain it, when to obtain it, when to return it, where to return it, and how to return it. 
U.S. Supreme Court Costs:
At this time we are financially at a breakeven point with no debt incurred but very little available cash. The appeal is a two-step process. We must first file a writ of certiorari requesting that the case be heard. The cert must be filed within 90 days of the ruling and the court will likely take another 90 days or so to decide whether or not to hear it. If the U.S. Supreme Court agrees to hear the case we must then file a brief within about 90 days and present an oral argument in Washington D.C. in another 90 to 120 days.

To file the initial writ of certiorari we would need to immediately raise $20,000 to $25,000. If the court decides to hear the case we would need to raise another $25,000 to $30,000 to prepare the brief and make the oral argument in Washington D.C. Only the funds to file the writ would have to be raised immediately. To raise this much money we would need support from some major donors.
U.S. Supreme Court Appeal Benefits:
    ·    The U.S. Supreme Court has little or no vested interested in protecting the state of Georgia and its officials; therefore, they are more likely to rule on the merits of the case;

    ·    If the case is decided on merit we should either win outright because of previous U.S. Supreme Court case law that unanimously supports our position, or win a trial with instructions from the U.S. Supreme Court to the state court that would make it difficult for a court to rule against us;

    ·    If we were to win the case it would set another U.S. Supreme Court case law precedent that could be used in all other states;

    ·    As long as an active appeal in pending before the U.S. Supreme Court, unverifiable statewide voting will continue to be a significant issue in the 2010 campaigns thus impacting the elections. This would influence candidates running for both Secretary of State  and Governor, since the current Secretary is a gubernatorial candidate;

    ·    If the court decides to hear the case, the state may want to settle the case rather than to risk a judgment against it;
U.S. Supreme Court Risks:
    ·    The chances are significantly greater that the U.S. Supreme Court would decide not to hear the case than the chances are of them hearing it, thus we could be out the initial $25,000. They currently only hear about 1% of the cases requested although our chances are much higher because of the widespread impact of the issue;

    ·     If we were to lose the case it would set a U.S. Supreme Court case law precedent that could be used against other states;

    ·     We have no guarantee that the U.S. Supreme Court would rule on the merits of the case any more than the Georgia Supreme Court did;

    ·     If the court decides to hear the case and we cannot raise the additional funds needed we will have to withdraw it.
Other Federal Alternatives:
There is another possibility that we could introduce our evidence into federal court in another case that has documented hard evidence of wrongdoing. The Plaintiff in that case would like to make a similar challenge in the federal court system where it would more likely receive an impartial decision. Even with this approach we would still probably need to raise $10,000 to $20,000 for that case. We also may encounter a situation where the recent GA Supreme Court decision could be used against us.
What's Needed to Continue the Fight:
To appeal this case to the U.S. Supreme Court or even to get the evidence into a case in federal court, we need to immediately raise about $25,000 in major donations or pledges. I am reluctant to begin collecting money when we do not have assurance that we have the resources to proceed.

Therefore, I am requesting everyone to make a pledge only at this time and help seek major donors so we can gauge how much financial support we have to continue. We first need pledges and donors for work on the initial phase of filing the writ. We also need pledges to ensure that we can complete the appeal if the court agrees to hear the case.

Please E-mail me any amount that can be pledged for these work efforts. I will report back to you in a week or two and let you know if we have made enough progress in regards to securing the resources to continue the fight. If successful, I will then request the pledges be honored.

As always, VoterGA is an all-volunteer 501C3 organization so 100% of all donations are tax-deductible and go directly to offset legal costs. Thank you for all of the support you have given to get us this far.

Garland Favorito                               
(404) 664-4044