Dubious Prosecution of Georgia Election Tech Dismissed

FOR IMMEDIATE RELEASE     January 18, 2009    

Garland Favorito
(404) 664-4044

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Georgia Election Case Dismissed After Questionable Prosecution

ATLANTA, GA – All matters asserted against former Lowndes County elections technician, Laura Gallegos, were dismissed last Thursday during an administrative hearing. The State Election Board (SEB) had accused her of improper testing which led to the inclusion of 947 test votes in the 2008 Lowndes County election results. The case was investigated by the office of Shawn LaGrua, the Inspector General who reported to SEB chairwoman and former Secretary of State, Karen Handel.

The dubious allegations in Mrs. Gallegos’ case have attracted statewide attention that helped her garner assistance from civic organizations including the Georgia Voting Rights Coalition, the ACLU Voting Rights Project, Defenders of Democracy, Operation Restoration, Madison Forum, and VoterGA. VoterGA assisted her attorney, Converse Bright, in preparing the defense and offered expert witness testimony on her behalf.

Testifying for the SEB, Mr. James Long, a voting machine engineer hired from the federal Elections Assistance Commission to support Georgia’s state elections, provided technical background for the case that was prosecuted by Deputy Attorney General, Ann Brumbaugh. However, during cross examination, he concurred with points made by Mr. Bright in his opening argument, including that:

    * The voting machines will accept test votes while accumulating actual election night results;

    * None of the testing that Mrs. Gallegos allegedly skipped had anything to do with the inclusion of the 947 test votes into the live results on election night;

    * The 947 test votes were included when an unidentified election official loaded a memory card during vote accumulation and ignored a warning indicating the card had test votes;

    * There was no evidence that Mrs. Gallegos, who was not even present during the accumulation, committed any violation on election night;

    * The machine malfunction that Mrs. Gallegos discovered during testing caused it not to clear the test votes from that card;

    * The county elections supervisor, not Mrs. Gallegos, was responsible for matching the poll book totals to the recap of votes cast to detect potential discrepancies on election night;

Judge John Gatto dismissed the case after confirming another opening argument made by Mr. Bright. He determined from testimony by supervisor, Deb Cox that she had not properly sworn in Mrs. Gallegos as a voting machine custodian.

Evidence supporting all of these findings was previously delivered to the SEB in requests by Mrs. Gallegos and VoterGA. They sought to reopen her case due to lack of a proper hearing, as required by law. Their requests were denied in a December 2009 SEB meeting by Karen Handel.

Mrs. Gallegos’ saga is not over yet. She has filed a pending complaint to the State Inspector General’s office claiming that her investigation and prosecution were conducted to cover up a voting machine defect and as many as six or more potential violations committed by her supervisor. The verdict and admissions in her trial appear to corroborate her complaint.

Although absolved of any wrongdoing in court, Mrs. Gallegos spent thousands of dollars in attorney fees, her family has suffered a foreclosure, and she was terminated from her job.


Three Complaints Filed on Georgia SoS Inspector General

FOR IMMEDIATE RELEASE       December 21, 2009

Garland Favorito
(404) 664-4044    

Three Complaints Filed Against Georgia Sec. of State Inspector General

ATLANTA, GA – Three citizens announced Thursday that they have filed three separate complaints in recent weeks against the office of the Inspector General for Georgia Secretary of State (SOS), Karen Handel. The office of Inspector General Shawn Lagrua investigates cases for the State Election Board (SEB).

The complaints filed against the Inspector General's office allege that investigations involving electronic voting machine defects and controversies were improperly handled. One citizen insists that his investigation complaint was lost. Another, asserts that an investigation was opened based on his grievances but then shut down without him ever being contacted for input. A third individual argues that she was referred for charges to the Attorney General without receiving any details of the allegations against her until her SEB hearing began.

In January 2009, VoterGA founder, Garland Favorito, filed a complaint alleging the illegal acquisition and certification of $54 million in voting equipment that is currently being used in Georgia. He contends that the IG office confirmed they received the complaint in February of 2009 but never provided a status or acknowledgement of it. Finally, after he wrote a formal letter to the SEB members in October requesting a response, Inspector General Lagrua replied in December that the office could not locate his complaint. He contends that reply is not credible.

Also in January, David Chastain spoke at an SEB meeting regarding the controversial 2005 Cobb County SPLOST tax referendum. In October, he was surprised to learn from the SEB meeting minutes that the IG office opened an investigation without contacting him and then shut it down after claiming everything was in order. He replied to the board with a list of his questions that were never answered. In that particular election, 285 blank voted ballots were cast by voters although the referendum was the only item on the ballot. The referendum was decided by only 114 votes out of 39,780 votes cast. Over one billion dollars in new taxes were then assessed, the majority of which are being paid by Cobb County residents. The contest was plagued by unexplained modem transmission difficulties, reporting delays, and a shift in preliminary results that took the SPLOST from apparent defeat to a razor-thin victory.

But perhaps the most astounding complaint is that of long-time voting machine technician, Laura Gallegos. Her Lowndes County Board of Elections certified 947 test votes in the 2008 general election results after her supervisor failed to match poll book voter totals to voting machine voter totals, a legally required task that would have revealed the error. Instead of accepting a slap on the wrist for the mistake, the well-connected supervisor secretly wrote to the IG implicating Mrs. Gallegos, who had no role in results tabulation. The IG office then filed a charge against Mrs. Gallegos alleging a testing violation that is also the legal responsibility of the supervisor.

The complaints, SEB letters, and other documents are available on the Complaints tab of the web site. The state Inspector General will now determine if such compromised investigations meet the definition of corruption under which it has jurisdiction to investigate.

Georgia Supreme Court Rejects Challenge to DRE Machines

Source: AJC
Court Upholds Touchscreen Voting

The Atlanta Journal-Constitution    10:51 a.m. Monday, September 28, 2009

The Georgia Supreme Court on Monday upheld the use of touch-screen voting, rejecting claims the machines violate the right to vote.
GA-DRE In a unanimous ruling, the court turned back a challenge by a group of citizens who filed suit three years ago in Fulton County Superior Court. A judge had previously dismissed the suit, ruling in favor of state officials.

The group claimed their fundamental right to vote is harmed because the recording, counting and retention of their votes, unlike paper ballots, are not being properly protected, which can prevent fraudulent manipulation of the results.

But the state high court, in a ruling written by Justice George Carley, found the use of touchscreen voting systems does not severely restrict the right to vote. 

Download the Court Ruling
photocredit: eyspahn
Georgia's Supreme Court upheld a lower court ruling
affirming state's right to use electronic voting machines

VoterGA Response to Today's Ruling

VoterGa Supporters,

The Georgia Supreme Court ruled today that our current form of un-auditable voting does not infringe upon the fundamental right to vote and to have our vote counted. This ruling essentially gives the state a license to pretend to conduct elections.

Not one of the 100+ million votes that have been cast on the machines since 2002 can be audited for accuracy and correctness of vote recording. Georgia  law in 2001 and 2002 required that any new machines have an independent audit trail of each vote cast.

The state’s own witnesses have acknowledged that the specific type of electronic voting machines we purchased and use do not have such an independent audit trail. The machines can only internally recreate selections that may or may not have been shown to voter. Without an independent audit trail, it is impossible to determine whether the actual ballots cast on Election Day were recorded correctly. Auditable electronic voting machines were available for purchase in 2002 as they are today.

When one or two officials can commit the state of Georgia to a $ 54 million purchase of voting equipment that was illegal at the moment of purchase, there must be some mechanism of accountability. Otherwise, public officials can operate above the law.

In this particular case, the previous boss of former Secretary of State Cox, who signed the purchase agreement, was the lobbyist for Diebold, the voting machine vendor. When the people have no recourse even for a standard trial of evidence , they become slaves to their government rather than the masters of it.

The Georgia Supreme Court also upheld the remarkable lower court decision that no trial is warranted on any count of the 13-count legal suit. The Georgia Supreme Court declined to overturn that lower court decision in spite of 17 disputes of facts cited in lower court conclusions and 41 disputes of facts cited against claims made by the state to Georgia Supreme Court.

Several of these disputes involved claims that were directly contradicted by the evidence in the record and clearly cited. Summary judgment dismissals, such as the one that the Georgia Supreme Court has just upheld, are rare in this type of case because standard procedures for any court in America require the court to hear the evidence in order to determine the facts before reaching a conclusion.

Now that the state has proven not to  be unable to rule against itself on any count, some Constitutional parts of the case could be appealed to the U.S. Supreme Court. While offering a more substantive decision than the lower court, the Georgia Supreme Court did not cite U.S. Supreme Court rulings related to ballot counting and recounting to corroborate its decision. All such U.S. Supreme Court rulings confirm that ballot counting and recounting requires strict scrutiny.

On the contrary, the Georgia Supreme Court decided that the state need only have a rational basis for implementing the voting systems. Even so, there is no rational basis for implementing a voting system that violates the law.

--Garland Favorito

P.S. I will send a follow-up e-mail on possible  next steps once we have had time to analyze the decision.

Download the Court Ruling


Summary Judgment Hearing in GA Suit to Ban E-Voting

Media Advisory
For Immediate Release Sept. 5, 2008

Hearing on Motion to Ban Current Voting Machines

Media Contact:
Garland Favorito (404) 664-4044

Motions & Other Information:

WHO: Voters Organized for Trusted Election Results in Georgia, VoterGA, is a diverse, non-partisan coalition of Georgia voters and organizations who filed a voting rights lawsuit against the current method of Georgia electronic voting that they contend cannot be properly verified, audited or recounted

WHEN: Monday Sept. 8, 2008, 2:30 p.m. to approx. 4 p.m.

WHERE: Fulton Co. Superior Court
Courtroom 8B - Judge Johnson
185 Central Ave
Atlanta, GA

WHAT: Attorneys for the plaintiffs will make an oral argument in support of their motion for Summary Judgment to remove unverifiable voting machines throughout Georgia. The Defendants will argue their motion to dismiss all counts of the lawsuit.

BACKGROUND: The motion for Summary Judgment seeks to ban:

· Current Diebold AccuVote TS-R6 voting machines used in Georgia on grounds that sole reliance on its unverifiable electronic ballots cannot provide protection equal to that of verifiable absentee paper ballots also used in Georgia.

· Current Diebold GEMS servers used to count both electronic and optical scan votes in Georgia on grounds the state has already admitted that they cannot detect fraudulent manipulation of the vote and thereby, abridge the right to vote.

· Diebold AccuVote TSX machines piloted in 2006 by Georgia on grounds that their sequentially rolled election results jeopardize secrecy of the ballot as required by the Georgia Constitution, a point plaintiffs contend was already admitted in a 2007 report from the office of the Secretary of State.

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.
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