Thursday, September 14, 2006

Holder v. McPherson in Court Today

The major CA lawsuit challenging the certification of Diebold is in Superior Court today in San Francisco. WDNC correspondent Jane Allen is on the scene and just checked in to say the judge has made reference to a tentative ruling that would seem to favor the defense (Secretary of State McPherson). At this point nothing is firm but apparently the judge has commented that the defense is best served by keeping quiet. The plaintiffs' attorney Lowell Finley of will still have a chance to change the judge's mind, and as you can see for yourself, the case is very strong (.pdf).

This is a breaking story that I will try to update throughout the day in this thread.

Update 12:40pm
Just picked up voice mail from Jane left approximately an hour ago: "The judge adopted his tentative ruling. The plaintiffs get nothing. No injunction. No writ of mandate."

I will have more later today.

Update 1:56pm
We Do Not Consent EXCLUSIVE
First hand observations from the court room filed by Jane Allen

Judge Quidachay announced at the beginning of the hearing that he had issued a tentative ruling yesterday (Sept. 13) denying the writ of mandate and preliminary injunction because petitioners failed to sustain their burden of proof. He said he would hear from all parties, but, in effect, told attorneys for respondents that when you're ahead, it's a good idea to be quiet.

The judge made several comments which indicated that he was concerned about creating "excessive hardship" to counties with elections less than 60 days away. He seemed unimpressed by petitioners' arguments around the potential disenfranchisement of millions of voters and returned a few times to the hardships that an injunction would create for counties and mentioned petitioners' argument that millions of dollars have already been spent on these machines. He also offered the rationale that the machines are "not bad enough not to use if" short-term, interim fixes are accomplished.

Petitioners' counsel (I didn't catch his name) reminded the judge that there were alternate remedies (short of an immediate injunction against the machines), namely, decertification after six months to prevent continued use of "systems that raise grave doubts in the minds of the voters" and enjoining respondents from further purchases.

There were questions and answers about interpretive code, sleepovers and possibility of using paper ballots for the upcoming election.

Mr. Woods, representing Bruce McPherson, emphasized the "vigilance of the SOS" on this matter and that it is "offensive" to suggest that the SOS "should do what's already been done" as far as testing, etc. In asserting the diligence of the SOS, he cited a history of testing and sending back for more testing, characterizing that as "running it through the wringer." He stated that "long-term measures" to remedy problems are already "required to be accomplished by Diebold."

Lowell Finley, representing petitioners made a few final comments pointing out that a "crucial difference" with DREs is that "fraud can be viral" ... a "qualitatively different danger of fraud" that’s "undetectable" and the danger is not from individual voters but from “insiders in the process" ... people who work for Diebold or other manufacturers or insiders who get into elections offices. He cited the difficulty of identifying malicious code, the "danger to our democracy," the "profound and ongoing defects" of the machines and the "dishonesty of Diebold" in their "dealings so far." Mr. Finley cited Brown v. Board of Education to compare that decision regarding sweeping reform of segregated public schools (and the burden imposed on the school system) to the sweeping reform required of the current state of elections.

I thought it was an interesting comparison because what I heard from that example was: he was urging Judge Quidachay to have the courage to call a halt (regardless of the proximity of the elections and the millions and millions of dollars already spent) to a deeply flawed system.

Petitioners' arguments failed. The judge adopted his tentative ruling, saying that petitioners "failed to meet their burden on all claims."
Update 9/15 3:15am has a thread based on this blog post. Bev Harris said a very nice thing: "The WeDoNotConsent blog, published by an extraordinary citizen from Humboldt County Calif. (Dave Berman), has an exclusive from the courtroom today"


Posted by Dave Berman - 10:20 AM | Permalink
Comments (2 So Far) | Top of Page | WDNC Main Page

Read or Post a Comment

I hope this can be appealed.

"Hardship to the counties," is ludicrous, as it is the citizens/voters that the county governments exist to serve. Counties have no seperate and distinct interests from their citizens/voters as it is the citizens/voters who elect them, pay their salaries and expenses, and whose interests they are required to represent.

Posted by Blogger Mark E. Smith @ Sep 14, 2006, 3:09:00 PM
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You're so right. As I sat there listening to the judge repeatedly comment on the cost and the hardship, I thought, "When will more people start worrying about the cost and the hardship of NOT having fair elections?"

The judge seemed clueless in some basic areas - e.g., when the issue of sleepovers was raised he asked, "Is that still going on?" Apparently he doesn't pay attention to what's happening in the courts of San Diego.

Rather than an appeal, I like what some folks in Florida have accomplished:

Judge rules initiative requiring paper ballot can be on Nov. 7 ballot.
Article published Sep 14, 2006

SARASOTA COUNTY -- Sarasota County voters will get a chance to pick which
kind of voting system should be used for the next presidential election.
Circuit Judge Robert B. Bennett Jr. ruled Wednesday that a proposed ballot
initiative demanding a countywide paper-ballot voting system is not
unconstitutional as the county's attorneys had argued.

The Sarasota County Commission responded to the ruling by passing an
emergency ordinance placing the initiative on the Nov. 7 ballot.

"This is for all of the voters," said Kindra Muntz, one of the leaders of the
Sarasota Alliance for Fair Elections, a group that gathered more than 14,000
signatures to put the measure on the ballot.

Rest of article at

Posted by Blogger Jane Allen @ Sep 15, 2006, 9:58:00 AM
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