FALSE CLAIMS ACT ARGUMENT for Impounding the Machines .... Lawyers???

[geo]

Hi all,

Jamboi raised an interesting point about getting the machines impounded in this thread here:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x111112#111164

The purpose of getting the machines impounded would be to get inside the central tabulators and servers to trace for fraud. The main post says their is a problem with doing so because without discovery tools only available once suit is filed, enough evidence cannot be pulled together to file the case.

When I read Jamboi's post, I felt this should be vetted more thoroughly. We should have enough evidence that the machines do not perform as well as promised through sales literature, and as a tax paying public, we have the right to pursue the action qui tam.

Here is a link to some info on the False Claims Act, which contains a link to applicable U.S. Code:

http://www.taf.org/whyfca.htm

What do you all think? Any lawyers in the house willing to weigh in?

Warmly,

George

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DISCLAIMER: This thread is for academic discussion only and is not intended as legal advice. Should you be in need of legal advice with regards to these topics, you are encouraged to find an attorney that specializes in the area of law covering your concern.

[NMDemDist2]

1. i thought it was a great idea

hehehehe

[jamboi]

33. And Whistleblowers have $$$ incentive because they get decent share of the

penalty that is assessed against the company! Cool, eh!

[merh]

2. How about a civil RICO action?

That is what was used to sue the tobacco companies (and the 9/11 widow has filed against the weed).

:shrug:

[geo]

3. you have to show a certain level of corruption....

We would have to get better evidence to go civil RICO, and anyways, it's treble damages either way. :) -G

[merh]

4. No, an enterprise to defraud is what the RICO action

alleges. We are not talking about damages, we are talking about a civil action that will allow for the protection/inspection of the machines.

Tobacco companies were not per se corrupt, they just joined together in an enterprise to prevent the public from knowing the dangers of tobacco.

[geo]

7. I think we are saying roughly the same thing, or perhaps I am not...

quite saying it right. I'm just guessing that the burden of proof for a False Claims Act claim would be lower than the burden of showing that voting machine companies purposefully joined forces to defraud the public. RICO can be based on a fraud claim, but if memory serves, there are extra elements to hit to prove the claim.

I could be very off. I have read up a little more on RICO than on FCA, but either way I haven't even sat for the lsat yet so I may not be the most qualified among us. :) :)

What are your thoughts regarding burden? :) - G

[merh]

9. The issue isn't the burden - it is the standing to bring the action

and the prove required to establish that a claim has been stated under the statute and rules of the court. The issue is to get a court to order that the machines be impounded or maintained so that they can be inspected and tested.

[geo]

10. Do you think the sub-standard machine performance is enough...

to go civil RICO? What do you think our case would be?

Thank you for all the responses, btw. :) :)

Warmly,

George

[geo]

11. light bulb...

Sorry if I am a little slow today... I see what you mean now about establishing the case; prima facia. I can see how we have the case now. Sorry again for not seeing that right away. :) -G

[consciousobjector]

5. Great Idea - kick

:kick:

[VTHoosierPatriot]

6. Equal Protection

Why hasn't there been any equal protection arguments along the lines of Bush v. Gore? The machines deny process (recount) to certain individuals on the basis of geography. I know the opinion is a POS which the justices involved sad had little in the effect of precedent, but I would love to see it used against the Republicans. Arbitrary and disparate treatment of voters in different counties. Gray v. Sanders. It seems with Bush v. Gore no recount would stand as Constitutional due to the different methods of voting and thus recounting.

[geo]

8. We did a couple of threads on Equal Protection and they were forwarded to

attorneys, and to Dean Solomon of Yale law. I stopped updating the threads or playing host because Cliff Arnebeck mentioned the lawsuit to be filed (probably Monday now) in Ohio and it sounded exactly like what we had been discussing, and then some. I left a note at the end of the thread that I would start a new thread as soon as Arnebeck made the case file public.

Hope that helps. :) -G

[NMDemDist2]

12. kicked and nominated n/t

[snot]

13. kick!

[Laura PourMeADrink]

14. Repugs tried to impound on election day in Philly

In Philadelphia, Republican officials asked Philadelphia County to impound up to seven voting machines after local reports of possible ballot stuffing, which were later shot down by the city's district attorney.
http://tv.yahoo.com/news/va/20041102/109942875600.html

This is all it says about the subject. I remember on election morning, a news flash about Philadelphia. At first, a claim that machines had votes on them already and Repugs were to impound.

[JunkYardDogg]

15. Legal Premise for Impounding the Machines

False Premises Strategy:
Probably not workable as the Consumer of the Product ( the Government) is Not going to complain- 'cause that would be an admission that they either A. Got Screwed or B. Screwed Up or C. Both
RICO Suit: Rico Is ONLY used where there is instances of illegal financial gain - this scenario is not directly related to monetary gain
Below is my justification for impounding the Equipment, based on the fact that the aberrations were man-made- making them Criminal acts
I sent this message to all the Attorneys who have filed Legal Actions on the Election-
I sent Cliff Arnebeck this list about 10 days ago


The following are core fundamentals upon which I think that you can pursue the E-Voting Fraud Issue:
The Direction which we should be pursuing , legal wise, should be as follows:
1. The numerous, documented cases of vote count discrepancies are NOT accidents, but Prima Facie EVIDENCE of FELONY CRIMINAL ACTIVITIES
2. As such, this amounts to PROBABLE CAUSE
3. The E-Voting Machines are Physical Evidence of CRIMINAL ACTIVITY
4. IMPOUND the Electronic Voting Machines in the Precincts in Question
5. ANALYZE (Forensic Investigation) by Neutral Software Experts- the Software Programs
(there are Experts in the E-Voting Software who know what to look for)-there are documented known programming "aids" to manipulate the vote count built into the machines-the Diebold machines have 2 sets of books, for example

6. Get Court Orders to Get the Server History Records on the Access History of the E-Machines-and the Central Tabulators
this is commonly done in White Collar Criminal Cases where internal E-Mails are used as evidence
We know that these machines and the vote counts were manipulated, but we cannot get the evidence until we
can impound the Machines and Central Tabulators and backtrace the servers' histories
The first machines which we can impound and analyze ( plus the servers) where manipulation can be found, can then be used to seize machines all over the country

[intelle]

16. Thanks, JunkYardDogg

Have you heard back from Cliff Arnebeck? I think your reasoning is sound (I am not an attorney, however).

It sounds like we need to prove (or at least provide strong evidence of) criminal activity before anything else can be done.

From what it sounds like, there are lawyers looking at this right now...such as Mr. Arnebeck.

If you hear from him, can you post a thread about it?

Thanks!




:toast:

[JunkYardDogg]

17. Cliff Arnebeck

No he was not one of the lawyers who got back to me
The only real good reply which I got, was the one from Cindy Cohn, which is my lead post under Impounding the Machices-Lawyers Response

[intelle]

18. I read that...good response

I am surprised there isn't more interest in this. But, then, I suspect that Cliff, at least, is pretty busy with what he is doing.

I hope your email made an impression on him.

[geo]

29. I agree with your logic completely, but who would be able to get

a criminal investigation going? Is there anything we can do to help push it along?

I am glad you said what you did. I think the reason many of us are thinking civil is because it is within our reach. I can totally see this as an active criminal investigation, but am very unclear about how this should be pursued (what venue? who prosecutes? can private citizens or attorneys get the ball rolling? can we start on a more local level and then expand the complaint to cover other territories?).

We know that:
- These machines are purposely left insecure.
- Main vote machine companies have questionable ties to each other, and have a number of felons in their employ (one case had to do with creating complex and hard to spot "back doors" in some major theft effort).
- So many errors occured
- Errors benefit republicans exclusively (or near so)
- Results are statistically impossible in many areas that use the machines
- Key chief officers not only support the party who benefited but in at least one case claimed to be able to "deliver" Ohio's electoral vote to Mr. Bush; this all adds up to a good surface case.

The rest can be found through discovery, and the machines could be impounded through the process.

Thank you very much for the replies, btw. :) :)

Warmly,

George

[AntiFascist]

32. For what its worth....

I'm forwarding the salient points of the original post to my Democratic senators.

(don't sue me for copyright infringement :)

[intelle]

34. You would need to ask Jamboi

He is the author of the original post....;)

[merh]

20. Financial gain not involved?

maker of machines get more contracts for more machines, awarded the contracts for putting the machines in more counties, throughout the state, in more states.
gop or other winning party gets more contributions and postions of power that allow for awarding bids to private enterprises (some call in cronism, i like to refer to it as halliburtonesque awards).

Yeah, financial gain is a problem :silly: I see what you mean. :dunce:

[merh]

22. Criminal activity is a higher standard, a higher burden of proof.

Only the police or prosecutors can bring the actions for the a criminal wrong and those appear to controlled by the party that has done the wrong.

The issue is protecting the machines so that they can be tested and inspected. That a cause of action has a probability of winning is one thing, that it the parties have standing to file the action and to ask the court (or jury) to hear the issues is another. With standing, the discovery process can allow the inspection/testing of the equipment which may be the smoking gun necessary to get the police and/or prosecutores (state or fed) to pursue a criminal action.

[intelle]

25. I understand that it is very important to protect the machines

What parties do you think would have standing to file an action?

Thanks!

[merh]

27. I am not certain, I simply included RICO as a possible avenue

to pursue action in court. To be able to say what parties have standing is not appropriate. If a lawyer represents someone who wants to know whether or not he has standing, then it is up to the lawyer to consider all avenues available to the client. To make a general statement as to who has standing is impossible without knowing the relationship the aggrieved has to the act.

[intelle]

28. Thanks for your reply..:-)

Was just hoping that there might have been some "cut and dried" rule that would make this challenge easy.

Guess I was dreaming!

[merh]

31. There is no cut and dried answer.

That is the sad part of it all. Hell, even a $200,000 reward for inside information into the theft is not enough to entice folks to come forward. The whole thing is just a cluster, just as they intended. Votes stolen and totals padded using all means available so that one method alone doesn't prove the fraud, and all together give the weed the popular voted.

[geo]

36. Just curious....

why haven't we tried to fund raise to up that reward?? :) -G

[Last Lemming]

19. As I understand it

The programming that alters the vote is loaded, does it's job, and then vanishes without a trace. That's why machines produce an "error" then are retested and seem to work fine. This may get you exactly no where.

[merh]

21. No program on a machine can disappear without a trace if

the machine still exists and its hard drive is not destroyed. Actually, there are programs that can recover the contents of the machines, even if they have "been wiped clean" or "destroyed". Only way to totally destroy the memory is to melt it down to a clump of glob. Maybe electronic/magnetic erasal is effective, I am not sure of that.

[intelle]

23. From what I understand, this is correct...n/t

[Vote4Kerry]

24. Whatever happened to the GOP's efforts to impound machines in Phlly?

Check out what happened on some machines in Philly..wasn't the GOP trying to get these machines impounded? Whatever happened with that?

================================

VOTES FOUND ON MACHINES IN PHILLY BEFORE POLLS OPEN

Before voting even began in Philadelphia -- poll watchers found nearly 2000 votes already planted on machines scattered throughout the city.

One incident occurred at the SALVATION ARMY, 2601 N. 11th St., Philadelphia, Pa: Ward 37, division 8.

Pollwatchers uncovered 4 machines with planted votes; one with over 200 and one with nearly 500...

A second location, 1901 W. Girard Ave., Berean Institute, Philadelphia, Pa, had 300+ votes already on 2 machines at start of day.

ANOTHER INCIDENT: 292 votes on machine at start of day; WARD/DIVISION: 7/7: ADDRESS: 122 W. Erie Ave., Roberto Clemente School, Philadelphia, Pa..

ANOTHER: 456 votes on machine at start of day; WARD/DIVISION: 12/3; ADDRESS: 5657 Chew Ave., storefront, Philadelphia, Pa...
======================

[rainy]

26. Couldn't we sue on a very simple point:

The machines are illegal because they cannot be used in a recount. There is nothing to recount. If the machine malfunctions there is no way to do a recount. Recounts are the right of every candidate if the election is close. Can't they demand a papertrail based on this point?

[geo]

30. even if correct, the argument to impound the machines would seem

weak and irrelavant. Just a surface thought. :) :) -G

[ccarter84]

35. Kick Worthy

:kick:

[Boredtodeath]

37. False Claims Act = Qui Tam

You need:

1. A whistleblower (insider)

2. To give the DOJ (yeah, Ashcroft) 3 years to investigate. Like that's about to happen! The typical gag order on a False Claims Act case is 3 years.

[geo]

38. I thought they only had 60 days....

Don't they? :) -G

[Boredtodeath]

39. No, they have as long as they want

The typical Qui Tam criminal investigation lasts 3 years.

Government Role after Filing: Once a complaint and written disclosure is filed under seal, the Department of Justice (DOJ) has 60 days to investigate the information disclosed and determine whether it will join in the lawsuit. The DOJ can, and often does, request the court grant extensions to give it more time to investigate. It is not unusual for a complaint to remain under seal for as long as two to three years before the DOJ makes a decision. However, a relator does have the right to challenge extension requests and to have the seal lifted.
http://www.quitam.com/quitam6.html

[rumpel]

40. FYI seems some Sequoia machines privately owned

I just read on another thread about Nevada, that these machines are privately owned and the State will have to bring in tec's at additional cost. Therefore the third party presidential candidates decided it was too expensive to pursue a recount there.

[truehawk]

41. kick

[jamboi]

43. kick

[lthuedk]

42. George:

I know a lawyer. Check your email.

sp