Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

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1 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION TEXAS DEMOCRATIC PARTY and BOYD L. RICHIE, in his capacity as Chairman of the Texas Democratic Party, Plaintiffs, vs. Civil Action No. 1:07-CV ROGER WILLIAMS, in his capacity as Secretary of State for the State of Texas, Defendant. PLAINTIFFS, TEXAS DEMOCRATIC PARTY AND BOYD L. RICHIE, IN HIS CAPACITY AS CHAIRMAN OF THE TEXAS DEMOCRATIC PARTY, MOTION FOR CONTINUANCE AND MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, Plaintiffs, Texas Democratic Party and Boyd L. Richie, in his capacity as Chairman of the Texas Democratic Party, and files this their Motion for Continuance and Preliminary Response to Defendant s Motion for Summary Judgment and in support thereof would show the following: I. BACKGROUND Plaintiffs filed suit to enjoin the use of the Hart Intercivic eslate machine, as currently programmed, for any general election in Texas. Plaintiffs complaint alleges that the eslate MOTION FOR SUMMARY JUDGMENT Page 1

2 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 2 of 10 machine fails to record votes for candidates who were selected by a voter who had previously made a straight party ticket selection. In other words, in the last election, a voter who voted straight party Democrat and who later, on the same ballot, selected Chris Bell as Governor would in fact have no vote recorded for the Office of Governor. Plaintiffs allege that the eslate machine operates differently than other election machines certified by the Defendant for use throughout the state. The Defendant does not deny this fact. For example, a voter who selects the Democratic Party straight ticket on an optical scan mail-in ballot who also emphasizes his vote for each individual candidate of that same party, will have his vote recorded for each of these candidates. Defendant claims that even though eslate functions substantively different than other election systems in use throughout the state, that this defect is forgiven by the warnings eslate provides during the voter selection process. The warnings, if they appear, are defective on their face and, in any event, do not prevent the harm Plaintiffs allege. In short, resolution of this case involves the determination of multiple issues of fact. Approximately 30 days after being served with this suit, Defendant filed his answer. Defendant filed contemporaneously with his answer a Motion for Summary Judgment. The Motion on its face illustrates the multiple issues of fact that must be resolved. II. MOTION FOR CONTINUANCE Federal Rule of Civil Procedure 56(f) states as follows: MOTION FOR SUMMARY JUDGMENT Page 2

3 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 3 of 10 When affidavits are unavailable. Should it appear from the affidavits of a party opposing the Motion that the party can not for reason stated present by affidavit facts essential to justify the parties opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Defendant filed his Motion for Summary Judgment before any discovery has taken place. Indeed, the Court has not ordered the scheduling order due until May 4, By operation of Federal Rule of Civil Procedure 26(f) the parties are not required to confer until 21 days before that date. Federal Rule of Civil Procedure 26(d) prohibits any discovery until the parties have conferred. Therefore, absent specific orders of the court, Plaintiffs are forbidden from undertaking discovery until late April. Plaintiffs request the Court grant them an extension to respond to Defendant s Motion for Summary Judgment until August 1, 2007, thereby providing Plaintiffs at least three months to conduct discovery. 1 Attached hereto and incorporated for all purposes is the Affidavit of Ken Bailey, Political Director for the Texas Democratic Party. Mr. Bailey s Affidavit outlines some of the issues of fact that must be resolved in this case. Mr. Bailey also outlines some of the discovery Plaintiffs seek to obtain evidence regarding these issues of fact. FACT ISSUE The following is a non-exhaustive list of fact issues to be resolved in this matter: 1. The existence and prevalence of emphasis voters. 2. The percentage of voters who vote straight party ticket. 1 There is some urgency to the matter as Defendant will require time to re-certify a re-programmed machine before the next election in the event Plaintiffs prevail. MOTION FOR SUMMARY JUDGMENT Page 3

4 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 4 of The percentage of voters with computer experience. 4. The percentage of paper ballots cast that contain emphasis votes. 5. The extent to which computer jargon contained in alleged warnings adequately prevents the harm Plaintiffs allege. 6. The existence of the warnings Defendant claims are presented by the eslate. 7. The extent which certain voting classes comprehend any alleged warnings. 8. The functionability of other direct record electronic voting machines certified for use in this state that allow emphasis voting. 9. The prevalence of paper ballots where a straight party vote was cast and the voter attempted to de-select an individual race. 10. The prevalence of direct record electronic voting machine ballots with straight party ticket vote and de-selected individual races. 11. The prevalence of paper ballots where a straight party vote was cast and the voter attempted to de-select an individual race. 12. The prevalence of direct record electronic voting machine ballots with straight party ticket vote and de-selected individual races. 13. Comparison of the number of voting machines or methods certified for use in this state and how those systems deals with a voter who chooses to do any of the following: a. Continue to make individual candidate selections after a straight party choice has been made. MOTION FOR SUMMARY JUDGMENT Page 4

5 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 5 of 10 b. Attempts to select an individual opposing party candidate after making a straight party choice. c. Attempts to de-select a candidate from the party of the voters straight party ticket choice. d. Ability and ease to go backwards in the voting selection process to change a vote selection. e. The format of any review screen and/or paper ballot to catch voting mistakes. 13. The effectiveness of a review screen to cause a voter to acknowledge and repair a voting mistake. 14. The ease or difficulty in reprogramming the eslate voting machine to operate in the same manner as other voting systems certified for use in the state. DISCOVERY As was provided with Plaintiffs Original Complaint and is incorporated herein for all purposes, a number of ballots have been secured from Madison County, Texas for the most recent 2006 general election. Many of these ballots exhibit no selection for local party races, in spite of the fact that the closest political contests in Madison County were the local races. Indeed, a County Commissioner s race now the subject of an election contest came within 45 votes. It is incredulous to believe that such a significant number of voters chose to de-select candidates in these local races. It is believed once all of the Madison County ballots are obtained the number of no select ballots will be astonishing. In order for Plaintiffs to discover the MOTION FOR SUMMARY JUDGMENT Page 5

6 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 6 of 10 evidence necessary to prepare an adequate response to Defendant s Motion for Summary Judgment, Plaintiffs must be afforded discovery. The following is a non-exhaustive list of discovery Plaintiffs seek: 1. Documents and data from Hart Intercivic, the manufacturers of the eslate voting machine that relate to programming and testing of the eslate voting machine when used by a voter who desires to emphasize or de-select a candidate from the same party of a straight party vote choice. 2. The deposition of eslate personnel who were responsible for testing of the machine and drafting of review screens. 3. Inspection of eslate voting machines in use from different counties to review how they work and confirm the existence of review screens. For example, is the review screen presented each time a candidate chooses to emphasize or de-select an individual candidate? 4. Depositions on written questions to obtain printouts of ballots in certain counties/precinct that employ the eslate voting machine. 5. Depositions with voters in counties that employ eslate voting machines. 6. Location and designation of experts who are familiar with the prevalence of voters who emphasize or choose to de-select candidates. 7. Depositions of employees with the office of the Secretary of State who tested the eslate machine and others, and to determine the extent to which emphasis voting was considered in the certification process. MOTION FOR SUMMARY JUDGMENT Page 6

7 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 7 of Written discovery to the Defendant to obtain any documents, correspondence or memoranda concerning the testing or certification of the eslate voting machine and/or concerning communications with Hart Intercivic regarding the defects in the machine and specifically the one raised in this suit. MOTION FOR CONTINUANCE To obtain a continuance of a Motion for Summary Judgment in order to obtain further discovery, a party must indicate to the court by some statement, preferably in writing (but not necessarily in the form of an affidavit) why he needs additional discovery and how the additional discovery will create a genuine issue of a material fact. Stults v. Conoco, Inc., 76 F3d. 651, (5 th Cir. 1996). Where.. summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any rule 56(f) motion fairly freely. Burlington N. Santa Fe R.R. v. Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323 F3d. 767, 773 (9 th Cir. 2003). Here, Defendant has filed his Motion for Summary Judgment before Plaintiffs have been permitted to conduct any discovery in this matter. Despite this, Defendant s very motion exhibits the multiple issues of fact at issue in this case. Defendant s Summary Judgment evidence does not deny that the eslate voting system operates in a fundamentally different manner then the other voting systems certified for use in this state. Under the decision of Bush v. Gore, 531 U.S. 98 (2000), the United States Supreme Court requires that voting systems record MOTION FOR SUMMARY JUDGMENT Page 7

8 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 8 of 10 and tabulate votes in exactly the same manner. This issue alone defeats Defendant s Motion for Summary Judgment. Moreover, Defendant does not deny that votes could be recorded in individual races with no selection even though the voter evidenced an intent to select an individual candidate. State and Federal law require any evidence of a voters intent be recorded as a vote for the preferred candidate. Defendant s Motion for Summary Judgment does not prove the eslate voting machines record the voters intent in all instances. To the contrary, Defendant s Motion for Summary Judgment claims that even in instances when the voters have made evidence of their intent, the voting machine may record differently but because a warning is provided to the voter no harm has occurred. Defendant offers no evidence that the warning provided is adequate to avoid the recording of an incorrect vote. Indeed, if the warning exists at all, it is inadequate on its face. First, the warning does not state the most important fact to be warned. In other words, the warning does not state Are you sure you no longer wish to vote for Jane Smith, Democratic Candidate for [office]? Instead, the warning uses jargon to explain a straight party ticket vote has been altered. Indeed, the warning does not even allow the voter to heed the warning and cancel the emphasis vote that caused the problem. As for the warning and the review screen at the end, Defendant has offered no evidence that the voting machine, voting booth, or any materials in the voting location provide instruction to the voter as to how one would back out from a warning screen or from a review screen to change selections the eslate voting machine has recorded in error. MOTION FOR SUMMARY JUDGMENT Page 8

9 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 9 of 10 Defendant s Motion for Summary Judgment evidence is insufficient to support Defendant s argument that either (a) voters are sophisticated enough to understand the eslate voting machine and its alleged warnings, or (b) the voters who are not sophisticated enough could not be addressed with an alternative programming or an alternative voting system. Because the Defendant seeks summary judgment, he has the burden to prove all the fact issues listed herein. Defendant made no effort to meet his factual burden. WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Texas Democratic Party and Boyd L. Richie, in his capacity as Chairman of the Texas Democratic Party prays the Court grant them a continuance until August 1, 2007 to respond to Defendant s Motion for Summary Judgment, to deny the Motion for Summary Judgment after thorough briefing and hearing, and grant them such other and further relief to which they may show themselves justly entitled. Dated this 13 th day of March, Respectfully submitted, TEXAS DEMOCRATIC PARTY By: /s/ Chad W. Dunn Chad W. Dunn State Bar No General Counsel TEXAS DEMOCRATIC PARTY BRAZIL & DUNN K. Scott Brazil State Bar No FM 1960 West, Suite 530 Houston, Texas Telephone: (281) Facsimile: (281) MOTION FOR SUMMARY JUDGMENT Page 9

10 Case 1:07-cv SS Document 9 Filed 03/13/2007 Page 10 of 10 Randall Buck Wood State Bar No RAY, WOOD, & BONILLA 2700 Bee Caves Road Austin, Texas Telephone: (512) Facsimile: (512) ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I here by certify that on March 13, 2007 I electronically filed the foregoing document with the clerk of the court for the U.S. District Court, Western District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a Notice of Electronic Filing to the following attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means: Greg Abbott Attorney General of Texas Kent C. Sullivan First Assistant Attorney General David S. Morales Deputy Attorney General for Litigation Robert B. O Keefe Chief, General Litigation Division Kathlyn C. Wilson Assistant Attorney General General Litigation Division P. O. Box 12548, Capitol Station Austin, TX (Attorneys for Defendant) By: /s/ Chad W. Dunn Chad W. Dunn MOTION FOR SUMMARY JUDGMENT Page 10