Case: 2:12-cv GLF-TPK Doc #: 1 Filed: 11/05/12 Page: 1 of 2 PAGEID #: 1

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1 Case: 2:12-cv GLF-TPK Doc #: 1 Filed: 11/05/12 Page: 1 of 2 PAGEID #: 1 OJS 44 (Rev. 12/07) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS DEFENDANTS (b) County of Residence of First Listed Plaintiff (EXCEPT IN U.S. PLAINTIFF CASES) County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED. (c) Attorney s (Firm Name, Address, and Telephone Number) Attorneys (If Known) II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE OF SUIT (Place an X in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 28 USC State Reapportionment 120 Marine 310 Airplane 362 Personal Injury Other Food & Drug 423 Withdrawal 410 Antitrust 130 Miller Act 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 28 USC Banks and Banking 140 Negotiable Instrument Liability 365 Personal Injury - of Property 21 USC Commerce 150 Recovery of Overpayment 320 Assault, Libel & Product Liability 630 Liquor Laws PROPERTY RIGHTS 460 Deportation & Enforcement of Judgment Slander 368 Asbestos Personal 640 R.R. & Truck 820 Copyrights 470 Racketeer Influenced and 151 Medicare Act 330 Federal Employers Injury Product 650 Airline Regs. 830 Patent Corrupt Organizations 152 Recovery of Defaulted Liability Liability 660 Occupational 840 Trademark 480 Consumer Credit Student Loans 340 Marine PERSONAL PROPERTY Safety/Health 490 Cable/Sat TV (Excl. Veterans) 345 Marine Product 370 Other Fraud 690 Other 810 Selective Service 153 Recovery of Overpayment Liability 371 Truth in Lending LABOR SOCIAL SECURITY 850 Securities/Commodities/ of Veteran s Benefits 350 Motor Vehicle 380 Other Personal 710 Fair Labor Standards 861 HIA (1395ff) Exchange 160 Stockholders Suits 355 Motor Vehicle Property Damage Act 862 Black Lung (923) 875 Customer Challenge 190 Other Contract Product Liability 385 Property Damage 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 12 USC Contract Product Liability 360 Other Personal Product Liability 730 Labor/Mgmt.Reporting 864 SSID Title XVI 890 Other Statutory Actions 196 Franchise Injury & Disclosure Act 865 RSI (405(g)) 891 Agricultural Acts REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 740 Railway Labor Act FEDERAL TAX SUITS 892 Economic Stabilization Act 210 Land Condemnation 441 Voting 510 Motions to Vacate 790 Other Labor Litigation 870 Taxes (U.S. Plaintiff 893 Environmental Matters 220 Foreclosure 442 Employment Sentence 791 Empl. Ret. Inc. or Defendant) 894 Energy Allocation Act 230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: Security Act 871 IRS Third Party 895 Freedom of Information 240 Torts to Land Accommodations 530 General 26 USC 7609 Act 245 Tort Product Liability 444 Welfare 535 Death Penalty IMMIGRATION 900Appeal of Fee Determination 290 All Other Real Property 445 Amer. w/disabilities Mandamus & Other 462 Naturalization Application Under Equal Access Employment 550 Civil Rights 463 Habeas Corpus - to Justice 446 Amer. w/disabilities Prison Condition Alien Detainee 950 Constitutionality of Other 465 Other Immigration State Statutes 440 Other Civil Rights Actions V. ORIGIN 1 Original Proceeding VI. CAUSE OF ACTION (Place an X in One Box Only) Transferred from 2 Removed from 3 Remanded from 4 Reinstated or 5 State Court Appellate Court Reopened another district 6 Multidistrict Litigation (specify) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause: 7 Appeal to District Judge from Magistrate Judgment VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 (See instructions): JUDGE DEMAND $ CHECK YES only if demanded in complaint: JURY DEMAND: Yes No DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

2 JS 44 Reverse (Rev. 12/07) Case: 2:12-cv GLF-TPK Doc #: 1 Filed: 11/05/12 Page: 2 of 2 PAGEID #: 2 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the defendant is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section (see attachment). II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C and Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an X in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an X in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge s decision. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

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4 Case: 2:12-cv GLF-TPK Doc #: 2 Filed: 11/05/12 Page: 2 of 7 PAGEID #: 4 the original jurisdiction of this Court that they form part of the same case or controversy under Article III of the United States Constitution. 4. Venue in this Court is proper under 28 U.S.C. 1391(b)(2) because a substantial part of the plaintiff s claims, and the direct and immediate harm threatened to the plaintiff, arises in this judicial district. Parties 5. Plaintiff Robert J. Fitrakis (hereinafter Fitrakis ) is a taxpayer who resides in the State of Ohio, and who is registered to vote in the State of Ohio. 6. Defendant Jon Husted (hereinafter Husted) is the duly elected and presently serving Ohio Secretary of State. Pursuant to Ohio Rev. Code , the defendant is the chief election official of the State of Ohio, and is responsible for the administration of state laws affecting voting and for assuring that elections in the state are conducted in accordance with the law. 7. Defendant Election Systems & Software, Inc. (hereinafter ES&S ) designs and provides state and local governments with hardware and software designed to record and tabulate votes cast in general and primary elections. Facts 8. On or after September 18, 2012, defendant Husted entered into one or more contracts with defendant ES&S, under which ES&S provided Husted with hardware and software designed to record and tabulate the votes cast by Ohio voters in the General Election on November 6, Defendant ES&S acted as an agent of the State of Ohio under color of State law.

5 Case: 2:12-cv GLF-TPK Doc #: 2 Filed: 11/05/12 Page: 3 of 7 PAGEID #: 5 9. The aforesaid contracts were approved and signed by Husted without opening them to public bidding, without public review, and without approval of the technology review board that must approve such contracts, all of which is required by Ohio law. Those contracts obligated defendant Husted to pay ES&S for such hardware and software using public funds raised from Ohio taxpayers, thereby exposing Ohio taxpayers to the cost and expense of contracts that defendant Husted entered into unlawfully. 10. Pursuant to the aforesaid contracts, Husted accepted hardware and software from ES&S which he will use to record and tabulate votes cast by Ohio voters in the General Election on November 6, ES&S has installed a back door into such hardware and software that enables persons who are not under the supervision and control of defendant Husted, and who are not under the supervision and control of Ohio s boards of elections, to access the recording and tabulation of votes using facilities not under the control of defendant Husted or Ohio s boards of elections. 11. There is an imminent risk that persons who are not under the supervision and control of defendant Husted, and who are not under the supervision and control of Ohio s boards of elections, will use the ES&S back door to access the recording and tabulation of votes cast by Ohio voters in the General Election on November 6, 2012 using facilities not under the control of defendant Husted or Ohio s boards of elections. 12. Once they access the recording and tabulation of votes cast by Ohio voters in the General Election on November 6, 2012, the persons who are not under the supervision and control of defendant Husted, and who are not under the supervision and control of Ohio s boards of elections, will cause irreparable harm by using the ES&S back door from facilities not under the control of defendant Husted or Ohio s boards of elections to alter the recording and tabulation of votes cast by Ohio voters in the General Election on November 6, 2012.

6 Case: 2:12-cv GLF-TPK Doc #: 2 Filed: 11/05/12 Page: 4 of 7 PAGEID #: 6 First Claim for Relief: Violations of 42 U.S.C The plaintiff restates each and every allegation contained in Paragraphs 1 through 11, inclusive, of this Complaint as if fully rewritten herein. 13. The United States Constitution protects the right of all qualified citizens to vote in elections for federal office. The right to vote, one of the most important rights in our democratic society, is fundamental. It is protected by Articles I and II of the United States Constitution, the First and Fourteenth Amendments, and numerous federal statutes. 14. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees qualified voters a substantive right to participate equally with other qualified voters in the electoral process. This equal right to vote is protected in more than the initial allocation of the franchise because equal protection applies to the manner of its exercise as well. 15. The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees qualified voters a substantive right to vote as a protected liberty interest. 16. There is an imminent risk that the plaintiff will be irreparably harmed by the defendants conduct, described above, because votes he casts in the General Election on November 6, 2012 will be accessed and altered by persons who are not under the supervision and control of defendant Husted, and who are not under the supervision and control of Ohio s boards of elections, using facilities not under the control of defendant Husted or Ohio s boards of elections. 17. The plaintiff s right to vote under the United States Constitution is protected by 42 U.S.C By their conduct described above, the defendants have acted and will act to deny the plaintiff his right to vote guaranteed to him under the United States Constitution.

7 Case: 2:12-cv GLF-TPK Doc #: 2 Filed: 11/05/12 Page: 5 of 7 PAGEID #: 7 Second Claim for Relief: Ohio Taxpayer s Action 20. The plaintiff restates each and every allegation contained in Paragraphs 1 through 19, inclusive, of this Complaint as if fully rewritten herein. 21. Any person may, in a private capacity as a citizen, elector, freeholder, or taxpayer, volunteer to enforce a right of action on behalf of and for the benefit of the public. 22. Where the question is one of public right and its object is to procure the enforcement of public duty, the public is regarded as the party in interest. 23. Defendant Husted, as a public official, has a duty to comply with Ohio law and not expend public funds without authorization. 24. The plaintiff has a clear legal right, as an Ohio taxpayer, to procure the enforcement of a public duty that is applicable to defendant Husted. 25. Defendant Husted has violated his duty not expend public funds without authorization by contracting with defendant ES&S as described above without opening such contracts to public bidding, without public review, and without approval of the technology review board that must approve such contracts, all of which is required by Ohio law. 26. The plaintiff has a clear legal right to enforce the duty of a public official not to expend public funds without authorization against defendant Husted. WHEREFORE, plaintiff Robert J. Fitrakis demands judgment against defendant Jon Husted, in his official capacity as Ohio Secretary of State, and against defendant Election Systems & Software, Inc. as follows: a. That this Court issue a temporary restraining order, preliminary injunction, and permanent injunction prohibiting the defendants, their respective agents, servants, employees, attorneys, successors,

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11 Case: 2:12-cv GLF-TPK Doc #: 3 Filed: 11/05/12 Page: 2 of 7 PAGEID #: 11 Columbus, OH Telephone: (614) clifford.arnebeck@gmail.com Of Counsel: Brett A. Colbert, Esq. ( ) 1021 East Broad Street Columbus, OH Telephone: (614) bac5665@gmail.com

12 Case: 2:12-cv GLF-TPK Doc #: 3 Filed: 11/05/12 Page: 3 of 7 PAGEID #: 12 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRCT OF OHIO EASTERN DIVISION ROBERT J. FITRAKIS, v. Plaintiff, JON HUSTED Case No. and ELECTION SYSTEMS & SOFTWARE, INC., Defendants. MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER According to Fed. R. Civ. P. 65(b)(1): The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. The plaintiff s motion meets these requirements. On or after September 18, 2012, defendant Jon Husted (hereinafter Husted ), in his official capacity as Ohio Secretary of State, entered into one or more contracts with defendant Election Systems & Software, Inc. (hereinafter ES&S ) under which ES&S provided Husted with hardware and software designed to record and tabulate the votes cast by Ohio voters in the General Election on November 6, Defendant ES&S acted as an agent of the State of Ohio under color of State law.

13 Case: 2:12-cv GLF-TPK Doc #: 3 Filed: 11/05/12 Page: 4 of 7 PAGEID #: 13 Pursuant to the aforesaid contracts, Husted accepted hardware and software from ES&S which he will use to record and tabulate votes cast by Ohio voters in the General Election on November 6, ES&S installed a back door into such hardware and software that enables persons who are not under the supervision and control of defendant Husted, and who are not under the supervision and control of Ohio s boards of elections, to access the recording and tabulation of votes using facilities not under the control of defendant Husted or Ohio s boards of elections. There is an imminent risk that persons who are not under the supervision and control of defendant Husted, and who are not under the supervision and control of Ohio s boards of elections, will use the ES&S back door to access the recording and tabulation of votes cast by Ohio voters in the General Election on November 6, 2012 using facilities not under the control of defendant Husted or Ohio s boards of elections. Once they access the recording and tabulation of votes cast by Ohio voters in the General Election on November 6, 2012, the persons who are not under the supervision and control of defendant Husted, and who are not under the supervision and control of Ohio s boards of elections, will cause irreparable harm by using the ES&S back door from facilities not under the control of defendant Husted or Ohio s boards of elections to alter the recording and tabulation of votes cast by Ohio voters in the General Election on November 6, A vote tabulation system is not much different from a desktop personal computer. It consists of software and hardware. Ohio law requires testing and certification of such a system, which includes both hardware and software. However, defendant Husted has not tested the system that defendant ES&S provided him to record and tabulate the votes cast by Ohio voters in the General Election on November 6, The defendants may try to argue that this new system does not by itself tabulate votes, and is therefore immune from being tested as provided for by law. They are wrong.

14 Case: 2:12-cv GLF-TPK Doc #: 3 Filed: 11/05/12 Page: 5 of 7 PAGEID #: 14 It alters the whole system. There is no objective proof that the new software will not adversely affect the existing software in some unforeseen way. Almost every adult in the country has had experience with software packages that adversely interacted on their personal computers in unforeseen ways. There is no evidence that this will not happen here, other than the vendor's assurances in this case. Looking at the contract, the vendor agrees to test the software itself, at some later point in time. There has been no examination of the software that gives any information as to what it does. The only persons who know exactly what this software does are ES&S own programming staff. Just because ES&S claims that this is "reporting software" which does not change the tabulation method does not mean that it its claim is true. The law requiring testing and certification exists exactly because we do not make that kind of presumption. The average adult does not install software on his computer without scanning it for viruses and malicious code. Yet defendant Husted has done so in this case simply because ES&S claims that there is no malicious code. ES&S then claims that it does not need to check for malicious code because this installed software is not part of the tabulation system, when clearly it is. The United States Constitution protects the right of all qualified citizens to vote in elections for federal office. The right to vote, one of the most important rights in our democratic society, is fundamental. It is protected by Articles I and II of the United States Constitution, the First and Fourteenth Amendments, and numerous federal statutes. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees qualified voters a substantive right to participate equally with other qualified voters in the electoral process. This equal right to vote is protected in more than the initial allocation of the franchise because equal protection applies to the manner of its exercise as well. The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees qualified voters a substantive right to vote as a protected liberty interest.

15 Case: 2:12-cv GLF-TPK Doc #: 3 Filed: 11/05/12 Page: 6 of 7 PAGEID #: 15 There is an imminent risk that Ohio voters will be irreparably harmed by the defendants conduct, described above, because votes he casts in the General Election on November 6, 2012 will be accessed and altered by persons who are not under the supervision and control of defendant Husted, and who are not under the supervision and control of Ohio s boards of elections, using facilities not under the control of defendant Husted or Ohio s boards of elections. Attached hereto are affidavits and certifications required by Fed. R. Civ. P. 65(b)(1) It clearly appears from specific facts shown by the affidavits that immediate and irreparable injury, loss or damage will result to the plaintiff before the adverse party or his attorney can be heard in opposition. Plaintiff s counsel has certified to the Court in writing the efforts which have been made to give notice and the reasons supporting his claim that notice should not be required. For the foregoing reasons, this Court should issue a temporary restraining order prohibiting the defendants, their respective agents, servants, employees, attorneys, successors, and all persons acting in concert with each or any of them, from using hardware or software that Election Systems & Software, Inc. provided to Jon Husted, in his official capacity as Ohio Secretary of State, under the aforesaid contracts in order to record and tabulate votes cast by Ohio voters in the General Election on November 6, Respectfully submitted, s/ Clifford O. Arnebeck, Jr. Clifford O. Arnebeck, Jr. ( ) Trial Attorney for Plaintiff 1021 East Broad Street Columbus, OH Telephone: (614) clifford.arnebeck@gmail.com

16 Case: 2:12-cv GLF-TPK Doc #: 3 Filed: 11/05/12 Page: 7 of 7 PAGEID #: 16 Of Counsel: Brett A. Colbert, Esq. ( ) 1021 East Broad Street Columbus, OH Telephone: (614) bac5665@gmail.com Certificate of Service This is to certify that, in accordance with the requests of counsel for defendants when notified on Friday afternoon November 2, 2012, of the plaintiff s intent to file a complaint and seek a TRO hearing in this matter at the earliest practical time, a copy of the foregoing was delivered by to: Richard N. Coglianese, Esq. at Richard.Coglianese@ohioattorneygeneral.gov, counsel to the Ohio Secretary of State and Steven Forry, Esq. at steven.forry@icemiller.com and John Gilligan, Esq. at john.gilligan@icemiller.com, counsel to ES&S, at 8:30 AM this 5 th day of November 5, s/ Clifford O. Arnebeck, Jr. Clifford O. Arnebeck, Jr.

17 Case: 2:12-cv GLF-TPK Doc #: 8 Filed: 11/05/12 Page: 1 of 1 PAGEID #: 77 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN OHIO DISTRICT EASTERN DIVISION ROBERT J. FITRAKIS, NOTICE Plaintiff, Case No. 2:12-cv-1015 v. JUDGE GREGORY L. FROST JOHN HUSTED, et al., Defendant. TAKE NOTICE that a proceeding in this case has been set for the place, date, and time set forth below: TUESDAY, Place: United States District Court NOVEMBER 6, 2012 Joseph P. Kinneary U.S. 9:00 A.M. 85 Marconi Boulevard Columbus, Ohio TYPE OF PROCEEDING: ORAL HEARING ON MOTION FOR TRO GREGORY L. FROST UNITED STATES DISTRICT JUDGE DATE: November 5, 2012 /s/ Kristin Norcia (By) Kristin Norcia, Judicial Assistant

18 Case: 2:12-cv GLF-TPK Doc #: 12 Filed: 11/06/12 Page: 1 of 1 PAGEID #: 105 CIVIL MINUTES 11/6/12 TRO HEARING C , FITRAKIS V. HUSTED, ET AL. PLAINTIFF COUNSEL: CLIFFORD ARNEBECK, JR. DEFENDANTS COUNSEL: RICHARD COGLIANESE, RYAN RICHARDSON, STEVEN FORRY & JOHN MCDONALD. COURT REPORTER: DENISE ERRETT COURTROOM DEPUTY: SCOTT MILLER Counsel waived opening statements. Plaintiff call Michael Duniho (via telephone). Cross examination of Mr. Duniho by Mr. Coglianese & Mr. Forry. Redirect examination of Mr. Duniho by Mr. Arnebeck. Re-cross examination of Mr. Duniho by Mr. Forry. Redirect examination of Mr. Duniho by Mr. Arnebeck. Plaintiff rests on Mr. Duniho s testimony and their submitted affidavits. Defendants rest on their submission of affidavits. Closing arguments by counsel. The Court will take the matter under advisement and issue its decision in due course.

19 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 1 of 10 PAGEID #: 106 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION ROBERT FITRAKIS, v. Plaintiff, Case No. 2:12-cv-1015 JUDGE GREGORY L. FROST Magistrate Judge Terence P. Kemp JON HUSTED, et al., Defendants. OPINION AND ORDER This matter is before the Court on Plaintiff Robert Fitrakis s motion for a temporary restraining order ( TRO ). (ECF No. 3.) Specifically, Fitrakis seeks an injunction prohibiting Defendant Ohio Secretary of State Jon Husted ( Secretary ) from using certain software provided by Defendant Election Systems & Software, Inc. ( ES&S ) in order to record and tabulate votes cast by Ohio voters in today s election. (Id. at 1.) Defendant Secretary and Defendant ES&S each filed a memorandum in opposition to Fitrakis s motion for a TRO. (ECF Nos. 9 and 10.) Pursuant to S. D. Local Rule 65.1, this Court convened a telephone conference with the parties counsel on November 5, And on November 6, 2012, the Court convened a TRO hearing at which the parties presented testimony and affidavits and presented arguments for and against the relief requested by Fitrakis. The matter is now ripe for decision by the Court. For the reasons set forth below, the Court DENIES Fitrakis s motion for a TRO. I. Background Plaintiff Fitrakis is an Ohio resident and taxpayer, a co-chairman of the Green Party of Ohio, and a candidate for Congress in Franklin County, Ohio, in the November 6, 2012 general election. (Compl. & 5, ECF No. 1; Fitrakis Aff. && 4-5, ECF No. 3-1.) Fitrakis filed the 1

20 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 2 of 10 PAGEID #: 107 Complaint in this action on November 5, (Compl., ECF No. 1.) Fitrakis alleges that the Secretary entered into a contract with ES&S, pursuant to which ES&S provided hardware and software that the Secretary will use to record and tabulate votes cast by Ohio voters in the General Election on November 6, (Id. at & 10.) Fitrakis alleges that there is an imminent risk that persons will be able to access the recording and tabulation of votes cast by Ohio voters using the ES&S software that is the subject of this lawsuit. (Id. at & 11.) Fitrakis contends that it is therefore possible that the use of the ES&S software will cause irreparable harm by making it possible for someone to alter the results of the election in the counties where the ES&S software is utilized. (Id. at & 12.) For their part, Defendants dispute Fitrakis s characterization of the functionality of the software in question. According to ES&S, the software in question called an EXP utility is a standalone software program whose function is merely to assist the early reporting of the vote results by reformatting already-tabulated and stored election night results into a pre-defined file format for the Secretary. (ES&S Memo. in Opp. 2, ECF No. 9.) According to ES&S, the EXP software does not count votes and has no capability to write over or otherwise change election results stored in county computers tabulating the vote. (Id. at 3.) Likewise, the Secretary explains that the software s purpose is to allow a county board of elections to report its vote totals through a secure upload process to the Secretary of State who then reports the statewide vote totals. (Husted Memo. Contra 2-3, ECF No. 10.) The software at issue, according to the Secretary, does not and cannot alter or tabulate votes. (Id. at 3.) Fitrakis alleges a claim under 42 U.S.C. ' 1983, based on an alleged violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. (Id. at && ) He also asserts an Ohio taxpayer claim, challenging the Secretary s authority to 2

21 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 3 of 10 PAGEID #: 108 enter into the contract with ES&S and to use the software in question during the November 6, 2012 election. (Id. && ) This Court convened a TRO hearing on the morning of November 6, By agreement of the parties, Fitrakis presented by telephone the testimony Michael Duniho, a purported expert in computer security with experience in evaluating software issues related to election results tabulation, particularly in Pima County, Arizona. Mr. Duniho testified that the software in question, called the EXP software, has the potential of making the county vote tabulation computers vulnerable to a virus or some other anomaly that could affect the official counting of the vote. In Duniho s opinion, the state should have a system in place to hand count or otherwise audit the vote totals to assure the accuracy of the data collected by the EXP software and transmitted to the Secretary. Fitrakis also submitted his own declaration as evidence in support of his motion for TRO. Fitrakis s affidavit identified three articles co-authored by Fitrakis and published at FreePress.org; the articles reported on the ES&S software at issue in this litigation and generally questioned the software s impact upon the integrity of the election process. Fitrakis also submitted a declaration from James March, a computer technology professional. (ECF No. 3-5.) March states that he has worked in the computer industry for seventeen years and recently began providing technical assistance regarding computer-based voting systems. March currently sits on the Pima County Election Integrity Commission in Pima County, Arizona. March also is a member of the board of directors for the ACLU s Southern Arizona Chapter and is a founding and current board member of an organization called March has reviewed a copy of Contract # between the Ohio Secretary of State and ES&S describing the ES&S software at issue. March believes that the ES&S software is not 3

22 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 4 of 10 PAGEID #: 109 necessary for the conduct of elections and is dangerous to the election process. March stated the ES&S reporting software would have full contact with the central tabulator database on both a read and write basis (ECF No. 3-5, at 4) and that, as a result, a case of accidental damage to the tabulated election data is possible. March further stated that the only means to double check the voting results after the ES&S reporting software has been utilized is to check the original paper and/or any remaining poll tapes from the precincts. March suggests that the State of Ohio should instead utilize a system in which tabulated vote counts are printed out and then inputted into another computer for reporting. March s declaration does not state that he has tested or otherwise reviewed the EXP software utility that is the subject of this lawsuit. In opposition to the motion for TRO, Defendants submitted affidavit testimony that refuted Fitrakis s arguments and the testimony of Fitrakis s witnesses. ES&S submitted an affidavit from William Malone, a software systems analyst for ES&S. (ECF No. 9-1.) Malone states that he was involved in designing and preparing the ES&S Reporting Manager s Results Export Program ( EXP ) that the Ohio Secretary of State purchased pursuant to Contract # Malone further states that EXP is a software program that is designed to supplement Ohio s vote tabulation software, Election Reporting Manager ( ERM ). Malone explained that while ERM is used to tabulate votes, EXP is not a vote-tabulation program. EXP reformats already-tabulated election night data into a new file format that is uniform across counties. EXP s access to the tabulated election data is read-only it cannot edit or otherwise change the elector s choices and EXP is designed to assist in the early reporting of vote results. Malone states that ES&S did not install a back door into its EXP program and that ES&S is not aware of any instance in which anyone has used or attempted to use EXP to alter a recorded vote. 4

23 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 5 of 10 PAGEID #: 110 The Secretary submitted an affidavit from Douglas Lumpkin, the Secretary s Chief Operating Officer and Chief Information Officer. (ECF No ) Mr. Lumpkin described the process by which county boards of elections report election results to the Secretary of State. Those counties not using the EXP reporting software will tabulate their vote totals, sign into the Secretary s election night reporting system, and manually input vote totals for statewide candidates and issues. The counties using the EXP reporting system will process their vote totals in the same way but will not manually input the vote totals. Instead, these counties will use the EXP software to generate a file that assigns an identifying number to each statewide candidate and issue. The counties will then save the EXP output files to a jump drive (also known as a flash drive), transport the drive to a computer that is connected to the Secretary s election night reporting system, insert the jump drive into the computer, sign into the system and upload the EXP file. The counties will then review the results and transmit their vote totals to the Secretary. Mr. Lumpkin states that each county using the EXP reporting software has been supplied with twenty jump drives and will report their vote totals to the Secretary every fifteen minutes. Counties have been instructed to save each jump drive. In addition to presenting Lumpkin s affidavit to show what the EXP software does as a matter of function, counsel for the Secretary explained during closing argument what the purpose of the software is. In election days past, counties traditionally reported vote totals to the Secretary by manually entering the data into a computer and then transmitting that data to the Secretary s Office. Instead of doing it that way, the counties with the EXP software may now put the jump drive into the county computer, obtain the data, and then plug the jump drive into the computer used for transmitting the information to the Secretary s Office. The EXP software formats the information regarding the statewide races in a manner that is more readily useable by 5

24 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 6 of 10 PAGEID #: 111 the Secretary. According to the Secretary s counsel, the EXP software allows the Secretary to obtain vote count results more quickly while eliminating the possibility of human error inherent in the old system. II. Discussion A. Standard Involved In considering whether injunctive relief is warranted, this Court must consider (1) whether Fitrakis has demonstrated a strong likelihood of success on the merits; (2) whether Fitrakis will suffer irreparable injury in the absence of equitable relief; (3) whether an injunction would cause substantial harm to others; and (4) whether the public interest is best served by granting an injunction. Cooey v. Strickland, 589 F.3d 210, 218 (6th Cir. 2009) (citing Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007) and Ne. Ohio Coal. for Homeless & Serv. Employees Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006)). These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together. Id. (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). B. Likelihood of Success on the Merits The likelihood of success on the merits factor weighs heavily against Fitrakis: simply put, he has demonstrated zero likelihood of success based on the evidence presented to this Court in the TRO motion and in the TRO hearing. Fitrakis s first claim for relief alleges a Section 1983 claim. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 6

25 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 7 of 10 PAGEID #: U.S.C Thus, in order to prevail on his 1983 claim, Fitrakis must show that, while acting under color of state law, Defendants deprived or will deprive him of a right secured by the Federal Constitution or laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir. 2003). Here, Fitrakis hitches his horse to the Equal Protection and Due Process clauses of the United States Constitution. (Compl. && ) Just a few weeks ago, the United States Court of Appeals for the Sixth Circuit reiterated the applicable standards for evaluating Equal Protection and Due Process challenges to state actions that allegedly impinge upon the fundamental right of voting. See generally Ne. Ohio Coalition for the Homeless v. Husted, Nos & , 2012 U.S. App. LEXIS 21058, 2012 WL (6th Cir. Oct. 11, 2012). As to an equal protection challenge to a state action or regulation that burdens the right to vote, courts must weigh the character and magnitude of the alleged injury against the state s interest. Id., 2012 U.S. App. LEXIS at *11 and *30; see also Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). In this case, Fitrakis fails to show the requisite burden upon his right to vote that would trigger an equal protection problem. Fitrakis s alleged harm is purely speculative. His Motion for TRO suggested as much, when he argued that the software alters the whole system of tabulating votes. Though he made this bold statement, his argument turned the burden of proof on its head; instead of explaining to the Court how the system would be altered by the Secretary s use of the EXP software, Fitrakis instead argued that [t]here is no objective proof that the new software will not adversely affect the existing software in an unforeseen way and that [t]here is no evidence that [unforeseen adverse software impact] will not happen here, other than the vendor s assurances in this case. (Pl. s Memo. in Support of TRO 3, ECF No. 3.) The evidence presented at the hearing was not 7

26 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 8 of 10 PAGEID #: 113 any more enlightening. Mr. Duniho s testimony was entirely speculative, in that he admitted (1) that he had never tested the EXP software, (2) that he did not know whether EXP actually had an issue with a virus or a back door, and (3) that he did not know whether the EXP software had ever flipped a vote. In short, Duniho presented his opinion that a doomsday election-altering scenario could theoretically happen, but had no personal knowledge or experience to support the notion that there was an imminent harm that the EXP software was going to cause such a problem during the November 6, 2012 election in Ohio. The declaration of Fitrakis s other purported software expert, Mr. March, was not any more enlightening. Like Duniho s testimony, March s declaration did not establish a familiarity with the EXP software utility that demonstrates a factual basis to support Fitrakis s theory that the software can and will alter election results. In short, the evidence presented did not substantiate Fitrakis s contention that there was any real harm that the EXP software would affect the tabulation of the official vote count. Having failed to demonstrate any burden on his right to vote, Fitrakis has not shown a likelihood of succeeding on an equal protection claim. Nor is Fitrakis able to demonstrate a likelihood of success on a Due Process theory. As explained by the Sixth Circuit: The Due Process Clause protects against extraordinary voting restrictions that render the voting system fundamentally unfair. See, e.g., Warf v. Bd. of Elections of Green Cnty., Ky., 619 F.3d 553, 559 (6th Cir. 2010).... [G]arden variety election irregularities do not rise to that level, Griffin v. Burns, 570 F. 2d 1065, 1076 (1st Cir. 1978), but substantial changes to state election procedures and/or the implementation of non-uniform standards run afoul of due process if they result in significant disenfranchisement and vote dilution, Warf, 619 F.3d at 559 (citations omitted). So too do state actions that induce voters to miscast their votes. Griffin, 570 F.2d at 1074, (finding that Rhode Island's postelection invalidation of absentee ballots violated due process, because voters relied on state directives allowing such ballots); Hoblock v. Albany Cnty. Bd. of Elections, 487 F. Supp. 2d 90, 97 (N.D.N.Y. 2006). 8

27 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 9 of 10 PAGEID #: 114 Ne. Ohio Coalition for the Homeless, 2012 U.S. App. LEXIS 21058, at *44. For the same reasons noted above, Fitrakis has not shown a Due Process violation warranting injunctive relief. He has not demonstrated that the EXP software as utilized by the Secretary during Election Day is capable of altering election results, much less that some unidentified person with nefarious intent will or even may attempt to do so. Fitrakis has nothing more than a speculative claim of a Due Process infirmity. Fitrakis also alleges an Ohio taxpayer claim, asserting that the Secretary expended funds on the ES&S software unlawfully and has implemented the software without the testing required by Ohio law. For his part, the Secretary argues that this Court lacks jurisdiction to consider this count of Fitrakis s Complaint and that, in any event, testing of the software was not necessary under Ohio law. 1 Assuming arguendo that this Court has jurisdiction over this component of Fitrakis s lawsuit, Fitrakis has not shown how a statutory violation would impact his right to vote in such a way that would render injunctive relief proper. B. Irreparable Harm To demonstrate irreparable harm warranting injunctive relief, Fitrakis must show actual and imminent harm rather than harm that is speculative or unsubstantiated. Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). As set forth above, Fitrakis has failed to demonstrate actual and imminent harm. His claim to injunctive relief is based on a series of speculative assumptions about what the EXP software might do to the county vote tabulation computers and how someone might be able to use the EXP software to alter election results. But 1 The Secretary also submitted a declaration from Matthew M. Damschroder, the Deputy Assistant Secretary of State and Director of Elections for the Ohio Secretary of State s Office. (ECF No ) Attached to Damschroder s affidavit is a letter from the U.S. Election Assistance Commission that describes the EXP software s function consistent with how ES&S has represented it to this Court. In light of the EXP software s function, the U.S. Election Assistance Commission states in its letter that the EXP software is not considered part of the certified voting system and therefore does not require federal testing. (Id.) 9

28 Case: 2:12-cv GLF-TPK Doc #: 13 Filed: 11/06/12 Page: 10 of 10 PAGEID #: 115 Fitrakis has not provided actual evidence that demonstrates how this harm is a realistic possibility, much less how it is actual and imminent. Having failed to show irreparable harm, Fitrakis cannot obtain the extraordinary injunctive relief he seeks. III. Conclusion Having found no likelihood of success on the merits or irreparable harm, the Court need not assess the remaining two factors. The Court DENIES Plaintiff s Motion for TRO. (ECF No. 3.) IT IS SO ORDERED. /s/ Gregory L. Frost GREGORY L. FROST UNITED STATES DISTRICT JUDGE 10