San Diego County Registrar Seiler v CA SOS Bowen tentative decision

[rumpel]

joined by KERN, RIVERSIDE, AND SAN BERNARDINO COUNTIES
http://www.psephos-us.org/SDCvBowen_press-release.html

The following are only the conclusion points from the ruling and is not yet on the website - stay tuned to www.psephos-us.org for more...

CALENDAR NUMBER 11.. SAN DIEGO SUPERIOR COURT - DEPARTMENT 67 JUDGE PATRICIA A.Y. COWETT LAW & MOTION CALENDAR, TENTATIVE RULINGS FOR January 17, 2008.

The first issue to be addressed with regard to whether the PEMT requirements exceed Bowen's authority is the 10% Manual Tally.

1) Petitioners have not met their burden establishing there is a conflict between the 1 % manual tally specified by the Elections Codes and the 10% manua1 tally mandated by the PEMT Requirements.

The next issue is whether the PBMT requirements are arbitrary and capricious.

2) The SOS instituted the 10% Manual Tally based upon the conclusions of Post Election Audit Standards Working Group. (Bretschneider ¶ 19.) Thus, based upon all the evidence, the SOS's actions implementing the PEMT requirements were not arbitrary and capricious.

The final issue is whether PEMT requirements constitute regulations and thus must comply with the Administrative Procedures Act ("APA")
3) Here, the PEMT requirements only apply to certain voting mashines (Diebold, Hart and Sequoia systems), not to all voting machines. The SOS issued separate conditional certifications for each of the voting machines. (Ex. 5, 6 and 8.) This conclusion is also supported by the fact the PEMT requirements were not imposed on all voting machines, specifically excluding optical scanning machines. (Finley Dec. '24.) Thus, because the PEMT requirements do not apply to a class, they are not subject to the APA.

The court declines to rule on Petitioners' request for a declaratory judgment. Resolution of this issue must be determined via summary judgment or trial.

[Wilms]

1. Oh. You mean Deborah Seiler.

[riqster]

2. Most revolving doors are transparent, but not this one nt

[Peace Patriot]

3. Hey, is that really her business card from Diebold? If so, wow! Nice work!

Just need to verify it's not photoshop.

I know who she is, who she was/is close buds with, and where's she's been since.

It's mind-boggling that such a person could be working her way up the ladder in public service, likely to position herself to run for, oh, say... Sec of State?

Terrifying for all of us--but right now for the voters of San Diego.

[Wilms]

6. I believe it is the real thing.

An election reformer emailed the scanned image of the card she got from Seiler years back.

It was a huge file I had to compress before posting.

[Peace Patriot]

4. Here's Kim Alexander's blog on this lawsuit...

http://www.calvoter.org/news/blog/index.html

Tentative decision in San Diego case favors Secretary of State (1/17/08)

San Diego Superior Court Judge Patricia A.Y. Cowett issued a tentative ruling yesterday in the County of San Diego vs. Debra Bowen case in support of the Secretary of State.

The County of San Diego, led by registrar of voters Deborah Seiler and joined by three other counties (Kern, Riverside and San Bernardino) sued the Secretary of State for imposing new post-election manual tally requirements to verify the accuracy of vote counts as conditions for recertifying numerous voting systems in California. These requirements include a ten percent manual tally of precincts' ballots in close contests (where the semi-official results are within .5 percent), an escalation of manual tallying when discrepancies are found during the one percent manual tally process, and a tabulation of overvotes and undervotes as part of the post-election manual tally process.

San Diego and the other counties argued in their lawsuit that Secretary of State overstepped her authority in imposing these requirements; that the requirements were regulations; and that the requirements were capricious and arbitrary.

In her tentative ruling, Judge Cowett said that Secretary of State Bowen did "not directly exceed her authority. The SOS has the authority to implement specifications and regulations pursuant to Elections Code sections 19201, 19205 and 19222" and that "the court finds the requirements do not exceed the SoS's authority". She also tentatively ruled that the Secretary of State's actions were not arbitrary or capricious since they were based on a comprehensive voting system review and on conclusions of the Post Election Audit Standards Working Group. Finally, Judge Cowett tentatively ruled that the requirements do not constitute regulations because they do not apply universally to all voting systems. Indeed, there are three counties -- Lake, Madera and Sonoma - - that are using legacy DFM Mark-a-Vote systems that were not reviewed or recertified with conditions, and thus are not subject to the additional post-election manual tally requirements.

The tentative ruling is good news for election verification. Today the two sides responded to this ruling in San Diego and we will wait until Friday or Tuesday to see what the judge's final ruling will be.

1/17/08

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ME: The denial of a preliminary injunction is pretty bad news for the election theft industry officials in San Diego, Riverside, San Bernardino, Kern and other counties, who filed this suit. It means that the judge believes they will lose in the main trial (if there is one)(--and denial of prelim inj usually means there won't be one - waste of taxpayer's money, or money, time, energy of other kinds of parties).

These were some of the same Diebold shill county election officials who sued Kevin Shelley--after he sued Diebold for lying about the security of their machines and demanded to see their source code (prior to the 2004 election). Their other lawsuit was laughed out of court, as I recall--although they were able to drive Shelley out of office on bogus corruption charges. Voters REALLY need to get rid of this bad lot of county election officials!

Note: Kim Alexander has the most accurate and updated list of CA county election systems, at
http://www.calvoter.org/issues/votingtech/currentdirectory.html

[Peace Patriot]

5. Denial of preliminary injunction? Now I'm not sure. Judge denied a declaratory

injunction (which I think, if granted, would have meant no trial). I think a prelim injunction may still be at issue. Denial of a prelim injunction request means both that the judge has decided that petitioners (in this case, San Diego et al) will likely lose at trial, and also that there could be "irreparable harm" while parties wait for the trial. (For instance, a forest may be logged while environmental group who filed suit prepares for trial--making the issues moot.) A "temporary restraining order"--more short term, with no issues argued, is also intended to protect whatever is at risk while the lawsuit proceeds. A prelim injunction is much weightier (meaning that the judge has decided that the petitioners--San Diego et al--will likely lose at trial). But since this judge spoke to the merits of the case--and sided with Bowen--it sounds like a prelim injunction (for San Diego et al) was denied. A trial can still occur, if petitioners want to go forward, but their chances of winning are slim. I'm just not sure, right now, what the legal status is--since issues have been argued.

In any case, it's clear that the judge is disposed to rule in Sec of State Bowen's favor.

It will be fun to see Seiler argue the "irreparable harm" matter, re counting our votes--if that will be argued. Bowen should submit Seiler's business card as evidence, regarding the real issue of "irreparable harm" (Diebold profits).