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NY: United States Eastern District Court Sides With Lever Advocates

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Wilms Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jun-15-10 01:16 AM
Original message
NY: United States Eastern District Court Sides With Lever Advocates
Edited on Tue Jun-15-10 02:13 AM by Wilms
In state court, Nassau County sued the New York State Board of Elections for forcing optical scan on them. The BoE argued it was a federal issue because of HAVA. The judge agreed to bounce the case to the Fed.

The Eastern Court looked at the matter and decided it lacked jurisdiction...and further, that ain't buying the notion suggesting HAVA bans lever machines.

Now it's back to state court where Nassau will argue against ERMA, the state law that bans levers on the erroneous idea that HAVA required it.

And it's also back to another federal court--the Northern District, where Judge Sharpe has ordered Nassau to use unverified voting equipment. I suppose the good Judge will read even more papers in light of the Eastern Court order.


Here's some snips from the MEMORANDUM AND ORDER. It came via email so I don't have a link.


UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
N 10-o CV-1659 (JFB) (AKT)
_____________________
COUNTY OF NASSAU, ET AL.,
Plaintiffs,
VERSUS
STATE OF NEW YORK, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
June 14, 2010
__

JOSEPH F. BIANCO, District Judge:

Plaintiffs Nassau County, the Nassau County Board of Elections (the Nassau BOE), John DeGrace, and William Biamonte (collectively plaintiffs or Nassau) bring this proceeding under Article 78 and 3001 of the New York Civil Practice Law and Rules (CPLR) against defendants New York State (NYS), the New York State Board of Elections (NYS BOE), James A. Walsh, Douglas A. Kellner, Evelyn A. Aquila, and Gregory P. Peterson (collectively defendants)

Plaintiffs have moved to remand this case to New York State Supreme Court, Nassau County.

Defendants have cross moved to dismiss the case for improper venue or, in the alternative, to transfer the case to the United States District Court for the Northern District of New York. As set forth below, the Court grants plaintiffs motion to remand this case to state court. Plaintiffs claims (1) do not assert a federal cause of action, (2) necessarily raise a substantial question of federal law, or (3) come within the artful pleading doctrine.

As such, there is no federal jurisdiction over this case, and remand is required. Because the Court lacks jurisdiction and remands the case, it denies defendants motions as moot.


snip

...federal jurisdiction does not exist simply because a state law claim may implicate a federal issue.

snip

HAVA does not prescribe a particular type of voting machine, nor does have it have anything to say about any specific requirements as to the manner in which New York public officials must carry out their official duties.

snip

Indeed, counsel for defendants conceded at oral argument that (the statute in question) does not provide for any cause of action. Complete preemption therefore does not apply in this case.) In short, there is no indication Congress sought to transform all state law claims dealing with the administration of elections or voting systems into federal claims. In fact, the opposite appears to be true given that Congress gave the states a significant amount of discretion as to how to implement HAVA.

snip

Therefore, there is no basis for federal subject jurisdiction, and the case must be remanded to state court.

snip

For the reasons set forth above, the Court grants plaintiffs motion to remand this case to state court. Defendants motions are denied as moot. The Clerk of the Court shall remand the case to New York State Supreme Court, Nassau County.


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WillYourVoteBCounted Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jun-15-10 01:35 AM
Response to Original message
1. if anyone finds a link for the above doc
would appreciate it.
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Wilms Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jun-15-10 05:00 AM
Response to Reply #1
2. Here's a link to a .pdf
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

N 10-o CV-1659 (JFB) (AKT)

COUNTY OF NASSAU, ET AL., Plaintiffs,
VERSUS
STATE OF NEW YORK, ET AL., Defendants.

MEMORANDUM AND ORDER
June 14, 2010

JOSEPH F. BIANCO, District Judge

http://sites.google.com/site/evoterproject/files/nc_v_n...

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Bill Bored Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jun-15-10 11:38 AM
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3. Judge Sharpe (by his own admission) reads the newspapers. Judge Bianco reads the law. nt
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Wilms Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jun-15-10 08:57 PM
Response to Reply #3
4. The newspapers and Bo's Blog!
:rofl:
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Wilms Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Jun-17-10 09:13 PM
Response to Original message
5. Correction:
Nassau will not be going to the Northern District court, but rather to the 2nd Circuit Court of Appeals to appeal the Northern District Court's decision.

Sorry for the mis-info...
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Bill Bored Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jun-29-10 12:21 AM
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6. .
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Wilms Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-15-10 01:02 AM
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7. kick n/t
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