Ward 8, RI Supreme Court Brief - more voters voted than signed registration cards - Wilbur Jennings - Keven A. McKenna for Petitioner

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

 

 

Providence County                                                           Supreme Court

__________________________________________

Wilbur W. Jennings, Jr.                                                         :

Petitioner                                                                               :

                                                                                                :

Vs.                                                                                          :

                                                                                                : M.P. No. 06-

Leon Tejada;                                                                         :

The Providence Board of Canvassers,                              :

And The R.I. State Board of Elections                                :

Respondents                                                                         :

__________________________________________  :

 

BRIEF OF PETITIONER WILBUR W. JENNINGS, JR. FOR A TEMPORARY STAY OF CERTIFICATION OF RESPONDENT, LEON TEJADA, AS THE DULY ELECTED VICTOR IN THE SEPTEMBER 12, 2006 DEMOCRATIC PRIMARY FOR THE OFFICE OF COUNCILPERSON FOR THE EIGHTH WARD IN THE CITY OF PROVIDENCE, FOR A STAY OF THE EIGHTH WARD GENERAL ELECTION, AND FOR A NEW EIGHTH WARD DEMOCRATIC PRIMARY

 

I.                   INTRODUCTION:

 

The R.I. State Board of Elections in the above entitled matter has essentially ratified ballot stuffing[1], and denial of counting of votes duly made, because of mistakes by optical scanning machines, and election officials, in a total number of votes greater than the ten vote[2] (10) [3]difference between the totals of the two highest candidates for Eighth Ward Council Person: Leon Tejada and Wilbur W. Jennings.

There have been such serious violations of election law by election officials, diluting votes, and denying votes for administrative convenience, that a new primary election is required to determine the actual intent of Eighth Ward voters.

Your Petitioner, Wilbur Jennings, asks for a new Democratic Primary for Eighth Ward Councilperson.

II.  Travel of Case:

On September 12, 2006 Eighth Ward Democratic Candidate, Leon Tejada, received 404 votes, which included 40 mail ballots, and 364 computer ballots.

On September 12, 2006, Wilbur Jennings, Eighth Ward Democratic Candidate, received 394 votes, which included 46 mail ballots and 349 computer ballots. On the same computerized ballot, Wilbur W. Jennings, Jr. also ran as a Democratic Candidate for membership on the Eighth Ward Democratic Committee. For that position, Jennings received 604 votes, 542 on the machine, and 62 mail ballots.

On September 13, 2006, Petitioner filed the attached Complaint, Exhibit A, challenging the election, listing errors, and asking for relief. On Friday, September 15, 2006 an incomplete recount of machines took place, with no manual count of the actual voted ballots, and with an additional 12 ballots being rejected for technical reasons, never after to be considered again.

On Wednesday, September 27, 2006, the Petitioner’s Motion for a new election was defeated by the Board, on a two –two vote because of the failure of one member to attend, and the failure to appoint two additional members to the Board.

On Friday, September 29, 2006, four (4) members of the State Board present denied Petitioner’s Motion to examine and count newly rejected ballots, which indicated the intent of the voter.

On Monday, October 2, 2006 Jennings filed a common law Writ of Certiorari in this Court asking for a stay, and a new election.

III. Jurisdiction Exists.

Pursuant to Article X, §2 [4]of the R.I. State Constitution, and, pursuant to 42 U.S.C. §1983, which authorizes both state and federal jurisdictional powers, this Honorable Court has both constitutional and common law power to review the dilution of votes, the denial of votes, and the failure of the electoral administrator to properly conduct a primary election which reflects the intent of valid actual votes.

III. Summary of Facts:

In the Providence Eighth Ward Democratic Primary, there is sufficient unrebutted evidence of unconstitutional vote dilution, and also vote denial (See Parties Joint Exhibit 1, 2, and Jennings’ Exhibit 2) in the computer ballot counting process to justify a new Democratic Primary Election for Eighth Ward Council Person.

 

In the Eighth Ward, there were thirteen (13) more computer ballots cast than voters voting.

There were five (5) voters, who signed attestations, whose computer ballots were not counted at all.

There were also twelve (12) computer ballots, previously counted on September 12, 2006 by the Optical Scanner, which were rejected at the computer recount on September 14, 2006. The State Board has refused to examine these rejected ballots to determine voter intent, even though those ballots may have been rejected for double voting in other races, or for failure by the State Board to provide sufficient marking pens. (The Board rejected proffered evidence on this issue).

Precinct # Location

  Signature Count

Election Day Machine Count,

Warden’s

Return

9/27/06*

Machine Recount

Comparison of Warden’s Return and Actual Machine from City of Providence’s

Examination

Non Voter  Ballots Counted

Voter Ballots Not Counted

#2872,Casino, RWP

250

249

232

 

-1

#2874,Fire Dept

585

593

520

8

 

#2875,Kilmartin

314

311

291

 

-3

 
#2876, Levington Annex

244

246

240

2

 

#2877,West End,Left

35

38

35

3

 

#2897,West End.Right

31

30

29

 

-1

Total

1459

1467

1347

13

-5

 

 

There are also 28 computer ballots for provisional voters in the City of Providence, which lack voter identification information. These ballots may contain votes from the Eighth Ward that have not been counted. To examine these votes (the ballots themselves) will not invade voter privacy.

There is also wide disparity on the Official Returns from the Eighth Ward regarding the number of unused ballots, a key fact for determining “vote stuffing”, which cannot now be ascertained because the State Board, after notice of Mr. Jennings’ appeal, destroyed those returned ballots.

The Eighth Ward Wardens on Election Day reported a total of 1467 votes on the machines. See Wardens Official Election Returns, Jennings Exhibit 2. The State Board of Elections claimed that there were 1359 votes on the machines, not including mail ballots, on Election Day.

On the Recount, the State Board of Elections claimed there were only a total of 1347 votes on the machines. However, the Board also refused to examine an additional 12 ballots for voter intent.

Voter accounting by officials at the polls, at City Hall, and at the State Board of Elections simply does not match. If the State Board’s Machine recount number, (See attached Exhibit, (9/27/06) is correct, then there was an actual difference between voter card signatures (1459) and of allowed ballots on the recount (1347), not including mail ballots, of 112 ballots without voters (“stuffed ballots”). See State Board unverified report of September 27, 2006, attached hereto.

The State Board erroneously refused Petitioner the right to cross-examine the Board’s witness on the calculations on the recount of the machine, and examination of the uncounted ballots on Friday September 29, 2006.

Election officials did not do the vote accounting properly. The massive violations by local and state electoral officials of constitutional rights, and statutory duties, require the call of a new primary election to determine the actual intent of voters.

IV. Legal Standards For A New Election:

 

A New Election Is Constitutionally Mandated Because the Actual Vote Was Diluted; Actual Voters Were Denied Their Vote, and the Statutory Errors of Mandatory Issues were Egregious.

 

Wilbur W. Jennings, Jr., as a voter[5], and as a candidate, was denied his Federal and State Constitutional and statutory rights by improper voting procedures in the Democratic Primary for Eighth Ward Councilperson, protected by the Due Process and 14th Amendments of the U.S. Constitution, and as secured by the Due Process and Equal Protection Clauses of the State Constitution, Article I, §2, and by Article II, §1, and 2 of the State Constitution.

Pursuant to statute and Court holdings, administrative errors of election officials, which impact the outcome of Mr. Jennings’ primary election, require a new election. See Buonanno V. DeStefano, 430 A.2d 765 (R.I. 1981); Griffin v. Burns, 431 F. Supp. 1361. (DRI 1977); Griffin v. Burns, 570 F.2d 1065 (1st Cir.1978); See also Ayers-Schaffner V. DiStefano, 37 F.3d 726 (1st Cir. 1994). No valid vote should be lost due to administrative error.

There must be a new election to determine the will of the people.[6]          The errors in this case were not mere directory errors; they were errors of a mandatory nature, which had the effect of denying constitutional rights.

There are compelling reasons why a new election must be held. Vote stuffing, and failure to count computer ballots, in this matter affected the results of the election, and unconstitutionally defeated the voters’ will.

Those compelling irregularities justify the will of the reported (purported) majority to be disregarded. Hoxsie v. Edward[7], 24 R.I.338, 345-346, 53 A. 128, 130  (1902); D’Amico v. Mullen, 116 R.I. at 116 R.I. at 19-19, 351 A.2d at 104-105.  See also Atty. Gen. v. Lisle, 48 R.I. 281 (1927). [8]

Egregious[9] violations of statute occurred here, which requires a new election.

 These are not post hoc violations of newly concocted vote counting standards, as was the case in Bush v. Gore, 531 U.S. 98 (2000). [10]

By allowing not voted ballots to be counted in the election for Eighth Ward Councilperson, the State of Rhode Island is devaluing actual valid ballots by qualified voters, and is diluting the value of real votes.

Rhode Island’s statutes on counting computer ballots, and recounting them, as pled in this Complaint, do not involve a federally related election, nor are Rhode Island’s statutes something developed after an election.[11]

Moreover, the errors complained of here are not speculative probabilities, as suggested by Counsel for Respondent, Leon Tejada. His interpretation of dicta in Buonanno, supra, would never permit a new election, as long as one can suggest any other “probable” explanation of the loss of votes, or of their dilution.

 There are no “acceptable” explanations for constitutional violations. Projections of percentages from an invalid vote cannot be used to suggest that illegal ballots counted, and voter’s valid ballots therefore denied (diluted) would produce the same outcome.

The matters complained of herein are flat out constitutional and statutory violations, which have invalidated the primary election. More than 30 valid ballots not counted, and 13 illegal ballots, are at stake in an election in which the winner won by a margin of not more than 11 (eleven) votes.

Statistical probability to the degree of determining the coefficient of a standard deviation was not the type of probability suggested by the late Justice Kelliher, in Buonanno v. DeStefano, supra at p.772.[12]

Since 13 ballots, not cast by eligible voters who signed voter affirmation cards, are more than the difference between the top two candidates, Eighth Ward voters failed to elect a Democratic Candidate for Councilperson. Thus, a new election is required. Compare Andrews v. Stiles, 99 R.I. 546, 549, (1965).[13]

Without a Stay pendente lite of the certification of the Eighth Ward Democrat Candidate, there will be no time to review this matter. Substantial constitutional rights will be lost.

V. SPECIFICATION AND DISCUSSION OF ERRORS:

(1)   There Were More Ballots Cast Than Certified Voters:

            There were more than thirteen ballots (13) cast in the election than verified voter signatures on the voter affirmation cards maintained at each Precinct in the Eighth Ward, thereby causing per- se unconstitutional voter dilution.

Without availability at the polling place of the number of voters who applied to vote in the election in each Eighth Ward Precinct actually enumerated on the Optical Scan Voting System[14], Local Polling Officials were unable to determine whether the computer ballot[15] counters on the Optical Scanning voting machines displayed more ballots counted than eligible voters, who properly signed voter affirmation cards.

(i) The  Recount was not Properly Conducted.

The State Board of Elections erred in its recount by failing to manually count the ballots re-entered into their computer package, and the 12 ballots rejected for reasons not involving intent of the voter.

The Providence Board of Canvassers has reported that not only were 13 not voted ballots counted by optical scanning system in the Eighth Ward, but also that same system reported that the ballots of three (3) voters were not counted. If the computer counters did not work on September 12, 2000, and over 32 ballots were voided at that time, it made no sense to run the same computer over again, and reject another 12 voted ballots, especially when there were no voters to re-vote those rejected ballots.

In other words, despite the mandate of statute that the Optical Scanning machines be capable of “showing the votes cast by an individual voter which is capable of being hand counted so that electronic recorded device totals can be checked for accuracy”[16], the Optical Scan Voting System is not able to input the number of valid voter affirmation cards so that those cards can be compared to the number of computer ballots actually counted on the Optical Scanner.

The equipment[17] of the optical voting system in place did not operate to reflect the actual intent of the voters on Election Day, and otherwise did not meet the minimum statutory standards for the use of optical scanning devices[18]. The equipment simply technically failed to count votes of voters, and counted ballots of non-voters.

This is a systems failure of significant proportions, liable to be repeated in all voting Precincts in Rhode Island, just as occurred in the Eighth Ward.

(2)   The Failure of The Number of Voters at the Polls To Be Counted and Compared at the Outset to the Computerized Number Is a Statutory Error that Jeopardizes Votes and Encourages Voter Fraud.

 

Statute requires that the R.I. Board of Elections prepare a return for local polling officials “…on which the following information may be recorded for each machine in use. ***(5) The number of names checked upon the voting list used at the election; and (6) the number of voters registered by the optical scan precinct count unit.”[19]

None of the Eighth Ward’s six Precinct election returns included a space for the “number of names checked upon the voting list used”, and none of the machines used in each Precinct counted the number of actual voters.

 There should not be more ballots counted than voters who actually voted in person at the polling precinct. To have otherwise is direct evidence of more ballots than voters being “stuffed” into the Optical Scanning Machine.

Voters vote, not ballots.

A ballot without a voter cannot be a legal vote.

A "Vote" “…shall be any mark made with the appropriate marking device within the optech ballot voting area between the head and tail of the arrow on the computer ballot next to the party, candidate, write-in candidate or question, as is applicable, for whom the voter casts his or her ballot, except as provided in § 17-20-24.”  R.I.G.L.§ 17-19-1(7).

Since the ballots of thirteen (13) non-voters were included in the tabulation of election returns for this election, and since there is a ten-vote difference between Jennings and Tejada, there is not sufficient evidence to declare that candidate Leon Tejada received more votes from legitimate voters[20] than candidate Wilbur Jennings, Jr. received from legitimate voters.

As a consequence, the intent of actual (legitimate) voters has been diluted by illegally counted ballots.

            A manual recount of voters’ signatures by officials of the Providence Board of Canvassers, after Jennings filed his Petition, indicated that there were thirteen (13) more ballots than voters in the Eighth Ward. Thus, illegal ballots unconstitutionally diluted the actual votes of persons properly voting. The physical records of the Providence Board of Canvassers[21], not the computerized records, proves vote stuffing. The Providence Board of Canvassers indicated that it recounted the signature cards three (3) times. All parties in the proceedings below made the Board’s Report a full Exhibit.

            If the procedure for voting as set out in R.I.G.L.§ 17-19-24 Procedure for voting had been followed, the number of ballot applications would have equaled the number of votes cast. They did not. Therefore a new election is required.

 

 

 

(3)   The State Board’s Refusal To Escrow Uncounted Returned Ballots, And its Intentional Spoilage of Evidence Alone Requires a New Election.

 

Each Voting Precinct receives a set number of ballots from the State Board of Elections. That number is preprinted on the Certificate of Return for each voting precinct.

Local voting officials are ordered to mark the number of ballots not used on Certificates of Return, and return those unused ballots to the State Board of Elections.

The number of used ballots for actual voting, the number of provisional voting applicants allowed ballots, and the number of rejected ballots because of scanning errors, double voting, and wrong ink, are then supposed to be totaled by local officials on the Certificate of Return from each precinct.

That total of used ballots is then subtracted from the number of blank ballots provided to each precinct. That number should then equal the number of unused ballots returned to the State Board of Elections.

If there are fewer unused ballots returned to the State Board of Elections than the number specified on the Local Certificate of Return, such discrepancy proves that those unreturned unused ballots were available for “ballot stuffing” when the machine Precinct total of ballots cast was greater than the combined total number of ballots actually voted by voters (who signed affirmations for machine ballots) and provisional ballots, and the used ballots rejected by the voting machine.

The State Board of Elections not only refused to count the number of such returned unused ballots, but destroyed those unused ballots, despite the fact that Jennings had previously filed for a recount, requested an escrow of those unused ballots, and, despite the fact that those September 12, 2006 Eighth Ward Democratic Ballots would never again be subject to re-use.

That intentional spoilage[22] of direct evidence of ballot stuffing in this particular election denied Jennings’ his Constitutional rights, violated statue[23], undermined the integrity of this election, and requires a new Primary Election to discourage future spoilage of evidence of a constitutional nature, and to remedy the present spoilage..

These errors are a mandatory basis for a new election.

 

 

 

(4)   By Not Allowing a Manual Count of Actual Computer Ballots, and Rejected Computer Ballots, After the Recount, State Statute Was Violated.

 

The State Board of Elections egregiously abused its discretion by not allowing a hand count of ballots from the machines in Eighth Ward Precincts that had more ballots voted than voters who signed voter affirmation cards. A hand count of ballots, authorized by R.I.G.L.§ 17-19-3 (a) (4)[24] was unlawfully refused

 A comparison of voters’ signature cards to the optical scanning report of the number of computer ballots counted indicates that thirteen (13) more ballots were counted than there were voters who signed signature cards. There were five (5) more voter signatures than there were computer ballots counted on the optical scanning counter devices.

After Hearings were underway, the Providence Board of Canvassers undertook to count manually, several times, the number of signatures cards and compare those signature cards to the number of ballots counted on the optical scanning devices at the Polls, as set out in Joint Exhibit 1 and 2.

Precinct # Location

  Signature Count

Election Day Machine Count

Machine Recount

Non Voter  Ballots Counted

Voter Ballots Not Counted

#2872,Casino, RWP

250

249

249

 

-1

#2874,Fire Dept

585

593

593

8

 

#2875,Kilmartin

314

311

311

 

-3

 
#2876, Levington Annex

244

246

246

2

 

#2877,West End,Left

35

38

38

3

 

#2897,West End.Right

31

30

30

 

-1

Total

1459

1467

1467

13

-5

 

Polling Officials are required to not allow voters to cast more than one ballot.[25] The statutory system of checks and balances for voting are primarily designed to ensure that ballot stuffing does not occur, and that the lawful vote of every voter at the polls is counted.

Those statutory goals were not met in the Eighth Ward Democratic Primary, and, as a result, lawful Eighth Ward Voters lost their Constitutional Right[26] to have their votes counted, and not diluted.

The failure to properly count actual ballots of voters was also a violation of Jennings’ State and Federal Due Process and Equal Protection Rights, as applied to the states’, which have primary jurisdiction over election law. Those rights are not subject to the approval of a pollster’s opinion (probability analysis) of whether a new election would make a difference.

(5)   There Were Erroneous Reporting Forms, and Erroneous Data Put on Official Reporting Forms.

 

Polling officials at each of the six (6) Eighth Ward Precincts are required by R.I.G.L §17-19-11[27] to sign official reports summarizing their work on forms prepared by the State Board of Elections. See Copies of Official Returns from the Eighth Ward, Jennings Exhibit 2.

The reporting forms used in this election do not provide a space for the number of names checked on the voting list used at the election[28], nor do those forms any longer include the number voter applications, which would have enabled local officials to take the last number of voter applications to compare it to the count on the machine, as a check against vote stuffing. R.I.G.L.§17-15-21, as amended; R.I.G.L. §17015-23, repealed, R.I.G.L.§17-19-24; R.I.G.L. §17-19-25, as amended, R.I.G.L.§17-15-26, as amended, R.I.G.L.§17-15-27, as amended, R.I.G.L.§17-15-28, repealed, and, R.I.G.L.§17-15-29.

The above provisions were amended or repealed on July 4, 2006: P.L. 2006, Chapter 313 to now provide that voter affirmations would be an unverified signature, without proof of identification, provided at the polling place with subsequent hand scanning of that information into voter information data, days after the election. If the identify of the voter is challenged at the polling place, he or she is provided a Provisional Ballot.

Where are the missing, unused, returned ballots necessary for voting accounting?

 In this case, the Providence Board of Canvassers manually counted three (3) times those voter affirmation cards, and scanned them after the manual counts. Neither the Providence Board of Canvassers, nor the Petitioner were able, however, to verify the number of actual unused ballots returned to the State Board of Elections. The Board insisted on destroying that evidence.

The errors in the returns on Official Election Certificates at four (4) voting places in the Eighth Ward justify the need to hand count those returned ballots since there were thirteen (13) ballots, counted by optical scanning machines, which were not completed (voted) by voters who signed applications on Primary day.

 

 

Total Ballots

Voided Ballots

Election Day

Provisional

Used Ballots

Unused by Math

Unused by Certificates

Difference

#2872,Casino, RWP

600

13

249

0

262

338

335

3

#2874,Fire Dept

1400

32

593

4

629

771

776

-5

#2875,Kilmartin

1000

23

311

2

336

664

698

-34

#2876, Levington Annex

1000

15

246

0

261

739

554

185

#2877,West End,Left

200

2

38

2

42

158

158

0

#2897,West End.Right

200

2

30

1

33

167

167

0

Total

4400

87

1467

9

1563

2837

2688

149

 

On four (4) of the Official Election Certificates from Precincts at the Casino, to wit, Fire Station, Kilmartin Senior Citizen High Rise, and Levington Annex, Local Precinct Polling Official reported a number of returned unused ballots which was different than the mathematical sum of ballots used in the machine, the voided ballots, and the provisional ballots used. See Jennings Exhibits, 2, a,b,c,d, e, and f.

 The State Board of Elections disregarded those full Exhibits.

#2874,Fire Station

1400

32

593

4

629

771

776

-5

 

 

 

 

 

 

 

 

 

At the Reservoir Avenue Fire Station, where the machines counted eight (8) more ballots than voters who voted ballots, polling officials reported that they used 776 ballots. Yet, the mathematical a total of voided ballots, machine counted ballots, and provisional ballots indicate that there were 771 ballots used. Thus, there was a mathematical difference of five (5) missing ballots not returned.

The State Board of Elections, despite the recount request, destroyed all returned ballots. The discrepancies in lost, unused ballots could not be checked. That information supports the illegal use of ballots without voters at that precinct.

 

 #2872,Casino, RWP

600

13

249

0

262

338

335

3

At Roger Williams’ Casino, Precinct 2872, where the machines counted one (1) less ballot than voters who voted ballots, polling officials reported that there were335 ballots to be returned unused. Yet, the mathematical total of voided ballots, machine counted ballots, and provisional ballots indicate that there were 338 ballots not used to be returned. Thus, there was a difference of three (3) missing ballots.

The State Board of Elections, despite the recount request, destroyed all returned ballots. Those discrepancies in lost, unused ballots could not be checked. That information supports the contention that voters who put ballots in the machine did not have those votes counted. Note that rejected ballots at the poll were voided, and new ballot provided. It is not common sense to assume that a voter would put a blank ballot in the optical scanning machine, which was not rejected, and still was not counted.

 

 

#2875,Kilmartin

1000

23

311

2

336

664

698

-34

At Kilmartin Senior Citizen High Rise, Precinct 2875, where the machines counted three (3) fewer ballots than voters who voted ballots, polling officials reported that they used 698 ballots. Yet, the mathematical a total of voided ballots, machine counted ballots, and provisional ballots indicate that there were 664 ballots used. Thus, there was a difference of thirty four (34) missing ballots. The State Board of Elections, despite the recount request, destroyed all returned ballots. Those discrepancies in lost unused ballots could not be checked.

 

#2876, Levington Annex

1000

15

246

0

261

739

554

185

At Levington Annex, Precinct #2876, where the machines counted two (2) more ballots  than voters who voted ballots, polling officials reported that they returned 554  unused  ballots. Yet, the mathematical a total of voided ballots, machine counted ballots, and provisional ballots indicate that there were 739 ballots to be returned. Thus, there was a mathematical difference of one eighty five (185) missing returned ballots. The State Board of Elections despite the recount request destroyed all returned ballots, thus those discrepancies in lost unused ballots could not have checked.

 

(6)   The Refusal To Hand Count The Additional 12 Rejected Machine Ballots At Recount To Determine Voter Intent Was An Error.

 

            On the date of the computer recount, twelve additional votes were not counted, which were put aside to later review and be counted. They were never counted. Thus, there were 12 more voted ballots than the five other ballots that went through the machines as blanks because of administrative error.

The State Board of Election egregiously refused to examine, and hand count, these 12 voted ballots after the recount.

2874-5 Newly Rejected Ballots;

2875-3 Newly Rejected Ballots;

2876 –3 Newly Rejected Ballots.

2877-1 Newly Rejected Ballots.

 

            Those ballots were rejected from the voting machines at the recount of ballots on Wednesday, September 13, 2006. These rejected ballots could have represented double voting for candidates other than Eighth Ward Democratic Candidates. The State Board of Elections then egregiously refused to examine those rejected ballots at the recount to determine the intent of the voter with respect to the Eighth Ward Council election.

The State Board of Elections further egregiously failed to provide sufficient marking pens[29] to allow voters to mark their ballots[30] such that their ballots with ordinary pens were rejected at the recount. The State Board of Elections then egregiously refused to examine those rejected ballots at the recount to determine voter intent.

The R.I. State Board of Elections, in violation of Constitutional provisions[31], state statue, and its own rules, refused to view, and recount, those 12 Computerized Ballots which were rejected at the recount when the voter was not there to re-vote a voided ballot. R..I.G.L.§ 17-19-24 (b), as amended July 4, 2006.

The State Board of Elections has refused to review those newly rejected ballots, which includes at least one vote for Wilbur Jennings, since his vote count dropped by one ballot. There may be more. 

Those 12 new rejected computer ballots could have been rejected for the use of a pen rather than a marker, or because of an over vote in another race.

Computer ballot irregularities[32] that do not impact a voter’s intent in one race should not prevent election officials from counting those ballots.

Furthermore, the R.I. Board of Elections’ Protocol for Election Recounts provides as follows:

 

All ballots voted at a precinct shall be re-fed into the “Eagle”; provided however, that:

- if a ballot is rejected because of an overvoted race, the assigned election official shall take the steps necessary, in accordance with (sic) the procedures setforth by the Board, to cause the ballot to be accepted by “Eagle”;

-if a ballot is rejected and not accepted by the “Eagle” and it does not contain an overvoted race it shall be placed into an envelope marked “Reviewed Ballots” and subsequently reviewed by the Board.

 

            The failure of the State Board to follow statute, and its own regulations, to review those 12 rejected computer ballots at the recount was another error justifying calling a new election because the votes of those 12 voters were denied, and because the election results do not demonstrate the intent of voters who actually voted, whose votes are being further diluted by illegal acts of the State Board of Elections in the counting those ballots.

(7)   Ballots of Voters Not Counted, Although Verified As Eligible Voters Was Another Violation.

 

The R.I. State Board of Elections had not fulfilled its duty as “guardian”[33] of the vote[34], to count every computer ballot[35] indicating the intent of the voter[36] in the Eighth Ward Democratic Primary, including, but not limited to, mail ballots, provisional ballots, and ballots rejected from the voting machines because of over votes in other races.

(8)   The Counting of Non-Voted Ballots, and The Failure to Provide the Proper Accounting for Ballots Were also Violations of Specifications for the Optical Scanning Machine Statutes.

 

The Optical Scanning Statutes require only votes of voters to be counted RIGL 17-19-3, previously cited. That did not happen.

SUMMARY AND RELIEF REQUESTED:

            There have been massive violations of mandatory statutes that require a new Primary Election.

Wilbur Jennings requests a Stay of the Certification of his opponent Leon Tejada, and a Stay of an election for Eighth Ward Councilperson until after this matter is argued, and decided.

Wilbur Jennings demands a new Democratic Election Primary.

The State Board should forward its transcript, exhibits, and escrow voting materials to the State Supreme Court forthwith so that this matter may be decided expeditiously.

 

                                                                                                                                                Respectfully Submitted,

Wilbur W. Jennings, Jr. 

                                                                            By His Attorneys

 

                                                                            ___________________ 

                                                                            Keven A. McKenna, #662

                                                                            Keven A. McKenna, P.C.

                                                                            23 Acorn Street

                                                                            Providence, R.I. 02903

                                                                            401 273-8200 Tel

                                                                            401 521-5820

                                                                            KevenM@McKennalaw.cc

                                                                            September 29, 2006

  

CERTIFICATION

               I the undersigned hereby certified on October 2, 20006, that I emailed or mailed or faxed copies of the above pleadings to Robert Kando, Executive Director, R.I. State Board of Elections, 50 Branch Avenue, Providence, R.I.  02904,  (Fax: 222-3135); Robert Marcaccio, Counsel to the R.I. State Board of Elections, 55 Dorrance Street, Providence, R.I. 02903 (Fax (401 861-2922), Email: RAM@om-rilaw.com; and Angel Tavares, Counsel for Candidate Leon Tejada, , 127 Dorrance Street, Providence, Rhode Island (Fax) 861-2139), Email ataversas@ctpllp.com .

                                                                                                _____________________

 


[1] Baker v. Carr, 369 U.S. 186, (1962) ***A citizen's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from dilution by a false tally, cf. United States v. Classic, 313 U.S. 299 ; or by a refusal to count votes from arbitrarily selected precincts, cf. United States v. Mosley, 238 U.S. 383 , or by a stuffing of the ballot box, cf. Ex parte Siebold, 100 U.S. 371 ; United States v. Saylor, 322 U.S. 385

 

[2] R.I.G.L.§ 17-19-1 Definitions. —  As used in this chapter, except as otherwise required by the context: (7) A "Vote" shall be any mark made with the appropriate marking device within the optech ballot voting area between the head and tail of the arrow on the computer ballot next to the party, candidate, write-in candidate or question, as is applicable, for whom the voter casts his or her ballot,

except as provided in § 17-20-24.

 

[3] On Election night September 12, 2006, computerized results indicated a ten (10) vote difference between the Appellant Wilbur W. Jennings, Jr., and Leon Tejada, Democratic Candidates for the Eighth Ward Council seat. On September 13, 2006, at a recount of the electronic total from different machines at the State Board of Elections, 13 additional ballots were rejected from different Optical scanning  machines, with a change in the total of one vote, to an eleven (11) vote difference. However, the State Board of Elections thereafter refused to examine the additional twelve (12) ballots which were rejected from the voting machines to determine if those rejected ballots were rejected for reasons unrelated to the intent of the voter in the election for the Eight Ward Democratic Candidate, as provided by their rules. The State Board of Elections also refused a manual recount of the ballots actually counted by their own Optical Scanning machines. In its Decision on September  2006,, the State Board of Elections entered no factual findings on its alleged Optical Scanning  recount.

 

[4]R.I. State Constituiton. § 2. Jurisdiction of supreme

  The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity. It shall have power to issue prerogative writs, and shall also have such other

jurisdiction as may, from time to time, by prescribed by law.

[5] GRIFFIN v. BURNS, 570 F.2d 1065 , 1072,(1st Cir. 1978)

A person's interest in participating in the political process through voting and having his vote counted is a right both "individual and personal in nature." Reynolds v.Sims, 377 U.S. 533, 561, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1963); United States v. Bathgate, 246 U.S. 220, 227, 38 S.Ct. 269, 62 L.Ed. 676 (1917). The value of meaningful participation extends beyond that of the interest of the candidate of one's choice in a victorious election. As the Supreme Court said with respect to a congressional election, "The right to participate in the choice of representatives . .includes . . . the right to cast a ballot and to have it counted at the general election, whether for the successful candidate or not." United States v. Classic, 313 U.S. 299, 318,61 S.Ct. 1031, 1039, 85 L.Ed. 1368 (1940).

[6] BUONANNO v. DeSTEFANO, 430 A.2d 765, 771-773, (R.I. 1981)

We recognize that there is a strong public policy favoring stability and finality of election results. Donaghey v. AttorneyGeneral, 120 Ariz. 93, 584 P.2d 557 (1978). Courts should be

reluctant to upset an election absent some compelling reason to do so. D'Amico v. Mullen, 116 R.I. 14, 351 A.2d 101 (1976). This purpose is served by the time limits set by the statute and by the limited circumstances upon which one may contest an election. [27] However, the overriding purpose of the election laws is to give effect to the voter's choice. Akizaki v. Fong, 51 Haw. 354 Hawaii, 461 P.2d 221 (1969); see Devine v. Wonderlich, Iowa, 268 N.W.2d 620, 623 (1978). Each valid vote should be counted. It would be unfair to hold that an investigation concerning the accuracy of the voting machines is absolutely prohibited because of the policy favoring the stability of results. Such an absolute prohibition is completely at odds with the voters' right to vote for whomever they please to be their elected representatives and the voters' expectations that their votes will be counted. [28] Unfortunately, one cannot determine with absolute certainty what the result of the election would have been but for the malfunctioning of a voting machine. Thus, the contestant should not have to prove that the result would have been in fact different but for the malfunction. However, the contestant may not rely upon speculation to upset an election result. A happy balance is struck by requiring the contestant to show that the irregularities were sufficiently large in number to establish the probability that the result would be changed by a shift of or invalidation of the questioned votes. Nelson v. Robinson,301 So.2d 508 (Fla.App. 1974); Matter of Ippolito v. Power, 22 N.Y.2d 594, 241 N.E.2d 232, 294 N.Y.S.2d 209 (1968). This means that an election will not be overturned upon a mere mathematical possibility that the results could have been changed, when the probabilities all combine to repel any such conclusion. Matter of Ippolito v. Power, 22 N.Y.2d 594, 241 N.E.2d 232, 294 N.Y.S.2d 209 (1968).[29] Here, the board tested two machines and found that they had both malfunctioned. This was clearly the case because the machines failed to record votes properly when tested. When one places the vote totals of the six machines as well as the obvious alfunctions within the context of the ninety-one-vote differential, it appears quite clear that there exists a probability that the election results would have been different had these machines functioned properly. Hence, the board did not err in deciding that the original election was tainted enough to require remedial action.

 [30] Once the board had found that the election was so tainted, it had the power to remedy the situation. This power is implicit in § 17-7-5(c):

    "(c) The state board shall have power to make such

    rules, regulations and directives as it deems

    necessary to carry out the objects and purposes of

    this title not inconsistent with law."

[31] Here, the board had three choices. First, the original result could have been affirmed in spite of the malfunctioning. This finding would have been inappropriate because it would have unnecessarily sacrificed the will of the voters. Second, the board could have declared a result from the totals on those

machines that had not malfunctioned. See Application of Bonsanto, 171 N.J. Super. 356, 409 A.2d 290 (1979). Third, the board could have ordered a new election.[fn1] [32] As mentioned, the board chose the latter alternative. In examining the validity of this choice, we start with the principle that the election laws should be liberally construed to give effect to the voters' intention.[fn2] Rice v. Board of Aldermen and Board of Canvassers of Woonsocket, 43 R.I. 305, 112 A. 175 (1920), denying reargument, 43 R.I. 305, 112 A. 523 (1921); Devine v. Wonderlich, Iowa, 268 N.W.2d 620 (1978); see Fortin v. Board of Aldermen of Woonsocket, 135 A. 360 (R.I. 1926). As previously noted, the language of § 17-7-5 is not conclusive on this issue because this section's "without limitation" proviso makes it crystal clear that the board's powers are not limited to those specifically enumerated in the section. It is our considered judgment after an examination of §17-7-5 that the board, being a quasi-judicial body charged with the responsibility to carry out the objects and purposes of the election laws of this state, had the authority to provide the remedy that it did. See DeLuca v. Board of Elections,118 R.I. 932, 933, 374 A.2d 560, 561 (1977).

 

[7]    HOXSIE v. EDWARDS, 24 R.I.338,345-346,  53 A. 128, 130  (1902). The answer to this question depends mainly upon the construction to be put upon the statute, Gen. Laws R.I. chap. 9, § 12, which requires notices of district meetings to be given by posting the same in two or more public places in each district. If this provision is to be strictly construed — that is, if it is mandatory in its requirements as to notice in its application to the case at bar — then the notice given was insufficient, and the meetings held in pursuance thereof were illegal; but if, on the other hand, said provision is not to be strictly construed — that is, if it is directory merely and not mandatory in its application to this case — then the notice given was sufficient, and the meetings held in pursuance thereof were legal. Of course, it is essential in all cases that the electors should have notice of the time, place, and object of the election which is to be held; that is, they should have knowledge of them. But an omission to follow the particular mode provided by  statute for giving such notice may not render the election void, and will not if the electors have actual notice and do in fact take part in the election. McCrary on Elections, § 116. This doctrine was laid down very broadly by the Supreme Court of Iowa in Dishon v. Smith, 10 Ia. 212, in the following language: "The courts have held that the voice of the people is not to be rejected for a defect or even a want of notice if they have, in truth, been called upon and have spoken. In the present case, whether there were notices or not, there was an election, and the people of the county voted; and it is not alleged that any portion of them failed in knowledge of the pendency of the question, or to exercise their franchise." In McCrary, supra, at section 117, the author says: "It is doubtless perfectly true that where the election has been held at the proper time and the proper place, and the electors have had notice and participated in it, the want of such notice as the law provides will not render it void. But if it appear that due notice has not been given, and that a portion of the electors have been thereby deprived of their right to vote, and particularly if the number thus deprived is sufficient to have changed the result if they had voted, on one side or the other, — in such a case the election is clearly void." The same author also says that: "If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute, must so hold, whether the particular act in question goes to the merits, or affects the result of the election or not. Such a statute is imperative, and all considerations touching its policy or impolicy, must be addressed

to the legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done within a particular time, or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and

directory if they do not, affect the actual merits of the election. Those provisions which affect the time and place of the election, and the legal qualifications of the electors are generally of the substance of the election, while those touching the recording and return of the legal vote received, and the mode and manner of conducting the mere details of the election, are directory. People v. Schermerhorn, 19 Barb. 540. The principle is that irregularities which do not tend to affect the results are not to defeat the will of the majority; the will of the majority is to be respected even when irregularly expressed." (Emphasis Added)

    In 10 Am. & Eng. Ency. of Law, 2nd ed., 632, the law is briefly stated as follows: "Defects in posting or publishing notices of an election will not vitiate the election, if they were immaterial and did not affect the result, a substantial compliance with the statute being sufficient." This statement of the law is well sustained by the authorities. See People v.Avery, 102 Mich. 572; State v. Doherty, 16 Wn. 382; Demaree v. Johnson, 50 N.E. Rep. 376; Mintzer v. Schilling, 117 Cal. 361; Paine on Law of Elections, § 384, clause 2.

    In short, the rule of construction in determining whether a statute like the one in question is mandatory, or only directory, as gathered from many authorities, is that stated in Jones v.State, 1 Kan. 279, and approved in Gilleland v. Schuyler,9 Kan. 569, namely: "Unless a fair consideration of the statute shows that the legislature intended compliance with the provisions in relation to the manner to be essential to the validity of the proceedings, it is to be regarded as directory merely."

    As a similar question to that here involved was very fully considered by this court in State v. Carroll, 17 R.I. 591, and a similar conclusion arrived at, we do not feel called upon to further discuss the matter.  We therefore decide that the statutory requirement relating to the posting of notices in said districts was directory and not mandatory, and that the election in question was not illegal or void by reason of the mistake of the town sergeant in posting them.

 

[8] ATTY. GEN. v. LISLE, 48 R.I. 281 (1927). Whether certain statutes relating to elections are mandatory or directory was considered in the cases of Como v. Sprague,46 R.I. 235; Bryer v. Sevigney, 42 R.I. 187; Hoxsie v.Edwards, 24 R.I.338; State v. Carroll, 17 R.I. 591. In Bryer v. Sevigney, supra, we quoted Attorney General v.Campbell, 191 Mass. 497, holding that the provisions of the law as to filing nomination papers may be disregarded in determining the validity of a subsequent election, if it plainly appears that the will of a majority of the electors is fairly expressed by their ballots. In Blackmer v. Hildreth, 181 Mass. 29, the nomination paper was filed two days late. The name of the candidate was placed upon the official ballot and he was elected.Upon objection, after his election, it was held that this irregularity did not invalidate his election. Other cases to the same effect are Schuler v. Hogan, 168 Ill. 369; Bowers v.

Smith, 111 Mo. 45; Jones v. State, 153 Ind. 440; State v.Deputy State Supervisors, 9 Ohio Circ., Dec. 427; Baker v.Scott, 4 Idaho 596. See also 9 R.C.L. 1172; 20 C.J. 132.

 

[9] In Re Election Contest As To Watertown, 2001 SD 62 , 628 N.W.2d 336, 338,339,( S.D.2001).

The purpose of an election contest is to challenge "the election process itself." Larson, 262 N.W.2d at 753, n. 1. The basic question in an election contest is whether the election, despite irregularities, resulted in a free and fair expression of the will of the voters. Id. (citing Green v. Ind. Consol. School Dist. No. 1, 89 N.W.2d 12 (Minn. 1958)). Therefore, Contestants must show not only voting irregularities, but also show those irregularities to be so egregious that the will of the voters was suppressed. (Emphasis Added)

 

[10]  Bush v. Gore, 531 U.S. 98 (2000).   The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment"). It must be remembered that the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise. Reynolds v. Sims, 377 U.S. 533, 555 (1964).

[11] Bush v. Gore, 531 U.S. 98 (2000).The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non- arbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the "intent of the voter." Gore v. Harris, ___ So.2d at ___. This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.

 

[12] BUONANNO v. DiSTEFANO, 430 A.2d 765, 771-773, (R.I. 1981). When one places the vote totals of the six machines as well as the obvious malfunctions within the context of the ninety-one-vote differential, it appears quite clear that there exists a probability that the election results would have been different had these machines functioned properly.

[13] ANDREWS v. STILES, 99 R.I. 546 , 549, (1965). It is the votes which determine elections. 2 Cooley, Constitutional Limitations (8thed.) chap. XVII, p. 1405. Here, because of the tie vote there was a failure to elect. Thorpe v. Fales, 33 R.I. 394; State exrel. Sprague v. Town Council, 42 R.I. 13. That result is not altered because a certificate of election may not issue until the expiration of the time fixed for petitioning for a recount or, in the event such a petition is filed, until it shall have been finally determined. Whether that certificate issues following the original tabulation by the local canvassing authority or subsequent to the recount by the state board of elections is of no concern. In either event it relates back to the time when the voters expressed their preferences at the polls, and whether there has been a failure to elect is determined as of election day.  There being a failure to elect on that day, the then incumbent town council at its next meeting, pursuant to the authority and the directive of § 45-4-9, elected respondent to fill the vacancy in the office of tax assessor.

 

[14] R.I.G.L.§ 17-19-1   As used in this chapter, except as otherwise required by the context

(2) "Voting equipment" means an optical scan precinct count voting

system, related memory device, all related hardware and software, and

voting booths;

 

[15] R.I.G.L.§ 17-19-1 Definitions. — As used in this chapter, except as otherwise required by the context:

  (1) "Computer ballot" means the paper ballot prepared by the office of the secretary of state for use in conjunction with the optical scan precinct count system;

[16] R.I.G.L.§ 17-19-3 (a) (4)(v) Voting equipment and services — Specifications.

  (4) The optical scan precinct counting system shall meet the

following specifications:

  (v) As part of the voting process there shall be created a physical ballot showing the votes cast by an individual voter which is capable of being hand counted so that electronic recorded device totals can be checked for accuracy. The device must be able to accept a one, two (2) or three (3) column ballot which can be printed on one or both sides

 

[17] R.I.G.L.§ 17-19-1 Definitions. — (2) "Voting equipment" means an optical scan precinct count voting

system, related memory device, all related hardware and software, and

voting booth

[18] R.I.G.L.§ 17-19-3 Voting equipment and services — Specifications. —

 

  (a) The office of secretary of state and the state board of elections shall submit specifications to the department of administration, which the department of administration shall

consult in developing a request for proposal, as set forth in §17-19-2.1. Such specifications must be submitted to the department of administration within thirty (30) days of the passage of this

bill. Such specifications and the request for proposal for the options of purchasing, leasing to own or renting an optical scan precinct count voting system and for a full service contract for

an optical scan precinct count voting system shall propose an optical scan precinct count system that shall be so constructed and shall operate in such manner as to meet the following minimum

requirements:

  (1) It shall enable the voter to:

  (i) Mark his or her ballot and cast his or her vote in secrecy;

  (ii) Vote for all candidates of political parties or

organizations, and for or against questions as submitted;

  (iii) ***

  (iv) Vote for as many persons for an office as the voter is

lawfully entitled to vote for, but no more; and

  (v) ***

  (2) It shall prevent the voter from voting for the same person

more than once for the same office;

  (3) ***

  (4) The optical scan precinct counting system shall meet the

following specifications:

(i)                   ***

(ii)                (ii) All vote counting shall be performed on equipment supplied

as part of the bid. The system shall not require the use of

nonsupplied equipment to count ballots or tabulate results;

  (iii) ***

  (iv) There shall be a device located in each polling place

that can record the vote count and tally the vote count in that

polling place and which can produce a printed tally of all races

contained on said ballot in human readable form. The device shall

automatically print a "zero report" at the beginning of the day

when the device is activated. The device which receives ballots

for counting shall have an external counter indicating the number

of ballots received. The actual vote tally shall be capable of

being performed only by election officials and shall not be

visible during the actual voting process. Each recording device

shall rest on a ballot box which must have compartments with doors

that lock for security of voted ballots and ease of access. (Emphasis Added)

 

[19] R.I.G.L.§17-19-11.

[20] R.I.G.L§ 17-15-29 Number of votes required to nominate or elect. —

  In determining the nomination or election of a candidate at a primary election, the person receiving the largest number of votes, although less than a majority of all the votes cast

for the candidates for a particular office, shall be declared so nominated or elected. Where there is more than one person to be elected to a particular office or place, those persons equaling that number of officers to be elected to the office or place receiving the largest number of votes, although less

than a majority of all the votes cast for all the candidates for the office or place, shall be declared nominated or elected, as the case may be, unless otherwise provided by existing law.

 

[21] R.I.G.L.§ 17-22-7 Books of record of votes — Contents. —

  (a) The board shall keep separate books of record of the votes cast for the different classes of officers which it is its duty to count, canvass, and tabulate, as follows: ***

  (b) Each of the respective books shall contain:

  (1) A record of the number of votes cast in each voting district for each candidate according to the counting, canvassing, and tabulating of the board;

  (2) The number cast in each voting district for each candidate according to the certificates of the moderators or wardens and clerks;

  (3) The total number cast for each candidate in each town and city according to the counting and to the certificates;

 

[22] MEAD v. PAPA RAZZI, 899 A.2d 437, 447, (R.I. 2006). Justice SUTTELL, dissenting, The doctrine of spoliation is an ancient principle that traces its roots to Roman law. This Court has commented that under the doctrine omnia praesumuntur contra spoliatorem,[fn8] "the destruction of relevant evidence by a party to litigation may give rise to an inference that the destroyed evidence would have

been unfavorable to the position of the spoliating party." RhodeIsland Hospital Trust National Bank v. Eastern General Contractors, Inc., 674 A.2d 1227, 1234 (R.I. 1996). This adverse inference is predicated on two rationales, one evidentiary and one prophylactic. The former "is nothing more than the common

sense observation that a party who has notice that a document is relevant to litigation and who proceeds to destroy the document is more likely to have been threatened by the document than is a party in the same position who does not destroy the document." Nation-Wide Check Corp. v. Forest Hills Distributors,

Inc., 692 F.2d 214, 218 (1st Cir. 1982). The prophylactic or punitive rationale, on the other hand, is designed to deter parties from destroying relevant evidence before it can be introduced at trial. Id.

  Before an adverse inference can arise from the destruction of evidence, "the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed." Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). Such an obligation almost certainly arises when suit has been

filed, but also may exist when a party should have known that the evidence may be relevant to future litigation. Id. This Court articulated this principle in Tancrelle v. Friendly Ice Cream

Corp., 756 A.2d 744 (R.I. 2000), when we observed, "[a]n `obligation to preserve evidence even arises prior to the filing of a complaint where a party is on notice that litigation is likely * * *.'" Id. at 749 (quoting Conderman v. Rochester Gas& Electric Corp., 180 Misc.2d 8, 687 N.Y.S.2d 213, 217 (Sup.Ct.

1998)).

  The essence of spoliation, as I perceive it, is "the deliberate or negligent destruction of relevant evidence," Tancrelle, 756 A.2d at 749, or the unexplained failure to produce such evidence, Kurczy v. St. Joseph Veterans Association, Inc., 820 A.2d 929, 947 (R.I. 2003); a priori, tangible evidence must at one time exist and then either be destroyed or made unavailable. (Emphasis Added)

[23] R.I.G.L.§ 17-15-39 Preservation of primary records. —

  All declarations of candidacy, nomination papers, and all requests for withdrawal of names of candidates, whether before or after the holding of a primary, when filed, and all protests and requests for recounts, shall be open, under proper regulation, to public inspection, and the state board shall preserve these records in its office not less than twenty-six (26) calendar months from the date of filing.

 

[24] R.I.G.L.§ 17-19-3 (a) (4)(v) Voting equipment and services — Specifications.

  (4) The optical scan precinct counting system shall meet the

following specifications:

  (v) As part of the voting process there shall be created a

physical ballot showing the votes cast by an individual voter

which is capable of being hand counted so that electronic recorded

device totals can be checked for accuracy. The device must be able

to accept a one, two (2) or three (3) column ballot which can be

printed on one or both sides

[25] R.I.G.L.§ 17-19-23 Wardens and supervisors — Powers and duties. —  The wardens shall:***

  (6) Be vigilant and responsible to prevent any voter from voting more than once; ***

 

[26] United States v. Saylor 322 U,S. 385 (1944). In United States v. Mosley, 238 U.S. 383 , 35 S.Ct. 904, 905, this court reversed a judgment sustaining a demurrer to an indictment which charged a conspiracy of election officers to render false returns by disregarding certain precinct returns and thus falsifying the count of the vote cast. After stating that 19 is constitutional and validly extends 'some protection, at least, to the right to vote for Members of Congress,' the court added: 'We regard it as equally unquestionable that the right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box.' The court then traced the history of 19 from its origin as one section of the Enforcement Act of May 31, 1870,3 which contained other sections more specifically aimed at election frauds, and the survival of 19 as a statute of the United States notwithstanding the repeal of those other sections. The conclusion was that 19 protected personal rights of a citizen including the right to cast his ballot, and held that to re-fuse to count and return the vote as cast was as much an infringement of that personal right as to exclude the voter from the polling place. The case affirms that the elector's right intended to be protected is not only that to cast his ballot but that to have it honestly counted.

 

[27] R.I.G.L.§ 17-19-11 Election return forms — Contents. —

  (a) The state board shall prepare and furnish, for each voting place at which machines are to be used, suitable forms whereon may be recorded the following information for each

machine in use:

  (1) The optical scan precinct count unit number;

  (2) The numbers of any serial seal or seals;

  (3) The voting place at which the optical scan precinct count

unit is used;

  (4) The date of the election or primary at which the optical

scan precinct count unit is used;

  (5) The number of names checked upon the voting list used at

the election; and

  (6) The number of voters registered by the optical scan

precinct count unit.

  (b) Space shall be left on the form wherein may be recorded the number of votes given for any person not a candidate at the election, and for what office. Spaces shall also be left for the signatures of the election inspector, the warden, clerk, and at least two (2) supervisors. The state board shall also furnish the

necessary envelopes and adhesive labels required to be used in accordance with the provisions of this chapter.

  (c) Tapes printed from the optical scan precinct count unit indicating the number of votes registered by the unit for each candidate, and for what office shall be attached to said form; tapes printed from the optical scan precinct count unit indicating the number of votes registered by the unit for and against each

question submitted shall be attached to said form.

 

[28]  R.I.G.L.§ 17-19-11 Election return forms — Contents ***(5) The number of names checked upon the voting list used at the election; and   (6) The number of voters registered by the optical scan

precinct count unit.

 

[29] R.I.G.L.§ 17-19-3 (b) (iv). *** Subsequent thereto, the state board of

elections shall be responsible for the following:

***

 (iv) Marking pens;

 

[30] R.I.G.L.§ 17-19-3 Voting equipment and services — Specifications. —

  (a) The office of secretary of state and the state board of elections shall submit specifications to the department of administration, which the department of administration shall

consult in developing a request for proposal, as set forth in §17-19-2.1. Such specifications must be submitted to the department of administration within thirty (30) days of the passage of this

bill. Such specifications and the request for proposal for the options of purchasing, leasing to own or renting an optical scan precinct count voting system and for a full service contract for

an optical scan precinct count voting system shall propose an optical scan precinct count system that shall be so constructed and shall operate in such manner as to meet the following minimum

requirements:

  (1) It shall enable the voter to:

(i)                   Mark his or her ballot and cast his or her vote in secrecy;

 

 

[31] GRAY v. SANDERS, 372 U.S. 368 1963. ***The Court has consistently recognized that all qualified voters have a constitutionally protected right "to cast their ballots and have them counted at Congressional elections." United States v. Classic, 313 U.S. 299, 315 ; see Ex parte Yarbrough, 110 U.S. 651 ; Wiley v. Sinkler, 179 U.S. 58 ; Swafford v. Templeton, 185 U.S. 487 . Every voter's vote is entitled to be counted once. It must be correctly counted and reported. As stated in United States v. Mosley, 238 U.S. 383, 386 , "the right to have one's vote counted" has the same dignity as "the right to put a ballot in a box." It can be protected from the diluting effect of illegal ballots. Ex parte Siebold, 100 U.S. 371 ; United States v. Saylor, 322 U.S. 385 . And these rights must be recognized in any preliminary election that in fact determines the true weight a vote will have. See United States v. Classic, supra; Smith v. Allwright, supra. *** While we agree with the District Court on most phases of the case and think it was right in enjoining the use of the county unit system (fn12) in tabulating the votes, we vacate its judgment and remand the case so that a decree in conformity with our opinion may be entered.

[32] R.I.G.L§ 17-20-24 Irregularities not impairing validity of ballots. —

  (a) No ballot transmitted under the provisions of this chapter shall be rejected for any immaterial addition, omission, or irregularity in the preparation or execution of the computer ballot, nor for failure of the voter to affix sufficient postage. No ballot shall be invalid by reason of mistake or omission in writing in the name of any candidate where the candidate intended by the voter is plainly identifiable. Where, because of any defect in marking, a ballot is held invalid as to any particular candidate for office, it shall remain valid as to the candidates for other offices. No ballot shall be invalid by reason of the voter writing upon the inner envelope the name of a community within a town in place of the name of the town. No defect in the marking of the appropriate space associated with casting a vote shall invalidate any ballot or a vote for any candidate, where the intention of the voter is clearly indicated.

  (b) No ballot shall be rejected if the intention of the voter is clear unless it contains clear evidence of the identity of the voter.

 

[33] ROCH v. GARRAHY, 419 A.2d 827, 831 (R.I. 1980)

Although this case does not deal with the right to vote or  dilution thereof, it deals with an agency that serves as the guardian of the franchise. Since it is essentially the task of the Board of Elections to supervise the administration of election laws by local boards and generally to see that all of the laws of this state in respect to elections are faithfully and properly obeyed, with due regard to the rights of the electors and political candidates, a challenge to the legality of the composition of such a board is clearly a justiciable issue. (Emphasis Added.) (Note this case does deal with a 13 ballot dilution and several paper ballots not being counted.)

[34]  R.I.G.L.§ 17-19-1 Definitions. —  As used in this chapter, except as otherwise required by the context: (7) A "Vote" shall be any mark made with the appropriate marking device within the optech ballot voting area between the head and tail of the arrow on the computer ballot next to the party, candidate, write-in candidate or question, as is applicable, for whom the voter casts his or her ballot,

except as provided in § 17-20-24.

  

[35] R.I.G.L.§ 17-19-1 Definitions. —

  As used in this chapter, except as otherwise required by the context:

  (1) "Computer ballot" means the paper ballot prepared by the office of the secretary of state for use in conjunction with the optical scan precinct count system;

 

[36] R.I.G.L§ 17-20-24 Irregularities not impairing validity of ballots. —

  (a) No ballot transmitted under the provisions of this chapter shall be rejected for any immaterial addition, omission, or irregularity in the preparation or execution of the computer ballot, nor for failure of the voter to affix sufficient postage. No ballot shall be invalid by reason of mistake or omission in writing in the name of any candidate where the candidate intended by the voter is plainly identifiable. Where, because of any defect in marking, a ballot is held invalid as to any particular candidate for office, it shall remain valid as to the candidates for other offices. No ballot shall be invalid by reason of the voter writing upon the inner envelope the name of a community within a town in place of the name of the town. No defect in the marking of the appropriate space associated with casting a vote shall invalidate any ballot or a vote for any candidate, where the intention of the voter is clearly indicated.

  (b) No ballot shall be rejected if the intention of the voter is clear unless it contains clear evidence of the identity of the voter.