STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
Providence County Supreme Court
Wilbur W. Jennings, Jr. :
Petitioner :
:
Vs. :
Leon Tejada; :
The Providence Board of Canvassers, :
The R.I. State Board of Elections;
Matthew Brown, :
Secretary of State, :
Respondents :
__________________________________________ :
PETITION FOR WRIT OF CERTIORARI BY WILBUR W. JENNINGS, Jr., CITY COUNCIL CANDIDATE, CITY OF PROVIDENCE EIGHTH WARD DEMOCRATIC PRIMARY, SEPTEMBER 12, 2006 TO REVIEW THE UNCONSTITUTIONAL AND ILLEGAL CONDUCT OF VOTING OFFICIALS, AND TO CALL FOR A NEW DEMOCRATIC PRIMARY ELECTION.
1. The Petitioner is Wilbur Jennings, 115 Sinclair Ave., Providence, R.I., a voter in Eighth Ward Democratic Primary, and a candidate in the City of Providence Eighth Ward City Council for Councilperson in the September 12, 2006 Democratic Primary.
2. The Respondents are Leon Tejada of the City of Providence, who was a candidate for the Eighth Ward Democratic Council Person on September 12, 2006; The Providence Board of Canvassers, which reviewed the record of voters exercising their right to vote, and who hired temporary poll workers for the September 12, 2006 Primary; the R.I. State Board of Elections, which made unconstitutional and illegal errors in its review of the Eighth Ward Democratic Primary on September 12, 2006, and the Secretary of State, Mathew Brown, who purchased technically deficient election equipment, and who otherwise conducts elections and prints ballots.
3. Jurisdiction to review Constitutional and Statutory violations of voting rights, and candidate rights, and to provide a remedy is vested in this Court pursuant to Article 10, §2 of the R.I. Supreme Court, and pursuant to concurrent jurisdiction with Federal Courts pursuant to 42 U.S.C.§1983.
4. As set out in the attached Exhibits, illegal ballots were counted and legal ballots were not counted by part time local officials on September 12, 2006, and State Election Officials thereafter, such that the actual intent of actual voters in the September 12, 2006 Eighth Ward Democratic Primary can not be determined.
5. Included among the unconstitutional and illegal errors of Elections Officials between September 12, 2006, and September 29, 2006, are the following errors:
a. Allowed ballots not made by voters were included in the vote count in a number larger than the difference between Jennings and Tejada, i.e. at least 13 ballots not voted were counted, (Ballot Suffering) and, at least, three (3) voters did not have their votes counted.
b. There was a statutory failure in operation of the polling places and machines in that ballots of non voters were processed, and ballots of legitimate voters were not counted;
c. Incomplete and incorrect Official Returns were made by Precinct Officials, which contained mathematical errors, and blank spaces;
d. There was no hand count of ballots by the State Board of Elections at its recount;
e. The State Board of Elections refused to count 12 newly machine rejected voter ballots at the recount to discern intent of those voters;
f. Allegedly Unused Ballots from the Eighth Ward Were destroyed by the State Election Board, such that a proper accounting of the misuse of ballots for ballot suffering could not be made.
g. A group of unused, and , unidentified ballots, were not examined by Providence City Officials to determine if such ballots were voted in the Eighth Ward;
h. The State Board of Elections failed to make findings of fact by number for each group of non counted ballots which it examined from the Eighth Ward in the City of Providence;
i. The State Board of Election failed to have sufficient members present to provide relief to the Petitioner;
j. The State Board of Elections denied the Petitioner his right to cross-examine, and to present evidence.
k. The State Board of Elections neglected to consider its full Exhibits.
6. The City of Providence Canvassers, their part-time Employees, and the R.I. State Board of Election, by and through its agents, violated the State and Federal Constitutional Rights of Wilbur W. Jennings, Jr., as a candidate and as a voter on September 12, 2006, as protected by the R.I. State Constitution, R.I. Statute, and as protected under the provisions of 42 U.S.C. Sec. 1983, which secures his rights under the U.S. Constitution.
7. Wilbur Jennings was denied his Federal and State Constitutional and statutory rights by the improper voting procedures in the Democratic Primary for the Eighth Ward Councilperson, as protected by the Due Process and 14th Amendments of the U.S. Constitution, 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 an election and do not properly count votes, require a new election. See Griffin v. Burns, 431 F. Supp. 1361. (1977); Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978); See also Ayers-Schaffner V. DiStefano, 37 F.3d 726 (1st Cir. 1994).
Wherefore, Petitioner prays that this Honorable Court grant him the following relief against Respondents, individually, jointly, and severally:
a. Temporarily, preliminary, and permanently Stay the certification of any other Democratic Candidate for Eighth Ward Councilperson;
b. Temporarily, preliminary, and permanently Stay the election of an Eighth Ward Councilperson on November 7, 20006 until there has been a new Democratic Primary Election in the Eighth Ward;
c. Order the Respondents to Conduct forthwith a new Eighth Ward Democratic Primary in the City of Providence;
d. And, to provide such other relief which is just and equitable in the premises.
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
Filed on October 2, 2006
CERTIFICATION
I the undersigned hereby certified on October 2, 2006, 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 ; and to Counsel for the Secretary of State of R..I.; Joseph DeStefano, of Adler, Pollock, & Sheehan, of Providence,R.I. 02903
_____________________
Now comes, Wilbur W. Jennings, Jr., and being duly sworn, does hereby Depose and Sayeth as follows:
i. I am Wilbur W. Jennings, Jr.
ii. I live at 115 Sinclair Avenue, Providence, Rhode Island.
iii. I voted in the Eighth Ward Democratic Primary Election on September 12, 2006.
iv. I am a Democratic Candidate for the Eighth Ward Council Person.
v. I have read each of the above averments, and I am personally knowledgeable about the Attached Exhibits.
vi. Each of the averments is true, based upon personal observation and knowledge.
_______________________
Wilbur W. Jennings, Jr.
The City of Providence
County of Providence
State of Rhode Island
Wilbur W. Jennings, Jr., known to me, and before me, did Depose and Swear on October 2, 2005, as herein set forth in the above averments above to be his true word and Deposition.
_________________________
Keven A. McKenna, Esq.
Notary Public
My commission expires on the 8thday of the month of August of 2009