Defendant-Appellee Secretary of State has moved to strike virtually all of Plaintiff-Appellant voter’s Reply Brief. Plaintiff-Appellant opposes that motion.
The Secretary of State misstates the law. An order of Summary Judgment is reviewed by this court de novo. Evidence must be considered in its current context, including recent actions by the Defendant-Appellee Secretary of State. The cases cited by the Secretary of State are not contra.
Defendant-Appellee Secretary of State cites Kirshner v Uniden Corp., 842 F2d 1074 (9th Cir. 1988). But that court held that:
- Although Schumaier’s arguments were cursory in form, they were nevertheless sufficient to apprise the district court of Schumaier’s position. . . . Schumaier, therefore, is not precluded from raising the arguments on this appeal.
- Kirshner v. Uniden Corp of America, 842 F.2d 1074 at 1079 (9th Cir. 1988)
Nothing in Plaintiff-Appellant’s Reply Brief came as any surprise to the Defendant-Appellee Secretary of State, nor will the court below be surprised on remand by the arguments of the Reply Brief.
The Secretary of State also cites Trans-Sterling Inc. v. Bible, 804 F.2d 525 (9th Cir. 1986), in which new evidence was not allowed to be added to the record. The Court said,
- It is neither necessary nor desirable to take judicial notice of these purported facts which are, in any event, irrelevant to this decision.
- Trans-Sterling Inc. v. Bible, 804 F.2d 525 at 528 (9th Cir. 1986),
The information contained in Plaintiff-Appellant’s reply brief is not irrelevant, and undeniably goes to the heart of the material issues in this case.
Finally, the Secretary of State relies on Levald Inc. v. City of Palm Desert, 998 F.2d 680 (9th Cir. 1993). But that court, citing the Supreme Court in Yee v. City of Escondido, 503 U.S. 519 (1992), declared:
- Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below. Petitioners' arguments … are not separate claims. They are, rather, separate arguments in support of a single claim…. Having raised a . . . claim [below], therefore, petitioners could have formulated any argument they liked in support of that claim here.
- Levald Inc. v. City of Palm Desert, 998 F.2d 680 at 685 (9th Cir. 1993).
In general, of course, new evidence supporting a new claim will not be admitted, especially in a Reply Brief. But the Reply Brief here does not raise new claims, and only puts already-discussed evidence in the context of a still rapidly-developing case. With each passing day, more California counties are being enticed by federal funds to purchase touchscreen voting systems. The Defendant-Appellee cannot be insulated from his own participation in the unfolding of this public policy debate, debate which needs the guidance of this court.
In this case the Defendant-Appellee Secretary of State seeks to have his cake and eat it too. He tells the District Court not to consider evidence that touchscreen voting machines threaten the fundamental right to vote, alleging that there is no material issue of disputed fact. Then he subsequently forms a “Task Force” to study the disputed facts, and tells the court of public opinion that he is aware of the need to study touchscreen machines before implementing public policy. The Secretary of State is in effect seeking to usurp the authority of this court. His actions are internally self-contradictory, and demonstrate that there is a disputed issue of material fact in this case. This court should not allow the Defendant-Appellee to conduct his own court, but should consider his official actions even though they took place after the court below granted his motion for summary judgment, and this court should remand the case to the district court and/or issue the requested injunctive relief.
The fact that only one of Plaintiff-Appellant’s expert witnesses is a member of Defendant-Appellee Secretary of State’s Task Force should be viewed in the context of the recently-formed coalition of computer experts who have concluded that the touchscreen machines in this case are not a “reasonable” voting system. The Court below should have considered the testimony of Plaintiff-Appellant’s witnesses, and on remand should consider evidence from other experts who have signed Prof. Dill’s petition. The Secretary of State presented evidence that Riverside County’s touchscreen machines meet current certification standards, but no evidence whatsoever that any computer experts (except perhaps those employed by voting machine vendors) believe those certification standards adequately protect the right to vote from fraud or manipulation under a system of paperless touchscreen voting machines. Evidence from the experts should have been heard by the District Court.
The Secretary of State also moves to strike Plaintiff-Appellant’s reference to the Common Cause case (Common Cause, ACLU, et al vs. Secretary of State, 01-03470SVW (RZx). The district court sua sponte asked counsel for the Secretary of State about the this case in the Status Conference on January 14, 2002. In answer to the court’s questions, counsel for Defendant-Appellee characterized Plaintiff-Appellant’s case as “the flip side of Common Cause” (transcript, pp. 2-3). This shows that the Secretary of State’s claim that this case was not “in any way considered by the District Court” (Defendant-Appellee’s motion, p. 2) to be inaccurate. Even if the case were not explicitly raised below, it can be raised on appeal, as the authorities above show, and even if not raised by Plaintiff-Appellant, this court must still consider it.
Finally, this court in U.S. v. Holzman, 871 F.2d 1496 (9th Cir. 1989) ruled:
- Although appellants have not addressed “plain view” in their briefs, we consider it prudent and in the interest of justice to reach the issue at this time. See 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure §3974 at 421-22 n.1 (1977); see also Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir. 1986).
- U.S. v. Holzman, 871 F.2d 1496, 1512 (9th Cir. 1989)
Plaintiff-Appellant contends that nearly -- if not all -- computer experts agree that paperless touchscreen voting machines do not protect the fundamental Right to Vote. The Defendant-Appellee’s certification standards permit unconstitutional voting systems to be approved, computer systems which virtually all computer experts consider to be “unreasonable.” In the face of such overwhelmingly disputed material facts, the District Court below erred in granting the Secretary of State’s motion for Summary Judgment, and it is in the “interests of justice” for this court to deny the Secretary of State’s motion to strike and to consider the substance of Plaintiff-Appellant’s Reply Brief.
DATED: May 3, 2003
Susan Marie Weber