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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshalt U.S. Courthouse 40 Foley
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshalt U.S. Courthouse
40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORI\.lATION STATEMENT
MOTION INFORI\.lATION STATEMENT
Docket Number(s): 08-3242- Caption [use short title1 Sfrunk V . USPS et al. Motion for:
Docket Number(s): 08-3242-
Caption [use short title1
Sfrunk V . USPS et al.
Motion for: ~e&st to have ~ppellant~riafbefore the - Panel as in 08-432-
Set forth below precise, complete statement of relief sought:
Set forth below precise, complete statement of relief sought:
Appellant Brief was submmed and scheduledto be heard January 15.2010 on submisskm
Appellant Brief was submmed and scheduledto be heard January 15.2010 on submisskm

1

without oral argument Tho subjecl malter is relatedto the Appeal 054323-cv and should be heard
without oral argument Tho subjecl malter is relatedto the Appeal 054323-cv and should be heard
at the &me time by the samo Panel of God-feating Judges falher than Gnostic and or non-believers.
-
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Y. -
MOVING
PARTY:
OPPOSINGPARTY: me city d ~ewye
I.
Plaintiff
Defendant
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w-oz'
Appellanfletitioner
AppelleelRespondent
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mr.: MOVING ATTORNEY: Christopher-Earl: Strunk in esse OPPOSING ATTORNEY: MICHAEL A. CAR CorpoRldr- Counsel d
mr.:
MOVING
ATTORNEY: Christopher-Earl: Strunk in esse
OPPOSING ATTORNEY: MICHAEL A. CAR
CorpoRldr- Counsel d me Clty d New Yo*
u i
[name of attorney, with firm,address, phone number and e-mail]
CJI

I

Christopher-Earl:Strunk In esse 593 Vanderbilt Avenue - %281 BrooklynNew York 11238 (845) 901-6767 email: chris@sbunkws
Christopher-Earl:Strunk In esse
593 Vanderbilt Avenue - %281
BrooklynNew York 11238
(845) 901-6767 email: chris@sbunkws
100 Church Street
New York. New York 10007
Telephone: (212) 780-0849
Email: SKitzing63law.nyc.gov
Court-JudgeIAgency appealed from: USDC of the Eastern DisMcl of New Ywk Order to Dismiss of Judge Allyne R. Ross in NDNY 08-1~-1744.
I
Please check appropriate boxes:
FOR EMERGENCY MOTIONS, MOTIONS FOR
INJUNCTIONS PENDING APPEAL:
STAYS AND
NO
Has movant notified opposing counsel (required by Local Rule 27.1):
Has request for relief been made below?
yes
Yes
No (explain):
Has
this relief been previously sought in this Court?
63 Yes
No
Requested return date and explanation of emergency:
Opposing counsel's position on motion:
Unopposed bposed
P on't Know
Does opposing counsel intend to file a response:
Yes
NO O~on'tKnow
Is oral argument on motion requested?
m~esnNo
(requests for oral argument will not necessarily be granted)
Has argument date of appeal been set?
q Yes
No
If yes, enter date: Jan~aV15.2010
0
Date:JMqy
IdIu1Has service been effected? q YCS
No [Attach proof of service]
ORDER
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT: CATHERINE O'HAGAN WOLFE, Clerk of Court
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, Clerk of Court
Date: By:
Date:
By:
Form T-1080
Form T-1080

1

STRUNK’S DECLARATION IN SUPPORT OF THE T1080 MOTION REQUEST TO HAVE APPELLANT BRIEF FOR 08-3242-CV HEARD THE SAME DAY BEFORE THE SAME PANEL AS IN 08-4323-CV

I, Christopher-Earl: Strunk in esse, state under penalty of perjury with 28

USC §1746:

1. Declarant is the Appellant/Petitioner herein Appeal Case Strunk

v. USPS et al. 08-3242-cv, and with place for service at 593 Vanderbilt

Avenue #281 Brooklyn, New York 11238.

2. Declarant files this declaration in support of the T1080 motion

request to have the Appellant Brief of 08-3242-cv Appeal heard on the same

day before the same panel as in Appeal Case 08-4323-cv.

3. That the Hearing date on submission for the 08-3242-cv Appeal

Case is scheduled for January 15, 2010 and hereby is requested to be

coordinated for a different date at the Court’s choosing, in that Declarant is

one of three Appellants in the appeal case Loeber et al. v. Spargo et al. 08-

4323-cv.

4. Declarant has spoken with Appellants, H. William: Van-Allen

in esse, and John-Joseph: Forjone in esse who are all members of THE AD

HOC NYS (New York State) CITIZENS FOR CONSTITUTIONAL

LEGISLATIVE REDISTRICTING, an un-incorporated membership

association of Plaintiffs, and neither oppose this motion request to have

1

Appellant Brief of 08-3242-cv heard on the same day before the same panel

as in 08-4323-cv.

5. Declarant is an active voter within the New York (NY) 57 th

Assembly District (AD), NY 18 th Senate District (SD) and NY 11 th U.S.

House District created in April 2002 and is affected by the same questions

before the Appeal Court Panel in the Appeal Case Loeber et al v. Spargo et

al. 08-4323-cv.

6. Those as a matter of economy of Court time and consistency of

the Appeal decision, as both are directly related, must be heard together; as

both would be the subject of a consolidation motion for Certiorari Writ from

the U.S. Supreme Court were it necessary.

7. That as a ninth amendment injury issue before this Court also,

the nature of the matter before this Court requires any Judge to absolutely

believe in God, in that the Preamble to the New York Constitution states

quote:

We The People of the State of New York, grateful to Almighty God for our Freedom, in order to secure its blessings, DO ESTABLISH THIS CONSTITUTION.

8. That Declarant’s inalienable rights are given by Almighty God

not a man, men or entities, and contends that any Gnostic un-believer must

recuse him or herself in that such Judge by default accepts a usurper

2

temporal power in provision of rights, whose one world temporal and
temporal power in provision of rights, whose one world temporal and
spiritual leader over all men contrary to requirements of the Declaration of Independence of July
spiritual leader over all men contrary to requirements of the Declaration of
Independence of July 4, 1776 thereafter incorporated into each Constitution
of the,founding colonies including the April 20, 1777 New York
Constitution, that thereafter broke with King George 111.
9. Declarant as a matter of epistemologicalproof and logic, knows as to his 9" amendment
9. Declarant as a matter of epistemologicalproof and logic, knows
as to his 9" amendment right that there is no possible way Appellant(s) may
obtain a fair hearing without a Judge@)dedicated to Almighty Godfor our
freedom and the Original Constitution, and which is diametricallyopposed
to the Jesuit Doctrine of ggSocialJustice " that has permeated the Court
system and governance since 1868 and is synonymous with the
unconstitutional heresy of the "the Living Constitution ".
Respectfilly submitted and certified to be true under penalty of
perjury9
Dated: January 8,2010 Brooklyn, New York
Dated: January 8,2010
Brooklyn, New York
of perjury9 Dated: January 8,2010 Brooklyn, New York 593 Vanderbilt Avenue - #281 Brooklyn., New York
of perjury9 Dated: January 8,2010 Brooklyn, New York 593 Vanderbilt Avenue - #281 Brooklyn., New York
of perjury9 Dated: January 8,2010 Brooklyn, New York 593 Vanderbilt Avenue - #281 Brooklyn., New York
of perjury9 Dated: January 8,2010 Brooklyn, New York 593 Vanderbilt Avenue - #281 Brooklyn., New York

593 Vanderbilt Avenue - #281 Brooklyn., New York 11238 (845) 901-6767 Email: chris@,strunk.ws

Brooklyn, New York 593 Vanderbilt Avenue - #281 Brooklyn., New York 11238 (845) 901-6767 Email: chris@,strunk.ws
.
.
Brooklyn, New York 593 Vanderbilt Avenue - #281 Brooklyn., New York 11238 (845) 901-6767 Email: chris@,strunk.ws

08-3242-cv

US Court of Appeals for the Second Circuit

Christopher Earl Strunk,

Appellant / Plaintiff,

-versus-

UNITED STATES POSTAL SERVICE (USPS), James C. Miller III, Chairman USPS Board of Directors; THE CITY OF NEW YORK (NYC); NYC BOARD OF ELECTIONS: James J. Sampel, President, Frederic M. Umane Secretary, Anthony Como, Julie Dent, Nero Graham Jr., Terrence C. O’Connor, Juan Carlos Polanco, Nancy Mottola-Schacher, Gregory C. Soumas, Maryann Yennella, each in official capacity and Individually;

Appellees / Defendants,

New York State Board of Elections, New York State Attorney General, and the United States Attorney General,

Parties-in-interest

APPELLANT BRIEF (errata corrections)

Christopher Earl Strunk pro se without being an attorney 593 Vanderbilt Avenue -#281 Brooklyn New York 11238 (212) 307-4444 uncasvotes2@yahoo.com

Appellant / Plaintiff

Christopher Earl Strunk 593 Vanderbilt Avenue -#281 Brooklyn New York 11238 (212) 307-4444 email: uncasvotes2@yahoo.com

Appellee / Defendants:

James C. Miller III, Chairman USPS Board of Directors United States Postal Service 475 L’Enfant Plaza, SW. Washington, DC 20260

by

Benton J. CAMPBELL United States Attorney United States Attorney's Office Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201-1820 Phone: (718) 254-6024

THE CITY OF NEW YORK (NYC) Corporation Counsel Michael Cardozo NYC Law Department 100 Church Street New York, NY 10007

NYC BOARD OF ELECTIONS NYC BOE Commissioners 32 Broadway New York, NY 10004.

Parties-in-interest

Andrew Cuomo, NYS Attorney General State of New York, Office of the Attorney General 120 Broadway New York, NY, 10271

Kimberly A. Galvin, Esq. Special Counsel New York State Board of Elections 40 Steuben St. Albany, NY, 12207

i

TABLE OF CONTENTS

 

Page

TABLE OF AUTHORITIES

……………………

iii

INTRODUCTION………………………………………………

………………………………

1

QUESTIONS PRESENTED

……………………

2

Court Jurisdiction over United States Postal Service under 28 USC 1339 with Issues 1- 4 ….2

Court Jurisdiction over the United States Postal Service agents under Bivens with Issue 5.…2

Court Jurisdiction over the Constitutionality of 39 USC 201 as to the process appointing

directors for the “independent” United States Postal Service agents with Issue 6………….…… 4

Ballot Access and Suffrage injury with Issues 7 thru 12………………………………………5

Court jurisdiction over the question of first impression of what is Voting Age Population of

NVRA and HAVA that does affect ballot access and suffrage with Issues 13 thru 15……… … 7

Court jurisdiction over gerrymander injury to ballot access and suffrage with Issues 16 – 19 8

Court jurisdiction over supplemental injury that must be ancillary to a related case request for

a 28 USC 2284 three judge panel with Issues 20 thru 21……………………………………

9

Court disparagement of claim of civil rights conspiracy of secret organizations w/ Issue 22 10

STATEMENT CONCERNING JURISDICTION

STATEMENT REGARDING ORAL ARGUMENT

STATEMENT OF THE CASE

………………………10

………………………11

………………………11

STATEMENT OF FACTS

… ………………

12

ARGUMENT……………………………………………………………………………………

18

CONCLUSION

…………………

……… 20

JURAT………………… ………

………………

20

ii

TABLE OF AUTHORITIES

CASES

Federal Authorities:

Page(s)

Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)……… 3 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)……………………………….19

Kalson v. Patterson U.S. Court Of Appeals, Second Circuit No. 07-1243-cv (9/9/08)…………7,19

Baker v. Carr, 369 U.S. 186 (1962) ………………………………………………

Reynolds v. Sims, 377 U.S. 533 (1964)…………………………………………… ……………19, WMCA, Inc. v Lomenzo, 377 U.S. 633 (1964)…………………………………………………10,19

Karcher v. Daggett, 462 U.S. 725 (1983): revisit equal eligible voters ………………… …9,10,19

Burns v. Richardson, 384 U.S. 73 (1966)………………………………………………….……

Rodriquez v Pataki USDC SDNY 02 cv 618 (28 USC 2284)…………………………………10,19

Davis v. Bandemer 478 U.S. 109 (1986)…………………………………………………

Smith v Allwright, 321 U.S. 649 (1946)………………………………………………………… 19 Buckley v. Valeo, 424 U.S. 1, 13 n. 16 (1976)…………………………………………… ………3 Schulz v. Williams, 44 F.3d 48, 61 n.13 (2d Cir. 1994)………………………………… ……….6 Luther v. Borden (1842) – Republican form of government question………………………….…19 Shaw v. Hunt, 517 U.S. 899 (1996) ("Shaw II"): voting civil rights involved in redistricting

Shaw v. Reno, 509 U.S. 630, 652 (1993) ("Shaw I"): voting civil rights involved in redistricting Puerto Rican Legal Defense & Education Fund, Inc. ("PRLDEF") v. Gantt et al. EDNY 92 cv 1521 / 92 cv 1776 by minority reapportionment complaints

Franklin v. Massachusetts, 505 U.S. 788 (1992):

Kusper v. Pontikes, 414 U.S. 51 (1973) Dunn v. Blumstein, 405 U.S. 330 (1972) Oregon v. Mitchell, 400 U.S. 112 (1970) Storer v. Brown, 415 U.S. 724, 730 Gray v. Sanders, 372 US 368 (1969) Williams v. Rhodes, 393 U.S. 23 (1968)

…………10,19

19

19

…….

“Usual Residence” definition by 8 Justices

UNITED STATES CONSTITUTION

Article I Section 3 Cl. 4 - Vice President of the United States shall be President of the Senate… Article 1 Section. 8 Cl. 1- Congress shall have Power to lay & collect Taxes, Duties, ……………5 Article 1 Section 8 Clause 4 - regulation of commerce clause…………………………………… 5

4

iii

Postal Clause - Article I, Section 8, Clause 7…………………………………………….…………5

Article 1 Section 9 Clause 5 - No Tax or Duty shall be laid on Articles exported from any State…5 Article II: Section 2 Clause 2 - [the President] He shall have Power, by and with the Advice and Consent of the Senate,………………………………………………………………………………5 Article IV Section 2-1: Citizens of each State enjoy equal privileges and immunities……….

Article IV Section 4:

First Amendment: People right to assemble / petition government to redress grievance ………….3 Fifth Amendment: no deprivation w/o due process of law…………………………………………3 Ninth Amendment: certain rights shall not deny/disparage rights retained by People…….……….3

Tenth Amendment: Powers not granted Federal nor prohibited reserved by People… Fourteenth Amendment: Citizen due process and equal protection…………………………….

Guarantee of Republican form of government……………………… ….19

3

NEW YORK STATE CONSTITUTION The amended New York State Constitution NYS Constitution Article III Section 4………………………………….…………………………9 Article III the State Legislature Sections 5 ……………………………………………. 8,9

NEW YORK STATUTES NYS Civil Rights Law Chapter 6 Article 2 . sovereignty in the people NYS Civil Rights Law Chapter 6 Art 5A Section 53 thru 57 NYS Election Law:

§1-104(3) for qualifications of state parties §3-102 (granting the State Board the power to "issue instructions and promulgate rules

relating

to the administration of the election process," to "direct" that county board procedures be modified, and to "perform such other acts as may be necessary") §3-104(1) (granting the State Board responsibility for "statutes governing campaigns, elections and related procedures") § 4-100 (creation of election districts) §5-304 (3), EL §5-210(g), EL §5-604, EL §5-606 certification of lists as apply to NVRA and HAVA, EL §6-136(1), EL §6-136(2) (h), EL §6-136(3)………………………………….……….6 §5-602 - voter enrollment list……………………………………………………………… … …6 §6-124 for the Republican Party Judicial Convention to choose Republican Judges……… …… 1

…………………………………

FEDERAL STATUTES

28 U.S.C. § 1291

1965 Voting Rights Act (VRA) …………………………….……………………….……3,7,19

…………… ……….1,10

iv

1965 Voting Rights Act Section 5 review…………………………………… …………9,14,17

Civil Rights Act pursuant to Title 42 U.S.C. Sections §1983, §1985, §1988………………… 3

………….2,3,7,13,18

Help America to Vote Act (HAVA) under postal service treaty with the State of New York, NYC and NYC Board of Elections for equal protection under 42 USC §1973 ……2,3,7,13,18

The Hatch Act 5 U.S.C. §§ 7321-7326 and 5 U.S.C. §§ 1501- 1508 for State employees… 2,3

The Pendleton Civil Service Reform Act (ch. 27, 22 Stat. 403) of 1883………………………3

the Federal Election Campaign Act (FECA) of 1971, (P.L. 92-225), 86 Stat. 3, enacted 1972-02-07, 2 U.S.C. § 431 et seq.)……………………………………………….… 3

28 USC §1339…………………………………………………………………………….……3,

28 USC §1343 (a) (1) (2) (3) (4); 28 USC §1331; 28 USC §1357.

28 USC 2284 for three judge panel……………………………………………….………2,9,10

39 U.S.C. § 201 : There is established, as an independent establishment of the executive branch of the Government of the United States, the United States Postal Service………….….4

National Voter Registration Act 42 U.S.C. § 1973gg (NVRA)

FEDERAL RULES

USPS Non-profit Standard Mail Rule 703………………………………………… … ….2,3

2 nd Circuit Rule §.27 - Certification of an Issue to the NYS Court of Appeals……

20

Fed. R. Ap. P. (FRAP) R. 34, oral argument in re USPS Non-profit Standard Mail Rule 703

Fed. R. Ap. P. R. 44(a), Constitutional question when USPS is party

Fed. R. Ap. P. R. 44(b), Constitutional challenge to gerrymander by state laws

RELATED CASES (Appellant as direct party):

Rodriquez v Pataki - SDNY 02 cv 618 (28 USC 2284)

Arbor Hill et al. v. Albany County et al. NDNY 03-cv-502 (NAM) and at 2

Loeber et al. v. Spargo et al. in NDNY 04-v-1193……………………………… ………2,7

Forjone et al. v. California et al. in NDNY 06-cv-1002………………………………2,7,14

nd

Cir 04-9132

RELATED APPEAL CASES:

Loeber et al. v. Spargo et al. in NDNY 04-v-1193 with appeal case 08-4323-cv with an emergency motion for expedited hearing of three judge panel issue…………………………11

v

INTRODUCTION

Pro se Appellant, Christopher Earl Strunk (Strunk), below appeals, pursuant to 28 U.S.C.

§ 1291, with the Notice of Appeal filed 6/30/08 (A-17) from the Order and Civil Judgment of

6/11/08 (A-18) of Judge Allyne R. Ross for the case in the Eastern District of New York along

with the underlying Memorandum and Order of 5/9/08 (A-20) as to the underlying Amended

Complaint (AC) of 08-cv-1744 filed 6/9/08 (A-26).

That Strunk had filed a T1080 emergency motion for ballot access for the Republican

Primary on September 9, 2008, and other relief 7/3/08 (A-4) that was denied by the Hon.

Barrington D. Parker, Circuit Judge on 7/15/08 (A-3); and that thereafter 2 nd Circuit Clerk

9/5/08 Order to Show Cause for Dismissal on Default of Appeal Case 08-3242-cv Strunk v

USPS (A-1), requires that this Appellant Brief and Appendix annexed be filed on or before

9/19/08 accordingly.

That Strunk is a legitimate Republican Party Candidate with important issues including:

the Election Law (EL) §6-124 Judicial Nominating Convention for which Strunk also sought to

be a Republican Delegate from the 57 th Assembly District (AD) to be put on the agenda in

Albany involving Brooklyn Home rule; various legislative initiatives; preparation for the 2010

Federal Census that would lead to the 2012 redistricting of all State and U.S. House seats; most

importantly for facilitating the 2016 State Constitutional Convention; and therefore, I sought

ballot access for the September 9, 2008 Primary and November General Elections for election to

the New York State Senate from the extremely gerrymandered political district of the 18 th Senate

District (SD) within the Borough of Brooklyn within the City of New York and have been helped

by Republicans outside NYC having provided Strunk with a gratis website at www.strunk.ws .

That Strunk had filed the complaint informa pauperis, and that although having been

granted the opportunity to amend the complaint, nevertheless the Judge dismissed the exparte

1

action sua sponte as being irrational and frivolous with prejudice, without reaching the merits of

the complaint. That this complaint has supplemental injuries associated with the gerrymandering

and federal issues related to those alleged in Loeber et al. v. Spargo et al. in NDNY 04-v-1193

and Forjone et al. v. California et al. in NDNY 06-cv-1002; both requesting a 28 USC §2284

three judge panel on statewide districting.

QUESTIONS PRESENTED

Court Jurisdiction over United States Postal Service under 28 USC 1339 with Issues 1 thru 4

ISSUE 1: That the Judge erred by not allowing petitioner standing based upon the conclusive

presumptive evidence of injury when eligible voter lists are systematically maintained with

between 20% and 35% inactive voters as impacted wrongly by dicta associated with the NVRA

and HAVA in which the USPS has a direct duty and authority to act with the NYS BOE and

respective local Boards including the NYC BOE to ascertain the actual certification and

eligibility of those qualified to vote, and duty failure directly injures and burdens Plaintiff along

with those similarly situated.

ISSUE 2: That the Judge erred by not allowing petitioner standing based upon his challenge to

the applicability of the Hatch Act 5 U.S.C. §§ 7321-7326 to the USPS in regards to Rule 703 and

that the USPS in that regard must not be exempt under Section 7324 of the Hatch Act that

provides an exemption to the ban on political activities to:

(i) an employee paid from an appropriation for the Executive Office of the President; or

(ii) an employee appointed by the President, by and with the advice and consent of the

Senate, whose position is located within the United States, who determines policies to be

pursued by the United States in the nationwide administration of Federal laws.

2

ISSUE 3: That the Judge erred by dismissing the complaint as to the USPS despite 28 USC

§1339, USPS Board of Directors are a return to the spoils system in that without a meritorious

competitive hiring with an appointment system that violates the Pendleton Civil Service Reform

Act (ch. 27, 22 Stat. 403) of the year 1883 as the United States federal law that established the

United States Civil Service Commission, which placed most federal government employees on

the merit system and marked the end of the so-called "spoils system." The act provided for some

government jobs to be filled on the basis of competitive exams.

ISSUE 4: That the Judge erred by not allowing petitioner standing based upon his challenge to

the applicability of USPS Rule 703 under the Federal Election Campaign Act Among the act's

major features are the creation of the Federal Election Commission and rules concerning

disclosure, public financing, and contribution limits: while the Hatch Act pertains to only the

Federal workforce, the Federal Election Campaign Act (or FECA) regulates all activities

associated with federal elections—Presidential, Senatorial, and Congressional races.

Court Jurisdiction over the United States Postal Service’s agents under Bivens with Issue 5

ISSUE 5: That the Judge erred by dismissing the complaint as to the USPS despite 28 USC

§1339, in that USPS and its agents as of right as against the Director(s) and their agents under

Bivens, as of right as under congressional enabling legislation under the NVRA and HAVA

provisions of the Voting Rights Act (VRA) have violated the 1 st , 5 th 9 th and 10 th amendment

rights of Plaintiff and those similarly situated, and as a matter of denial of substantive due

process and equal protection under the law enabled by Congress, Strunk alleges a conspiracy

with state action as applies under 42 USC 1983 and 1985. Discovery would have proven such.

3

Court Jurisdiction over the Constitutionality of 39 USC 201 as to the process appointing directors for the “independent” United States Postal Service agents with Issue 6

ISSUE 6: There is a case of first impression challenging independence of the USPS Directors

from the executive branch appointment that now by advise and consent with the Executive VP as

President of the Senate does not conform with the law for an independent establishment;

whereby, control by members of two federal political parties is a matter of misadministration and

misapplication and or unconstitutionality of 39 U.S.C. § 201 as would apply to appointing

directors.

When the Congress established the USPS as an independent establishment of the

executive branch of the Government of the United States, the United States Postal Service, it

requires unlike that of the Court system as if a fourth branch of government to be separate from

manipulation by the executive; now in fact is not an independent body from the Executive

different than from the Justice Branch must at least have election of all USPS Director of the

board by the entire Congress not just the Senate when members are proposed by the Executive:

a. Nine members are selected from the Republican and Democratic Party appointed

by the President of the United States, subject to confirmation by the Senate only.

That the activity of the USPS by the very nature of its mandate interferes with interstate

commerce, individual rights and directly conflicts with:

Article I Section 3 Clause 4 - The Vice President of the United States shall be President

of the Senate, but shall have no Vote, unless they be equally divided. Means that the vote of the

Senate alone is not independent entirely of the executive requires a votes of the House unlike that

of the Executive officers who serve at the pleasure of the President and of Judges who once

approved are not part of the Executive or Congress however may be limited as to jurisdiction by

the entire Congress with a two thirds vote.

4

Article 1 Section. 8 Clause 1 that the Congress shall have Power To lay and collect

Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and

general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform

throughout the United States;

Article 1 Section 8 Clause 4 – that congress has the power to regulate Commerce with

foreign Nations, and among the several States, and with the Indian Tribes, not the USPS;

Article 1 Section 8 Clause 7- To establish Post Offices and post Roads;

Article 1 Section 9 Clause 5 No Tax or Duty shall be laid on Articles exported from any

State. – The USPS affects such activity directly. albeit first class mail in the same from every

state some state sin the matter of USPS Rule 703 burdens some more than others in the elective

process in other states, in that the subsidy is not done on upon a per capita basis; and therefore,

singles out and injures political opponents to incumbents of specific smaller State parties.

Article II: Section 2 Clause 2 - [the President] He shall have Power, by and with the

Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present

concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall

appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all

other Officers of the United States, whose Appointments are not herein otherwise provided for,

and which shall be established by Law: but the Congress may by Law vest the Appointment of

such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the

Heads of Departments.

Ballot Access and Suffrage injury with Issues 7 thru 12

ISSUE 7: The Judge erred in dismissing when there is conclusive evidence of speech and

association injury from the burden imposed by the USPS and NYC BOE and or its agents, as

complained of in AC. See paragraph 43 (A-13) in Strunk’s Affidavit in Support of Relief that

5

starts at (A-6) therein Petitioner has been injured by denial of ballot access, and is entitled to a

certified voting list as required by this court in the appeal case Schulz v. Williams 44 F.3d 48. 6 1 n.

13 (2d Cir.1994). and therein this Court stated that EL Section 5-602 provides in relevant part:

"The board of elections shall prepare at least fifty copies of such pamphlet and shall send at least one copy of each such list to the state board of elections. at least two copies to the county chairman of each political party, and shall keep at least five copies for public inspection at each main office or branch of the board. Other copies shall be sold at a charge not exceeding the cost of publication."

ISSUE 8: That the Judge erred in dismissing sua sponte when there is conclusive presumptive

evidence which is rebutable by the NYC BOE misapplication and misadministration of active

voters list shown by the facts and allegations asserted in the AC starting at paragraph 23 (A-34).

ISSUE 9: That the Judge erred by not allowing petitioner standing based upon the alleged facts

of the Brooklyn BOE office manager denial of access to the active Republican Party voter

enrollment, alleged at AC paragraphs 54 through 59 (A-40).

ISSUE 10: That the Judge erred by not allowing petitioner standing based upon unlawful denial

of enrollment and voter list at the cost of reproduction alleged at AC paragraphs 59 (A-41).

ISSUE 11: That the Judge erred by not allowing petitioner standing based upon the NYC BOE

denial of a certified enrollment and voters list on digital media at the cost of production of $1

cost of a CD.

ISSUE 12: That the Judge erred by not allowing petitioner standing based upon the

constitutionality issue of capping signatures for those State Parties while burdening minor or

smaller State Parties with significantly more signatures under the 5% of enrollment rule related

to EL §5-304 (3), EL §5-210(g), EL §5-604, EL §5-606 in which certification of lists apply to

NVRA and HAVA, EL §6-136(1), EL §6-136(2) (h), EL §6-136(3).

6

Court jurisdiction over the question of first impression of what is Voting Age Population under NVRA and HAVA that does affect ballot access and suffrage with Issues 13 thru 15.

ISSUE 13: That the matter of Voting Age Population (VAP) used by the HAVA, has been

misconstrued by bad actors to mean all persons of Voting Age rather than all persons qualified

under law to vote; and under Federal Law as well as State Law that means only those qualified to

vote, which is at the center of the controversy burdening Plaintiff herein; and remains a question

of first impression complained of in the case Loeber v. Spargo in NDNY 04-cv-1193 now on

appeal from an order to dismiss and is related to the supplemental injury to plaintiff herein. The

two cases are inseparable and have interlocking issues yet to be heard by a three-judge panel.

That the VAP issue as a matter of first impression has been alleged in Loeber et al. v.

Spargo et al. in NDNY 04-v-1193 and Forjone et al. v. California et al. in NDNY 06-cv-1002;

however, has never been heard on the merits of the injury involved, should be heard herein,

especially since the matter has been discussed in the affirmative in the appeal case Kalson v.

Patterson U.S. Court Of Appeals, Second Circuit No. 07-1243-cv with a decision issued 9/9/08.

.ISSUE 14: That the Judge fails to guarantee Petitioner’s equal treatment of fundamental rights

as applies to Citizens of each State for suffrage and autonomy excluding non-citizens, who

absolutely have no right to vote; and therefore, aren’t part of the Voting Age Population at all.

ISSUE 15: That the Judge fails to recognize that Petitioner is a member of the Voting Age

Population that by gerrymandering, varies wildly from one district to the next, suffers from

Disproportionate Diminished Dilution of voting power, notwithstanding total persons, within

any total population district as a result of mechanistic malfeasant dicta set forth under the VRA.

7

Court jurisdiction over gerrymander injury to ballot access and suffrage with Issues 16 thru 19.

ISSUE 16: That the Judge erred by not allowing petitioner standing based upon an ongoing

conclusive presumption of gerrymandering injury in that the 57 th AD is subdivided by the 18 th

SD that imposes an unreasonable burden upon petitioner's ability for ballot access as the

Republican Party Judicial Convention delegate from the 57 th AD, and that when the 57 th AD is

not wholly within the 18 th SD as required by the New York State Constitution Article 3 Section

5, quote:

“Assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be of convenient and contiguous territory in as compact form as practicable, each of which shall be wholly within a senate district."

"In counties having more than one senate district, the same number of assembly districts shall be put in each senate district, unless the assembly districts cannot be evenly divided among the senate districts of any county."

ISSUE 17: That the Judge erred by denying petitioner standing with evidence that the 18 th SD

does not have a minimum number of ADs wholly within as required by the State Constitution for

mandatory equal protection, that provides AD residents a reasonable expectation to unify the AD

with the adjoining ADs to effect control over the respective corresponding senator .

ISSUE 18: That the Judge erred by denying petitioner standing despite evidence that the 18 th SD

does not have the same number of ADs wholly within equal to the other existing SDs within

Brooklyn as a matter of equal treatment and burden upon petitioner and those similarly situated

as a gerrymandering injury. That in regards to the Strunk Affidavit in support of relief from

paragraph 13 on A-8 that in general as to gerrymandering injury, is shown starting at A-63,

compares the 17 th SD has portions of 7 ADs; at A-64, the 18 th SD has portions of 8 ADS; at A-

66, the 19 th SD has portions of 8 ADs; at A-67, the 20 th SD has portions of 10 ADs; at A-69, the

21 st SD has portions of 9 ADs; at A-71, the 22 nd SD has portions of 9 ADs; at A-74, a part of the

8

23

rd SD has portions of 6 ADs; at A-74, a part of the 25 th SD has portions of 4 ADs; and at A-

75, the 27 th SD has portions of 9 ADs

ISSUE 19: That the Judge erred in dismissing when there is prima facie evidence of

misapplication and misadministration of the State Constitution Article III Section 4 as to

redistricting of Senate. and as directly coincides with Article III Section 5 for Assembly

redistricting, related to county home rule as well as to U.S. House seats that shall be drawn

together and have from the April 2002 redistricting, notwithstanding any pre clearance process

under the limited purpose of the Voting Rights pre-clearance process for which any seat within a

Voting Rights Act (VRA) covered county specifically dealing with home rule boundaries without

recognizing the interrelation of the two branches of the state legislature and House seats, that

mindlessly calculates an arbitrary guidelines without proof of any injury 40 years after some

minorities in jurisdiction long resolved complained with reason long forgotten, appears a knee

jerk exercise to gerrymander for unjust enrichment and a dynastic political autocracy under its

control using backroom computer programmers for redistricting.

That Justice Rehnquist in the decision for the case Karcher v. Daggett, 462 U.S. 725

(1983), stated that county political boundary lines are a legitimate concern in districting and that

even with total population being equal, voters may be effectively disenfranchised and chosen by

an incumbent using a sophisticated computer program; and that the Justice refers to New York as

traditionally cunning in that regard.

Court jurisdiction over supplemental injury that must be ancillary to a related case request for a 28 USC 2284 three judge panel with Issues 20 thru 21

ISSUE 20: That the Judge erred even when notified of the supplemental injury affected by the

related case request for a 28 USC 2284 panel; must be seen as ancillary to such actions.

9

ISSUE 21: This case is dispositive to the related case Loeber v. Spargo in that facts associated

with the injury support the claim here, that there is a substantial issue for creation of a three

Judge Panel and requires a narrow interpretation of the State Constitution and related remedies

available to a Federal judge as created under Baker v Carr, and Karcher v. Daggett that kept

home-rule state political Boundaries when drawing districts.

Court disparagement of claim of civil rights conspiracy of secret organizations with Issue 22.

ISSUE 22: The judge erred when it characterized as irrational and frivolous the claim that asserts

there is an underlying civil rights conspiracy to deprive rights involving the York and Scottish

Rite Freemasonry of the Free and Accepted Fraternity of Masonry operating with those of the

Sovereign Military Order of Malta in conjunction with State action based upon available history.

STATEMENT CONCERNING JURISDICTION

Certainly Circuit has jurisdiction to hear this appeal under 28 USC 1291; and in regards

to whether or not the District Court has jurisdiction over these above matters it clearly does and

that as to the ancillary matter of the supplemental injury associated with the request for a three

judge panel this case absolutely does apply to the jurisdiction that the district judge would have

under 28 USC 2284. However, herein it gets complicated by related cases. Circuit must have

jurisdiction at this point to resolve this complicated matter. Especially since the related case

decision shown at A-123 alleges such a request is insubstantial uses the WMCA, Inc. v Lomenzo,

377 U.S. 633 (1964) and Rodriquez v Pataki SDNY 02 cv 618 (28 USC 2284) too broadly; and

needs review herein whether in a panel on the same day or jointly since Strunk is also a Plaintiff.

10

STATEMENT REGARDING ORAL ARGUMENT

When I got the fax from Circuit Emergency Motion Counsel on July 16, 2008, evidenced

by the date stamp on the faxed page shown at A-2, I was not aware that on the same day there

had been a Schedule issued requiring that I had to provide my brief by 8/15/08. I don’t remember

seeing any such paper and I get a lot of legal paper and realize how important it is. I have all my

mail delivered to my facility where it may take service. However, because I have been working

up in Massachusetts last week, I did not receive the OSC date 9/5/08 shown at A-1 until

Wednesday whereby I am to deliver my brief by 9/19/08 or else. I did not start to work on this

brief and appendix until Wednesday afternoon and as such it is both abbreviated and possibly

will go without response by respondents; and therefor whether or not I am able to Reply per se to

a non response is also up in the air.

Therefore, I believe it essential that I be allowed both a reply to a non response; and

furthermore, be granted the opportunity for oral argument even if respondents do not appear, and

that I be granted an extended oral argument time at the hearing, to be expedited to occur before

the election in November 2008, and on the same day before the same panel as that of the appeal

with an expedited emergency three judge matter before it in Loeber et al. v. Spargo et al. in

NDNY 04-v-1193 with appeal case 08-4323-cv with an emergency motion for expedited hearing

of three judge panel issue

STATEMENT OF THE CASE

This is not a simple informa pauperis case of an inexperienced pro se litigant as the

record will show. This is also not the first time that I have had a case before Judge Ross, who in

fact has three such cases that under the district dicta to assign a judge to a pro se and poor

person. I am hit with an additional burden because I am involved in issues that no bread and

11

butter attorney would touch with a ten foot pole, but perhaps would wish they had the

opportunity to do so without losing their law practice because of retribution from the bench. I

was one of three plaintiffs in a matter in which they sued the Federal Reserve Bank and some

very lofty defendants. The plaintiffs in their first complaint were granted copious amounts of

time and energy by the magnanimous court including all parties in a phone conference for as

much as two hours; wherein, the judge made every effort for the minority plaintiffs. However,

district ordered Plaintiffs to amend the complaint. Thereafter, because I was a party in interest to

the outcome, I joined in the amended complaint, which eliminated defendants as the court

requested, but kept the Federal Reserve Bank and the lofty defendants, and the case was

dismissed with prejudice; and that we had no money to launch an appeal.

I have been at this for a long time and I am well aware for how everything works. But as

a pro se litigant whose every effort is to save this state by using every opportunity including

running for office with little or no funds is what I have to do; and that I should not be penalized

for having no funds under the conditions that I am subjected to here in this particular district

where I reside. If I were to have money or be a minority and have an attorney, I would get better

process and hearing; however, haven’t and rather than commiserate the merits or circuit dislike

of pro se cases, which should be apparent, I merely request my day in court as if I had money.

STATEMENT OF FACTS

There is a statement of a series of facts stated both in the Amended Complaint starting at

A-26 and in the Strunk Support Affidavit for emergency relief starting at A-6. I am not going to

repeat all the facts since District hasn’t seen them, and since the ballot access effort is moot for

this year; however, injury is not moot, will repeat time and time again, and must be corrected.

1. I am an active voter within the New York 57 th Assembly District (AD) and NY 18 th

Senate District (SD) created in April 2002.

12

2.

I am an enrolled New York State Republican Party member actively seeking ballot access

as the Republican Candidate for election to the 18 th S D and as a Republican Party Delegate or

alternate from the 57 th AD to the Republican Party Judicial Nominating Convention at the

September 9, 2008 and or General Election of November 4, 2008.

3. For a state candidate in a district which the local state party in very small and in the

minority, That the basis to get a candidate on the ballot is to collect designating petition

signatures equal to 5% of the respective state party enrollment list within a political district.

4. However, the dominant State Party has benefited by gerrymandering, and in this case is

the Democratic Party that doesn’t have to get 5% of the enrollment; because, the signatures are

cappped on signatures for membership over a certain size. There is a serious ballot access

problem for challengers especially when the enrollment lists are inflated 30% illegally as is

going on statewide, and can only be confirmed by the discovery process under subpoena.

5. I am the challenger to anyone not a citizen to keep them from participating illegally in

elections unlike a majority of Democrats and past President like Mr. Clinton and the current crop

of open border, ‘let them all in’, presidential candidates on both sides of the aisle.

6. I have credentials in fighting vote fraud and am associated with controversial people in

that regard including my good friend the Honorable Robert K. Dornan as referenced at A-91 thru

A-96.

7.

When a challenger to any incumbent especially within a party has no money or very little

money to wage an expensive campaign and petition effort, then the USPS becomes essential for

mailing which is the least expensive and most efficient way to seek office; and given the fact that

the 18 th SD involvement is enormous and would involve expenditure of an inordinate amount of

time without an accurate certified enrollment list. The USPS Rule 703 is a burden.

8. Since enactment of the NVRA and the fallout from HAVA operates so that when the

13

state and localities deal with the voting lists without oversight of the EAC and DOJ, can get more

money by maintaining false listing in exchange for Federal dollars, in part is what the Forjone et

al. v. California et al. in NDNY 06-cv-1002 case is about, and in which I am a plaintiff; the end

result is an inaccurate enrollment list with up to 30% or more false names of the dead, moved,

homeless, duplicates and or outright illegal alien or say felons and the excluded included.

9. I performed a series of mailings that prove such facts, and because it is all done by the

USPS, provides presumptive evidence that gives me standing for the complaint to go forward.

10. Because the effort for ballot access was ongoing, the Judge never saw the evidence

gained by my campaign and petition activity, represent supplemental facts to the amended

complaint filed June 9, 2008.

11. In the Strunk Affidavit in support of emergency relief (A-6) there is a chart of the 66

USPS Returned Mailings within the 57 th AD of the 18 th SD (see A-99) compiled based upon 420

individual mailings posted with the USPS from June 6, 2008 through June 18, 2008, and

delivered by the USPS to active Republican Party members of the 57" AD in the 18 th SD with a

conformed copy of the Designating Petition (shown at A-86 thru A-88) mailed out with a return

envelope addressed to petitioner sender campaign for the candidacies.

12. That there is prima facie evidence of misapplication and misadministration of the State

Constitution Article 3 Section 4 as to redistricting of Senate, Assembly, and House seats from

the April 2002 redistricting, and must be notwithstanding any pre clearance process under the

Voting Rights Act (VRA) or review performed by the US Department of Justice.

13. There is conclusive presumptive evidence that is rebutable by the NYC BOE

misapplication and misadministration of active voters list.

14. There is conclusive evidence of speech and association injury as a result of the burden

imposed by the USPS and NYC BOE and or its agents.

14

15.

That under USPS Rule 703 for Non-profit Standard Mailing rates, as relates to any

challenger or voter's expectation of reasonable effectiveness in participation in suffrage, is

absolutely a component part of petitioner’s ballot access actions and a voter’s right to know at

the mail box, as such voter injury is compounded as a result of the gerrymandering done

16. Of the 110 pieces of mail sent on June 6.2008 to the Republican Party County Committee

members with addresses posted by the Republican Party in October 2007 for the 57 th AD

intersection with the 18 th SD, listed on Exhibit D-5 page 4 through page 6 (A-81 thru A-83), 12

of 110 pieces were returned by the USPS. were: 1-FTE, 3 -Am, and 8- IA and as such is a

questionable return rate of say 11 percent unable to deliver.

17. That the Republican Party list of County committee members intentionally do not provide

an adequate address sufficient to deliver notice to the County Committee members of petitioner's

candidacy with the 110 pieces sent using the USPS, and as compared to the address list provided

by the NYC BOE date June 9, 2007 used for mailing 310 pieces to those Republican party

members other than the County Committee, and; whereas, of the total pieces 8 of 110 were IA as

opposed to only 2 - IA of 310 pieces referenced below; and furthermore. as shown at line item 1

through 4 on Exhibit E (A-99) the County Committee listed were not even designated by the

NYC BOE list of June 9, 2007 with a Voter ID.

18. An 11% return rate for official Republican Party county committee members is counter

intuitive and is thereby questionable requiring further investigation.

19. Of the 100 or so pieces of mail sent on June 16, 2008 to the Republican party members

within the 57 th AD in the 18 th SD all recipients were chosen based upon the multiple number of

party members within a single household (available to no less than say 250 Republican party

members available to sign a designating petition). and of that total listed on Exhibit E (A-99), are

listed from Line item 13 through 40 as returned pieces of mail with the USPS remarks, total 28

15

being: 11- NDAA, 13- ANK, 3-FTE and 1 VAC; and is a questionable return rate of 28 percent

wherein the USPS is unable to deliver.

20. A 28% return rate for a multiple Republican Party member single households is counter

intuitive and is thereby questionable requiring further investigation.

21. Of the combined 210 or so pieces of mail sent on June 17 and 18, 2008 to the Republican

Party members within the 57 th AD intersection with the 18 th SD, all recipients were chosen

randomly within a single household, and of that total listed on Exhibit E (A-99) are listed from

Line item 41 through 66 as returned with the remark subtotal for the 26 returns being I0-NDAA,

9- ANK, I -FTE. 2-lA. 1 -NSS, 1 -NSN. 1 -UNK. 1 –UR (Unknown return); and as such is a

questionable return rate of say 13 percent, wherein the USPS is unable to deliver for petitioner to

obtain ballot access with signatures.

22. A 13% return rate for those single Republican Party members in a single household is

counter intuitive and is thereby questionable requiring further investigation.

23. That because the NYC BOE list of June 9, 2007 used to make the 310 mailings within the

57 th AD intersection within the 18 th SD have certified presumption by the NYC BOE as valid

Republican Party active voters any USPS return is questionable.

24. That under the National Voter Registration Act of 1993 (NVRA) and the Help America

to Voter Act of 2002 (HAVA) the USPS and NYC BOE have a fiduciary responsibility to do all

due process involved to verify active voting registration and or enrollment by mail. including any

change of address or as otherwise known as motor voter registration complained of by petitioner.

25. That the results of the 54 of 66 shown at Exhibit E (A-99) line item numbers 13 through

66 designated as pieces of mail returned by the USPS are conclusive presumptive evidence of

irregularities in the NYC BOE voter enrollment list.

26. That the results of the 54 of 66 shown at Exhibit E(A-99) line item numbers 13 through

16

66 designated as pieces of mail returned by the USPS are conclusive presumptive evidence of

irregularities in the NYC BOE voter enrollment list and or failure of fiduciary duty of the USPS

and or its agents.

27. That the results of the 12 of 66 shown at Exhibit E (A-99) line item numbers 1 through 12

designated as pieces of mail returned by the USPS are conclusive presumptive evidence of

irregularities in the NYC BOE voter enrollment list to check and certify the Republican County

Committee members on file with the NYC BOE.

28. That the results of the 1 of 66 shown at Exhibit E (A-99) line item numbers I through 66

designated as pieces of mail returned by the USPS are conclusive presumptive evidence of

irregularities in the NYC BOE voter enrollment list and possible voter fraud that would support a

order allowing for inspection of the original voting buff cards of elections going back to no later

than 2002.

29. That there is prima facie evidence of misapplication and misadministration of the State

Constitution Article 3 Section 4 as to redistricting of Senate. Assembly and House seats from the

April 2002 redistricting, notwithstanding any pre clearance process under the Voting Rights Act

(VRA) or review performed by the US Department of Justice.

30. There is conclusive presumptive evidence which is rebutable by the NYC BOE

misapplication and misadministration of active voters list.

31. There is conclusive evidence of speech and association injury as a result of the burden

imposed by the USPS and NYC BOE and or its agents.

32. That under USPS Rule 703 for Non-profit Standard Mailing rates as relates to any challenger

or voter's expectation of reasonable effectiveness in participation in suffrage is absolutely a

component part of petitioner’s ballot access and right to know at the mail box as a voter compounded

as a result of the gerrymandering injury.

17

ARGUMENT

Ballot access and the active right to associate involved in party building within a political

district depends upon equal protection of the law for ballot access at the primary and general

election. Equal ballot access is outrageously missing in my district and throughout NYC and

statewide because of the significant difference of VAP and the referenced arbitrary rule for

capping rather than getting 5% of district enrollment that varies from one district to the next;

varies as much as 40% below to 40% above the mean eligible voters within the state and federal

districts- that is a fact and as such greatly impacts the primary and general election process.

Wealth must not be a standard to run for office, every method must be available for me.

The USPS and an accurate voting enrollment list are essential and the provision of that list has

broken down as one based upon partisan gain and money. The USPS has a fiduciary duty under

NVRA and HAVA to work and coordinate with the NYC BOE and others to guarantee accurate

enrollment lists and that process has broken down when partisan greed inflates the lists and

USPS returns are ignored for the purpose of filing false claims with the state and federal

government in hopes of HAVA and other funding. Inflated lists injure me and my party.

That NYC Defendants are ultra vires under the State Constitution Article 3, and act with

the USPS and its’ agents by operation of the NVRA and HAVA are culpable herein and are

operating together in conspiracy as applies herein as if under the Bivens case decision by the US

Supreme Court. Petitioner is without a constitutionally mandated Senate, Assembly and

Congressional District as apply to the mandatory relationship to the component ADs that must be

wholly within the respective senate district, and that based upon the breach of NYC BOE

fiduciary duty and social contract as applies, both segregate active voters and without

ascertaining citizen status of active voters, and that petitioner is under imminent threat of injury

from alien(s) voting with impunity by inaccurate voting lists; and that Petitioner has no other

18

means for relief available and has expended all options and is entitled to expedited suffrage

protection herein. The arguments used by the Judges in Bell Atlantic Corp. v. Twombly, 127 S.

Ct. 1955, 1964-65 (2007) Kalson v. Patterson U.S. Court Of Appeals, Second Circuit No. 07-

1243-cv decision issued September 9, 2008 are germane herein.

Since the Baker v. Carr, 369 U.S. 186 (1962), Reynolds v. Sims, 377 U.S. 533 (1964),

decision have changed the gross aspects of disenfranchisement, there has developed a more

insidious form of disenfranchisement that requires knowledge and intelligence to detect. The

decision in Karcher v. Daggett, 462 U.S. 725 (1983), regarding the inadequacy of equal total

population that then discriminates against actual voters within a district and between districts

must be revisited herein and within the lens of the Justices in the cases Burns v. Richardson, 384

U.S. 73 (1966), Davis v. Bandemer 478 U.S. 109 (1986), Smith v Allwright, 321 U.S. 649 (1946),

Buckley v. Valeo, 424 U.S. 1, 13 n. 16 (1976), that give a glimpse of the problem now existing

big time in New York state, the land of computers and greed.

In the matter of districting related herein, the narrow decision of Rodriquez v Pataki

SDNY 02 cv 618 (28 USC 2284), in which I was an intervener told to start a new case separate

and apart from it did so in the Loeber Case, and all Plaintiffs and those similarly are suffering

from the underlying problem affecting us all statewide since the 1962 districting is WMCA, Inc. v

Lomenzo, 377 U.S. 633 (1964); that it must be revisited as a narrow decision not in the sweeping

one that it was thought to be, that has thrown with improper use the baby out with the bathwater

has eliminated one problem in favor of another. Although no court since Justice Taney in Luther

v. Borden (1842) has taken on the heart of the issue that in all the cases is denial of a republican

form of government. In New York imprudent use of WMCA has destroyed any expectation of

participation in the electoral process and that the vast majority of state citizens resident in a home

rule county who in no less than 47 counties are without a dedicated voice in the NYS legislature.

19

We already know the answer, but we have a right to know whether or not the court

considers the state constitution has been nullified in its entirety by the WMCA, Reynolds v Sims,

Rodriguez decisions and whether or not this court considers our citizen right to a republican form

of government under the 9 th amendment to Federal constitution continues. Nowhere in any

federal case to date has there been any expression that would give anyone other than a state

citizen who is also a USA citizen over 17 years of age the right to suffrage and when otherwise

construed disparages that right protected by the 14 th Amendment.

CONCLUSION

Although the issues in this appeal are broad and complicated they are all related and are

festering. This case must be remanded to district to incorporate the supplemental injury that is

accruing since the June 11, 2008 order to dismiss. Discovery must proceed and a decision on the

constitutionality of the above referenced issues settled either in district or for economy of the

calendar by a fully briefed presentation to a hot court here in Circuit and if deemed under 2 nd

Circuit Rule §.27 for Certification of an Issue to the NYS Court of Appeals. I believe my

requests are reasonable and sound within good jurisprudence- however unique they may seem. I

also request that the hearing of the gerrymandering and ballot access issues be heard on the same

day for oral argument before the same panel for economy of the court’s time.

Respectfully submitted and certified to be true under penalty of perjury,

Dated: September 19, 2008 Brooklyn, New York

/s/ Christopher Earl Strunk

Christopher Earl Strunk

Respectfully submitted conformed brief corrected and certified true under penalty of perjury,

Dated: September 29, 2008 Brooklyn, New York

20

/s/ Christopher Earl Strunk

Christopher Earl Strunk

08-3242-cv

US Court of Appeals for the Second Circuit

Christopher Earl Strunk,

Appellant / Plaintiff,

-versus-

UNITED STATES POSTAL SERVICE (USPS), James C. Miller III, Chairman USPS Board of Directors; THE CITY OF NEW YORK (NYC); NYC BOARD OF ELECTIONS: James J. Sampel, President, Frederic M. Umane Secretary, Anthony Como, Julie Dent, Nero Graham Jr., Terrence C. O’Connor, Juan Carlos Polanco, Nancy Mottola-Schacher, Gregory C. Soumas, Maryann Yennella, each in official capacity and Individually;

Appellees / Defendants,

New York State Board of Elections, New York State Attorney General, and the United States Attorney General,

Parties-in-interest

APPENDIX

Christopher Earl Strunk pro se without being an attorney 593 Vanderbilt Avenue -#281 Brooklyn New York 11238 (212) 307-4444 uncasvotes2@yahoo.com

Table of Contents for Appeal 08-3242-cv

Pages

Docket entries as of June 30, 2008………………………… A-120 2 nd Circuit Clerk 9/5/08 Order to Show Cause for Dismissal

on Default of Appeal Case 08-3242-cv Strunk v USPS… A-1 Order denying T1080 Motion Emergency Relief of 7/15/08 … A-3

Strunk’s Affidavit in support of emergency relief of 7/2/08…

Notice of Appeal of 6/30/08……………………………………A-17

Judge Ross’ Order and Civil Judgment of 6/11/08 …………

Judge Ross’ Memorandum and Order of 5/9/08……………….A-20 Amended Complaint of 08-cv-1744 filed 6/9/08………………A-26

Letter of Transmittal of Amended Complaint of 6/8/08……….A-98

USPS Returned Mailings within the 57 th AD / 18 th SD………

NYC BOE- June 9, 2007 Active Voter List extract within Within the 57 th AD / 18 th SD……………………………A-100 Endorsed Republican Party Designating Petition of 6/16/08…A-101 2 nd Circuit’s Summary Order of 8/15/05 in re Loeber v Spargo 04-5720-cv remanding to NDNY 04-cv-1193………….A-102

2 nd Circuit’s Order of 1/24/06 in re Loeber v Spargo 05-6536-cv granting poor person relief…… ………….A-106 Judge Arcara’s Decision and Order of 8/14/06 transferring Forjone v US EAC et al. WDNY 06-cv-0080 to NDNY 06-cv-1002………………………………….….A-107 Legal Memorandum in re Crawford v. Marion County Election Board heard by the USSC published by the Heritage Foundation 3/10/09………………………A-112 Judge Kahn’s Order of 7/31/08 dismissing Loeber v Spargo NDNY 04-cv-1193 ……………………………………A-123 Strunk’s 8/8/08 Letter Motion for Reconsideration of Judge Kahn’s Order of 7/31/08 dismissing Loeber v Spargo NDNY 04-cv-1193…… ……………A-130 NYS AAG’s 8/18/08 Letter Opposing Reconsideration of The 7/31/08 Order dismissing Loeber v Spargo.………A-135 Judge Kahn’s Order of 9/10/08 affirming dismissal of Loeber v Spargo NDNY 04-cv-1193…………………. A-138 NDNY 9/2/08 Electronic Notice of Appeal of 04-cv-1193…A-142 9/17/08 Amended Notice of Appeal in NDNY 04-cv-1193…A-143

A-6

A-18

A-99

UNITED STA'I'ES COUKI' 017 APPEALS

FOR TEE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel PatrickMoynihul United States Courthouse, 500 Pearl Street, in the City September, two thousand and eight .

Christopher Earl Strunk,

Plaintiff-Appellant.

v.

DIS3ZISSAL ON DEFAULT

Docket Number:

08-3242-cv

United States Postal Service, James C. Miller Ill, Chairman USPS Board of Directors, The City of New York, NYC Board of Elections: James J. Sampel, President, Frederic M. Umane, Secretary, Anthony Como, Julie Dent, Nero Graham Jr., Terrence C. O'Connor, Juan Carlos Polanco, Nancy Mottola-Schacher, Grgory C. Soumas. Maryann Yennella, each in official capacity and Individually,

Defendant-Appellee.

An appeal having been filed in this Court on 6130108 and a scheduling order having been issued on 7/16/08 in accordance with the Federal Rules of Appellate Procedure and the Local Rules of this Court, Civil Appeals Management Plan, Appendix, Part C, pursuant to which appellant's brief was due to be filed on 8/15/08; and,

Appellant having been advised in the scheduling order that upon the failure to file the brief by the date set in the scheduling order the appeal would be subject to dismissal,

IT IS ORDERED, that appellant show cause why the appeal should not be dismissed due to appellant's failure to file the brief by 811 5/08, the date set forth in the scheduling order.

Appellant is directed to file with the Court by 9/19/08 : 1) a bneE or, 2 a motion requesting a short extension supported by an explanation why the extensioii is necessary and demonstrating good cause for the default. Upon appellant's failure to respond as directed, the appeal will be dismissed.

For the Court:

BY L.-J&35,r.r.-

Catherine O'Haan Wolfe, Clerk

Armando Gonzaleq Deputy aerk

07-16-2008

13:59

From-

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-- ---.-.-

Beforc: Hon. BsrringtonD. C arkcr. Circuit Judge

ORD_ER

lT 1S HEREBY ORD

3

that Appellsnt Stnmk's unergcncy motion for ballot access Torthe Republican

Primary on September 9,

008 and other rclief is DENTED.

Cllhniac O'H-

Wok, Clcrk

EDNY 08-CV-1744

US Court of Appeals for the Second Circuit

Christopher Earl Strunk,

Plaintiff-Petitioner,

UNITED STATES POSTAL SERVICE (USPS), James C. Miller Ill. Chairman USPS Board of Directors; THE CITY OF NEW YORK (NYC) NYC BOARD OF ELECTIONS: James J. Sampel, President, Frederic M. Umane Secretary. Anthony Como. Julie Dent, Nero Graham Jr., Terrence C. O'Connor, Juan Carlos Polanco, Nancy Mottola-Schacher. Gregory C. Soumas. Maryann Yennella, each in official capacity and Individually;

Defendants-Respondents,

New York State Board of Elections, New York State Attorney General, and the United States Attorney General,

T1080 emergency motion for relief with a tro and preliminary injunction for mandamus equity relief for ballot access and remand in re EDNY 08-CV-1744 appeal taken from the June 11,2008 Order and Civil Judgment of Eastern District Judge Allyne R. Ross

Christopher Earl Strunk

pro se without being an attorney 593 Vanderbilt Avenue -#28 1 Brooklyn New York 11238 (63 1) 745-6402 uncasvotes2~vahoo.com

Plaintiff 1Petitioner

Christopher Earl Strunk

593 Vanderbilt Avenue 428 1

Brooklyn New York 11238 (63 1) 745-6402 uncasvotes2@.vahoo.com

Defendants 1Respondents:

James C. Miller 111, Chairman USPS Board of Directors United States Postal Service 475 L'Enfant Plaza. SW. Washington, DC 20260

TI-ECITY OF NEW YORK (NYC) Corporation Counsel Michael Cardozo NYC Law Department 100 Church Street New York. NY 10007

NYC BOARD OF ELECTIONS NYC BOE Commissioners 32 Broadway New York, NY 10004.

Parties-in-interest

Andrew Cuomo, NYS Attorney General State of New York, Ofice of the Attorney General 120 Broadway New York . NY , 10271

Todd D. Valentine Esq. New York State Board of Elections 40 Steuben St. Albany , NY . 12207

Michael Mukasey. United States Attorney General the United States Department of Justice

950 Pennsylvania Avenue N.W.

Washington D.C. 20530-000 1;

Charles J. klynes Brooklyn District Attorney District Attorney's Office. Kings County 350 Jay St. 20th F1. Brooklyn . NY . 1 1201-2908

STRUNK'S AFFIDAVIT IN SUPPORT OF EMERGENCY RELIEF WITH A TRO AIM) PRELTMINARY INJUNCTION FOR MANDAMUS EQUITY RELIEF FOR BALLOT ACCESS AND REMAND in re EDNY 08-cv-1744

STATE OF NEW YORK )

COUNTYOFKINGS

) ss.:

)

Accordin~lv,I. Christopher Earl Strunk. being duly sworn, depose and say under penalty of perjury:

1. Am petitioner herein with place for service at 593 Vanderbilt Avenue

#28 1 Brooklyn. New York 11238.

2. 1 am an active voter within the New York 57''

NY

1

Senate District (SD) created in April 2002.

Assembly District (AD) and

3. 1 am an enrolled New York State Republican Party member actively

seeking ballot access as the Republican Candidate for election to the 1gLhSD and as a

Republican Party Delegate or alternate From the 57IhAD to the Republican Party Judicial

Nominating Convention at the September 9,2008 and or General Election of November

4. 2008.

4. On June 30. 2008 filed a Notice of Appeal from the entire order to dismiss

of Judge Allyne R. Ross dated June I 1.2008 (Notice) (see Exhibit A).

5. The Notice of Appeal is From the sua sponte Order and Civil Judgment

dated June 11.2008 dismissing the exparte Amended Complaint (Order) (see Exhibit B)

6. This emergency motion requests relief unreasonably denied by the sua

sponte Order and Civil Judgment dated May 9,2008 dismissing the exparte Complaint

(underlying Order) (see Exhibit C)

7. The Amended Complaint (AC) with Exhibits I thru 14 annexed was filed

June 9.2008 (see Exhibit D and by reference sub exhibit D-I through 11-14)

8.

That the Judge erred by not allowing petitioner standing based upon the

alleged facts of the Brooklyn BOE office manager denial of access to the active

Republican Party voter enrollment as alleged at AC paragraphs 54 through 59.

9. That the Judge erred by not allowing petitioner standing based upon

unlawful denial of enrollment and voter list at the cost of reproduction as alleged at AC

paragraph 59.

10. That the Judge erred by not allowing petitioner standing based upon the

NYC BOE denial of a enrollme~~tand voters list on digital media at the cost of production

of $1 as alleged cost of a CD at AC paragraph

1 1.

That

the Judge erred by not allowing petitioner standing based upon an

ongoing conclusive presumption of gerrymandering injury in that the 57'

AD is

subdivided by the 18'

SD that imposes an unreasonable burden upon petitioner's ability

for ballot access as the Republican Party Judicial Convention delegate from the 57'

AD.

and that when the 57" AD is not wholly within the 18'" SD as required by the New York

State Constitution Article 111Section 5, quote:

"Assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be. of convenient and contiguous temtory in as compact form as practicable, each of which shall be wholly within a senate district."

"Ln counties having more than one senate district, the same number of assembly districts shall be put in each senate district, unless the assembly districts cannot be evenly divided among the senate districts of any county."

12. Illat the Judge erred by denying petitioner standing with evidence that the

18'" SD does not have a minimum number of ADS wholly

within as required by the State

Constitution for nlandatory equal protection, that provides AD residents a reasonable

expectation to unify the AD with the adjoining ADS to effect control over the senator.

13. That the Judge erred by denying petitioner standing despite evidence that

the 18" SD does not have the same number of ADSwholly within equal to the other

existing SDs within Brooklyn as a matter of equal treatment of petitioner and those

similarly situated as a gerrymandering injury. as shown in Exhibit D subexhibit 3;

compares 17'

SD- 7ADs, 18'

SD- 8 ADS, 19" SD- 8ADs. 20" SD- IOADs. 2 1'' SD-

9ADs. 22"dSD-9ADs. (part) ~3'~SD-6ADs. (part) 25'

SD-4ADs. and 27'

SD-9ADs.

14. That the Judge erred by dismissing the complaint as to the USPS.

15. The chart of the 66 USPS Returned Mailings within the 57th AD I 18th

SD (see Exhibit E) was compiled based upon 420 individual mailings posted with the

USPS from June 6 2008 through June 18,2008 and served by the USPS to active

Republican Party members to only those members ofthe 57" AD in the 18'

SD with a

conformed copy of the Designating Petition shown at D-8 and return envelope addressed

to petitioner sender campaign for the candidacies rcferenced at above paragraph 3.

16. Of the 66 pieces of mail returned by the USPS each piece was

systematically returned with a standard remark by USPS. and

in which each remark

shown on Exhibit E colu~nnmarked "Remark" are explained as follows:

fTE - Fonvard time expired return to sender IA- Return to Sender Insufficient Address Unable to Fonvard NDAA - Return to Sender not deliverable as addressed unable to fonvard ANK - Return to sender attempted - not known unable to forward NSN - Return to sender no such number unable to forward NSS -Return to sender no such street unable to fonvard UNK / UR - Unknown return to sender VAC - Return to Sender Vacant unable to fonvard

17.

Of the 66 total pieces of mail returned by the USPS shown listed on

Exhibit E. the USPS remarks for each category explained in above paragraph 16 are

subtotaled as follows:

5 pieces - FIE - Forward time expired return to sender

10 pieces - IA- Return to sender Insufficient Address Unable to Forward

21 pieces - NDAA - Return to sender not deliverable as addressed unable to forward

25 pieces - ANK - Return to sender attempted - not know-n unable to forward

1 piece - NSN - Return to sender no such number unable to forward

1 piece - NSS - Return to sender no such street unable to forward

2 pieces - UNK / UR - Unknown return to sender.

1piece

- VAC - Return to Sender Vacant unable to forward

18.

Of the 110 pieces of mail sent on June 6.2008 to the Republican Party

County Committee members with addresses posted by the Republican Party in October

2007 for the 57~AD intersection with the 18'

SD, listed on Exhibit D-5page 4 tlvough

page 6, 12 of 110 pieces were returned by the USPS. were: 1-FTE,

3 -Am, and 8- IA

and as such is a questionable return rate of say 1 1 percent unable to deliver.

19. That the Republican Party list of County committee members

intentionally do not provide an adequate address sufficient to deliver notice to the County

Committee members of petitioner's candidacy with

the 1 10 pieces sent using the

USPS,

and as compared to the address list provided by the NYC BOE date June 9,2007 used for

mailing 3 10 pieces to those Republican party members other than the County Committee,

and: whereas, of the total pieces 8 of 1 10 were IA as opposed to only 2 - IA of 3 10

pieces referenced below; and furthermore. as shown at line item 1 through 4 on Exhibit E

the County Committee listed were not even designated by the NYC BOE list of June 9.

2007 with a Voter ID.

20. A 11%return rate for official Republican Party county committee

members is counter intuitive and is thereby questionable requiring further investigation.

21. Of the 100 or so pieces of mail sent on June 16,2008 to the Republican

party members within the 57'

AD in the 18"' SD all recipients were chosen based upon

the multiple number of party members within a single household (available to

no less

than say 250 Republican party members available to sign a designating petition). and of

that total listed on Exhibit E, are listed from Line item 13 through 40 as returned pieces

of mail with the USPS remarks, total 28 being: 11- NDAA, 13- ANK, 3-FTE and 1 VAC;

and is a questionable return rate of 28 percent wherein the USPS is unable to deliver.

22. A 28% return rate for a multiple Republican Party member single

households is counter intuitive and is thereby questionable requiring further investigation.

23. Of the combined 2 10 or so pieces of mail sent on June 17 and 18,2008 to

the Republican Party members within the 57" AD intersection with the 18thSD, all

recipients were chosen randomly within a single household, and of that total listed on

Exhibit E are listed from Line item 41 through 66 as returned with the remark subtotal for

the 26 returns being I0-NDAA, 9- ANK, I -FTE. 2-lA. 1-NSS, 1-NSN. 1-UNK. 1-UR

(Unknown return); and as such is a questionable return rate of say 13 percent, wherein

the USPS is unable to deliver for petitioner to obtain ballot access with signatures.

24. A 13% return rate for those single Republican Party members in a single

household is counter intuitive and is thereby questionable requiring further investigation.

25. That because the NYC BOE list of June 9,2007 used to make the 3 10

mailings within the 57th intersection within the 1gthSD have certified presumption by the

NYC BOE as valid Republican Party active voters any USPS return is questionable.

26. That under the National Voter Registration Act of 1993 wRA) and the

Help America to Voter Act of 2002 (HAVA) the USPS and NYC BOE have a fiduciary

responsibility to do all due process involved to verify active voting registration and or

enrollment by mail. including any change of address or as otherwise known as )notor

voter registration complained of by petitioner.

27. That the results of the 54 of 66 shown at Exhibit E line item numbers 13

through 66 designated as pieces of mail returned by the USPS are conclusive

presumptive evidence of irregularities in the NYC BOE voter I enrollment list.

28. That the results of the 54 of 66 shown at Exhibit E line item numbers 13

through 66 designated as pieces of mail returned by the USPS are conclusive

presumptive evidence of irregularities in the NYC BOE voter I enrollment list and or

failure of fiduciary duty of the

USPS and or its agents.

29. That the results of the 12 of 66 shown at Exhibit E line item numbcrs 1

through 12 designated as pieces of mail returned by the USPS are conclusive

presu~iiptiveevidence of irregularities in the NYC BOE voter I enrollment list to check

and certify the Republican County Committee members on file with the NYC BOE.

30. That the results of the 1 of 66 shown at Exhibit E line item numbers I

through 66 designated as pieces of mail returned by the USPS are conclusive presumptive

evidence of irregularities in the NYC BOE voter I enrollment list and possible voter fraud

that would support a order allowing for inspection of the original voting buff cards of

elections going back to no later than 2002.

3 1.

That the results of the 1 of 66 pieces of mail shown in Exhibit E as

returned by the USPS is presumptive evidence of failure of the NYC BOE fiduciary duty

under the NVRA and HAVA for maintaining an accurate active voter 1enrollment list.

32. That the Judge erred by not allowing petitioner standing based upon the

conclusive presumptive evidence of injury shown in the above paragraphs.

33. That the chart of the NYC BOE - June 9,2007 Active Voter List extract

within the 57th AD in the 18th SD (see Exhibit F) line items 67 through 68 and 70

through 79 have separate voter ID numbers, however are suspect as being duplicate

voters maintained by the NYC BOE as active voters and when compared with the birth

and registration date columns only Line item 72 and 73 niay be separate voters based

upon a different birth date.

34. The executed designating petition signed June 17.2008 by Active Voter

shown at line 69 on Exhibit F. (see Exhibit G). and was part of the June 16,2008 mailing

for any address with more than one Republican Party member.

35. The 2ndcircuit Mandate for NDNY Case Loeber v Spargo 04-cv-1193

(see Exhibit H),that required Judge Lawrence E. Kahn to make a decision on a 28 USC

2284 three judge panel on statewide districting . which to date he has not done. and

therefore supports petitioner's gerrymandering injury in the 18" SD and 57'

AD; and

that the 2ndCircuit Mandate was Ibllowed with District's Order dated September 22,

2005, then followed after the Amended Complaint was answered with a Decision and

Order dated January 8. 2008 is further delaying a decision on the 28 USC 2284 matter.

36. The 2ndcircuit Mandate for NDNY Case Loeber v ,'$pargo 04-cv- 1193 (see

Exhibit I) allowing petitioner to devise whatever method necessary to serve state-

subdivisions ignored by the Court in efforts of plaintiffs therein 04-cv-1193 to serve the

Amended Complaint and Sumnlons there. that then deponent did proceed to devise the

method to serve all the State subdivisions by due service in the case Forjone v California

in WDNY 06-cv-0080 therein, goes to gerrymander injury.

37. The order by WDNY Judge Richard J. Arcara transferring the case

Forjone v California WDNY 06-cv-0080 to NDNY 06-cv-1002 as related to Loeber v

Spurgo NDNY 04-cv-1 193 (see Exhibit J)goes to gerrymander injury.

38. An emergency appeal for equity relief of a three judge panel at 2"*Circuit

to address an ongoing gerrymandering injury is unresolved and is supported by

conclusive evidence that has a presumption of credibility to be rebutted herein.

39. That there is prima facie evidence of misapplication and misadministration

of the State Constitution Article 111as to redistricting of Senate. Assembly and House

seats from the April 2002 redistricting, notwithstanding any pre clearance process under

the Voting Rights Act (VRA) or review performed by the US Department of Justice.

40. There is conclusive presumptive evidence which is rebutablc by the NYC

BOE misapplication and misadministration of active voters list.

4 1.

There is conclusive evidence of speech and association injury as a result of

the burden imposed by the USPS and hYC BOE and or its agents.

42. That under Rule 703 for Non-profit Standard Mailing rates as relates to

any challenger or voter's expectation of reasonable effectiveness in participation in

sufiage is absolutely a component part of petitioners ballot access and right to know at

the mail box as a voter compounded as a result of the gerrymandering injury.

43. Petitioner has been injured by denial of access to a certified voting list as

require by this court in the appeal case Sclzrrk v. Williatns. 44 F.3d 48. 6 1 n. 13 (2d Cir.

1994). and therein this Court stated that EL Section 5-602 provides in relevant part:

"The board of elections shall prepare at least fiflj. copies of such pamphlet and shall send at least one copy of each such list to the state board of elections. at least t~vocopies to the county cliair~ilanof each political party. and shall keep at least five copies for public inspection at each main office or branch of the board. Other copies shall be sold at a charge not e~ceedingthe cost of publication."

41. The judge erred when the court suggests that sonlehow there could not

possibly be an underlying civil rights conspiracy involving the York and Scottish Rite

Freemasonry operating with those of the Sovereign Military Order of Malta, and as such

must be deemed on its face, based upon readily available history, the court's arbitrary and

capricious process resulting in the Orders appealed from herein.

45. That there is a presumption of law that by definition of conspiracy has

been considered by the New York State legislature, that has an underlying reason for

enactment of NYS Civil Rights Law Chapter 6 Article 5A and as relates to the

Benevolent Order Law as a standard of measure for operation of any conspiracy against

suffrage and individual liberty, and is cited by petitioner in the Amended Complaint.

46. That deponent has read the Amended Complaint with eight (8) Causes of

action having 14 Exhibits annexed thereto shown as Exhibit D, and makes this affidavit

in support of the demand for a temporary restraining order of the USPS, the NYC Board

of Election and its agents to perform their duty under law in the matter of ascertaining the

accuracy of the active voter lists in the 18'

Senate District and that those related to the

state sub-division of Brooklyn, a.k.a. Kings County, as time is of the essence for my

ballot access for the Republican Party Primary and General Election in November 2008

election: and

47. that NYC Defendants are ultra vires under the State Constitution Article

III and act with the USPS and agents by operation of the NVRA and HAVA are c~llpable

herein and are operating together in conspiracy as applies herein as if under the Bivens

case decision by the US Supreme Court.

48. Petitioner is without a constitutionally mandated Senate, Assembly and

Congressional District as apply to the mandatory relationship to the component ADSthat

must be wholly within the respective senate district, and that based upon the breach of

NYC BOE fiduciary duty and social contract as applies, both segregate active voters and

without ascertaining citizen status of active voters, and that petitioner is under imminent

threat of injury from alicn(s) voting with impunity by inaccurate voting lists; and

49. that Petitioner has no other means for relief available and has expended all

options and is entitled to expedited suffrage protection herein. and

50. that deponent knows the contents thereof; the sane is true to deponents

own knowledge, except as to the matters therein stated to be alleged on information and

belief, and as to those matters deponent believes it to be true, and that the grounds of

deponent's beliefs as to all matters not stated upon information and belief are as follows:

3rdparties, books and records, and personal knowledge.

51. That deponent cites the March 10.2008 Memorandum of Law entitled

Stolen Identiries. Stolen Votes: A Case Study in Voter Inlpersonotion by attorney Ham A.

von Spakovs~of the Heritage Foundation in conjunction with the January 9.2008.

hearing before the Supreme Court of the United States with oral arguments in Crmvford

v.MarionCounty Eleclion Board, a case challenging the constitutionality of an Indiana

law that requires most individuals who vote in person to present a government-issued

photo identification Indiana's law was upheld by a federal district court and by the

Seventh Circuit Court of Appeals, (see Exhibit K herein), applies herein too.

52.

That there is longstanding proof of ongoing vote fraud in Brooklyn that is

alleged to be still ongoing as indicated by the presumptive proof of the foregoing

evidence that shows there is questionable starus of the NYC BOE maintained active voter

list, and that District was premature in itssua sponte dismissal of the case herein

Wherefore, petitioner prays for emergency relief with a TRO and prelimioary injunction

for mandamus equity relief for ballot access andexpedited remand and order:

for a threejudge panel herein to hear an expedited oral presentation on the alleged

injury that results as an ongoing gerrymandering injury to determine whether or not

the StateConstitutionas to gerrymandering is a nullity

NYC BOE immediately provide petitioner with a certified active voter listfor the

18'

Senate District for the costs of the media which is one dollar for a CD.

NYC BOE and its agents provide access for petitioner checking of buff cards;

NYC BOE is to provide a certified copy of the NYC Active Voter list to the Justice

Department for it to ascertain whether or not any registered voter is legally able to do

so especially checking such list with the records under its control with Immigration

and Customs Enforcement, and that

Different and additional relief deemed necessary by this corn

Sworn to before me this day of July 2008

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CHRISTOPHER EARL STRmK,

v.

Plaintiff.

UNITED STATES POSTAL SERVICE (USPS). JAMES C. MILLER 111. Chairmarl USPS Board of Directon THE CITY OF NEW YORK (NYC)

NYC BOARD OF ELECTIONS: James J. Sampel. Prrsidznt, :

:

Frederic M. Umane Secretary, Anthony Corno, Julic Dent.

Nero Graham Jr

Terrence C. O'Connor. Juan Carlos

:

Case No.: 08-CV-1744

(--I

NOTICE

(LB)

OF,.

.--

.-

.*

-

APPEAL

Polanco, Nancy Mottola-Schacher. Gregory C. Soumas. Maryann Ye~ellaeach in official capacity and Individunlly; :

Christopher Earl Strunk, Plaintiff pro se. henby t~ppealsfrom each and every part of rhe

find Order and Civil Judgment of Judge Alljme R. Ross dated June 11.2008 to dismiss

sua sponte the esparte .Amended Complaint with prejudice. This appeal is against each of

the above captioned defendants. and is being =quested as an emergency appeal. on an

es@ted

basis.

Dated: June 30.2008 Brookl~nNew York

Cc: hTS Attorney General

US Attorney Genenl

NYC Corporation Counsel NYC Board of Elections

593 Vanderbill Avenue. #28 1

Brooklyn, New York 11238 63 1 745-6402, uncasvotes2(ii,~ahoo.com

EXHIBIT A

UNITED STATES DISTRICT COURT EASTERN DISTNCT OF NEW YORK

----------------------------------------------- x

CHRISTOPHER EARL STRUNK,

-against-

Plaintiff,

United States Postal Service (USPS); JAMES C. MILLER 111, Chairman USPS Board of Directors; The City of New York (NYC); NYC Board of Elections: JAMES J. SAMPEL, President, FREDERIC M. UMANE, Secretary, ANTHONY COMO, JULIE DENT, NERO GRAHAM, JR., TERRENCE C. O'CONNOR, JUAN CARLOS POLANCO, NANCY MOTTOLA- SCHACHER, GREGORY C. SOUMAS, MARYANN YENNELLA, each in official capacity and individually,

Defendants. -------------------------------------------------------- X ROSS, United States District Judge:

FILED

IN CLERK'S OFFlCE

u.$.OlslRH=tCOURT W.N.Y. *

* JUN 13 M08

NOT FOR PRINT OR

8

I

ELECTRONIC PUBRE~@OFFICEBCW

08-CV-1744 (ARR)(LB)

ORDER AND CIVIL JUDGMENT

Plaintiff ChristopherEarl Strunk, appearingpro se, brings this action under the Civil Rights

Act, 42 U.S.C. $$ 1983, 1985, 1988, and under various voting rights statutes, including the Voting

Rights Act, 42 U.S.C. $ 1973,the 1993National Voter Registration Act, and the 2002 Help America

to Vote Act. By order dated May 9,2008, the court granted plaintiff's request to proceed informa

pauperis pursuant to 28 U.S.C. $ 1915(a), dismissed the civil rights claims, but granted plaintiff

leave to replead the voting rights claims. On June 9,2008, plaintiff filed an amended complaint.

However, the amended complaint does not cure the deficiencies found in the original complaint,

ignores the court's dismissal of the civil rights claims, repeats allegations previously found to be

frivolous and fails

to state a claim pursuant to 28 U.S.C. 4 191 5(e)(2)(B). Ln essence, pIaintiff re-

submits the same complaint the court found deficient in the first place with a few immaterial

alterations. Accordingly, it is

EXHIBIT B

ORDERED, ADJUDGED AND DECREED: That the action is dismissed for

failure to state a claim and as frivolous. 28 U.S.C. $1915(e)(2)(B). The court certifies pursuant to

28 U.S.C. 5 1915(a)(3)

-

that any appeal would not be taken in good faith and therefore informa

pauperis status is denied for the purpose of an appeal. Co~pedgev. United States, 369 U.S. 438,

444-45 (1962).

The Clerk of Court is directed to close this cas

SO ORDERED.

Dated: Brooklyn, New York

June

11 ,2008

LWITED STATESDISTRICT COURT E.4STERY DISTRlCT OF NEV*YORK

---------------------------------------x

NOT FOR PRINT OR

CHRISTOPHER EARL STRLYK,

ELECTRONlC PUBLlC.I\TIOh'

Plaintiff.

I\*lEMORANDUM

tLKD ORDER

United Sates Postal Service (USPS);

J.4MES C. MILLER ill, Chairman USPS

Board of Directors; The Ciry of Sew York VYC):

NYC Cit\-Council Speaker CIlRISTINE QUINN:

NYC Mayor MICHAEL BL0031BERCi; SYC Board of Elections: J-AMESJ. S-AMPEL, President. FREDERIC M. UMAYE, Secretaq,

ANTHOXY COMO, JULIE DEYT. NERO

GRAH,k\I. JR., TERRENCE C. O'CONNOR JUAN C-4RLOS POL?INCO. K-WCY MOTTOLA-

SCHACHER, GREGORY C.SOUMAS.

MARY.4\T4 YENNELLA, each in official capaci~and individually,

Defendants.

---------------------------------------------------------- S

ROSS, United States District Judge:

Plaintiff Christopher Earl Strunk, appearingpro se, brings this action. infer alia, under the

Civil Rights Actl 42 U.S.C.$9 1983, 1965, 1986, 1988.

proceed i1:-forn~apauperispursuant to 28 L1.S.C. § 191j(a).

ro repiead as set forth belo\\,.

Backmound

Tht court grants plaintiffs requesr to

The complain1 is dismissed with leave

Plaintiff is a self-described "Republican Pw Candidat?" who is '*seekingballot access and

supportoithe State Republican Party in Brookl-m