____________________________________________________________________________

__________________________________________
:SUPERIOR COURT OF NEW JERSEY
Assemblyman Reed Gusciora, Stephanie :APPELLATE DIVISION
Harris, New Jersey Coalition for :DOCKET NO.: A-002842-04T1
Peace Action, New Jersey Peace :
Action, :
: CIVIL ACTION
Plaintiffs/Appellants, :
:
v. :
:
: ON APPEAL FROM
Richard J. Codey, Governor of the State : SUPERIOR COURT OF NEW JERSEY
of New Jersey (in his official capacity) : LAW DIVISION, MERCER COUNTY
and Peter C. Harvey, Attorney General of :
the State of New Jersey (in his official :
capacity), : SAT BELOW
:Linda R. Feinberg, A.J.S.C.
Defendants/Respondent. :
____________________________________________

PLAINTIFFS’/APPELLANTS’ BRIEF

Penny Venetis, Esq.

Frank Askin, Esq.
Rutgers Constitutional Litigation Clinic
123 Washington Street
Newark, New Jersey 07102
(973) 353-5687

Attorneys for Plaintiffs/Appellants

 PRELIMINARY STATEMENT / STATEMENT OF THE FACTS1

1
In an effort to conserve space and avoid repetition, specific facts
relevant to the insecurities of electronic voting machines, and the
inadequacy of New Jersey testing to detect software flaws and manipulation
will be discussed in the points of the argument that are related to those
issues.
 On Election Day 2004, 7,699 electronic voting machines, otherwise known

as Direct Recording Electronic voting machines (“DREs”) were available for

use in fifteen of New Jersey’s twenty-one counties.2 Currently there are

4,814,970 registered voters in New Jersey; 3,494,193 of them are registered

to vote on DREs.3 By the time this appeal is heard, Essex and Warren

counties may also be using DREs, adding another 462,461 to the total of

voters who can cast their ballots electronically.4

Even though millions of votes are cast on DREs each election day, DREs

are not regulated. This lack of regulation is remarkable given the level of

detail contained in Title 19 for almost every aspect of voting. The lack of

regulation means that county officials are left to their own devices in

conducting elections with DREs. There is no uniformity in dealing with

2
Office of the Attorney Gen., N.J. Dep’t of Law and Public Safety, Division
of Elections Voting Equipment Inventory, at http://www.state.nj.us/lps
/elections/Voting_Machine_invent_11.1.04.pdf (last visited June 4, 2005),
(60a-61a). Hereinafter this document will be referred to as “Attorney
General’s DRE Inventory List.”
3
Office of the Attorney Gen., N.J. Dep’t of Law and Public Safety,
Registered Voters as of the Close of Registration for the Primary Election
to be Held on June 7, 2005, at
http://www.state.nj.us/lps/elections/05primaryelection/2005primary_elect_byc
ounty.pdf (last visited June 4, 2005).
4
Id.

2
routine voting procedures, or with special situations such as machine

malfunctions, vote manipulations and recounts.

Many reputable studies written by computer scientists (who are uniquely

qualified to evaluate the security of DREs), have shown that DREs are

unreliable and prone to errors.5 Indeed, there is no way to determine

whether DRE software in New Jersey DREs is functioning properly, or if it

has been corrupted to manipulate election results. Certification of Andrew

Appel ¶ 70, (October 14, 2004), (376a-377a); Certification of Rebecca

Mercuri ¶¶ 9, 12, 35, summ. (a),(c), (October 17, 2004), (306a-307a, 308a,

317a, 325a, 326a). This is especially true in New Jersey because the DRE-

software testing procedures used here are inadequate to detect flawed and/or

fraudulent software. Id. ¶¶ 63-70,(372a-377a); Supplemental Certification of

Andrew Appel ¶¶ 1-8, 10-13, (Oct. 25, 2004), (417a-421a, 421a-422a); Mercuri

Certif. ¶¶ 30-37, (315a-319a).

As will be discussed throughout this brief, Plaintiffs’ expert

witnesses, computer security experts, have certified that votes cast on New

Jersey DREs can be fraudulently manipulated if an unscrupulous person has

5
See Rebecca Mercuri, Humanizing Voting Interfaces, at
http://notablesoftware.com/Papers/UPAPaper.html, Jul. 11, 2002 (last visited
Jun. 4, 2005); RABA Technologies, LLC, Trusted Agent Report: Diebold
AccuVote-TS Voting System, Jan. 20, 2004, (87a-112a); Aviel Rubin et al.,
Analysis Of An Electronic Voting System, IEEE Symposium On Security And
Privacy 2004, IEEE Computer Society Press, May 2004 (commonly known as the
“Hopkins Report”), (63a-86a); Science Applications International Corporation
(“SAIC”), Risk Assessment Report: Diebold AccuVote-TS Voting System and
Processes, Sep. 2, 2003, at
http://www.dbm.maryland.gov/dbm_publishing/public_content/dbm_search/technol
ogy/toc_voting_system_report/votingsystemreportfinal.pdf (last visited Jun.
4, 2005).
3
unobserved access to DREs for as little as five to ten minutes. See, e.g.,

Appel Certif. 50, 53, (367a-368a); Supplemental Certification of Andrew

Appel ¶ 15 (Oct. 25, 2004), (423a-424a); see also Mercuri Certif. 18-29,

(310a-315) (discussing vulnerabilities of DREs to tampering).

DREs alter vote totals not only as a result of malicious manipulation,

but also as a result of inadvertent error (by a poll worker, DRE transporter

or software writer), or defective software. Appel Certif. ¶¶ 9-13, 45-54,

60 (347a-349a, 365a-369a, 371a); Appel Supp. Certif. ¶¶ 3, 10-11, 15, (418a,

421a-422a, 423a-424a); Mercuri Certif. ¶¶ 10-14, 19-21, 23-25 (307a-308a,

310a-311a, 311a-313a).

Because it is impossible to know whether New Jersey’s DREs are counting

votes correctly, they violate the right to vote and to have one’s vote

counted accurately, guaranteed by the New Jersey Constitution and Title 19

of the New Jersey Code. See New Jersey Democratic Party v. Samson, 175 N.J.

178, 187 (2002)(citing Reynolds v. Sims, 377 U.S. 533, 555 (1964)(implicit

to right to vote is right to have vote counted as cast)); N.J.S.A. §§ 19:48-

1(h), 19:61-1(b) (2005).

Notably, the same makes and models of DREs used in New Jersey have been

rejected as insecure and unreliable by California,6 Nevada,7 Ohio,8 and New

6
Office of the Sec’y of State of Cal., Decertification and Withdrawal of
Approval of AccuVote-TSx Voting System as Conditionally Approved November
20, 2003, and Rescission of conditional Approval, at
http://www.ss.ca.gov/elections/ks_dre_papers/decert.pdf (April 30, 2004).
7
Geoff Dornan, Heller: Clerks Must Use Sequoia Voting Machine, NEVADA APPEAL,
Dec. 11, 2003, available at
http//:www.nevadaappeal.com/apps/pbcs.dll/article?AID=2003112110010 (lasted
visited Jun. 5, 2005).
8
Tom Chansky, Comprehensive Study Charts Path To Success, Spirit of
Citizenship & Democracy, Winter 2004, at 4. Available at
4
York City,9and are no longer used

there.http://www.ss.ca.gov/elections/ks_dre_papers/decert1.pdf;

Additionally, on April 7, 2005, Pennsylvania’sSecretary of State announced

that Pennsylvania’s DREs were too insecure to trust with the right to vote.

[I]t was discovered during the reexamination that an intruder

could conduct malicious activities on the personal computer at the
central location . . . and erase any evidence that such activity
had taken place because its electronic log is an unencrypted file.

Commonwealth of Pennsylvania, Dep’t of State, Reexamination Results of

Unilect Corporation’s Patriot Direct Record System, at 3, Apr. 7, 2005.10

While the Unilect machines are not currently used in New Jersey, they are on

New Jersey’s list of “certified machines,” and could be purchased by any

county in New Jersey. Certified Voting Machines/Devices In New Jersey at

4.11 Additionally, despite paying $24.5 million for DREs, the Election

Supervisor of Miami-Dade County in Florida recently recommended

discontinuing DRE use. McNelly Torres and Chrystian Tejedor, 2004 Election

Problems Cited; Advocacy Group Studies Miami-Dade; Errors, Machine

Malfunctions Found In Review, Sun-Sentinel (Florida), May 26, 2005, at 48.

By filing this lawsuit, Plaintiffs ask that the New Jersey judiciary

http://www.sos.state.oh.us/sos/pubAffairs/spirit/winter2004.pdf. (last
visited Jun. 4, 2005).
9
Frank Lombardi, Suit Aims to Rescue Electronic Voting, Daily News, Mar.
24, 1996, at 28; Certification of Douglas Kellner, (Oct. 12, 2004), (433a-
438a).
10
Available at
http://www.dos.state.pa.us/dos/lib/dos/20/dos_report_unilect_syst
em.pdf (Last Visited Jun. 4, 2005).
11
Available at
http://www.state.nj.us/lps/elections/Certified_Voter_
Machine_Listings_7_16_04.pdf (last visited Jun. 4, 2005).

5
enjoin the use of all DREs in the State until they can satisfy the New

Jersey Constitution’s and Title 19's requirements that all votes be counted

accurately and as cast. The most efficient and effective way to do this is

through the “Mercuri Method,” otherwise known as a voter-verified paper

ballot.

Mercuri Method - a paper ballot is prepared using an electronic voting

system and displayed behind a transparent window. The voter is
provided with an opportunity to verify the choices printed on the paper
ballot prior to performing an action that deposits the ballot into a
secured ballot box. The voter must also be provided with a way of
voiding the ballot prior to casting if it is incorrect and, in such a
case, must be provided with another opportunity to verify and cast a
ballot.

Mercuri Certif. ¶ 42, (320a-321a). Voter verified paper ballots have been

endorsed by voting technology research studies conducted across the country.

See, e.g., RABA Technologies, LLC., Trusted Agent Report: Diebold AccuVote-

TS Voting Systems at 23 (2004), (109a)(unanimous agreement among security

review team members that “introduction of voter-verifiable paper receipts is

absolutely necessary in some limited form”); Aviel Rubin et al., Analysis of

an Electronic Voting System at 21 (2004), (83a). Additionally, four states

(Alaska,12 California,13 Maine,14 and Ohio15) require that all votes cast on

DREs produce a voter verified paper ballot to secure the integrity of the

franchise.16 Three states (Illinois,17 New Hampshire18, and Vermont19)

12

Alaska Stat. § 15.15.032 (c).

13
Cal. Elec. Code § 19250 (2005).
14
21-A M.R.S. § 812 (10) (2004).
15
Ohio Rev. Code Ann. § 3506.10 (P)(Anderson 2005).
16
Plaintiffs’ Complaint and brief submitted in support of their
motion for a TRO erroneously state that Oregon requires that all
6
require that voting be performed exclusively by paper ballot, because they

believe that DREs are too insecure to trust with the right to vote.

Although legislation has been introduced in New Jersey to require that

DREs produce a voter verified paper ballot, that legislation is in its

nascent stages, and is certainly not law. Because the integrity of the

right to vote is being compromised by DREs, this Court should reinstate this

lawsuit. It is incumbent upon the judiciary to protect the franchise in the

event that the legislature continues to remain silent on DRE safety.

PROCEDURAL HISTORY

An understanding of the procedural history of this case is critical to

votes cast on DREs be required to produce a voter-verified paper

ballot. Compl. ¶¶ 10, 68, (4a, 32a); Pl. Br. at 50-51,(237a-
238a). Oregon’s legislation requiring a voter-verified paper
ballot is still pending. H.B. 2169, 73rd Or. Leg. Assembly, Reg.
Sess. (Or. 2005). When this lawsuit is reinstated, Plaintiffs
will amend the Complaint to correct this error.
17
10 Ill. Comp. Stat. 5/24A-16 (4) (2005).
18
N.H. Rev. Stat. Ann. § 656:41 (2004).
19
17 V.S.A. § 2478 (e) (2004).

7
this Court’s comprehending the many ways Judge Feinberg erred in dismissing

the Complaint, and in converting Defendants’ motion to dismiss into a motion

for summary judgment.

I. THE COMPLAINT.

The Complaint was filed on October 19, 2004, is 45 pages long, and

contains four exhibits. (1a-45a). The Complaint discusses in detail how

DREs violate the New Jersey Constitution and Title 19 of the New Jersey

Code. Below appears a summary of portions of most of the Complaint to

demonstrate that it provides enough information to have survived Defendants’

motion to dismiss.

ï Paragraphs 26-33, (11a-14a), fall under the subheading “The DRE

Machines Scheduled For Use In New Jersey Are Insecure.” These

paragraphs detail why New York City rejected the Sequoia Pacific AVC

Advantage, and Ohio, California, and Nevada rejected the ES&S iVotronic

and Sequoia Pacific AVC EDGE as insecure and unreliable. These

paragraphs also discuss findings of the California and Ohio Secretaries

of State that the iVotronic and the AVC EDGE can be tampered with very

easily, and are too insecure to be trusted with the right to vote.

This section also specifies that 160 AVC EDGEs, over 6,500 AVC

Advantages, and 361 iVotronics are used in New Jersey.

ï Paragraphs 34-49, (14a-25a) fall under the subheading “Electronic

Voting Machines Have Failed To Accurately Read Votes Cast In Elections

8
 Throughout The Country.” This section contains specific examples of

how the Sequoia Pacific AVC Advantage DREs malfunctioned in South

Brunswick and in Mercer County, and disfranchised Plaintiff Stephanie

Harris, Mercer County resident Glenn Cantor, and other voters.

ï Paragraph 43 (which is eight pages long, single-spaced), (17a- 23a),

gives examples from around the country of how the very same makes and

models of DREs used in New Jersey have failed to record votes accuracy.

There are eighteen incidents discussed in the following categories:

(A) DREs Have Failed To Register Properly All Votes Cast,

(17a-19a);

(B) Flawed DRE Software Has Lost Votes, (19a-20a);

(C) DRE Cartridges Failed To Record Votes, (20a-21a);

(D) Vote Tabulation Systems Used With DREs Have Failed To Provide
Accurate Vote Totals, (21a-23a);

(E) Poorly Trained Poll Workers And DRE Industry Technicians Have
Jeopardized Votes, (23a); and

(F) DRE Hardware Has Hampered Voting, (23a).

ï Paragraphs 44-57, (24a-28a), identify three DRE models used in New

Jersey (the Sequoia Pacific AVC Advantage, Sequoia Pacific AVC EDGE,
and ES&S iVotronic), and discuss in detail how those machines are
insecure, vulnerable to manipulation, and how they cannot be trusted
with our votes.

ï Paragraphs 58-60, (28a-29a), fall under the heading “Testing Of The

DREs Is Insufficient To Detect Programs That Manipulate Votes” and

discuss critiques of New Jersey’s DRE testing offered by renown

computer science experts.

ï Paragraph 61-66, (29a-31a), fall under the heading “The Process For

9
 Certifying Voting Machines Under N.J.S.A. §§ 19-48 Et Seq. And 19:53A-1

Et Seq. Is Not Sufficient to Ensure that DREs Will Be Secure and

Capable of Recording Every Vote.” These paragraphs discuss in detail

how there are no guidelines whatsoever in Title 19 for certifying DREs.

All references in Title 19 to “electronic voting machines” are to

optical scanners that count paper ballots! See N.J.S.A. 19:53 A-1 et.

Seq. They also discuss how New Jersey DREs are completely unregulated.

ï Paragraph 67-73, (31a-33a), fall under the heading “New Jersey

Seriously Lags Behind Other States and Counties That Have Recognized

the Insecurity of DREs and Have Decertified Them and Disallowed Their

Use.” This section discusses how eight U.S. states have passed

legislation requiring either that voting machines produce voter

verified paper ballots,20 or that all votes be cast on paper ballots,

and how two countries (Ireland and Venezuela) decommissioned the same

DREs being used in New Jersey because the DREs were too insecure.

ï Paragraphs 74-89, (33a-39a), discuss in detail the efforts made by

Plaintiffs and other New Jersey citizens to persuade the Attorney

General and Governor to make New Jersey DREs more secure and to require

that they produce a voter verified paper ballot to independently audit

the DREs to ensure that they tabulate votes accurately.

ï Paragraphs 90-108, (40a-44a), list the causes of action under which

Plaintiffs seek relief.

20
See footnote 16.

10
 COUNT ONE, (40a), alleges that the Defendants have
failed to implement basic security measures to ensure
that every vote is counted as cast, in violation of the
New Jersey Constitution.21

COUNT TWO, (41a-42a), alleges that the Defendants

violated the New Jersey Constitution’s guarantee of
equal protection. In event of a recount, DRE voters have
no assurance that their votes will be treated the same
as ballots cast on paper ballots, optically scanned
ballot cards or lever machines. In the event of a
recount, elections will be determined by those votes
that can be independently audited - non-DRE votes.

COUNT THREE, (42a), alleges that because DREs cannot be audited

independently and no instructions exist in Title 19 on how to
conduct recounts, that DREs violate State guidelines concerning
recounts (N.J.S.A. § 19:28-1 et seq.)

COUNT FOUR, (43a), alleges that DREs violate the

statutory right specified by N.J.S.A. § 19:48-1(d),(f)
and § 19:53A-3(b) that voters be permitted to cast their
vote for the candidates or ballot issue of their
choosing.
COUNT FIVE, (43a-44a), alleges that DREs violate the
statutory right that voting equipment be secure, as
guaranteed by NJSA § 19:53A-3(g).

COUNT SIX, (44a), alleges that DREs violate the

statutory requirement guaranteed by N.J.S.A. § 19:48-
1(h) and § 19:53A-3(h) that all votes be counted
accurately.

It is clear from the above-detailed description that Counts One through

Six are supported strongly by the factual data contained in the rest of the

Complaint.

21
Plaintiffs discovered an error in the Complaint. Count One
alleges that New Jersey’s DREs violate Article III ¶ 3(a) of the
Constitution, rather than Article II, Sec. I, Para. 3. When this
lawsuit is reinstated, Plaintiffs will amend their Complaint to
correct this error.
11
II. PLAINTIFFS’ MOTION FOR A TRO TO ENJOIN THE USE OF DREs.

A. PLAINTIFFS’ BRIEF SUPPORTING THEIR MOTION FOR A TRO.

In addition to filing their Complaint on October 19, 2004, the

Plaintiffs also moved for a temporary restraining order to enjoin the use of
New Jersey’s insecure DREs. The Plaintiffs’ brief in support of their TRO
is 115 pages and provides detailed support for all the claims in the
Complaint, (170a-302a). The structure of the brief mirrors the structure of
the Complaint. Even a quick glance of the brief’s table of contents reveals
the thoroughness and soundness of Plaintiffs’ legal analysis. See Pl. Br.
I-vi, Table of Contents, (171a-176a).

B. CERTIFICATIONS SUPPORTING PLAINTIFFS’ MOTION FOR A TRO.

Plaintiffs submitted several certifications in support of their TRO.

Those certifications, listed below, give ample support to Plaintiffs’ legal

claims of how DREs violate the New Jersey Constitution and Title 19.

Professor Andrew Appel of Princeton University is an expert in computer

security. His certification discusses the insecurity of DREs in
general, and the insecurity of specific DREs used in New Jersey. Two
Sequoia Pacific DREs– the AVC Advantage (by far the most prevalent DRE
in New Jersey) and the AVC EDGE– can be reprogrammed, without
detection, to throw an election in as little as five to ten minutes.
Appel Certif., (343a-416a).

Rebeca Mercuri, Ph.D., of Harvard University is a computer security

expert who specializes in the security of electronic voting machines.
Dr. Mercuri discusses the insecurity of DREs in general, and the
insecurity of specific DREs used in New Jersey, especially the Sequoia
Pacific AVC Advantage. Mercuri Certif., (303a-342a).

Plaintiff Stephanie Harris discusses how in 2004 she was

disenfranchised by a DRE in Mercer County. Certification of Stephanie
Harris (Oct. 13 2004), (425a-428a).

Glenn Cantor discusses how he was disenfranchised by a DRE in Mercer

County in 2004. Certification of Glenn Cantor (Oct. 17, 2004), (429a-
432a).

Douglas Kellner, Commissioner of Elections for New York City, discusses

how, upon his urging, in 1995 Mayor Giuliani canceled NYC’s contract to
buy 7,000 Sequoia Pacific AVC Advantage machines because the machines
12
 are too insecure to trust with counting votes. Kellner Certif., (433a-
438a).

Beth Feehan of Mercer County, discusses how she collected 20,000

signatures of New Jersey residents opposing DREs that do not produce a
voter verified paper ballot, and presented the signatures to then
Governor McGreevey in the summer of 2004. Certification of Beth Feehan
(Oct. 14, 2004), (439a-440a).

C. DEFENDANTS’ FIRST MOTION TO DISMISS (OCTOBER, 2004).

On October 25, 2004, the Defendants opposed Plaintiffs’ motion for a

TRO. They filed 48 certifications (approximately 300 pages, (444a-767a)) to
bolster their opposition to Plaintiffs’ TRO. Defendants also moved to
dismiss the Complaint.

D. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS.

On October 25, 2004, Plaintiffs filed a reply brief in support of their

motion for a TRO, and a response to Defendants’ motion to dismiss.

Plaintiffs also filed a supplemental Certification of Professor Andrew Appel

who refuted statements contained in the Defendants’ certifications. (417a-

424a). Specifically, Professor Appel found that the security procedures

described in Defendants’ certifications for the handling of DREs were lax

and facilitated malicious tampering of DRE software. Appel Supp. Certif. ¶¶

1-15, (417a-424a). He also found that the testing for DREs described in the

Defendants’ certifications was inadequate to detect malicious software that

can throw an election. Id.

E. DENIAL OF THE PLAINTIFFS’ AND DEFENDANTS’ MOTIONS

On October 26, 2004, in a fifty-five page opinion, Judge Feinberg

13
denied Defendants’ motion to dismiss (without prejudice), and Plaintiffs’

motion for a TRO. See Gusciora v. McGreevey, No. MER-L-2692-04 (Law Div.

Oct. 26, 2004)(768a-823a).22

III. DEFENDANTS’ SECOND MOTION TO DISMISS.

A. DEFENDANTS’ DECEMBER 2004 MOTION TO DISMISS.

On December 7, 2004, the Defendants again moved to dismiss the

Complaint, in lieu of filing an answer. Defendants raised the following

legal arguments in support of their motion to dismiss: separation of powers

(Point I); lack of ripeness (Point II); failure to include indispensable

parties (Point III); and lack of standing of the Plaintiff organizations

(Point IV). See Table of Contents, Defs.’ Motion To Dismiss, December 7,

2004, I, (825a).

Most relevant to this appeal, is that nowhere in their brief or their

motion to dismiss did Defendants refer to any of the certifications that

they had filed with the court in October 2004, upon which the Court relied

heavily to dismiss the Complaint.

B. PLAINTIFFS’ RESPONSE TO DEFENDANTS’

SECOND MOTION TO DISMISS.

Plaintiffs opposed the Defendants’ second motion to dismiss. In their

brief, Plaintiffs stated that Judge Feinberg’s analysis of the Defendants’

22
Shortly after she issued her October 26th opinion, Plaintiffs
filed a motion and brief to modify the Court’s opinion, as it was
rife with errors. Judge Feinberg denied this motion.
14
motion should be limited solely to the four corners of the Complaint.

Plaintiffs also submitted the certification of Daniel Preston, the Chair and

Challenger-at-Large for the Democratic Party in Princeton Township, to let

Judge Feinberg know that on Election Day 2004, DREs in Mercer County failed

to register votes. Certification of Daniel Preston, Dec. 21, 2004 at ¶¶ 1-

20, 24, (828a-834a, 835a).

IV. JANUARY 27, 2005 CONVERSION OF MOTION TO DISMISS INTO A MOTION FOR
SUMMARY JUDGMENT, AND DISMISSAL OF COMPLAINT.
On January 27, 2005 Judge Feinberg granted Defendants’ second motion to

dismiss. She issued a thirty page opinion (dated January 13th) supporting

the dismissal. Gusciora v. McGreevey, MER-L-2691-04, slip op. (Law Div.

Jan. 13, 2005) (hereinafter “Jan. 2005 Op.”), (136a-166a).

Pages eleven through twenty-two of the opinion, (147a-158a), discuss in

detail certifications that were never submitted by Defendants in their

December motion to dismiss. As the Court concedes, these certifications

were offered by the State “[i]n opposition to the application for injunctive

relief[.]” Id. at 11, (147a)– which was disposed of by the Court on October

26, 2004.

Thus, without telling the parties, she effectively converted

Defendants’ motion to dismiss into a motion for summary judgment. In

considering the motion for summary judgment, Judge Feinberg made all

inferences of fact in favor of the Defendants, and weighed the evidence

presented. While her opinion discusses extensively Defendants’

15
certifications, Judge Feinberg barely mentions Plaintiffs’ submission in

support of their motion for a TRO. Judge Feinberg dismissively summarizes

the Plaintiffs’ submissions to the Court as follows: “Plaintiffs rely on

newspaper articles and other publications regarding alleged voting machine

problems in other jurisdictions, and theoretical dissertations of the

possibility of voting machine failure.” Jan. 2005 Op. at 10, (146a).

This characterization shows that Judge Feinberg failed to

acknowledge the certifications of disfranchised New Jersey voters

Plaintiff Stephanie Harris and Glenn Cantor, or Daniel Preston’s

discussion of Election Day 2004 disfranchisement of voters by DREs. She

also ignored the certifications of computer security experts Dr. Mercuri

and Professor Appel, who comment specifically on the insecurity of New

Jersey DREs, and the ease with which they can be manipulated to throw an

election without detection. Plaintiffs filed this appeal because

Judge Feinberg erred in converting the December 7, 2004 motion to

dismiss into a motion for summary judgment. She also erred in

dismissing the Plaintiffs’ valid Complaint.

ARGUMENT

I. THE TRIAL COURT IMPROPERLY DISMISSED THE COMPLAINT

BECAUSE THE COMPLAINT CLEARLY SUGGESTS A CAUSE OF ACTION.

A. THE COMPLAINT ARTICULATES A CAUSE OF ACTION

UNDER TITLE 19 AND THE NEW JERSEY CONSTITUTION.
16
 The dismissal of Plaintiffs’ Complaint was premature and clearly

erroneous. Under New Jersey Court Rule 4:6-2(e), “the test for

determining the adequacy of a pleading [is] whether a cause of action is

‘suggested.’” Printing Mart-Morristown v. Sharp Electronics Corp., 116

N.J. 739, 746 (1989). A reviewing court’s evaluation of a dismissal is

“limited to examining the legal sufficiency of the facts alleged on the

face of the complaint . . . For purposes of analysis plaintiffs are

entitled to every reasonable inference of fact.” Id. The Printing Mart

rule necessitated a denial of Defendants’ motion to dismiss.

In their Complaint, Plaintiffs made claims under New Jersey’s

Constitution and Title 19 of the New Jersey Code. The Complaint

contains six causes of action. It alleges that New Jersey’s insecure,

and easily-tampered-with DREs violate the New Jersey Constitution (the

right to have one’s vote counted as cast, and the right to have one’s

vote given equal weight in the event of a recount) (Counts One and Two),

(40a-42a). The Complaint also alleges that New Jersey’s insecure DREs

violate various provisions of Title 19 that guarantee the right to have

one’s vote counted as cast, counted accurately in a re-count and that

voting machines be secure. (Counts Three, Four and Five), (42a-44a).

Each claim is clearly defined, and is supported by the allegations

contained throughout the Complaint.

A full discussion of almost every paragraph of the Complaint

appears in the “PROCEDURAL HISTORY” section of this brief, on pages 7-

17
12, and need not be replicated here. As demonstrated above, Plaintiffs

not only articulated their six causes of action, but, in the eighty-nine

paragraphs preceding the counts, they provided example after example of

how the causes of action were violated. These examples include: DRE

disenfranchisement in New Jersey, Complaint ¶¶ 35-41, (14a-16a);

disenfranchisement elsewhere caused by the same DREs used in New Jersey,

Complaint ¶¶ 43, (17a-23a); a thorough discussion about the insecurity

of New Jersey and other DREs, Complaint ¶¶ 26-33, 44-57, (11a-14a, 24a-

28a); and the inadequacy of New Jersey’s DRE testing and certification

process to detect flawed and fraudulent software, Complaint ¶¶ 58-66,

(28a-31a). This analysis more than satisfies Rule 4:6-2(e)’s

requirement that the Complaint merely suggest a cause of action.

Judge Feinberg erred in dismissing this lawsuit. She disregarded

the thorough presentation in the Complaint that clearly suggested causes

of action. Thus, this Court should reinstate this lawsuit.

B. JUDGE FEINBERG FUNDAMENTALLY MISUNDERSTOOD

PLAINTIFFS’ CLAIM AND MISAPPLIED A SEPARATION
OF POWERS ANALYSIS TO DISMISS THE COMPLAINT.

In dismissing the Complaint, Judge Feinberg improperly used a

separation of powers analysis. Even though on page 6 of her Opinion,

(142a), Judge Feinberg quoted N.J.S.A. 19:48-2 as authorizing a cause of

action for challenging the approval process for voting machines, she

nonetheless clearly misunderstood the Plaintiffs’ claims. Section

18
19:48-2 reads:

The certificate of approval, or a certified copy thereof,

shall be conclusive evidence that the kind of machine so

examined complies with the provisions of this subtitle,

except that the action of the Secretary of State in approving

such machine may be reviewed by the Superior Court in a

proceeding in lieu of prerogative writ.

(emphasis added).

Despite her acknowledgment of § 19:48-2's cause of action, Judge

Feinberg repeatedly stated in her opinion that Plaintiffs were

challenging the constitutionality of Title 19. See Jan. 2005 Op. at 5-

6, 24-26, 29-30, (141a-142a, 160a-162a, 165a-166a). She then invoked

the separation of powers doctrine several times to find that the

legislature should determine whether New Jersey voters should vote using

DREs. Id. She stated that “it is the job of [the legislature] to weigh

the pros and cons of various balloting systems.” Id. at 24, (160a)

(quoting Weber v. Shelley, 347 F.3d 1101, 1107 (9th Cir. 2003)).

Judge Feinberg’s invocation of the separation of powers doctrine

demonstrates a fundamental misunderstanding of this lawsuit. Plaintiffs

are not challenging the constitutionality of any portion of Title 19.23

23
Thus, Judge Feinberg's citation to cases supporting a
presumption of the constitutionality of Title 19 are completely
inapposite. See Jan. 2005 Op. at 5-6, (141a-142a). Those cases
are also irrelevant because they do not deal with the right to
vote. When a constitutionally protected right is burdened by a
statute, higher scrutiny is involved, any presumption of the
19
The Plaintiffs, rather, ask the Court to protect the franchise because

of the gaping hole in Title 19, which is silent on how to vote using

DREs.

As Plaintiffs repeatedly stated, Title 19 of N.J.S.A. does not

discuss DREs anywhere or even contemplate the use of DREs. Compl. ¶¶

61-2, 66, (29a, 30a-31a); Pl. Br. at 76-9, (263a-266a). Indeed, the

only reference to “electronic voting systems” in Title 19 is to optical

scan machines that count paper ballots! N.J.S.A. §§ 19:53A-1 et seq.

defines an electronic voting machine as one “in which votes are recorded

on ballot cards, and such votes are subsequently counted and tabulated

by automatic tabulating equipment at one or more counting centers.”

N.J.S.A. 19:53A-1(e) (emphasis added). Chapter 53A governs the physical

requirements of optical scan machines only, and does not contemplate the

use of other types of electronic voting systems such as DREs. Pl. Br. at

76-77, (263a-264a).24

Because Title 19 is silent on how to conduct elections using DREs,

each county using DREs is left to its own devices every election day.

There are no guidelines whatsoever in the event DREs malfunction (like

failure to count votes or mis-allocate votes) or are tampered with; nor

is there any instruction on how to conduct a recount.

validity of the statute disappears. See Bell v. Township of

Stafford, 110 N.J. 384, 395 (1988).
24
This portion of Title 19 was last modified in 1973, ten years
before Atlantic County purchased the first DRE in New Jersey.
Oct. 2004 Op. at 36, (804a).
20
 That is why Plaintiffs brought this lawsuit. They asked the Court

to protect the right to vote because the legislature and executive

failed to do so. Plaintiffs did not ask Judge Feinberg to overturn any

portion of Title 19 or to exert unauthorized power over the legislature.

Rather, they asked her to find that the unregulated use of DREs violated

the Constitution and Title 19's requirements that all votes be counted

as cast, and that all votes be given equal weight in the event of a

recount. Judge Feinberg’s separation of powers analysis is clearly

erroneous; and her dismissal of the Complaint is reversible error.

C. THE LEGISLATURE MANDATES JUDICIAL

INVOLVEMENT IN THIS LITIGATION.

Contrary to Judge Feinberg’s findings, the legislature requires

her to rule on the issues presented in this lawsuit. N.J.S.A. 19:48-1

states that: “Any thoroughly tested and reliable voting machines may be

adopted, rented, purchased or used, which shall be so constructed as to

fulfill the following requirements . . . .” The statute lists fifteen

specific statutory requirements that must be fulfilled in order for

voting machines to be “thoroughly tested and reliable.” See N.J.S.A. §

19:48-1 (a)-(o).

Although the Attorney General’s approval of a voting machine

presumes its compliance with the requirements of N.J.S.A. § 19:48-1,

21
"the action of the [Attorney General]25 in approving such machine may be

reviewed by the Superior Court in a proceeding in lieu of prerogative

writ." N.J.S.A. § 19:48-2. Thus, Title 19 expressly provides for

judicial review of the Attorney General’s evaluation system to ensure

that approved voting systems do indeed comply with the security

standards of Title 19.

Through this lawsuit, Plaintiffs do exactly what is authorized by

the legislature. Plaintiffs challenge DREs as being unreliable, not

secure, and not thoroughly tested, in violation of N.J.S.A. § 19:48-

1(d),(f),(h), and § 19:53A-3(b),(g),(h). See Compl. ¶¶ 100-108 (43a-

44a). Plaintiffs also challenge, through the statutorily authorized

motion in lieu of prerogative writ, see N.J.S.A. § 19:48-2, the

certification process used by the Attorney General to certify DREs.

Compl. ¶¶ 61-66, (29a-31a).

Plaintiffs’ allegations that DREs are insecure and not adequately

tested thus triggered the Court’s obligation, under § 19:48-2, to

scrutinize DREs to ensure that they comply with Title 19.

Contrary to Judge Feinberg’s findings, there is ample authority

for the judiciary to rule on the issues raised by this lawsuit. In

Samson, the New Jersey Supreme Court filled in a gap in a portion of

25
Although Title 19 lists the Secretary of State as the chief
election officer, in 1993, the Attorney General was assigned this
task. N.J.S.A. 19:31-6(a). Thus, statutory references to the
Secretary of State, should be read as pertaining to the Attorney
General.

22
Title 19 that was silent about balloting procedures. 175 N.J. at 184.

N.J.S.A. § 19:30-20 states that if a vacancy among the candidates occurs

51 days before the general election, a State committee must select a

replacement candidate at least 48 days before the general election. The

statute does not discuss what happens with ballots when a candidate

withdraws from a race less than 51 days before an election.

Despite this legislative silence, the New Jersey Supreme Court

permitted another candidate’s name to be printed on the ballot when

then-Senator Torricelli withdrew from the Senate race only 36 days prior

to the 2002 election. Id. at 199-200. The Samson court held that

unless there is actual statutory language preventing the judiciary from

filling-in statutory holes in election laws, the judiciary is obligated

to do so. Id. at 190 (contrasting Title 19's silence to New York and

Colorado statutes that expressly prohibit the replacement of a

candidate’s name on a ballot a certain number of days prior to an

election). The Samson court justified its actions by stating that:

[e]lection laws are to be liberally construed, so as to

effectuate their purpose. They should not be construed so as
to deprive voters of their franchise or so as to render an
election void for technical reasons.

Id. at 189 (quoting Kilmurray v. Gilfert, 10 N.J. 435, 440 (1952)).

Samson, is directly applicable to this lawsuit. As Title 19 is

silent on the use of DREs, there is no express language preventing New

Jersey courts from taking measures to protect voters from unregulated

and unreliable DREs. Judge Feinberg acted improperly by failing to

23
recognize the special role New Jersey courts play in protecting the

right to vote, and by citing the separation of powers doctrine to

dismiss the Complaint. Thus, this Court should reinstate this lawsuit.

D. THE COURT CREATED AN INAPPROPRIATELY HIGH STANDARD OF

REVIEW IN CONSIDERING DEFENDANTS’ MOTION TO DISMISS.

In dismissing the Complaint, Judge Feinberg applied a standard of

review that is not authorized by the New Jersey Court Rules. Doing so

was clearly erroneous. Rule 4:6-2(e) requires that a complaint merely

“suggest a cause of action” to survive a motion to dismiss. Printing

Mart, 116 N.J. at 746. Courts should not be concerned with Plaintiffs’

ability to prove their case at such an early stage in the litigation.

Id.

[A] reviewing court searches the complaint in depth and with

liberality to ascertain whether the fundament of a cause of
action may be gleaned even from an obscure statement of
claim, opportunity being given to amend if necessary.

Id. (quotation marks omitted). See also Grobart v. Society for

Establishing Useful Mfgs., 2 N.J. 136, 151-2 (1949)(“The grand objective

of the movement for simplified procedure by rules of court is the

elimination of the interminable prolixity and absurd technicalities of

special pleading . . . .”).26

26
New Jersey’s standard for analyzing motions to dismiss is
consistent with F.R.Civ.P. 8(a). In striking down a heightened
standard of review created by some lower federal courts to
evaluate civil rights cases, the U.S. Supreme Court stated: “We
think that it is impossible to square the ‘heightened pleading
24
 Despite the clearly-defined and permissive standard for evaluating

motions to dismiss, Judge Feinberg used a much more stringent standard

of review (of her own making) to dismiss the Complaint. In dismissing

the Complaint, Judge Feinberg stated:

Although N.J.S.A. 19:48-2 expresses that the findings

regarding voting machines are conclusive, the statute
provides a mechanism for review by the Superior Court. The
language in the statute evidences intent by the legislature
to, at a minimum, establish a rebuttable presumption in favor
of the Secretary of State’s approval, thereby placing the
burden on plaintiffs in this case to prove otherwise . . . .
[T]his court finds that plaintiffs have not overcome its
presumption in demonstrating that there are no conceivable
grounds to support Title 19's validity.

Jan. 2005 Op. at 6-7, (142a-143a)(emphasis added); see also Id. at 24,

(160a)(“Plaintiffs have not overcome the presumption in

demonstrating that there are no conceivable grounds to support Title

19's validity . . . .”).

Even if a presumption exists that the Attorney General’s

certification of a DRE means that it complies with Title 19's security

requirements, that presumption is rebuttable because § 19:48-2

specifically authorizes judicial review of the certification process.

Thus, challenges to the certification of voting machines (such as in

this lawsuit) were contemplated and endorsed by the legislature.

Implicit in this endorsement is the endorsement of the rules of

procedure governing litigation. This includes the standard for courts

standard’ . . . in this case with the liberal system of ‘notice

pleading’ set up by the Federal Rules.” Leatherman v. Tarrant
County Narcotics and Coordination Unit, 507 U.S. 163, 168 (1993).
25
to evaluate complaints on a review of a motion to dismiss.

The “no conceivable grounds” standard created by Judge Feinberg

requires Plaintiffs to prove their case in their Complaint, and ignores

that Plaintiffs need only suggest a cause of action to survive a motion

to dismiss. Requiring Plaintiffs to show in the Complaint that “there

are no conceivable grounds” to support the certification process raises

the bar for pleading requirements to an unacceptable standard. See

Printing Mart, 116 N.J. at 746; Leatherman, 507 U.S. at 160.

Judge Feinberg’s creation and application of a new standard for

evaluating the Complaint in a motion to dismiss is clearly erroneous and

warrants reinstatement of this case.

II. THE COURT ERRED IN CONSIDERING EVIDENCE OUTSIDE THE PLEADINGS, AND
IN CONVERTING DEFENDANTS’ MOTION TO
DISMISS INTO A MOTION FOR SUMMARY JUDGMENT.
In addition to ignoring strong evidence that clearly suggests

a cause of action, the Court improperly converted Defendants’

motion to dismiss to a motion for summary judgment, without ever

notifying the parties. Her actions were clearly erroneous.

Conversion of the motion to dismiss into a motion for summary

judgment was improper. Rule 4:6-2 states:

If, on a motion to dismiss based on the defense numbered (e)

[“failure to state a claim upon which relief can be
granted”], matters outside the pleading are presented to and
not excluded by the court, the

motion shall be treated as one for summary judgment and

disposed of as provided by R. 4:46, and all parties
shall be given reasonable opportunity to present all
26
 material pertinent to such a motion.

N.J. Court Rules, 1969 R. 4:6-2; see also Luiz v. Sanjurjo, 335 N.J.

Super. 279, 280 n.1 (App. Div. 2000).

Defendants raised only legal arguments in support of their

December 7, 2004 motion to dismiss. The headnotes of Defendants’ brief

read as follows:

I. THE COURT LACKS JURISDICTION OVER THIS MATTER BECAUSE

PLAINTIFFS ARE CHALLENGING THE FINAL DETERMINATIONS OF A
STATE OFFICER AND SUCH REVIEW LIES ONLY IN THE STATE
APPELLATE DIVISION.

II. EVEN IF THIS COURT HAD JURISDICTION OF THIS MATTER, THE

COMPLAINT WOULD HAVE TO BE DISMISSED AS UNTIMELY UNDER
R. 4:69-6(a).

III. THE RIGHTS AND OBLIGATIONS OF VARIOUS COUNTY

OFFICIALS WHO ARE NOT NAMED AS DEFENDANTS ARE DIRECTLY
AT STAKE IN THIS MATTER. IN ADDITION, EFFECTIVE RELIEF
CANNOT BE GRANTED TO PLAINTIFFS UNLESS THOSE COUNTY
OFFICIALS ARE JOINED AS PARTIES TO THIS SUIT. THIS
MATTER, THEREFORE, SHOULD BE DISMISSED FOR PLAINTIFFS’
FAILURE TO INCLUDE INDISPENSABLE PARTIES.

IV. THE ORGANIZATIONAL PLAINTIFFS LACK STANDING TO BRING

THIS ACTION AND THE INDIVIDUAL PLAINTIFFS ONLY HAVE
STANDING TO CHALLENGE THE UTILIZATION OF ELECTRONIC
VOTING MACHINES IN MERCER COUNTY.

Def. Br. at I-ii, (825a-826a). Nowhere in the brief supporting their

December 7, 2004 motion to dismiss do Defendants refer to the

certifications they had filed in October 2004.

Nonetheless, twelve out of thirty pages of Judge Feinberg’s

opinion dismissing the Complaint are devoted to discussing the validity

of these very certifications. Jan. 2005 Op. 11-23, (147a-159a). Judge

27
Feinberg clearly did not realize the reversible error she was committing

when she considered the October certifications in deciding the December

7, 2005 motion to dismiss, as she readily admits to using the

certifications for her deliberations. See Jan. 2005 Op. at 11,

(147a)(“In opposition to the application for injunctive relief, the

State offered the certifications of election officials, employed by

county and state election offices.”)(emphasis added).

The Court’s analysis of and reliance on the Defendants’ October

certifications in addressing the December motion to dismiss was

erroneous. See Leon v. Rite Aid Corp., 340 N.J. Super. 462, 471-72

(App. Div. 2001). Had Defendants submitted certifications in support of

the motion to dismiss, the Court could have converted the motion to

dismiss into a motion for summary judgment. But, here, Defendants did

not submit “facts beyond the pleadings” in their motion to dismiss.

Thus, the conversion to summary judgment was improper.

This Court should thus reinstate this lawsuit.

III. EVEN IF THE COURT’S EXAMINATION OF OUTSIDE EVIDENCE AND THE

CONVERSION OF THE MOTION TO DISMISS INTO A MOTION FOR SUMMARY
JUDGMENT WERE PROPER, IT WAS STILL CLEARLY ERRONEOUS FOR THE COURT
TO DISMISS THE COMPLAINT.

Even if the conversion of the motion to dismiss into a motion for

28
summary judgment had been proper, the granting of summary judgment to

Defendants and the dismissal of the Complaint would still be clearly

erroneous. Summary judgment:

shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the moving
party is entitled to a judgment or order as a matter of law.
An issue of fact is genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties
on the motion, together with all legitimate inferences
therefrom favoring the non-moving party, would require
submission of the issue to the trier of fact.

N.J. Court Rules, 1969 R. 4:46-2(c)(emphasis added).

In granting summary judgment to Defendants, the Court erred in

three ways. First, the Court failed to grant every reasonable inference

of fact to Plaintiffs in determining whether genuine issues of material

fact were raised. The Court completely ignored all the evidence that

Plaintiffs presented that DREs are insecure, unreliable and not

thoroughly tested. Additionally, the Court accepted Defendants’

assertions as irrebuttable fact.

Second, the Court erred by weighing the evidence presented in the

parties’ pleadings, rather than in just determining whether the triable

issue of fact existed. But, Judge Feinberg also erred in the way she

weighed the evidence. Her justification for dismissing the Complaint

were based on her faulty reading of Defendants’ three-month old

certifications.

Third, the Court erred in dismissing this case (involving a threat

29
to the fundamental right to vote by unregulated DREs) at such an early

stage, where Plaintiffs were not given the opportunity to develop a

record. See Slohanda v. United Parcel Service Inc., 193 N.J. Supper

586, 594 (App. Div. 1984)(cautioning against granting summary judgment

of a meager record where the ruling would have a broad social and legal

effect).

A. JUDGE FEINBERG ERRED IN FAILING TO GRANT PLAINTIFFS

EVERY REASONABLE INFERENCE OF FACT IN DETERMINING
WHETHER GENUINE ISSUES OF MATERIAL FACT EXISTED.

In dismissing the Complaint, Judge Feinberg failed to grant

Plaintiffs every reasonable inference of fact.

[T]he motion judge [must] consider whether the competent

evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a
rational fact finder to resolve the alleged disputed issue in
favor of the non-moving party . . . .

Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995).

Judge Feinberg completely ignored strong evidence submitted by the

Plaintiffs that New Jersey DREs are unreliable, insecure, not properly
tested, and can be manipulated easily to throw elections. She also
ignored evidence that New Jersey voters were disfranchised. Instead,
she took as fact her erroneous reading of certifications submitted by
Defendants in conjunction with a motion that was no longer before the
court.

1. Judge Feinberg Ignored All Examples Of DRE Disfranchisement

Of New Jersey Voters, And
All Examples Of DRE Malfunctions That Led
To The Disfranchisement Of Voters.

The Complaint discusses three instances of voter

30
disenfranchisement. Plaintiff Stephanie Harris, who used an AVC

Advantage DRE to vote in the 2004 primary was not able to cast her vote.

Compl. ¶¶ 36-37, (15a). She was instructed by a poll worker to press

the DRE’s “CAST VOTE” button four times. Id. ¶ 36, (15a). But the poll

worker was not certain whether Plaintiff Harris’s vote was ever cast.

Id. ¶ 37, (15a). The same happened to Glenn Cantor. Id. at ¶¶ 38-41,

(15a-16a). He too was instructed by a poll worker to press the “CAST

VOTE” button four times when the DRE he was using switched his vote, and

lost power. Id. He is not sure if his vote was registered properly by

the DRE. Id. ¶ 41, (16a).

Moreover, in opposition to Defendants’ December motion to dismiss,

Plaintiffs provided the court with a certification that stated that on

Election Day 2004, at least twenty voters were disenfranchised by DREs

in Mercer County. Preston Certif. ¶ 2, (828a-829a). More would have

been disenfranchised if Mr. Preston, a Challenger-At-Large for the

Democratic Party, had not intervened. Id. at ¶¶ 1, 5-22, (828a-835a).27

Additionally, in their Complaint and brief supporting the motion

for a TRO, Plaintiffs devoted significant space to examples where the

exact make and model of DRE used in New Jersey malfunctioned elsewhere.

See Compl. ¶¶ 34-43, (14a-23a); Pl. Br. 31-43, (218a-230a). These

27
Judge Feinberg mischaracterizes Mr. Preston’s certification,
saying that, at most, two voters were disenfranchised in Mercer
County on Election Day. Jan. Op. at 11. Mr. Preston certified
that at least twenty voters were disenfranchised. Preston
Certif. ¶ 2.

31
malfunctions involved failure to properly register all votes cast, loss

of votes, failure of DRE memory cartridges to record votes, and failure

of tabulation systems to provide accurate vote totals. Id. These

malfunctions were significant enough for New York City, California,

Nevada, and even Ohio to decommission their DREs (for a full discussion

of the decommissioning of these DREs, see Compl. ¶¶ 67-73, (31a-33a);

Pl. Br. at 52-58, (239a-245a)).

Yet, Judge Feinberg did not consider these examples of voter

disfranchisement important. She dismissed them, in passing, merely

stating “[t]he reality, albeit unfortunate, is that there exists no

guarantee of a perfect voting system.” Jan. 2005 Op. at 11, (147a).

This was erroneous. As Plaintiffs pointed out, Pl. Br. at 3-4, (190a-

191a), every vote manipulation, no matter how small, must be taken

seriously. Yale University researchers concluded that the manipulation

of simply one vote per machine would have been enough to change the

outcome of the 2000 presidential election. Anthony DiFranco et al.,

Small Vote Manipulations Can Swing Elections, Communications of the ACM,

Oct. 2004, at 43-45, (127a-129a).

The examples of disenfranchisement discussed in the Complaint are

also relevant because DREs of the same make and model allegedly contain

the same software.28 That means that flaws in one version of the

28
Through this suit, Plaintiffs show that it is impossible to
verify this allegation, and that every DRE needs to be carefully
and independently audited through the use of voter verified paper
ballots.
32
software exist in all machines containing the same software. Thus, any

mis-allocation of votes anywhere in the world by the same DRE software

that is contained in New Jersey DREs means that New Jersey DREs also

mis-allocate votes. The examples of DRE disenfranchisement offered by

Plaintiffs are thus not “hypothetical,” as Judge Feinberg stated, but

rather, highly relevant to this lawsuit and should have been of great

concern to the Court.

DRE malfunctions can compromise the constitutional and statutory

guarantees that all votes be counted as cast. It was clearly erroneous

for Judge Feinberg to ignore the gravity of the examples of

disfranchisement that the Plaintiffs presented.

2. Judge Feinberg Ignored Strong Evidence

Presented By Computer Security Experts
That DREs Are Unreliable, Insecure, Not
Adequately Tested, And Have Mis-allocated Votes.

Plaintiffs submitted to the Court over seventy pages of expert

certifications (plus exhibits) from renowned computer scientists Rebecca

Mercuri and Andrew Appel who discuss the unreliability and insecurity of

New Jersey DREs.29 These experts also discuss with specificity how the

29
Dr. Mercuri is a Fellow at the Radcliffe Institute for Advanced
Study at Harvard University. Mercuri Certif. ¶ 1 (Oct. 17,
2004), (303a-304a). Her field of expertise is computer security.
Id. ¶ 1-2, (303a-304a). Her impressive credentials appear in
Mercuri Certif. Ex. A, (329a).
Professor Appel is a professor of computer science at
Princeton University. Appel Certif. ¶ 1, (343a-344a). His areas
of expertise are “computer security, software engineering and
design, programming languages, computer architecture, operating
33
testing procedures used in New Jersey are inadequate for detecting

whether DREs have been maliciously manipulated.

Ignoring these certifications, Judge Feinberg relied instead on

the boilerplate language of certifications submitted by county

employees, including low-level county employees, in dismissing this

lawsuit. Judge Feinberg devotes twelve pages out of her thirty page

opinion discussing and analyzing Defendants’ certifications. Jan. 2005

Op at 11-23, (147a-159a).

By contrast, the only thing she says about the Plaintiffs’

experts’ substantive discussions about DRE insecurity was that

Plaintiffs’ submitted “newspaper articles and other publications

regarding alleged voting machine problems in other jurisdictions, and

theoretical dissertations of the possibility of voting machine failure.”

Id. at 10, (146a). This statement is wrong. Plaintiffs’ computer

security experts offered their highly relevant opinions on how DREs in

general, and New Jersey DREs specifically, are vulnerable to fraud, and

how the voting machine testing process used in New Jersey cannot detect

this fraud.

a. DREs Are Inherently Insecure And Vulnerable.

systems, and other areas.” Id. ¶ 2, (344a). His impressive

credentials appear in Appel Certif. Ex. A, (382a-390a).

34
 Plaintiffs’ experts have certified that it is not difficult to

write a computer program that can sabotage an election, and then cover

its tracks. Indeed, any individual with basic knowledge of computer

programming can write code that would cause a computer to display “A” on

the screen, record “B” in its hardware, and “lie” to the tester by

stating that it recorded “A” (when it had in fact recorded “B”).

Mercuri Certif. 38, (319a); see also Appel Certif. 27, (356a-357a).

If a program is stored on a medium that is writable, such as an

ordinary hard disk or a RAM memory cartridge, then it can modify
itself. This means that a fraudulent program can be programmed to
throw an election, and then at 7:55 p.m. on election day,
overwrite itself with a copy of the certified, non-fraudulent
program. This property of software-the inherent erasability [sic]
of the medium-is unlike mechanical machines or paper.

Appel Certif. 31, (359a).

It is a tenet of computer science theory that it is impossible to

know for certain that any computer is performing a certain set of tasks,

and no more. Mercuri Certif. 9, (306a-307a). Indeed, it is

impossible to prove that any computer is not infected with malicious

code. Id. This also holds true for DREs. “The impact of this

fundamental flaw on voting systems means that no matter how stringent

the testing and certification may be, this can not guarantee that the

system will be 100% secure and 100% reliable.” Id.

New Jersey DREs are insecure. Plaintiffs’ experts certified that

anyone with physical access to a Sequoia Pacific AVC EDGE machine for as

little as five minutes and who knows the user password (which is not

35
difficult to guess) can install a new program into the machine. Appel

Certif. 50, (367a). That program can manipulate votes, and can throw

an election without being detected. Id. 12, 14, (349a).

They also certified that the Sequoia Pacific AVC Advantage is an

insecure system. Appel Certif. 53, (368a); Mercuri ¶¶ 18-19, 21-23,

(310a-312a). Anyone with access to an AVC Advantage for as little as

ten minutes can replace the chip that contains the program that runs the

machine, and change the behavior of the machine to throw an election.

Appel Certif. 53, (368a); Appel Supp. Certif. 15, (Oct. 25, 2004),

(423a-424a). Judge Feinberg did not even acknowledge the computer

scientists warnings about the insecurity of these New Jersey DRES.

Judge Feinberg also ignored Professor Appel’s discussion of the

grave security risks to the franchise posed by county practices

discussed in Defendant’s certifications. Many DREs in New Jersey are

delivered up to two weeks before an election (Bergen, Burlington,

Gloucester, Hunterdon, Union).30 The remainder of the DREs are

delivered within a week before the election (Hudson, Mercer, Middlesex,

Ocean, Somerset, Salem, Atlantic).31 Specifically referencing

30
See Certification of Patricia DiCostanzo ¶ 16, (no date),
(479a); Certification of Joanne Nyikita ¶ 12, (Oct. 12, 2004),
(488a); Certification of Mark Harris ¶ 11 (Oct. 24, 2004),
(498a); Certification of Richard Lynch ¶ 11, (Oct. 25, 2005),
(516a); Certification of Dennis Kobitz ¶ 12, (Oct. 23, 2004),
(575a).
31
See Certification of Lisa Gentile ¶ 12, (Oct. 22, 2004),
(508a); Certification of Robert Lester ¶ 13, (no date), (526a);
Certification of Richard Plantec ¶ 11, (Oct. 23, 2004), (535a);
36
Defendants’ certifications, Professor Appel stated that “[d]uring this

advance period people could have unobserved access to the machines for

several hours at a time. Machines could be tampered with.” Appel Supp.

Certif. at ¶ 10, (348a). Software that will manipulate elections can be

installed in a period of five to ten minutes. Appel Certif. ¶¶ 50-53,

(367a-368a); Appel Supp. Certif. 15, (423a-424a). Judge Feinberg did

not even acknowledge Professor Appel’s warnings that the early transport

of voting machines could lead to election tampering.

Judge Feinberg also ignored Professor Appel’s findings that the

alleged “tamper proof seals” described in the counties’ certifications32

do not protect against the installation or use of fraudulent software.

It is possible to fraudulently replace the tamper proof seals after

loading malicious software. Appel Certif. ¶ 52, (367a-368a); Appel

Certification of Robert Giles ¶ 16, (Oct. 24, 2004), (546a);

Certification of Edward Mach ¶ 14, (Oct. 24, 2004), (566a);
Certification of John Burke ¶ 13, (Oct. 23, 2004), (610a);
Certification of Joann Armbruster ¶ 14, (Oct. 25, 2004), (626a).
32
See DiCostanzo Certif. ¶ 24, (481a); Nyikita Certif. ¶ 19,
(490a); Harris Certif. ¶ 18, (500a); Gentile Certif. ¶ 19, (509a-
510a); Lynch Certif. ¶ 18, (518a); Lester Certif. ¶ 19, (527a-
528a); Plantec Certif. ¶ 18, (537a); Certification of Alfonso
Santoro ¶ 24, (no date), (558a); Kobitz Certif. ¶ 19,(577a).

37
Supp. Certif. ¶¶ 5, 10, (419a, 421a). Instead of finding that a genuine

issue of material fact existed, Judge Feinberg accepted the insecure

“tamper proof” seals as valid safety measures. Jan. 2005 Op. at 19,

(155a).

Judge Feinberg erred by disregarding the concerns and warnings of

computer security experts that New Jersey DREs are insecure and can be
manipulated easily to throw elections.

b. The Only Way To Ensure The DREs Are Functioning

Properly, Is To Conduct An Independent Audit,
Using Voter Verified Paper Ballots.

Plaintiffs’ experts both certify that the only way to ensure that

DREs are not manipulating our votes is to conduct an independent audit

of election results. The most reliable method for doing so is by using

a “voter verified ballot system” (or “Mercuri Method”).

Mercuri Method - a paper ballot is prepared using an

electronic voting system and displayed behind a
transparent window. The voter is provided with an
opportunity to verify the choices printed on the paper
ballot prior to performing an action that deposits the
ballot into a secured ballot box. The voter must also be
provided with a way of voiding the ballot prior to
casting if it is incorrect and, in such a case, must be
provided with another opportunity to verify and cast a
ballot.

Mercuri Certif. ¶ 42, (320a-321a); See also Appel Certif. ¶¶

14-25, 78-79, (349a-350a, 379a-380a).

The paper ballot must not provide any feature that could be
used to violate voter privacy or encourage coercion and vote
selling. These voter verified paper ballots should be used to
produce the certified vote totals and be available for
scrutiny in case of election contest or recount. When
38
 properly implemented, the "Mercuri Method" ensures that paper
ballots will not be removed from the polling place nor added
to the ballot box.

Mercuri, Electronic Voting: Who Created the Voter Verified Balloting

Concept?.33

The use of voter verified paper ballots, as an effective means of

independently auditing votes, has been endorsed by voting technology

research studies conducted across the country. RABA Technologies, LLC.,

Trusted Agent Report: Diebold AccuVote-TS Voting Systems 8, 23 (2004),

(94a, 109a); Aviel Rubin et al., Analysis of an Electronic Voting System

21 (2004), (83a); Science Applications International Corporation

(“SAIC”), Risk Assessment Report: Diebold AccuVote-TS Voting System and

Processes (Sep. 2, 2003).34

Judge Feinberg erred in failing to acknowledge Plaintiffs’

experts’ discussion of the voter verified paper ballot as the most

effective way to ensure that: each vote is counted as cast, and that all

votes will receive equal treatment in the event of a recount.

c. Current Testing Procedures Are Insufficient To

Guarantee The Accuracy And Performance Of DREs.

(1) New Jersey Testing Process Cannot Detect

DRE Software Flaws Or Manipulation.

33
At http://www.notablesoftware.com/evote.html (last modified
Mar. 6, 2004)http://www.notablesoftware.com/evote.html.
34
At
http://www.dbm.maryland.gov/dbm_publishing/public_content/dbm_sea
rch/technology/toc_voting_system_report/votingsystemreportfinal.p
df (last visited Jun. 4, 2005).

39
 Judge Feinberg ignored Plaintiffs’ certifications that show that

testing for New Jersey DREs is inadequate to detect software flaws or

manipulation. Programming errors are very difficult to detect, even

among experts. Microsoft’s products illustrate this point. Even though

Microsoft has great financial incentive to produce completely foolproof

programs, and hires testers and inspectors to insure that it produces

the best product possible, program bugs still slip through and are

passed on to the public. Appel Certif. 25, (354a-355a). This shows

two things. One, that even well-trained, well-paid, and highly-

motivated computer scientists who are looking for “bugs” cannot produce

100% accurate programs; and two, that unintentional “bugs” are very hard

to detect. Id. 25-26 (354a-356a).

In his Supplemental Certification, Professor Appel addressed and

refuted specific assertions in Defendants’ certifications that DREs are

tested before their use. He stated that the DRE tests described in the

certification of Patricia DiCostanzo of Mercer County “are not adequate

to detect the integrity and performance of the software installed within

Sequoia Pacific AVC Advantage voting machines.” Appel Supp. Certif. ¶

5, (419a). He also stated that

[t]he DRE voting system safeguards and testing procedures

described in [Defendants’] Brief and the Certifications of

various election officials across the State do not address

the problem of errors or fraud in the software itself.

40
Id. ¶ 2, (418a).

The logic and accuracy tests (LAT) performed in New Jersey are

insufficient to guarantee DRE security. Appel Certif. ¶ 30, (358a-

359a); Appel Supp. Certif. ¶ 2-8, (418a-421a); Mercuri Certif. Summ.

C), (326a). These tests are run using the machine’s software itself.

Appel Certif. ¶ 30, (358a-359a); Appel Supp. Certif. ¶¶ 2-3, 7-8, 13,

(418a, 420a-421a, 422a).

They can be useful in detecting malfunctioning hardware

. . . [h]owever they cannot be relied upon to detect
intentionally fraudulent software, for two reasons:
First, they are part of the very software that might be
fraudulent; and second, . . . the fraud might be
programmed to take place only at certain times of day.

Appel Certif. ¶¶ 19, 30, (351a-352a, 358a-359a). Because computers,

including DREs “know” the time and day, they can be programmed to

perform according to expectations during pre-election tests, and then to

activate a malicious code on Election Day that will sabotage the

election. Id. ¶ 30, (358a-359a).

Plaintiffs’ experts certified that if unintentional bugs are

difficult to detect, malicious bugs implanted in software, that are

deliberately hidden, are even more difficult, if not impossible to

detect. Id. 27, (356a-357a). Such fraudulent software is easy to

install in DREs. Fraudulent election software can be installed in New

Jersey DREs during the manufacturing stage, or after their manufacture.

Appel Certif. 54, (368a-369a). The voter verified paper ballot is the

most effective way to protect votes against malicious software. Id. ¶¶

41
14-25, 78-79, (349a-350a, 379a-380a).

(2) The New Jersey Voting Machine

Certification Process Is Incapable
Of Detecting DRE Malfunctions Or Tampering.

Judge Feinberg ignored Plaintiffs’ certifications that show that

New Jersey’s voting machine certification process does not detect flaws

or fraudulent software. N.J.S.A. 19:48-2 requires the certifying

authority (previously the Secretary of State, now the Attorney General)

to subject voting machines to an examination by a committee of three

experts, “one of whom shall be an expert in patent law and the other two

mechanical experts.” Certification of Richard Woodbridge ¶¶ 4, 5, 7,

(October 25, 2004), (453-454a). Those experts must submit a written

report about the machine.

Plaintiffs’ experts certified that this requirement is

insufficient for DREs, as DREs are not mechanical machines. Testing

must be conducted by “electrical engineers and computer scientists” who

can appreciate the complexities of DRE technology. Appel Certif. 63,

(372a-373a); Mercuri Certif. 30, (315a-316a). Patent law and

mechanical experts will not be able to properly review “the overwhelming

majority of the complexity of a DRE machine,” which is found “in the

electronic circuits and . . . computer software.” Appel Certif. 63,

(372a-373a).

Defendants’ Woodbridge certification also states that a machine

42
model, rather than each individual machine, is certified. Woodbridge

Certif. ¶ 7, (454a). This certification method does not guarantee that

every voting machine of the same make and model (of the tested model) is

free of fraudulent software.35

The technology of DREs is such that every single machine must be

inspected and certified, especially when the DRE produces no voter

verified paper ballot. Appel Certif. 56-62, (369a-372a). Examining

a single model of DRE will not ensure that the computer program in each

machine can be relied upon to count votes accurately. Appel Certif.

56, (369a).

The Sequoia Pacific AVC Advantage, which was used by at least 2.8

million registered voters in the general election of 2004, is not the

same as the one which the Attorney General claims was certified in 1987.

Appel Cert. ¶¶ 59, (371a) (Citing AVC Advantage Security Overview 5

(2004), (396a)). The manufacturer literature of the AVC Advantage

admits that Sequoia Voting Systems’ AVC Advantage has been

“significant[ly]” updated since 1987. See AVC Advantage Security

Overview 5 (2004), (396a). Both the hardware and the software of the

AVC Advantage have been updated since then. Appel Certif. 59-60,

35
This method of certification is akin to stating that if one
make and model of a single automobile is tested, then all cars
produced by the manufacturer have also been tested, and never
have to undergo individual inspections. See Mercuri Certif.
34, 36, (317a-318a). We know that such a blanket endorsement of
automobiles would be dangerous, and could lead to the loss of
life. Id.

43
(371a-372a). Thus, the 1987 certification of this DRE is invalid.

The lifetime certification of New Jersey DREs ignores the fact

that software is always changing and must be re-checked.

Every time a program is updated, the software can be corrupted. Appel

Certif. 60, (371a-372a).

Even the smallest change to a computer program-even a change of

just one letter-can radically alter its behavior. It is entirely
possible that program bugs (which could miscount the vote) or
fraudulent modifications to the program could be inserted into
“upgrades”. Therefore it is absolutely necessary that, if the
manufacturer makes changes to the software, the new version of the
software is subjected to
. . . [a] scrupulous certification process . . . .

Id.; see also Id. 65, (374a-375a). When “substantive” changes are

made to a DRE, it is necessary to revoke any certification and re-test

and re-certify the machine. Mercuri Certif. 33, (316a-317a).

Additionally, lifetime certification ignores that election software can

be corrupted whenever the software is used in conjunction with a

commercial software or ancillary computer equipment such as tabulation

software. Mercuri Certif. 50, (323a-324a).

Despite Plaintiffs’ experts’ detailed analyses of how DREs in New

Jersey are insecure, and that New Jersey DRE testing and certification

procedures are incapable of detecting flawed or fraudulent software,

Judge Feinberg never cited Plaintiffs’ experts’ certifications anywhere;

nor did she acknowledge their words of concern about the real

possibility of vote tampering using New Jersey DREs. This failure to

acknowledge Plaintiffs’ experts, let alone give every reasonable

44
inference of fact to Plaintiffs, is reversible error.

3. Judge Feinberg Erroneously Made All

Findings Of Fact In Favor Of Defendants.
She Also Made Serious Factual Errors In
Her Evaluation Of Defendants’ Certifications.

Judge Feinberg clearly erred in failing to make all reasonable

inferences in favor of Plaintiffs. See Brill, 142 N.J. at 523. As

discussed directly above, Plaintiffs submitted ample evidence that DREs

are insecure, unreliable, not thoroughly tested, and can be manipulated

easily to throw elections without being detected. Plaintiffs also gave

example after example of how voters using DREs were disfranchised.

Judge Feinberg, however, ignored this evidence and relied only on the

certifications submitted by Defendants to dismiss the Complaint.

Moreover, in evaluating Defendants’ certifications, Judge Feinberg

made serious factual errors. She then relied on the factual errors to

improperly make all inferences in favor of the Defendants, and to

improperly grant summary judgment to Defendants.

a. Five Counties Did Not Endorse DREs In

Any Way And Said Absolutely Nothing
About DREs Being “Accurate And Reliable.”

Judge Feinberg concluded that “[i]n essence, the certifications of

election officials and staff assert that the [DRE] machines are accurate

and reliable.” Jan. 2005 Op. at 19, (155a). These conclusions are not

45
supported by the certifications.

The certifications of four county officials lack any endorsement

of DREs whatsoever. See Lester Certif., (522a)(Mercer County); Plantec

Certif., (531a)(Middlesex County); Certification of Rudolph Filko, (Oct.

25, 2004), (616a)(Passaic County); Certification of Abigail McCaw, (Oct.

25, 2004), (470a)(Sussex County). Moreover, Morris County officials did

not submit any certifications.

These five counties use a variety of models and quantities of

DREs. Mercer County owns 600 AVC Advantage DREs.36 Lester Certif. ¶ 3,

(523a). Middlesex County owns 662 AVC Advantage DREs.37 Plantec

Certif. ¶ 2, (532a). Morris County owns 805 AVC Advantage DREs.38

Passaic County owns 420 V-2000 DREs.39 Sussex County owns 361 iVotronic

DREs.40 McCaw Certif. ¶ 2, (470a). None of these 2,858 DRE machines

were endorsed by any county officials. These 2,85841 DREs make up

37.22% of the total DREs used in New Jersey. (7,679 DREs were used in

New Jersey in the 2004 election.)42

Thus, Judge Feinberg erred in concluding that all DREs in New

36
Attorney General’s DRE Inventory List, (60a-61a).
37
Id.
38
Id.
39
Id.
40
Id.
41
Id.
42
Id.

46
Jersey had been used successfully and were accurate and reliable. She
also erred in her specific discussion of the AVC Advantage and her
finding that all counties that use this specific model of DRE have found
those machines to be accurate and reliable. Jan. 2005 Op. at 19,
(155a).

b. Judge Feinberg’s Finding That “the election

representatives have certified that: . . .
no vote count has been changed as a result
of a recheck nor has any election been
overturned due to a machine malfunction” Is
Not Supported By The County Certifications.

Judge Feinberg found that “the election representatives have

certified that . . . no vote count has been changed as a result of a

recheck nor has any election been overturned due to a machine

malfunction.” Id. at 12, (148a). But, nothing in the certifications

submitted by Mercer, Middlesex, Passaic, and Sussex counties support

this conclusion. Moreover, Morris County did not submit a

certification. As discussed above, these five counties offered no

endorsement for their 2,858 DREs, which comprise 37.22% of the total

number of DREs used in New Jersey.

Additionally, officials from six out of fifteen counties using

DREs failed to include any language that would support Judge Feinberg’s

conclusion that “no vote count has been changed as a result of a

recheck.” Those County officials are from Hudson, Mercer, Middlesex,

Passaic, Salem, and Sussex Counties. Collectively, these six counties

use the Sequoia Pacific AVC EDGE and AVC Advantage and the ES&S V-2000

47
and iVotronic.43

Judge Feinberg’s global conclusion about the accuracy and

reliability of DREs is clearly erroneous because it fails to acknowledge

that half of the county officials who submitted certifications did not

make any such endorsements.

c. Judge Feinberg’s Finding That “this is the

first time . . . [DRE] use has been challenged”
Is Not Supported By The County Certifications.

Based on the statements of only two county officials (Gentile

Certif. ¶ 24, (511a)(Hudson); Burke Certif. ¶ 21, (613a)(Salem)), Judge

Feinberg drew the universal conclusion that “[a]lthough these voting

machines have been used successfully in this State for over a decade,

this is the first time their use has been challenged,” Jan. 2005 Op. at

7, (143a), and dismissed the Complaint. This global conclusion about

the accuracy and reliability of DREs is clearly erroneous and

unsupported by the county certifications.

As discussed in the sections above, Mercer, Middlesex, Morris,

Passaic, and Sussex counties did not certify that their DREs have been

used successfully. The thirteen other counties that submitted

certifications never stated that their DREs performance and accuracy has

never been challenged. These counties collectively have 6,939 DREs (out

43
Attorney General’s DRE Inventory List, (60a-61a).

48
of a total of 7,679 state-wide).44

Most strikingly, Atlantic County’s certification directly

contradicts Judge Feinberg’s finding. See Armbruster Certif. ¶ 31,

(629a) (stating that “[s]pecifically, pursuant to a court order, in 1996

the functionality of a particular machine was challenged”). Thus, Judge

Feinberg’s unequivocal and bold statement that the use of DREs was never

challenged before Plaintiffs filed this lawsuit is clearly erroneous.

d. Judge Feinberg’s Finding That “election

officials . . . certify for use each
and every voting machine” Is Not
Supported By The County Certifications.

In dismissing the Complaint, Judge Feinberg found that “election

officials . . . certify for use each and every voting machine.” Jan.

2005 Op. at 12, (148a). This finding is supported by only four county

certifications.45

Officials from nine out of fifteen counties using DREs omitted any

mention of machine certification in their affidavits.46 Based on only

four certifications, Judge Feinberg erroneously made the universal

finding that each and every DRE used in New Jersey is certified. This

44
Attorney General’s DRE Inventory List, (60a-61a).
45
See DiCostanzo Certif. ¶ 10, (477a)(Bergen); Giles Certif at.
¶ 10, (544a)(Ocean); Santoro Certif. ¶ 10, (554a)(Ocean); Burke
Certif. ¶ 11, (610a)(Salem).
46
While the McCaw Certif. ¶¶ 3, 14, 21, (471a-473a)(Sussex)
mentions certification, it does not state that election officials
certify each and every voting machine.

49
global conclusion about the accuracy and reliability of DREs is clearly

erroneous.

e. The Certification Of Richard Woodbridge Does Not State

That Every DRE In New Jersey Is Certified.

Judge Feinberg states that the certification of Richard Woodbridge

represents that “all of the electronic voting machines in the State are

certified voting machines and meet all of the requirements of Title 19.”

Jan. 2005 Op. at 21-22, (157a-158a). This finding is clearly erroneous.

Mr. Woodbridge does not certify that every electronic voting

machine is certified. He states that “[a] voting machine must first be

certified before it may be used in any election in New Jersey.” Def.

Ex. C, ¶ 3, (453a). He further states that “[o]nce a voting machine is

approved by the State of New Jersey, a certificate of approval is

issued, serving as prima facie evidence that the kind of voting machine

so examined complies with the spirit of the provisions of N.J.S.A.

19:48-1, et seq.” Def. Ex. C. ¶ 7, (454a) (emphasis added).

Mr. Woodbridge’s certification clearly does not support Judge

Feinberg’s finding. First, Mr. Woodbridge does not even certify that

the machines he certifies comply with the law. He states that the

certified machines comply only “with the spirit” of the law. Thus, his

certification, on its face, offers no proof whatsoever that the

certification process for DREs satisfies Title 19.

Second, Plaintiffs’ experts specifically stated that certifying a

50
make or model of computer (as is done in New Jersey) is not equivalent

as (a security measure) to certifying each and every machine. See

Mercuri Certif. ¶¶ 34, 36, (317a-318a). Examining one machine does not

reveal details about every machine, because not all machines are exactly

alike. Appel Certif. 56, (369a). Examining a single model of DRE

will not ensure that the computer program in each machine can be relied

upon to count votes accurately. Id. Certifying one DRE and stating

that all DREs of the same make and model are certified is like

inspecting one car and saying that all cars of the same make and model

are also certified. See Pl. Br. at 81-82, (268a-269a); Mercuri Certif.

¶¶ 34, 36, (317a-318); Appel Certif. ¶¶ 56-62, (369a-372a).

Thus, Judge Feinberg’s findings that every DRE in New Jersey is

certified is clearly erroneous. Her reliance on the Woodbridge

certification in any manner is also clearly erroneous, as Mr. Woodbridge

never states that any certified DRE complies with the actual

requirements of Title 19.

f. No Evidence Was Submitted To The Court Showing

That Computer Experts Are Part Of The
State’s Voting Machine Certification Team.

On page 23 of her Opinion (159a), Judge Feinberg states that “the

State represents that it has been the administrative practice, for the

State’s examination of voting machines since the 1990's, to include

experienced personnel in the field of computers. (See generally

51
Woodbridge Certif. [(452a)]).” This finding is unsupported by any of

Defendants’ certifications.

The Woodbridge Certification states that “N.J.S.A. 19:48-2

specifically provides for a three-member Committee (‘Committee’) to

consist of a patent attorney and two mechanical experts to examine the

machine.” Woodbridge Certif. ¶ 4, (453a). It does not state anywhere

that the members of the Committee include “experienced personnel in the

field of computers.”

The exhibits attached to the Woodbridge Certification list the

members of the teams that certified the Sequoia Pacific AVC EDGE (Letter

from Richard Woodbridge to George Nyktas, May 29, 2001, (461a)) and ES&S

VT-2000 (Woodbridge memo 10/8/1998), but do not address their

qualifications.

Thus, Judge Feinberg’s conclusion that computer experts examine

New Jersey’s DREs is clearly erroneous.

g. Judge Feinberg’s Finding That “all voting machines are

equipped with emergency paper ballots” Is Not Supported
By The County Certifications.

In dismissing the Complaint, Judge Feinberg found that “all voting

machines are equipped with emergency paper ballots.” Jan. 2005 Op. at

12, (148a). Only one of the fifteen county election officials who

submitted certifications made this statement. Armbruster Certif. ¶ 12,

(626a)(Atlantic).

52
 Two certifications make no mention of paper ballots. See Filko

Certif., (616a)(Passaic); McCaw Certif., (470a)(Sussex). The remaining

eleven certifications of county officials state that the “law requires

that all voting machines be equipped with emergency paper ballots.”47

They do not state that their DREs actually are equipped with emergency

paper ballots.

This bland statement about statutory requirements is a far cry

from Judge Feinberg’s finding that all DREs are equipped with emergency

paper ballots. Thus, again, her characterization of the Defendants’

certifications is clearly erroneous.

4. Judge Feinberg Committed A Clear Error When

She Weighed All Certifications Equally
Regardless Of The Certifier’s Level Of Authority,
Equating The Word Of The Superintendents Of
Election With Those Of Warehouse Workers.

47
See DiCostanzo Certif. ¶ 27, (482a)(Bergen); Nyikita Certif. ¶
21, (491a)(Burlington); Harris Certif. ¶ 20, (501a)(Gloucester);
Gentile Certif. at ¶ 22, (510a)(Hudson); Lynch Certif. ¶ 20,
(519a)(Hunterdon); Lester Certif. ¶ 22, (528)(Mercer); Plantec
Certif. ¶ 23, (538a-539a)(Middlesex); Giles Certif. ¶ 27,
(549a)(Ocean); Santoro Certif. ¶ 27, (559a)(Ocean); Kobitz
Certif. ¶ 21, (577a-578a)(Union); Burke Certif. ¶ 20,
(612a)(Salem).

53
 N.J.S.A. 19:48-4 requires each county to designate one official to

preserve and maintain all voting machines. In counties that have

Superintendents of Elections, that individual will

have and exercise all the powers of, and be charged with all

the duties had and exercised and required to be performed by,

the superintendent of elections and the commissioner of

registration in any county, including the custody and control

of voting machines heretofore or hereafter installed in the

county in any manner provided by law . . . .

N.J.S.A. 19:32-49. Superintendents have the statutory duty to maintain

the security of the election and the devices used. N.J.S.A. §§ 19:32-

49, 19:48-4, 19:48-6. In those counties that lack a Superintendent of

Elections, the county Board of Elections is statutorily responsible for

the custody of voting machines. N.J.S.A. 19:48-4

Of the fifteen counties using DREs, six have Superintendents of

Elections.48 But, only four of these six counties submitted a

certification from their Superintendents of Elections: Atlantic, Bergen,

Burlington and Passaic. The Superintendents of Elections from Hudson

and Morris counties did not submit certifications. This means that the

certifications for Hudson and Morris Counties can be disregarded, as the

county employees submitting them do not have the statutory authority to

48
Office of the Attorney Gen., N.J. Dep’t of Law and Pub.
Safety, Local Election Officials Index, at
http://www.state.nj.us/lps/elections/loc_officials_doe.html#midd
(last visited May 10, 2005).
54
comment on voting machines.

As discussed above, the certification of Rudolph Filko, the

Superintendent of Elections in Passaic County, does not endorse the use

of DREs. Thus, only three Superintendents of Elections submitted

certifications endorsing DREs. This analysis further exemplifies that

Judge Feinberg erred when she stated “[a]ll of the county election

officials that have submitted certifications in those jurisdiction that

have utilized DRE technology for prior elections have certified that

they have been used successfully.” Jan. 2005 Op. at 11, (147a).

Judge Feinberg also erred by giving great authority to statements

made by low-level county officials who do not have the authority or

knowledge to speak about the successes and failures of DREs and/or

elections. Judge Feinberg relied upon the certifications of warehouse

supervisors (Mercer and Middlesex counties) and a voting machine

technician (Somerset county). Id. at 19, (155a).

Moreover, Judge Feinberg relied on the certifications of county

employees whose jobs and responsibilities are not defined in the

certifications. Without a description of the certifying employees’

positions in Gloucester, Hudson, Hunterdon, Ocean, Salem, Somerset,

Sussex and Union counties, it is impossible to determine whether these

employees have knowledge of DREs or the statutory authority to comment

on the use of DREs in their counties. Thus, any statements these county

employees made in endorsing DREs should have held no weight for the

55
court.

Thus, Judge Feinberg’s conclusion that all counties’ machines are

“accurate and reliable” has no real authority, and is clearly erroneous.

We cannot rely on the vast majority of the certifications because their

authors are not statutorily authorized to preserve, maintain, or even

have knowledge about any voting machines, including DREs.

B. JUDGE FEINBERG ERRED IN WEIGHING THE EVIDENCE

PRESENTED BY THE PARTIES RATHER THAN SIMPLY
DETERMINING WHETHER A GENUINE ISSUE OF FACT EXISTED.

Judge Feinberg also erred in weighing the evidence in the parties’

pleadings. “The ‘judge’s function is not himself to weigh the evidence

and determine the truth of the matter but to determine whether there is

a genuine issue for trial.” Id. at 540 (quoting Anderson v. Liberty

Lobby, 477 U.S. 242, 249 (1986)).

The motion judge is not permitted to evaluate the

"preponderance or credibility" of the evidence presented by

the parties. Rather, upon a defendant's motion for summary

judgment, the motion judge is only to sift through and

analyze the evidential materials to ensure that there is

sufficient evidence to support each required element of a

plaintiff's claim. Assessing the credibility or weight of the

evidence is strictly a jury task.

Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572, 579 (App. Div.

56
1997) (quoting Brill, 142 N.J. 520). The Court erred not only in

weighing evidence, but also in making findings of fact based solely on

Defendants’ claims, without allowing Plaintiffs the opportunity to

engage in discovery, or to challenge the Defendants’ assertions.

As discussed directly above in Section III of this brief, Judge

Feinberg failed to acknowledge the wealth of information that

Plaintiffs provided showing that New Jersey DREs are inaccurate,

unreliable, not thoroughly tested, and can be manipulated in a matter

of minutes (without detection) to throw elections.

Moreover, Judge Feinberg’s actual weighing of the evidence was

clearly erroneous. As also discussed in Section III of this brief,

Judge Feinberg mischaracterized the county certifications as a

universal endorsement of the use of DREs. She relied on these

erroneous conclusions to dismissing the Complaint. Judge Feinberg also

erred in giving undue weight to the certifications of low-level county

officials, who lack the knowledge and statutory authority to comment on

voting machines.

By ignoring the detailed and thorough certifications by

Plaintiffs’ computer security experts, and the certifications of

disfranchised voters, Judge Feinberg committed a reversible error.

Plaintiffs have clearly shown that a genuine issue of material fact

exists for trial that DREs jeopardize the right to vote guaranteed by

the New Jersey Constitution and Title 19.

57
C. JUDGE FEINBERG ERRED IN HASTILY GRANTING SUMMARY JUDGMENT
IN A CASE WITH BROAD SOCIAL AND LEGAL IMPLICATIONS.

In dismissing the Complaint, Judge Feinberg disregarded the well-

established tenet that “[t]rial courts are cautioned against granting

summary judgment on a meager record where the ruling sought on the

motion would have a broad social and legal effect.” Slohada, 193 N.J.

Super. at 594 (App. Div. 1984) (citing Judson v. Peoples’ Bank & Trust

Co. of Westfield, 17 N.J. 67 (1954); Jackson v. Muhlenberg Hospital, 53

N.J. 138 (1969); and Pressler, Current N.J. Court Rules, Comment R.

4:46-2).

This lawsuit certainly has “a broad social and legal effect.” The

protection of the fundamental right to vote is at issue. The outcome of

this case will surely have a significant impact on the public.

The chance that a voter’s ballot will not be counted as cast is

too great a risk to accept in a democratic society. Given that the

legislature and executive have failed to act to protect votes cast on

DREs, it is incumbent on the judiciary to scrutinize DRE voting systems,

which are extremely vulnerable to fraudulent manipulation. Accordingly,

this Court should reinstate this lawsuit.

IV. JUDGE FEINBERG’S RELIANCE ON THE NINTH CIRCUIT’S WEBER

DECISION TO DISMISS THE COMPLAINT WAS CLEARLY ERRONEOUS.

Judge Feinberg cites Weber v. Shelley, 347 F.3d 1101 (9th Cir.

58
2003), fifteen times in her opinion dismissing the Complaint. See Jan.

2005 Op. at 7-10, 24, 29-30, (143a-146a, 160a, 156a-166a). Upon first

glance, Weber appears relevant, because in Weber, plaintiffs challenged

California’s use of DREs without voter-verified paper ballots. But this

similarity does not make Weber controlling or even persuasive.

A. THE WEBER COURT’S ANALYSIS DOES NOT APPLY TO

CLAIMS BROUGHT UNDER THE NEW JERSEY CONSTITUTION.

1. Weber Involved Issues Of Federalism Not Present Here.

The plaintiff in Weber sought relief under the Due Process and

Equal Protection clauses of the United States Constitution. See Weber,

347 F.3d at 1103. The Weber Plaintiff sought federal court

nullification of state-approved DRE technology. To determine whether

DREs in California violated the U.S. Constitution, the Weber court

applied the test articulated in Burdick v. Takushi, 504 U.S. 428

(1992)(court should weigh a statute’s infringement on Fourteenth

Amendment rights against the state’s interests that make the

infringement necessary). Weber, F.3d at 1106. The Burdick test does not

apply to Plaintiffs’ challenge to New Jersey DREs. Issues of federalism

that were involved in Weber are clearly absent here. Plaintiffs here

seek relief from New Jersey courts under the New Jersey Constitution and

New Jersey statutory law.

Additionally, protection of New Jersey constitutional rights may

be greater than the protection afforded those same rights under the U.S.

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Constitution. See e.g. State v. Schmid, 84 N.J. 535, 553-57 (1980).

Thus, it was improper for Judge Feinberg to apply federal constitutional

law to analyze the claims raised in this lawsuit.

B. THE WEBER COURT’S ANALYSIS WAS BASED ON A FULLY

DEVELOPED RECORD. NO RECORD HAS BEEN DEVELOPED HERE.

Judge Feinberg’s reliance on Weber was also erroneous because that

case was decided on different procedural grounds than this suit. In

Weber, the record was fully developed, and the Court granted summary

judgment in favor of the defendants. In this case, there was no record.

Judge Feinberg dismissed the case without allowing Plaintiffs to even

begin to prove their case. This was clearly improper, particularly

because this lawsuit raises important constitutional issues that affect

most voters in New Jersey. See Slohada, 193 N.J. Super. at 594.

C. WEBER HAS BEEN RENDERED VOID BY THE

DE-COMMISSIONING OF ALL DRES IN CALIFORNIA.

Judge Feinberg’s reliance on Weber was also improper because that

decision was subsequently rendered null and void. Six months after

Weber was decided, California’s Secretary of State decommissioned the

state’s electronic voting machines. Among those decommissioned models

are DREs used in New Jersey (ES&S iVotronic and the Sequoia Pacific AVC

EDGE - which was specifically at issue in Weber).49 The DREs were

49
Office of the Sec’y of State of Cal., Decertification and
Withdrawal of Approval of Certain DRE Voting Systems and
Conditional Approval of the Use of Certain DRE Voting Systems, at
http://www.ss.ca.gov/elections/ks_dre_papers/decert1.pdf
60
decommissioned after “problems in the areas of testing and certification

of software, reliability, accuracy, training, and security” were

discovered. American Association of People With Disabilities v.

Shelley, 324 F. Supp. 2d 1120, 1124 (C.D. Cal. 2004). He also

determined that DREs should be required to produce voter-verifiable

paper ballots. Id. at 1128-29. A U.S. district court in California

upheld DRE decertification, rendering Weber irrelevant. Id. at 1120.

Judge Feinberg ignored the Shelley case, which Plaintiffs cited in

their briefs. See Pl. Br. at 54-5, (241a-242a). Judge Feinberg failed

to acknowledge that a federal court upheld the decommissioning of the

same DRE machines used in New Jersey. Shelley is highly relevant and

should have provided a counter-weight to Weber, upon which Judge

Feinberg relied so heavily to dismiss the Complaint.

CONCLUSION

For the reasons discussed above, this Court should reinstate

the lawsuit. Plaintiffs should be permitted to litigate their claims

challenging (under the New Jersey Constitution and Title 19), New

Jersey’s unregulated, insecure and unreliable DREs.

Respectfully submitted,

__________________________________
Penny Venetis, Esq.
Frank Askin, Esq.
Rutgers Constitutional Litigation Clinic
123 Washington Street
Newark, New Jersey 07102
(973) 353-5687
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 Attorneys for Plaintiffs

Dated: June 6, 2005

Counsel for Plaintiffs thank the following Rutgers Law School students:
Rodrigo Armand, Nicole Crifo, Michael Isaac, Jane Jhun, Jack McGhee,
Kelly O’Connor, and Devi Shah, and Harvard Law School student Prashant
Yerramalli for their help.

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