-Caveat Lector- Text of NAACP Florida Law Suit, filed 1/10/01, pt. 1 The ACLU of Florida has posted the text of a new lawsuit, NAACP vs. Kathryn Harris, ChoicePoint Technologies, et al., on their web site at: http://www.aclufl.org/naacp_v__harris.html The Lawyers' Committee for Civil Rights has posted this lawsuit in a "PDF" format: http://www.lawyerscomm.org/votingrightscase/complain.pdf Filed on January 10 2001, the suit is quite serious and includes the issues of laptop computers, voter roll purges, disparate voting methods, etc. Some of the analysis you all have been doing might be useful if faxed to the groups listed at the bottom. Note that as far as I can tell, this suit does not call for the election results to be overturned. Because the websites with these documents are already taxed, I am including the entire brief. My apologies for the length, but it is a document that needs to be available to activists. Thanks to Jackie Flenner and Phil Agre for responding to my request for URLS. Please forward this email to people working on materials for the upcoming protests. The material has already been mentioned in a tabloid that www.ippn.org is preparing for January 20. -rich cowan NAACP v. Katherine Harris et al. Class Action Voting Rights Lawsuit UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC. by its FLORIDA STATE CONFERENCE OF BRANCHES, JIMMIE PANNELL, JULIA STONER, NATALIE CARNEGIE, ERMA J. KELLY, JOHN L. CHEEVER, JAMES MARSHALL, LILLIE Q. ODOM, WILLIE STEEN, WALLACE MCDONALD, JERMAINE TERRY, LORINE WALDEN, EMERY TIMBERLAKE, VALERIE BUFORD-WELLS, MICHELLE FLOYD, CONSUELO MARIA GRAHAM, SHERRY EDWARDS, KANDY WELLS, JOANNA CLARK, JANICE KELLY, PLACIDE DOSSOUS and RONDRICK ROSE in their own right and as representatives of all similarly situated citizens and residents of the State of Florida, Plaintiffs, vs. KATHERINE HARRIS, Secretary of State of Florida; CLAY ROBERTS, Director of the Florida Division of Elections; DAVID C. LEAHY, Miami-Dade County Election Supervisor; MIRIAM OLIPHANT, Broward County Election Supervisor; JOHN STAFFORD, Duval County Election Supervisor; PAM IORIO, Hillsborough County Election Supervisor; ION SANCHO, Leon County Election Supervisor; WILLIAM COWLES, Orange County Election Supervisor and DEANIE LOWE, Volusia County Election Supervisor (all in their official capacities); and CHOICEPOINT, INC., a Georgia corporation d/b/a DATABASE TECHNOLOGIES INC., Defendants. PRELIMINARY STATEMENT 1. This action is brought by the National Association for the Advancement of Colored People by its Florida State Conference of Branches ("NAACP") on its own behalf and on behalf of its Florida members, and by individual black voters, whose right to vote in the general election held in the State of Florida on November 7, 2000 was unlawfully denied or abridged. 2. In 2000, the NAACP made extensive efforts to register new voters and to encourage its members to vote. As a result of the efforts of the NAACP, the NAACP National Voter Fund, and other organizations, turnout among black voters in Florida increased significantly in the November 7, 2000 general election, compared to recent general elections. However, black voters were confronted with a multitude of non-uniform election practices that impeded their exercise of the franchise or disenfranchised them. In particular, as a result of the practices complained of in this action, in precincts with substantial numbers of black voters, there were a disproportionate number of ballots with no vote counted for the office of President of the United States, black voters were wrongfully purged from official lists of eligible voters, the voter registration applications of black voters were not processed properly, and registered voters encountered unjustified barriers to voting at their precincts. Such barriers were caused by, inter alia, the failure to provide a complete official list of eligible voters at each polling place, inadequate processes for verifying the registration of voters not appearing on precinct lists, and the failure to offer voters who moved within the county the opportunity to vote by affirmation or affidavit. 3. Plaintiffs contend that these practices violate the Fourteenth Amendment of the United States Constitution, Section 2 of the Voting Rights Act of 1965, codified at 42 U.S.C. =A7=A7 1973 et seq., the Civil Rights Acts of 1957 and 1960, codified at 42 U.S.C. =A7=A7 1971(a)(1), 1971(a)(2)(A) and 1971(a)(2)(B), 42 U.S.C. =A7 1983 and/or the Florida Voting Rights Act, Fla. Stat. Ann. =A7 104.0515. JURISDICTION 4. This court has jurisdiction pursuant to 28 U.S.C. =A7=A7 1331, 1343 and 1367. Plaintiffs' action for declaratory and injunctive relief is authorized by 28 U.S.C. =A7=A7 2201 and 2202; and by Rules 57 and 65 of the Federal Rules of Civil Procedure. VENUE 5. Venue is proper pursuant to 28 U.S.C. =A7 1391(b) because Defendants DAVID C. LEAHY, Miami-Dade Elections Supervisor; MIRIAM OLIPHANT, Broward County Election Supervisor; and CHOICEPOINT, INC., doing business as DATABASE TECHNOLOGIES INC., reside in this district and the state Defendants may be found in this district. PARTIES A. The Plaintiffs 6. Plaintiff NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC. by its FLORIDA STATE CONFERENCE OF BRANCHES ("NAACP") is a non-profit civil rights organization with its headquarters in Baltimore, Maryland. The NAACP has more than 500,000 members nationwide. The Florida State Conference of Branches is comprised of approximately 77 NAACP youth councils, college chapters and adult branches throughout the State of Florida. The NAACP strives to advance the interests of its membership in every area, including the rights of its members and constituency to participate fully in the nomination and election of candidates for elective office. In furtherance of this purpose, the NAACP, through its Florida State Conference of Branches, conducts non-partisan voter registration and education and encourages its members to vote. The NAACP as an organization is aggrieved by Defendants' actions because they significantly impede the NAACP's ability effectively to fulfill its institutional purpose of advancing voter registration and voters' full participation in the electoral process. 7. Plaintiff NAACP also brings suit on behalf of its individual members in Florida, who have been aggrieved by Defendants' failure to comply with federal constitutional and federal and state statutory guarantees and provisions relating to voting and who would have standing to sue in their own right. These members' individual interests in fully participating in the electoral process are germane to the NAACP's organizational purpose, and neither the claims asserted nor the relief requested herein requires the participation of the NAACP's members in order to vindicate their individual rights. A significant number of NAACP members, who are eligible voters and voted in the November 2000 election, reside in precincts and counties where a disproportionately large number of ballots were not counted in the Presidential election. NAACP members were also among those voters whose names were wrongfully purged from the voter registration lists, and a significant number of its membership were unable to vote or were impeded in voting on election day because of the unlawful practices complained of herein. 8. Individual named Plaintiffs are black citizens of Florida who were eligible to register and vote, who were registered voters or who took timely and appropriate steps to register as voters and who sought to vote in the November 7, 2000 general election in the State of Florida but were, as a result of the practices of Defendants complained of herein, denied the opportunity to vote, denied assistance they were entitled to, or were exposed to a significantly higher risk that their votes would not be counted in the official results for the presidential election. Plaintiffs desire to vote and participate in the electoral and political processes in Florida in the future on an equal basis with other residents, and to participate in future elections in which the rudimentary requirements of equal treatment and fundamental fairness are satisfied in voting and counting ballots in Miami-Dade County and throughout the state. The named Plaintiffs bring this action on their own behalf and as representatives for the class of all similarly situated black citizens. 9. Plaintiff JIMMIE PANNELL is at least 18 years of age. He is a citizen of the United States and a legal resident of the State of Florida and Duval County. Mr. Pannell is black. 10. Plaintiff JULIA STONER is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Duval County. Ms. Stoner is black. 11. Plaintiff NATALIE CARNEGIE is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Hillsborough County. Ms. Carnegie is black. 12. Plaintiff ERMA J. KELLY is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Miami-Dade County. Ms. Kelly is black. 13. Plaintiff JOHN L. CHEEVER is at least 18 years of age. He is a citizen of the United States and a legal resident of the State of Florida and Miami-Dade County. Mr. Cheever is black. 14. Plaintiff JAMES MARSHALL is at least 18 years of age. He is a citizen of the United States and a legal resident of the State of Florida and Miami-Dade County. Mr. Marshall is black. 15. Plaintiff LILLIE Q. ODOM is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Miami-Dade County. Ms. Odom is black. 16. Plaintiff WILLIE STEEN is at least 18 years of age. He is a citizen of the United States and a legal resident of the State of Florida and Hillsborough County. Mr. Steen is black. 17. Plaintiff WALLACE MCDONALD is at least 18 years of age. He is a citizen of the United States and a legal resident of the State of Florida and Hillsborough County. Mr. McDonald is black. 18. Plaintiff JERMAINE TERRY is at least 18 years of age. He is a citizen of the United States and a legal resident of the State of Florida and Hillsborough County. Mr. Terry is black. 19. Plaintiff LORINE WALDEN is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and of Broward County. Ms. Walden is black. 20. Plaintiff EMERY TIMBERLAKE is at least 18 years of age. He is a citizen of the United States and a legal resident of the State of Florida and of Volusia County. Mr. Timberlake is black. 21. Plaintiff VALERIE BUFORD-WELLS is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Broward County. Ms. Buford-Wells is black. 22. Plaintiff MICHELLE FLOYD is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Leon County. Ms. Floyd is black. 23. Plaintiff CONSUELO MARIA GRAHAM is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Orange County. Ms. Graham is black. 24. Plaintiff SHERRY EDWARDS is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Hillsborough County. Ms. Edwards is black. 25. Plaintiff KANDY WELLS is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Hillsborough County. Ms. Wells is black. 26. Plaintiff JOANNA CLARK is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Broward County. Ms. Clark is black. 27. Plaintiff JANICE KELLY is at least 18 years of age. She is a citizen of the United States and a legal resident of the State of Florida and Duval County. Ms. Kelly is black. 28. Plaintiff PLACIDE DOSSOUS is at least 18 years of age. He is a citizen of the United States and a legal resident of the State of Florida and Broward County. He is black. 29. Plaintiff RONDRICK ROSE is at least 18 years of age. He is a citizen of the United States and a legal resident of the State of Florida and Hillsborough County. He is black. B. Defendants 30. Defendant KATHERINE HARRIS is the Secretary of State of Florida. She is sued in her official capacity in connection with actions taken under color of state law. As Secretary of State, Defendant HARRIS is the chief election officer of the State of Florida and has responsibility for general supervision and administration of the election laws. In addition, as Secretary of State she has responsibility for the Division of Elections of Florida's Department of State. She has the responsibility to obtain and maintain uniformity in the application, operation, and interpretation of the election laws, and to provide technical assistance to the supervisors of elections on voting systems. See Fla. Stat. Ann. =A7 97.012. She is also responsible for providing uniform standards for the proper and equitable implementation of the registration laws and coordinating the state's responsibilities under the National Voter Registration Act of 1993, ("NVRA"). Id. She also has the duty to adopt rules which establish minimum standards for hardware and software for electronic and electromechanical voting systems, and to adopt rules to achieve and maintain the maximum degree of correctness, impartiality, and efficiency of the procedures for voting, including write-in voting, and counting, tabulating, and recording votes by voting systems used in the State of Florida. See Fla. Stat. Ann. =A7 101.015. 31. Defendant CLAY ROBERTS is the Director of the Florida Division of Elections. He is sued in his official capacity in connection with actions taken under color of state law. The Division of Elections is responsible for adopting uniform rules for the purchase, use, and sale of voting equipment in the state. See Fla. Stat. Ann. =A7 101.294. In addition, the Director is responsible for the Bureau of Voting Systems Certification within the Division of Elections which by law is required to provide technical support to the county supervisors of elections and which is responsible for voting system standards and certification. See Fla. Stat. Ann. =A7 101.017. Defendant Roberts is also responsible for administration of the statewide central voter file and for contracting with a private entity to compare voter registration lists with other computer databases. See Fla. Stat. Ann. =A7 98.0975. 32. Defendants DAVID C. LEAHY, MIRIAM OLIPHANT, JOHN STAFFORD, PAM IORIO, ION SANCHO, WILLIAM COWLES, and DEANIE LOWE are the county supervisors of elections for Miami-Dade, Broward, Duval, Hillsborough, Leon, Orange, and Volusia counties, respectively. They are sued in their official capacities in connection with actions taken under color of state law. Miriam Oliphant is the successor to Jane Carroll, who was supervisor of elections in Broward County during, and for 32 years before, the November 2000 election. The county supervisors of elections are the official custodians of the voter registration books in Florida and are responsible for registering voters within their respective geographical jurisdictions. See Fla. Stat. Ann. =A7 98.015. The county supervisors of elections are required to ensure that all voter registration and list maintenance procedures which they conduct are in compliance with any applicable requirements for that county under the Voting Rights Act of 1965, and that its general registration list maintenance program is uniform, non-discriminatory and in compliance with the Voting Rights Act of 1965. See Fla. Stat. Ann. =A7=A7 98.015 and 98.065. In addition, the county supervisors of elections have the duty of appointing election boards for each precinct in the county, providing forms, materials and voting equipment for use on election day, and providing training for election officials. See Fla. Stat. Ann. =A7 102.012. 33. Defendant CHOICEPOINT, INC. doing business as DATABASE TECHNOLOGIES, INC. ("DBT") is a Georgia corporation with offices in the State of Florida and, pursuant to state law, at all times relevant to the events referred to herein, acted as an agent of the State of Florida in connection with the contract between it and the State that is more fully described below. See Fla. Stat. Ann. =A7 98.0975(3)(b). CLASS ACTION ALLEGATIONS 34. The individual plaintiffs bring this class action on their own behalf and on behalf of all others similarly situated pursuant to Rule 23(a) and (b) (2) of the Federal Rules of Civil Procedure. 35. The class which plaintiffs seek to represent consists of all black citizens of the State of Florida eligible to vote, who were registered voters or who took timely and appropriate steps to register as voters, who sought to vote in the November 7, 2000 general election, and who were denied an equal opportunity to vote and have their votes counted in that election, by the actions, policies and practices of the Defendants, in violation of the Fourteenth Amendment of the United States Constitution, Section 2 of the Voting Rights Act of 1965, codified at 42 U.S.C. =A7 1973 et seq., the Civil Rights Acts of 1957 and 1960, codified at 42 U.S.C. =A7=A7 1971(a)(1), 1971(a)(2)(A) and 1971(a)(2)(B), 42 U.S.C. =A7 1983 and/or the Florida Voting Rights Act, Fla. Stat. Ann. =A7 104.0515. 36. The number of black citizens of Florida who were denied the right to vote in the November 7, 2000, election, or whose right to vote was abridged or impeded, because of Defendants' practices complained of herein, is so numerous that joinder of all members is impracticable. On information and belief, tens of thousands of ballots in counties and precincts where substantial numbers of black citizens reside were not counted in that election. On information and belief, thousands of black citizens were denied registration, wrongly purged from the voter rolls, and denied the opportunity to vote in that election. 37. There are questions of law and fact common to the class. These include whether the Defendants applied qualifications or prerequisites to voting or standards, practices or procedures in a manner that denied or abridged class members' right to vote in the November 7, 2000 general election. All members of the class were denied the opportunity to vote, to have their votes recorded and counted in an equal and non-arbitrary manner, or had their right to vote impaired by one or more of the actions of the Defendants identified herein. Additional common questions of law and fact include, but are not limited to: whether the Defendants applied a method of recording, processing and tabulating ballots that resulted in the denial of black voters' right to vote; whether the Defendants wrongfully purged registered voters from the list of eligible voters; whether the Defendants failed to allow voters who had not moved, or had moved within the same county; whether the Defendants' maintenance of lists of "inactive" registered voters, separate from lists of other registered voters and not available at polling places, operated to deny or abridge registered voters' right to vote; whether disparities in equipment available at polling places with substantial numbers of black voters resulted in the denial of black voters' right to vote; and whether Defendants failed or refused to process and record timely applications for voter registration, and to distribute voter registration cards, so as to deny citizens the right to vote. 38. The claims of the representative plaintiffs are typical of the claims of the class as a whole. 39. Plaintiffs can and will fairly and adequately protect the interests of the members of the class. 40. Plaintiffs are represented by counsel who are familiar with the applicable law, including attorneys of the NAACP, the Lawyers' Committee for Civil Rights Under Law, the NAACP Legal Defense and Educational Fund, People for the American Way Foundation, the American Civil Liberties Union Foundation, the Advancement Project and Williams & Associates. Counsel for plaintiffs have the resources necessary to pursue this litigation and are experienced in class action litigation and litigation involving civil rights. 41. Class certification pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2) is warranted because the Defendants have acted or failed to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole. FACTS A. Arbitrary and Racially Disparate Adverse Impact of Electoral Systems 42. Defendant Secretary of State KATHERINE HARRIS is the head of the Department of State, which is required to examine all makes of electronic or electromechanical voting systems to determine if they comply with state law. Fla. Stat. Ann. =A7 101.5605. Defendant CLAY ROBERTS is the Director of the Florida Division of Elections and is responsible for adopting uniform rules for the purchase, use, and sale of voting equipment in the state and for voting system standards and certification. Pursuant to this authority, Defendants Harris and Roberts certified numerous voting systems for use in Florida, including several devices involving the use of "punch-card" ballots. Each county is authorized to select its voting method from the list of systems certified by Defendants Harris and Roberts. 43. On information and belief, Miami-Dade County, as well as 24 other counties in Florida, i.e., Broward, Collier, DeSoto, Dixie, Duval, Gilchrist, Glades, Hardee, Highlands, Hillsborough, Indian River, Jefferson, Lee, Madison, Marion, Martin, Nassau, Osceola, Palm Beach, Pasco, Pinellas, Sarasota, Sumter, and Wakulla use punch-card balloting machines for voting. Forty-one of Florida's sixty-seven counties use some form of electronic voting system, and one uses manually tabulated paper ballots. 44. State law requires that voting machines or systems must be capable of and must accurately register or record and count votes cast. Fla. Stat. Ann. =A7=A7 101.28 & 101.5605. 45. The punch-card balloting systems approved by Defendants Harris and Roberts, unlike other voting systems in use in Florida, have a substantially higher rate of error in recording, processing, and counting ballots than other mechanisms and machinery for voting used in Florida. 46. In the 2000 presidential election, the percentage of ballots recorded as having no vote (non-votes) in Florida counties using a punch-card system was 3.92%, while the error rate under the optical-scan systems in use elsewhere in Florida was only 1.43%. Thus, for every 10,000 votes cast, punch-card systems result in 250 more non-votes than optical-scan systems. Siegel v. LePore , No. 00-15981, 2000 WL 1781946, *31, *32, *43 (charts C and F) (11th Cir., Dec. 6, 2000). 47. State law prohibits the use of voting systems or machines which permit the voter to cast a simultaneous ballot for two different candidates for a single office. Fla. Stat. Ann. =A7=A7 101.28 & 101.5606. 48. Punch-card balloting systems or machines that have been approved by Defendants, unlike some other voting machines or systems in use in Florida, permit the voter to cast a simultaneous ballot for two different candidates for a single office. 49. State defendants do not have uniform standards or procedures adequate to insure that voters are made aware, prior to the completion of the ballotcasting process, that their ballots appear to contain non-votes or duplicate votes in one or more contests so that they may correct any unintended errors before their votes are tabulated, although some of the electronic voting systems approved for use by defendants incorporate this feature. 50. Plaintiffs JIMMIE PANNELL, JULIA STONER, NATALIE CARNEGIE, ERMA J. KELLY, JOHN L. CHEEVER, JAMES MARSHALL and LILLIE Q. ODOM, lawfully registered voters and residents of counties that used punch-card systems, who voted on November 7, 2000, faced a substantially greater risk that their votes would not accurately be recorded or counted than voters who live in counties that did not use punch-card voting systems. 51. As a result of the acts and omissions of Defendants Harris and Roberts, and their own acts and omissions, election officials in counties in Florida with substantial black populations have disproportionately selected and continue to use punch-card balloting machines. As a consequence, Plaintiffs and other black voters are significantly less likely to have their votes counted and accurately tabulated than other voters in the state. 52. The use of punch-card voting machines or systems and procedures connected with their use have an adverse impact on black voters' opportunity to participate in the electoral process and to have their votes counted in Florida, in violation of Section 2 of the Voting Rights Act of 1965. 53. The use of punch-card voting machines or systems and procedures connected with their use in Miami-Dade County, and in the other counties in the state which use them, deprives Plaintiffs of equal protection and due process by failing to accord equal weight to each vote and equal dignity to each voter throughout the state. 54. The next statewide election in Florida is scheduled for September, 2002, and upon information and belief, Defendants will conduct those elections in Miami-Dade and the other punch-card counties using punch-card balloting machines unless enjoined by this Court. B. Racial Disparity in Election Administration in Miami-Dade County 55. Defendant DAVID C. LEAHY, Supervisor of Elections for Miami-Dade County, is responsible for appointing election boards for each precinct, providing forms, materials, and voting equipment for use on election day, and providing training for election officials. 56. Precincts in Miami-Dade County with substantial percentages of black voters had a significantly higher proportion of non-votes in the Presidential election than precincts in the county that are predominantly white. 57. On information and belief, the number or proportion of voters in these predominantly black precincts who intended not to cast votes in the Presidential election was not substantially higher than the number or proportion of voters in other precincts within MiamiDade County who intended not to cast votes in the Presidential election. 58. On information and belief, the high numbers or proportions of non-votes for the office of President in predominantly black precincts resulted from practices relating to voting machines or systems and balloting procedures implemented by defendant Leahy and his staff. 59. Plaintiffs ERMA J. KELLY, JOHN L. CHEEVER, JAMES MARSHALL and LILLIE Q. ODOM are properly registered voters who reside in voting precincts in Miami-Dade County that have substantial percentages of black voters. They each voted in the general election for the office of President of the United States on November 7, 2000 but are significantly less likely to have had their votes counted and accurately tabulated than voters in predominantly white precincts in Miami-Dade County. 60. Defendant LEAHY's non-uniform methods of administering the November 7, 2000 general election denied black voters an equal opportunity to participate in the Presidential election and have their votes counted. <A HREF="http://www.ctrl.org/">www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! 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