Legal Strategy with Dan Gutenkauf

Contact Dan Gutenkauf at: dGutenkauf@msn.com

"What Citizen Investigators (YOU) can do at the Polls"

                                   by Dan Gutenkauf

        Citizens for a Fair Vote Count recently held their first national conference on vote fraud in Cincinnati, Ohio on August 25-27. (See Spotlight article Sept. 11, 2000)

I was invited to speak about my 4 years of legal research while prosecuting a lawsuit,  with my brother Dennis Gutenkauf, against Maricopa County for deprivation of our constitutional  rights while voting in the last Presidential election.   The highlight of the conference was a strategy session to ensure clean counting procedures and verifiable results in the upcoming election on November 7, 2000. This article is a summary of what two Arizona citizens accomplished to advance voters' rights, and what the average citizen can do at the polls in this election.

     After hearing a speech by the late Votescam author Jim Collier, Dennis and I attempted to monitor the vote count after the polls closed at our precinct in Tempe, Arizona on November 5, 1996. I did some research on Arizona's election statutes and found A.R.S 16-601 (tally of the vote) and the corresponding attorney general's opinion. We gave a photocopy to the election workers. The tally of the vote statute provides that as soon as the polls close, the election workers shall immediately count the ballots cast. "The count shall be public, in the presence of bystanders."The notes of decisions interpreting the statute cites an Arizona case,  Averyt v Williams,  holding that "the object of election  laws is to prevent fraud, and to guarantee to the voter the registration and count of his ballot." The election workers had not been trained in election law as required, and in spite of the statute, they threatened us with arrest if we did not leave. We tape recorded the incident and entered the tape as evidence in a subsequent lawsuit in Federal District Court.

     The District Court denied us our right to a civil trial by jury under the Seventh Amendment, and improperly dismissed our lawsuit, ignoring the 39 exhibits which proved the knowing and intentional violation of our rights. The Court also ignored the Supreme Court's rulings on the right to be free of intimidation while exercising the right to vote. The Ninth Circuit Court of Appeals affirmed the lower court's unpublished ruling, again in conflict with the Supreme Court, and in conflict with it's own previous rulings. The  U.S. Supreme Court abdicated its responsibility to exercise  its supervisory powers over the renegade lower courts, and it denied our petition for review. Our case would  have been a landmark ruling regarding voter's rights in a federal election. In a classic example of judicial tyranny, the courts failed to uphold the constitutional and statutory provisions of election law. It was a political hot potato because Arizona's Governor and Secretary of State were defendants, and our evidence and case law were unrefuted. 

      However, the correctness of our position was affirmed in the 1998 election worker's training manual. As a result of our lawsuit, Maricopa County was now forced to train election workers that voters could be present for the ballot count and videotape the proceedings after the polls close. We reversed Maricopa County's longstanding policy of threatening and intimidating voters who wanted to witness the vote count at the polls.

     Our policy victory carries dramatic implications for the other 49 states where voters have been threatened with arrest. I am currently researching the vote count statutes in the other 49 states. Some states, such as North Carolina and California, are similar to Arizona in providing for a public count of the ballots, with bystanders in attendance. Other states only allow election judges or previously registered political party representatives to monitor the count. However, the Supreme Court has ruled, in U.S v Mosley (1915) and Reynolds v Sims (1964),  that the right to vote also includes the right to have your vote honestly counted.

      Even if the state election law does not contain a specific provision for members of the public to be present at the poll closing for the count, citizens can assert their rights protected by the First Amendment. The First Amendment guarantees the right of citizens to peaceably assemble and to petition the government for redress of grievances. Certainly voter fraud is a public grievance. The purpose  of the First Amendment is to promote honesty of government by seeing to it that public business functions under the hard light of full public scrutiny. See Tennessean Newspapers Inc. v Federal Housing Administration. The operative principle is that when the polls are closed to voting, they are open to the public for counting. Election results are public record. The Ninth Circuit ruled in Fordyce v City of Seattle (1995) that videotaping matters of public interest is First Amendment protected activity. And the Supreme Court ruled in Thomas v. Collins (1944) that the device of requiring previous registration as a condition for exercising the rights of free speech and free assembly is incompatible with the requirements of the First Amendment.

    It is currently illegal in 49 states for citizens to examine the computer software that counts their ballots. The reason given is that the software is "proprietary information" or a "trade secret". However, an Arizona attorney general's opinion (I79-215) states that trade secrets are not exempt from inspection as public records and "other matters" In a new York case, Sachs v Cluett Peabody and Company,  if the software is patented, it is no longer a trade secret because a patent amounts to publication. And in a North Carolina case,  FMC Corp. v Cyprus Foote Mineral Co.,  trade secrets are not shown if there is evidence that the same technology could be purchased on the market from three or four other vendors. Only the vendors know how the software counts our ballots. Thus, a computer count amounts to a secret count, which defeats the legislative intent of the public count statute.

     Even if the elections department allowed public inspection of the computer software program that counts our ballots, computer vote fraud is invisible and undetectable. We must, therefore, DEMAND a manual count of the ballots at the polls, and compare the results with the computer tabulation at the central counting center.   This is only means of achieving honest, verifiable election results. It is not the citizen's burden to prove voter fraud, it is the elections department's burden to prove that they are administering clean elections.

     The Declaration of Independence asserts the government derives it just powers "from the consent of the governed". The government works for us. As Jesus Christ said " The slave is not greater than the master." WE THE PEOPLE are the master, and our public servants are bound by the chains of the Constitution. The courts have ruled that it is the citizen's job to keep the government from falling into error.

     One of the purposes  of government is to protect our rights When government becomes destructive of its purpose, it is the right of the people to alter or abolish it. We have a right to alter the way our public servants conduct our business. The purpose of the election board is to make sure that the voters' intent is accurately determined. As demonstrated in the Relevance magazine article "Pandora's Black Box", (November 1996), there is no way to prevent voter fraud when the ballots are counted by computer.Therefore, we must demand a manual count of the ballots at the poll.

     There are election statutes in each state with penalties for the refusal of election workers to perform their duty. They can be sued for nonfeasance with civil and criminal liability. As the late Illinois Senator Everett Dirksen once said "When they feel the heat, they see the light." And as the engraving on the Arizona Supreme Court building says "Where the Law Begins, Tyranny Ends." We must know the law ourselves and enforce the mandatory duties of our election officials.

     The court stated in US v Wesberry that the right to vote is the highest right we have as citizens, and without it, all other rights are purely illusory.  In her book  "101  Things To Do 'Til The Revolution", author Claire Wolfe asserts emphatically   "Never beg for your rights. Free people never beg for fundamental rights like free speech, freedom of association, self defense, worship and freedom to travel. Don't sit around and wait for Congress or the state legislature to "fix" violated rights."

(ed. note: The only laws and rights that exist are the ones that you are personally willing to enforce) "Never, never beg or negotiate for your rights. Take them. If enough of us do, no government in the world can stand in our way."

     To keep our rights, we must be informed and involved. Check out the website for Citizens for a Fair Vote Count (www.votefraud.org). We cannot afford the luxury of apathy or discouragement. We must vote and make sure that our vote is accurately counted manually at the polls. Recruit and assign other voters to attend the vote count at the polls with you. Take a tape recorder or videocamera to document the incident.  

     And if you don't like either of the two globalist Republicrats who are running, then vote for a candidate with Constitutional and Godly principles such as Pat Buchanan or Howard Phillips. As John Quincy Adams said "Always vote for a principle, though you vote alone, and you may cherish the sweet reflection that your vote is never lost." With honest elections restored, with citizens voting for principle instead of the lesser of two evils, and with the grace of God, we just might restore America to her original greatness. The average citizen can make a difference! I know because my brother and I did.

Dan Gutenkauf is a graduate of Drake University with a B.A. in Psychology. He and his bother Dennis are professional musicians and members of the Legal Research Society in Phoenix.

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