Legal Strategy with Dan Gutenkauf

Contact Dan Gutenkauf at: dGutenkauf@msn.com|

Governor Jane D. Hull
Secretary of State Betsey Bayless
1700 W. Washington
Phoenix, Arizona                                                               Friday,  October 27, 2000

cc  Elections Director Karen Osborne

Dear Governor Hull:

     I'm sure my name is familiar to you as one of the Plaintiffs in the civil suit Gutenkauf v Maricopa County.  I hope that you will understand that I have no personal animosity toward you, and that you had to be enjoined in the suit as an indispensable party. Recently  I was a featured speaker at the first national  conference on voter fraud held by Citizens for a Fair Vote Count in Cincinnati, Ohio on August 25-27, 2000.  I presented my legal research on voter's rights at the polls and relevant election law, theories of municipal liability, etc.

     During the course of the three day conference, I learned a great deal of information about computer vote fraud. In particular, I learned about the Eagle Optech III- P scanner that is used to electronically tabulate ballots here in Maricopa County. It was shocking to learn of at least seven different ways that the vote count can be manipulated invisibly without leaving a trace or audit trail. The research and documentation is contained in a 16- page article from the November 1996 issue of Relevance magazine titled "Pandora's Black Box: Did it Really Count Your Vote?" The spring board for that article is a 32- page feature story in New Yorker magazine, Nov. 7, 1988, titled  "Annals of Democracy: Computer Voting."

     I am  enclosing  copies of both articles to you so that you will understand the real threat that computer vote fraud presents to the integrity of election results. I'm sure that, after reading these two articles, it will be readily apparent to you that we cannot leave the electoral process open to such great vulnerability, and still expect to maintain the citizens' confidence in the system. I have been doing numerous speeches locally and talk radio shows nationally about this issue. I can tell you emphatically that there is a great deal of concern by citizens everywhere. People no longer have faith in the process, and this is clearly reflected in the apathy and low voter turnout. Our constitutional republic cannot survive if citizens fail to participate in the electoral process.

     I have done extensive legal research since the CFVC conference, and I am convinced that we have a readily available solution to our dilemma. I will therefore, respectfully, present the solution to you in the form of a resolution, notice and demand.

WHEREAS it is self-evident that the main function of government is to protect the rights of citizens;

WHEREAS  the court ruled 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;

WHEREAS the Supreme Court has ruled in US v Mosley and Reynolds v Sims   

that the right to vote also includes the right to have one's vote counted honestly;

WHEREAS  A.R.S. 16-601 Tally of the vote (at the polls) provides that "The count shall be public, in the presence of bystanders."

WHEREAS the Notes of Decisions interpreting and defining the purpose of A.R.S. 16-601 states that "The object of the election laws is to prevent fraud and to guarantee to the voter the registration and count of his ballot." Averyt v Williams (1904) 8 Ariz. 355, 76 P. 463.

WHEREAS Arizona attorney general opinion No. 64-40-L  interpreting A.R.S. 16-601 advises that "During counting of ballots, anyone properly conducting himself should be allowed inside railing of a polling place.";

WHEREAS  the ease and invisibility of manipulating the vote count  by computers is well- established by research and documentation in Relevance and New Yorker magazine, leaving the Eagle Optech III scanner vulnerable to computer fraud;

WHEREAS Howard Strauss, director of Advanced Computer Applications at Princeton University and a nationally renowned expert in the field of computer voting, declares that the so-called "logic and accuracy test" verification procedure, (as provided in A.R.S. 16-449), turns out to be no test at all; And that any system designed with a "trap door" or a "Trojan Horse" or any kind of fraudulent thing in it could pass that test easily;

WHEREAS such evidence is hereby served to the Governor and Secretary of State of Arizona, as well as the Elections Director of Maricopa County;

WHEREAS A.R.S. 16-621 Proceedings at the counting center provides in section B that "If for any reason it becomes impracticable to count all or part of the ballots with tabulating equipment, the officer in charge of elections may direct that they be counted manually, following as far as practicable the provisions  governing the counting of paper ballots.

WHEREAS the word "may" is used in conferring power upon any officer, court or tribunal, and if the public or third person has an interest in the exercise of the power, then the exercise of the power becomes imperative.

                    Anthony A. Bianco, Inc. v. Hess, 339 P.2d 1038, 86 Ariz 14

                    Brooke v. Moore, 142 P.2d 211, 60 Ariz. 551

WHEREAS the word "may" is read as "shall" or "must" when used in statute to impose a duty, performance of which involves protection of public or private interests.

             Pioneer Mut. Ben. Ass'n v. Corporation Commission, 123 P.2d 828, 59 Ariz. 112.

WHEREAS  the word "impracticable" means impractical, unwise or imprudent, rather than impossible or incapable of being performed. Rules of Civil Procedure, rule 23 (a)(1).- Brophy v School Committee of Worcester, 383 N.E. 2d 521, 6 Mass.App.Ct 731- Parties 35.11

WHEREAS it is self-evident that it is unwise and imprudent to count ballots with computers, and it is unquestionable that, as ruled by Judge Richard Niehaus, vote fraud cannot be prevented when tabulating ballots by computer;

WHEREAS "Fraud" in contemplation of election law is any artifice, unfair practice, undue advantage or secret or intentional violation of duty, trust or confidence, the tendency of which may be to cause actual injury to those interested in elections, the public and parties.

     In re Contest of Election of County Com'r, 31 Ohio Dec 130

WHEREAS only the software vendor knows how the ballots are counted, which constitutes a secret artifice and unfair practice, denying citizens the right to know that their vote is honestly counted;

WHEREAS  electronic counting of ballots is not visible to the human eye and is tantamount to a "secret count", and it defeats the legislative intent of A.R.S.16-601, providing that the count shall be public, not secret.

WHEREAS the Declaration of Independence asserts that "Governments are instituted among men, deriving their just powers from the consent of the governed. That wheneverany Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness;"

WHEREAS Congress has provided a legal remedy for deprivation of rights under  color of state law via 42 USC 1983;

IT IS HEREBY RESOLVED THAT WE, THE PEOPLE, INTEND TO PRESERVE OUR RIGHT TO VOTE AND HAVE OUR VOTE HONESTLY COUNTED!

YOU ARE HEREBY GIVEN NOTICE:

    As chief Executive Officer of the State, you have a duty make sure that our election laws are faithfully executed. The sole purpose of the Election Board is to assure the citizens that the will of the voters has been accurately reflected  by the ballot counting process. It should be clear to you, from the 48 pages of documentation submitted to you, that it is impossible to prevent voter fraud when computers count the votes. It should be clear that computer vote fraud is invisible and undetectable. It should also be clear that not even the Secretary of State nor the the Maricopa County Elections Director knows how the software source code counts our ballots. It is, therefore, impossible for them to certify that the election results tabulated by computer are true and accurate.

     Now that this serious problem has been brought to your attention, if you fail to take the only corrective action  already available, under A.R.S. 16-621 B, it will deemed as evidence of your "deliberate indifference" to the right of voters to have their votes honestly counted. As you know, this is the burden of proof standard necessary to show municipal liability. And as you also know, while a state employee may be immune from official liability, they can still be liable in their individual capacity.                          

 THEREFORE,  WE  DEMAND THAT YOU IMMEDIATELY ORDER THE SECRETARY OF STATE BETSEY BAYLESS AND THE MARICOPA COUNTY DIRECTOR OF ELECTIONS KAREN OSBORNE TO IMPLEMENT SECTION B. OF A.R.S. 16-621.             

WE FURTHER DEMAND THAT YOU ORDER THE IMPLEMENTATION OF THE SAME PROCEDURE TO THE TALLY OF THE VOTE AT EACH PRECINCT, AS A CHECK AND BALANCE, AS IS THE LEGISLATIVE INTENT OF HAVING TWO COUNTS, UNDER A.R.S. 16-601 AND A.R.S.16-621.

We demand that this procedure be implemented for the upcoming Presidential election on November 7, 2000. There will be no acceptable excuses for failure to do so!

WE, THE PEOPLE, and the undersigned, declare this to be our solemn and determined intent.

Dan Gutenkauf                       Arizona representative of Citizens For A Fair Vote Count                                 

Dennis Gutenkauf                                                            Tempe, Arizona

We, the undersigned, have read Dan Gutenkauf's letter of notice and demand to Governor Jane D. Hull, and agree with the stated purpose and resolution regarding intent to preserve the right to have our vote honestly counted. We also demand that our votes be tabulated at the polls by a manual count, as provided for in A.R.S. 16-621 B..

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