87837-4 SUPREME COURT OF THE STATE OF WASHINGTON
____________________________________________________________ Linda Jordan Appellant v Secretary of State Sam Reed Respondent STATEMENT OF GROUNDS FOR DIRECT REVIEW
Linda Jordan, Appellant, Pro Se 4419 S Dawson St. Seattle WA 98118 206.227.1527 firstname.lastname@example.org
No.87837-4 SUPREME COURT OF THE STATE OF WASHINGTON
Linda Jordan Appellant v Secretary of State Sam Reed
) ) STATEMENT OF GROUNDS
) FOR DIRECT REVIEW )
Respondent ) ____________________________________________________________ Appellant Linda Jordan seeks direct review of the COURT’S OPINION AND DECISION and ORDER DISMISSING CASE entered by Thurston County Superior Court Judge Thomas McPhee on August 29th, 2012. Both were attached to the Notice of Appeal. 1. NATURE OF CASE AND DECISION On the afternoon of Friday August 24, 2012, Secretary of State Sam Reed (Secretary) certified the names of candidates who will be on the Washington State 2012 General Election ballot. That same day the ballot printing process began.1 Early Monday morning, August 27, citizen Linda Jordan (Jordan), a registered voter, challenged the placement of Candidate
Jordan Affidavit Ex 6
Barack Obama’s name on the General Election ballot under RCW 29A.68.011(1)(3)2 . The challenge must be filed within three days of the certification. The Court is directed to resolve the matter within five days of receiving the complaint. The same day Jordan filed the timeframe for the proceedings was set.3 The State’s Response Brief was due by noon on Tuesday August 28th. Jordan’s Reply Brief was due by 9:30 am on Wednesday August 29th and the hearing would be held that afternoon at 3:00pm. Judge Thomas McPhee dismissed the case with prejudice on August 29, 2012. II. ISSUES PRESENTED FOR REVIEW
RCW 29A.68.011 Prevention and correction of election frauds and errors. Any justice of the supreme court, judge of the court of appeals, or judge of the superior court in the proper county shall, by order, require any person charged with error, wrongful act, or neglect to forthwith correct the error, desist from the wrongful act, or perform the duty and to do as the court orders or to show cause forthwith why the error should not be corrected, the wrongful act desisted from, or the duty or order not performed, whenever it is made to appear to such justice or judge by affidavit of an elector that: (1) An error or omission has occurred or is about to occur in printing the name of any candidate on official ballots; or (2) An error other than as provided in subsections (1) and (3) of this section has been committed or is about to be committed in printing the ballots; or (3) The name of any person has been or is about to be wrongfully placed upon the ballots; or (4) A wrongful act other than as provided for in subsections (1) and (3) of this section has been performed or is about to be performed by any election officer; or (5) Any neglect of duty on the part of an election officer other than as provided for in subsections (1) and (3) of this section has occurred or is about to occur; …. 3 Email from Thurston County Superior Court JA Trina Wendell
No. 1 Did the trial court error by receiving an exhibit and declaration, ex parte, that was then used to formulate the Court’s Opinion and Decision? No. 2 Can convention, ballot printing and mailing schedules render RCW 29A.68.011(1)(3) effectively null and void, thereby denying citizens their right to make use of it? No. 3 Can the Secretary, on his own initiative and outside the legislative and rule making process, create a new way of certifying the names of major party candidates for President and Vice-President, to the General Election ballot, that violates current laws and rules governing the process?
WAC 434-215-165 Agency filings affecting this section Presidential nominations by major political parties. Nominations for president and vice-president by major political parties are conducted at each party's national convention. Immediately following the convention, each party must submit a certificate of nomination and list of electors to the secretary of state in order to place the nominees on the presidential general election ballot. RCW 29A.04.620 Rules. The secretary of state as chief election officer may make rules in accordance with chapter 34.05 RCW to facilitate the operation, accomplishment, and purpose of the presidential primary authorized in RCW 29A.56.010 through 29A.56.060. The secretary of state shall adopt rules consistent with this chapter to comply with national or state political party rules. [2003 c 111 § 162; 1995 1st sp.s. c 20 § 4; 1989 c 4 § 7 (Initiative Measure No. 99). Formerly RCW 29.19.070.] RCW 29A.56.360 Slate of presidential electors. In a year in which the president and vice president of the United States are to be elected, the secretary of state shall include in the certification prepared under *RCW 29A.52.320 the names of all candidates for president and vice president who, at least fifty days before the general election, have certified a slate of electors to the secretary of state under RCW 29A.56.320 and have been nominated either (1) by a major political party, as certified by the appropriate authority under party rules, or (2) by a minor party or as
No. 4 Did the Trial Court error by deliberately misrepresenting material facts on which this case pivots? No. 5 Can the Secretary and the Court ignore the findings of a law enforcement agency concerning a forged identification document that has been presented, by a presidential candidate, as an offer of proof that he is eligible for the office? No. 6 Is the Secretary bound to uniformly apply, to all presidential and vice presidential candidates, the requirement to swear the eligibility oath that write in candidates for president and vice president have to swear? III. GROUNDS FOR DIRECT REVIEW
independent candidates under chapter 29A.20 RCW. Major or minor political parties or independent presidential candidates may substitute a different candidate for vice president for the one whose name appears on the party's certification or nominating petition at any time before forty-five days before the general election, by certifying the change to the secretary of state. Substitutions must not be permitted to delay the printing of either ballots or a voters' pamphlet. Substitutions are valid only if submitted under oath and signed by the same individual who originally certified the nomination, or his or her documented successor, and only if the substitute candidate consents in writing. [2003 c 111 § 1429. Prior: 2001 c 30 § 1. Formerly RCW 29.27.140.]
RCW 29A.04.611 Rules by secretary of state. The secretary of state as chief election officer shall make reasonable rules in accordance with chapter 34.05 RCW not inconsistent with the federal and state election laws to effectuate any provision of this title and to facilitate the execution of its provisions in an orderly, timely, and uniform manner relating to any federal, state, county, city, town, and district elections.
Pursuant to Rap 4.2(A)(4), direct review is permitted in [a] case involving a fundamental and urgent issue of broad public import which requires prompt and ultimate determination. The issues raised go directly to the integrity and stability of our election process. This Court has previously accepted direct review in cases like this one that involve issues of voters’ rights and election law. See Becker v County of Pierce, 126 Wn.2d 11, 15 (1995) (granting direct review pursuant to RAP 4.2(a)(4) and (5) in case involving statutory limits on procedures for vote counting and canvassing). In Becker, the appeal was brought directly from a superior court order dismissing the plaintiff’s claim. The Court granted the review noting that the direct appeal presented “issues of broad public importance involving a state officer.” (direct review granted where plaintiff’s action commenced two years after the election had taken place). The need for direct review is of greater urgency here than in Becker. The General Election is fast upon us and ballots do need to be printed and mailed. Appellant did ask the Superior Court to prohibit a public official, the Secretary of State, from certain acts. (RAP 4.2(a)(5)) The Court can order an accelerated review (RULE 18.12). This appeal is expedited under controlling statute RCW 29A.68.011(1)(3) RAP 5.2(d.). Without this Court’s accelerated direct review Jordan will be denied effective relief.
IV. FACTS PERTAINING TO ISSUES PRESENTED No. 1 Before walking in to the courtroom on August 29th at approximately 2:45 pm, Solicitor General Jeffery Even, representing the Secretary, handed citizen Jordan a Declaration from Shane Hamlin with an attached exhibit A. Inside the courtroom Jordan saw Even hand a copy of a document to the clerk of the court for the Judge and heard him say that it was the same one he had just given me. Exhibit A was a letter from the Democratic National Committee (DNC) to the Secretary which included a “Provisional Certification” for candidate Barack Obama and Joe Biden. Jordan objected to the late entry of the declaration and exhibit but the Judge allowed it. In the verbatim report of the hearing6 Judge McPhee says, “I have written out my opinion conditioned upon what I heard here in closing arguments, and nothing I’ve heard in those arguments have convinced me to change that decision. So I will read this decision and then I will have it immediately available as a written decision for the parties…” The decision was already written when he walked in to the courtroom and he was not going to change it. Then McPhee continues, “I will first address part of this case that is not in that opinion, and that is the issue
Verbatim Report Of Proceedings p15 L22 through p16 L18
of the Hamlin declaration….The declaration of Hamlin and the attachment in the form of the letter dated July 24 from the Democratic National Committee Chair is important evidence.” (Emphasis added) This is the document that we both had just received right before the hearing and the Judge is saying that he is going to address it first orally because it is not addressed in his written opinion. How could it be? He had never seen it. However McPhee goes on to read his written opinion which includes a verbatim recitation of the DNC letter that was attached as Exhibit A to the Hamlin declaration.7 The written opinion included the same verbatim recitation of the DNC letter.8 No. 2 On the afternoon of Friday August 24, 2012 the Secretary certified candidate names for the general election ballot. That same day counties could begin printing ballots. Before Jordan could even file a challenge, early Monday morning, counties were already going forward with printing ballots. By the time the court ruled they were three and a half days in to the process. Ballot printing schedules influenced the Court’s decision9 but should they trump the law? And was their really a “printing” crises? In
Verbatim Report of Proceedings, P 22 L19 through p23 L20 Court’s Opinion And Decision, p4 L14 9 Verbatim Report of Proceedings, p15 L19
response to the late entry of the Declaration of Shane Hamlin, Jordan filed, on August 29th, a FOIA request with the Secretary’s Election Division for any and all communication between their office, the DNC and the Republican National Committee (RNC), relating to “provisional certifications”.10 The major party conventions this year were held on August 27-30 (RNC) and September 4-7 (DNC). In a letter from Katie Blinn,11 to the RNC dated July 6, 2012, she responds to concerns the RNC raised in May about making sure the submission of their Certificate of Nomination would comply with Washington’s legal requirements. The RNC had cited RCW 29A.56.360. Blinn details that military ballots must be mailed by September 22, that she understands the RNC will nominate their candidates for president and vice president on August 30 and requests that the RNC issue their Certificate of Nomination no later than September 4, 2012. She knew all the facts concerning mailing deadlines and convention schedules and set September 4th as the deadline to receive the nomination certificate. So why were ballots in the process of being printed on August 24? And why did the Secretary argue, on August 28, that the deadline for being included in the Voter’s Pamphlet was August
Jordan August 29, 2012 FOIA to SOS Elections Katie Blinn is a lawyer and the Co-Director of Elections for the Washington Secretary of State’s Office.
29?12 Why set September 4th as the deadline when Blinn knew the DNC nomination would not occur until September 7th? Why set September 4th as the deadline when major party president and vice president candidate names can be submitted, by law, up until September 17th and major party vice presidential candidates may be substituted up until September 24th ? (RCW 29A.56.360) The end result of changing the deadline from September 4 to August 29 was that citizens were effectively denied their right to challenge under RCW 29A.68.011(1)(3). Ballots were already being printed and the pressure was on to keep things moving. No. 3 In the same July 6, 2012 letter, Blinn offers the RNC the option of sending in a “provisional certificate” “earlier in the week of the convention” because the identity of the nominees “will be obvious by then”.13 On August 14, 2012 Blinn notified the DNC14 that she planned to certify the DNC nominees for President and Vice President on August 24th, 2012 even though she knew the nomination would not take place until September 7th. She makes no suggestion in this email to the DNC to
Secretary of State’s Response Memorandum Declaration of Tami Davis and Sheryl Moss 13 The RNC provided one but it was curious that the “Provisional Certification” had an August 20, 2012 notary date on it while the letter from the RNC it was attached to was dated August 14, 2012. 14 8/14/12 email from Blinn to DNC Kip Wainscott, Counsel for Obama for America
send in a “provisional nomination” like she did earlier with the RNC. However Wainscott responds on August 15th that Blinn’s plan to certify DNC candidates on August 24 is fine but then asks, “Can you confirm that you received the provisional certification that I asked the DNC to mail over to you?” On August 16 Blinn responds that, “We did. I apologize; it had not made its way to my desk yet. I have it now.” This “provisional certification” process violates every single law, procedure and rule in Washington State for the placement of major party candidate names, for president and vice president, on the general election ballot. It violates the rules of the DNC convention procedure for nominating candidates.15 The Secretary has known for four years when military ballots needed to be mailed. I can find no evidence that the Secretary adopted this new method of certifying candidates to the general election ballot through established Rule Making Procedure (RCW 34.05.310-365) It certainly was outside the legislative process. Did the DNC Convention schedule dictate this new procedure? Purportedly, in a last minute effort to comply with the MOVE Act, the Secretary engaged in the abject violation of Washington State election laws and procedures. This was not the answer to whatever mess they thought they were in. One I think was contrived.
See Plaintiff Jordan’s Reply to Secretary of State’s Response Memorandum p.2 L31
No. 4 Judge McPhee grossly and I think deliberately misrepresents the affidavit of software expert Mara Zebest.16 McPhee writes that Jordan offered a report by “a part-time computer programmer last employed in May 2077, who examined a copy of the pdf image of President Obama’s birth certificate and concluded that the original was forged.” No where in the Affidavit and Report that Jordan offered from Zebest, did Zebest say that she was a part time computer programmer or that she was unemployed. No where did she say that she concluded that the original [birth certificate] was forged. Please see the attached declaration from Mara Zebest correcting this misrepresentation.17 McPhee also based a good deal of his opinion on the false assertion that Jordan had asked the Secretary to determine if Obama was a natural born citizen. Quite the contrary Jordan never asked the Secretary or the Court to ascertain if Obama was a natural born citizen. Jordan argued that we could not even get to the citizenship issue because the forged identity document was in the way. “However, Plaintiffs’ first focus is on the forged identity document that Candidate Obama is using in an attempt to prove his eligibility to be a candidate. Plaintiff would directly address the Constitutional eligibility issue if the
Court’s Opinion and Decision, p6 L9 Declaration of Mara Zebest
Secretary or Candidate Obama introduced an authenticated birth certificate but at this stage the forged document is the matter at hand. A forged birth certificate can not be used to prove anything except that someone has engaged in the act of forgery and, in this case, that Candidate Obama is using a forged birth certificate to gain access to the ballot.”181920 The Secretary is allowed to be influenced by the media and is authorized to act on that influence concerning the placement of names on the primary ballot for president and vice president. (RCW 29.A.56.030) It is not outside the pale to conclude that the Secretary can also be influenced by the media concerning the identification document Candidate Obama revealed on the White House website on April 27, 2011. No. 5 Is there reciprocity between states concerning findings of forgery? The Maricopa County Sheriff’s Department spent nine months conducting a full fledged investigation of the PDF file revealed by the White House on their website on April 27, 2011 purporting to be an image of a scanned photo copy of Barack Obama’s original birth certificate. Investigators
Jordan Memorandum and Appendix of Law, p4 L66 through p5 L72 Court’s Opinion and Decision, p6 L16 through p7 L1-8 20 Clarification: Jordan Affidavit (p11 L203, p14 L261): Of course a scanned document can be saved as a PDF file. What reveals the forged nature of the PDF file on the White House website is that the file did not originate from a single source scanned document. It is a file that originated in the computer, containing multiple layers and manipulations resulting in an image that was compiled or fabricated.
concluded that the file is a completely manufactured and manipulated file, made up of many different layers and that the image it contains never existed in paper form. It is a forgery. The Secretary ignored this finding and Judge McPhee dismissed it as “the musings of the infamous Arizona sheriff Joe Arpaio”.21 This forged document and the use of it is a violation of the Federal Wire Fraud Statute 18 USC 1343 and 18 USC 1028 (Fraud and related activity in connection with identification documents, authentication features, and information) Is Washington State required to follow federal laws on fraud and forgery? The use of a forged identification document also violates RCW 9A.60, RCW9A.60.020. No. 6 The Secretary is required to uniformly apply election procedures.22 Courts have upheld that “Treating candidates equally is, as a matter of law, an important state interest.”23 The Secretary developed a write in candidate form for president and vice-president that include an eligibility oath that candidates are required to swear or the form will not be accepted. The oath states, “I declare that the above information is true, that I am a natural born citizen of the United States residing at the address listed
Court’s Opinion and Decision p6 L9 RCW 29A.04.611 23 See, e.g., Council of Alternative Political Parties v. Hooks, 179f3d. 64, 78 (3d. Cir.1999)
above, that I am a write-in candidate for the office as indicated above, and that, at the time of filing this write-in declaration, I am legally qualified to assume office.” The natural born reference is an assertion that the candidate meets the Constitutional qualifications. All presidential and vice presidential candidates should have to swear at least the same oath. This lack of uniformity breeds confusion. For example the DNC Certificate of Nomination for Barack Obama and Joe Biden, submitted to the Secretary in 2008, stated that, “…the following were duly nominated as candidates of said Party for President and Vice President of the United States respectively.”24 No mention of being qualified much less qualified per the United States Constitution. The 2012 Certificate of Nomination submitted by the DNC states, “…the following are the nominees of said Party for President and Vice President of the United States respectively, and that the following are legally qualified to serve as President and Vice President respectively under the applicable provisions of the United States Constitution.” (attached) (Emphasis added) Does this mean that the definition of “applicable provisions’ is open to debate? We need uniformity on this issue of Constitutional qualifications not confusion.
See Jordan Memorandum In Support of Motion for Order to Show Cause, Exhibit 4
September 18, 2012 Linda Jordan, Appellant Pro Se