Petition for Writ of Mandamus,
mailed April 28, 2006
In Re Thomas Manaugh
STATE OF TEXAS IN THE SUPREME COURT OF THE STATE OF TEXAS
THOMAS MANAUGH, )
) EMERGENCY PETITION FOR WRIT OF MANDAMUS
v. ROGER WILLIAMS, )
THE TEXAS STATE )
SECRETARY OF STATE, )
IDENTITY OF PARTIES AND COUNSEL
Relator Thomas Manaugh, resident at 9747 Amberley Drive, Dallas, Texas 75243, 972-690-0354, brings this action pro se.
Respondent Roger Williams, Secretary of State, State of Texas, has offices at 1019 Brazos Street, Austin, Texas 78701, 512-463-5770. Trey Trainor is General Counsel for the Office of the Secretary of State.
TABLE OF CONTENTS
Identity of Parties and Counsel page 1
Table of Contents page 1
Index of Authorities page 2
Statement of the Case page 3
Statement of Jurisdiction page 3
Issues Presented page 4
Statement of Facts page 4
Argument page 5
Prayer page 6
Appendix A page 9
Appendix B page 9
Appendix C page 10
INDEX OF AUTHORITIES
By Acts 1987, 70th Legislature, effective Sept. 1, 1987, the Texas General Assembly enacted Election Code provision § 122.0331. “ADDITIONAL REQUIREMENTS FOR ELECTRONIC VOTING SYSTEM,” which is quoted in full in Appendix A. That law includes a provision that the “… secretary of state shall periodically compare the materials on file with the materials actually used in elections…”
STATEMENT OF THE CASE
Relator Thomas Manaugh, registered voter, taxpayer, and resident of Dallas County, Texas, petitions for a writ of mandamus to compel Respondent Roger Williams, Texas Secretary of State, to meet his mandatory, non-discretionary statutory obligation periodically to test electronic voting systems that are used in the State of Texas to determine that the program codes of the software in use are not different from the program codes that were previously certified for use in Texas, as required by Texas Election Code 122.0331(c).
STATEMENT OF JURISDICTION
Relator has standing as a registered voter and taxpayer in Texas, whose right to vote under Article 6, Section 2, of the Texas Constitution is directly and adversely affected by Respondent’s failure to comply with a mandatory, non-discretionary statutory requirement critical to ensuring voting system integrity. (See Appendix B.) Respondent has overall responsibility for administration of elections in Texas, including periodic inspection of voting equipment for use in the State. Venue is proper in that the Texas Supreme Court is the proper venue for an action for mandamus and equitable relief against the Texas Secretary of State as provided for under Texas Government Code § 22.002(a). (See Appendix C.)
In ongoing non-compliance with 1987 Texas Election Code statute 122.0331(c), quoted in Appendix A, Respondent has failed to take steps necessary to determine that program codes of software in use in voting systems in Texas are the same program codes as had been previously certified. Because Respondent has no plans to comply with the law even as an important election approaches, and because no other remedy is available, granting by the court of Relator’s petition for a writ of mandamus is necessary and urgent.
STATEMENT OF FACTS
Respondent has never tested program codes of software used in Texas elections, a fact admitted to by Ann McGeehan, Elections Director, Office of the Texas Secretary of State. She admitted to that failure during a meeting with Relator on March 14, 2006. Relator had previously discussed this same ongoing failure with Ms. McGeehan in a telephone conversation during October of 2004. At that time Ms. McGeehan stated that it was the intention of the Office of the Secretary of State to start doing “hash” testing, which is generally accepted as a valid method of detecting changes in program codes from an originally certified version. That testing, which would have satisfied the mandatory and non-discretionary obligation, has not been done. Furthermore, Ms. McGeehan stated, also on March 14, 2006, that there were no plans in place to perform the required testing before the general election that is scheduled for November 7, 2006.
Relator has validated Ms. McGeehan’s statement by another conversation Relator held with Mr. Bruce Sherbet, who has been Elections Administrator for Dallas County for approximately the last 20 years. In December of 2005 Mr. Sherbet confirmed that program codes used in the electronic voting system used in Dallas County have never been tested by the Office of the Secretary of State. Therefore, Respondent has failed to verify that program codes in use in Dallas County are certified.
The Secretary of State has the mandatory, non-discretionary duty to maintain on file copies of the program codes of all software of an approved electronic voting system and to periodically compare the materials on file with the materials actually used in elections to ensure compliance with Texas Election Code § 122.0331. Respondent has breached this mandatory, non-discretionary statutory duty as set forth in Texas Election Code § 122.0331-part c. Relator is entitled to a writ of mandamus from this Court, forcing Respondent to comply with his non-discretionary, ministerial statutory obligations.
The threatened and actual injury to Relator -- the use of unqualified voting systems’ software
in direct violation of critical statutory provisions specifically designed to protect Relator’s right to vote -- outweighs any potential injury to Respondent. Moreover, the cost to taxpayers will be much
higher if Respondent fails to inspect program codes and then, at some point in the future, it becomes necessary to re-run flawed elections. Also, the possible use of non-certified software increases the chances that Relator’s vote will not be counted accurately and that elections will be decided unfairly. Such an outcome would have very deleterious consequences for voter confidence in the fairness of elections in Texas.
It is in the interest of fair elections that only certified software be used. Software that is used in elections must be a certified version that has not been modified either in error or by intent. The threat to fair elections that is presented by use of non-certified software is real and far from trivial. Use of non-certified software has led in other states to lawsuits and de-certification of voting systems. Because an important election will be held in November, 2006, it is very important that Respondent be compelled without delay to fulfill his lawfully mandated duty to test software that will be used in that election.
A writ of mandamus is an extraordinary remedy to provide a swift enforcement of a party’s already-established legal rights. Moreover, a writ of mandamus is proper when there is no other legal remedy. Mandamus uses the in personam contempt power of the Court to coerce public officers to perform a plain duty. The power of the Courts to issue such orders is bestowed by the Texas Constitution, Article 5, Section 2, and Texas Government Code § 22.002.
Mandamus is the appropriate relief in this instance because of the need for protecting voting rights that are granted by the Texas Constitution. Furthermore, Respondent both has not performed the required testing in the past and has no plans in place to do so before the general election on November 7th of this year, thus making swift action crucial to Relator and other voters in Texas.
Relator respectfully requests that this court grant a writ of mandamus relief requiring (a) Respondent to test program codes of software used in voting systems in Texas necessary to determine that they are not different from certified versions and (b) Respondent complete the necessary testing prior to the general election that is scheduled for November 7, 2006.
Respectfully submitted this the 28th day of April, 2006.
STATE OF TEXAS )
DALLAS COUNTY )
Thomas Manaugh, being duly sworn, deposes and says that he is over eighteen years of age and that he is competent to make this Verification; he has personal knowledge of the matters set forth in the Verified Complaint; he has had read the Verified Complaint and finds that the comments are true to the best of his knowledge, information, and belief.
Sworn to and subscribed before me
This ______day of _________ 2006
My commission expires: _________
Texas Election Code
By Acts 1987, 70th Legislature, effective Sept. 1, 1987, the Texas General Assembly enacted
§ 122.0331 as follows:
“ADDITIONAL REQUIREMENTS FOR ELECTRONIC VOTING SYSTEM
a) Copies of the program codes and the user and operator manuals and copies or units of all other software and any other information, specifications, or documentation required by the secretary of state relating to an approved electronic voting system and its equipment must be filed with the secretary.
b) Materials described by Subsection (a) that are not on file with and approved by the secretary of state, including any updated or modified materials, may not be used in an election.
c) The secretary of state shall periodically compare the materials on file with the materials actually used in elections to ensure compliance with this section.
d) The program codes and all other software on file with the secretary of state under this section are not public information. The materials shall be made available to the attorney general or the general's designee in any investigation of election irregularities. The materials may be made available in a judicial proceeding on the request of the court or other tribunal but may be viewed in camera only.”
(a) Every person subject to none of the disqualifications provided by Section 1 of this article or by a law enacted under that section who is a citizen of the United States and who is a resident of this State shall be deemed a qualified voter; provided, however, that before offering to vote at an election a voter shall have registered, but such requirement for registration shall not be considered a qualification of a voter within the meaning of the term "qualified voter" as used in any other Article of this Constitution in respect to any matter except qualification and eligibility to vote at an election.
(b) The Legislature may authorize absentee voting.
(c) The privilege of free suffrage shall be protected by laws regulating elections and prohibiting under adequate penalties all undue influence in elections from power, bribery, tumult, or other improper practice. (Amended Nov. 3, 1896, Nov. 4, 1902, July 23, 1921, Nov. 2, 1954, Nov. 8, 1966, Nov. 4, 1997, Nov. 2, 1999, and Nov. 6, 2001.)
Texas Statutes, Government Code
§ 22.002. WRIT POWER. (a) The supreme court or a justice of the supreme court may issue writs of procedendo and certiorari and all writs of quo warranto and mandamus agreeable to the
principles of law regulating those writs, against a statutory county court judge, a statutory probate court judge, a district judge, a court of appeals or a justice of a court of appeals, or any officer of state government except the governor, the court of criminal appeals, or a judge of the court of criminal appeals. (Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., ch. 148, § 2.03, eff. Sept. 1, 1987;
Acts 1995, 74th Leg., ch. 355, § 1, eff. Sept. 1, 1995.)