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Forjone v. State of California

February 19, 2010


The opinion of the court was delivered by: Lawrence E. Kahn United States District Judge


Plaintiffs filed a Complaint (Dkt. No. 1) in the Western District of New York asserting various constitutional violations and other claims arising out of the National Voter Registration Act, 42 U.S.C. §1973gg, et seq., and the Help America Vote Act, 42 U.S.C. § 15301 et seq. ("HAVA"). Among other things, Plaintiffs appear to claim that at least some of the Defendants wrongfully counted the voting age population ("VAP") (including illegal aliens and deceased persons), rather than using the citizen voting age population ("CVAP"), and thereby used imprecise numbers in redistricting and determining eligibility for funds under the HAVA. Plaintiffs also appear to assert a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and the False Claims Act, 31 U.S.C. § 3729, et seq. Am. Compl. (Dkt. No. 26) at ¶ 1. Plaintiffs request a three judge panel pursuant to 28 U.S.C. § 2284.


In ruling upon certain motions before it, the Western District of New York noted that the Complaint:

can only be described as, inter alia, disjointed, unintelligible, convoluted, confusing and prolix. It is presented in such a manner that the Court, and the defendants... simply cannot determine what the plaintiffs are alleging.... The Complaint names approximately 70 defendants, including what appears to be most of the counties in New York State and the States of New York, Texas, New Mexico, Arizona, Nevada, California,... and Oregon, and, at its heart appears to complain about the manner in which New York and other States are implementing [HAVA].... The complaint also appears to raise concerns about how New York and its counties have failed to meet the mandates of HAVA and how the State has drawn its congressional, legislative and judicial districts.... [B]ecause of the manner in which the complaint is pled the Court can make little sense, if any, of what the defendants are alleged to have done or what they have failed to do in relation to HAVA or how those actions or failures to act are actionable.

Dkt. No. 24 at 1-2.

Plaintiffs were ordered to "show cause, in writing, no later than May 1, 2006, why this action should not be dismissed or transferred... and why sanctions should not be imposed against them...." Id. at 7. The Order also directed Plaintiffs to file an amended complaint that "simply and concisely informs the Court and the defendants in plain terms what they are alleging the defendants did or did not do... and how those actions or inactions are a violation of HAVA or some other federal or state statute, law or constitutional provision." Id. at 3. Plaintiffs were warned that "failure to file an amended complaint that complies with Fed. R. Civ. P. 8 and 10 and sets forth in a comprehensible manner claims upon which relief can be granted, will lead to the dismissal of this action." Plaintiffs also were instructed that, because they are proceeding pro se, they must delete references to any associations or organizations on whose behalf they claimed to be suing. The Western District's Order further noted that: at least five of the plaintiffs in this matter had filed in 2004 a very similar action in the United States District Court for the Northern District of New York... Loeber v. Spargo, 04-cv-1193.... [A] number of the plaintiffs filed declarations or affidavits which clearly intimate that the two actions are similar and that a reason for filing the instant action and to seek a change of venue for Loeber to this Court is because they are not pleased with the manner in which the Loeber*fn1 case is proceeding.

Because the Loeber case was similar to, and filed prior to this case, the Western District transferred the case to this Court. See Dkt. No. 100.

On August 17, 2006, Plaintiffs responded to the Order to Show Cause. Dkt. No. 26. Attached thereto as Exhibit B was a proposed Amended Complaint. The proposed Amended Complaint is 57 pages long (nearly twice as long as the original complaint) and continues to be "disjointed, unintelligible, convoluted, confusing and prolix." Plaintiffs did not file the proposed Amended Complaint. It similarly appears that Plaintiffs did not serve the Amended Complaint on Defendants. See, e.g., Mem. by N.Y. State Att'y General and NY State Sec'y of State in Supp. of Mot. to Dismiss (Dkt. No 29) at 3.

The First Cause of Action of the proposed Amended Complaint alleges a failure to enforce the National Voter Registration Act. In sum, this claim alleges that various states have failed to prevent non-citizens from voting in elections. Plaintiffs contend that, by allowing non-citizens to vote, their votes have been effectively diluted. The Second Cause of Action claims that the Election Assistance Commission ("EAC") and the Department of Justice have improperly certified false state HAVA submissions. The Third Cause of Action contends that the EAC has intentionally promoted, facilitated, aided and abetted illegal aliens to register by mail and vote in Arizona and certain other States.

The Fourth Cause of Action alleges that the New York State Board of Elections intentionally and maliciously failed to maintain a statewide central database that would enable municipalities to verify inactive voters. According to Plaintiffs, this causes various municipalities to receive a disproportionate share of election-related funding and allows people to register in more than one location. In the Fifth Cause of Action, Plaintiffs allege that the "Defendant New York State Municipal subdivisions... intentionally fail to maintain an accurate original voter registration database on a municipal by municipal bases as required under color of NVRA and HAVA and New York State Election Law." Plaintiffs allege that, if other states properly claimed HAVA funds, more funds would be available to the State of New York and, as a result, New York municipalities would not have to increase property taxes to cover election-related expenses. The Sixth Cause of Action alleges that the States of California, Nevada, Oregon, New Mexico, Arizona, Texas and other states "intentionally fail to maintain an accurate voter registration database" as required by federal and state law.

Plaintiffs contend that, as a result of Defendants' actions, "voting is being rapidly undermined by illegal aliens and multiply registered citizens," the strength of their votes is being diluted, their right to free speech and freedom of association is being infringed, their "suffrage rights" are being "disenfranchise[d]... by disproportionate diminished dilution by taking plaintiffs [sic] proprietary tangible suffrage property," they are suffering "reverse discrimination," they are being deprived of a republican form of government, they are being denied substantive due process and are being subjected to a taking of property for the "unfunded mandate as done under the Medicaid tax levy without notice and segregation of the election costs on real property tax levy," and they are being deprived of "Homerule autonomy" and equal protection of the law against false HAVA claims.

Presently before the Court are various Motions to dismiss the Complaint and Amended Complaint. Although Plaintiffs were granted leave to file an enlarged, consolidated brief in ...

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