Graeff v. United States Election Assistance Comm'n
| Decision Date | 09 March 2023 |
| Docket Number | 4:22-CV-682 RLW |
| Parties | ALISON GRAEFF, Plaintiff, v. UNITED STATES ELECTION ASSISTANCE COMMISSION, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on a number of motions. Pending before the Court is Plaintiff Alison Graeff's motion for a preliminary injunction. (ECF No. 8). All the defendants oppose Plaintiff's motion. Also pending before the Court is a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), filed by Defendant United States Election Assistance Commission (“EAC”) and its Commissioners, Defendants Thomas Hicks, Christy McCormick, Benjamin W. Hovland, and Donald L Palmer (collectively, “the Federal Defendants”).[1] (ECF No. 31). In addition, Defendant John J. Ashcroft, the Missouri Secretary of State, filed a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).[2](ECF No. 32). Plaintiff opposes Defendants' motions to dismiss, which are fully briefed and ripe for review.[3] For the reasons that follow, the Court grants the Federal Defendants' motion to dismiss for lack of subject matter jurisdiction and denies without prejudice Plaintiff's motions for preliminary injunction and for partial summary judgment and Defendant Ashcroft's motion to dismiss for failure to state a claim.
Alison Graeff, who is proceeding in this matter without the assistance of counsel, is a Missouri voter and a former candidate for Missouri's 106th House district. Plaintiff alleges in her Amended Complaint that in the November 2020 general election, Missouri used electronic voting systems that were not tested by properly accredited test laboratories, and that Missouri continues to use the same voting systems today in violation of federal and state election laws. More specifically, Plaintiff alleges that the State of Missouri used and continues to use electronic equipment tested by three laboratories - SLI Compliance, NTS Huntsville Laboratory (“NTS”), and Pro V&V. According to Plaintiff, these three laboratories were not properly accredited or certified by the EAC at the time they performed their testing. In her Amended Complaint, Plaintiff seeks to enjoin the defendants from continuing to use voting systems tested by these three test laboratories and to force the State of Missouri to use hand-counted, paper ballots for future elections.
As background, in 2002, Congress passed the Help America Vote Act of 2002, 52 U.S.C. §§ 20901, et seq., (“HAVA”), which established the EAC. Under HAVA, the EAC is charged with providing for the “testing, certification, decertification, and recertification of voting system hardware and software by accredited laboratories.” 52 U.S.C. § 20971(a)(1). Under this authority, the EAC, in conjunction with the National Institute of Standards and Technology, set up a Testing and Certification Program, which is designed to ensure that competent laboratories are testing voting systems and software, and that they are following accepted standards in their testing. As part of this program, the EAC promulgated the Voluntary Voting System Guidelines (“VVSG”). The VVSG are used to guide the EAC's implementation of the Testing and Certification Program. Under the Testing and Certification Program, independent testing laboratories are certified and accredited as a Voting System Test Laboratory (“VSTL”) by the EAC. “[N]o laboratory may be accredited for purposes of this section unless its accreditation is approved by a vote of the [EAC].” 52 U.S.C. § 20971(b)(2)(A).
Under HAVA, states may choose to participate in EAC's Testing and Certification Program. “At the option of a State, the State may provide for the testing, certification, decertification, or recertification of its voting system hardware and software by the laboratories accredited by the [EAC] under this section.” 52 U.S.C. § 20971(a)(2). According to the Amended Complaint, Missouri “adopted” HAVA, yet the state “failed to be in compliance with the [HAVA] Subtitle B § 231(a)(1)(2)(b)(1) and the federal standards for laboratory testing accreditation set forth in the EAC Voting Systems Test Laboratory Program Manual, version 2.0, (OMB-3265-0018), Sections 3.4, 3.6 and 3.8 during the November 3, 2020 General Election and subsequent elections thereafter.” (ECF No. 23 at 10-11).
The Amended Complaint alleges Missouri is not in compliance with HAVA in that the State used and continues to use election equipment that was not tested by a properly accredited VSTL. Plaintiff contends that Missouri has used and continues to use voting systems and software that were tested by NTS, SLI Compliance, and Pro V&V. According to Plaintiff, these three testing laboratories were not properly accredited as VSTLs under the EAC's Testing and Certification Program at the time they tested Missouri's election equipment, and because they were without proper accreditation, “an issued certification of any voting system” from these three companies was “invalid.” (Id. at 31).
With regard to NTS, the Amended Complaint alleges that the State of Missouri used NTS to test the Unisyn OpenElect software 1.3, which was used by 66 Missouri counties in the “2020 election.” (Id. at 23). However, according to Plaintiff, NTS never received “legal accreditation” from the EAC to be a VSTL, “nor is there a Certificate of Accreditation available on the EAC website as dictated by HAVA” and, therefore, NTS had no authority “to test our voting machines” and use of the equipment NTS tested was in violation of EAC's policies and HAVA. (Id. at 22).
Plaintiff also alleges SLI Compliance was not a properly accredited VSTL. According to the Amended Complaint, SLI Compliance tested software and voting machines that were used in 10 Missouri counties. SLI Compliance also did testing “for the electronic voting system Hart InterCivic Verity Voting.” (Id. at 26). Plaintiff acknowledges that at one time SLI Compliance was accredited as a VSTL, but according to Plaintiff, SLI Compliance's accreditation has expired. Plaintiff alleges SLI Compliance's “Certificate of Accreditation” was issued in 2007, but it was not properly renewed and, therefore, the laboratory was not in compliance with EAC policies or HAVA. Plaintiff further alleges that in 2018, SLI Compliance was given a three-year VSTL accreditation, “even though law states the effective date of certification shall not exceed a period of two years.” (Id. at 24). Moreover, SLI Compliance's 2018 Certificate of Accreditation was signed by Brian Newby, EAC's Executive Director, not by the EAC's Chairman “as law requires.”[4] (Id. at 24).
Plaintiff further alleges that Pro V&V was not properly accredited as a VSTL with the EAC. According to the Amended Complaint, Pro V&V received its original Certificate of Accreditation to be a VSTL in 2015, and the certification should have been renewed in 2017 and 2019 but was not. Moreover, Pro V&V's Certificate of Accreditation was signed by Alice Miller, EAC's Executive Director, not by the EAC Chairman “as law requires.” (Id. at 26).[5] Plaintiff further alleges that the EAC has falsely stated that Pro V&V was and has been an accredited VSTL, when “current certification under Title 52 U.S.C. Chapter 209 [has] not been followed to render legal accreditation.” (Id. at 30). Plaintiff alleges Pro V&V “was not accredited during the time it falsely claims the machines were accredited and in use in the [S]tate of Missouri and nationwide.” (Id.).
According to the Amended Complaint, Missouri's Secretary of State and the EAC “knowingly allowed Missourians to vote on networked machines that were not certified due to lack of accredited VSTL(s) since the November 3, 2020 elections.” (Id. at 41). “This onerous conduct renders the [election] results void.” (Id. at 41). “[A]ny votes cast through an uncertified electronic voting machine [are] null and void.” (Id. at 43). Moreover, “[t]he Defendants continued to certify election results knowing they violated Missourian's [sic] civil liberties subsequently forcing Plaintiff into fraudulent contracts with illegally elected government officials: providing said officials with unlawful power to enforce actions under color of law coercing and subjecting Plaintiffs [sic] into servitude in which our liberty to determine our own course and way of life has been strong armed from us.” (Id. at 42). The EAC has “failed to perform its duties to The People in safeguarding and securing our electronic voting systems, our critical infrastructure, and our voices.” (Id. at 43). “This violates my rights as a citizen, silences my voice as a voter, eliminating my right to express my political opinion on who governs my state and my fundamental right to vote.” (Id.)
Based on these allegations, Plaintiff brings the following six counts against all the defendants in this case: “Violation of Procedural Due Process UNDER 42 U.S.C. § 1983 and 28 U.S.C § 1331 (1st, 14th, and 15th Amendments)” (Count I); “Violation of Substantive Due Process UNDER 42 U.S.C. § 1983, 18 U.S.C. § 245 (Fourteenth Amendment, Equal Rights)” (Count II); “Deprivation of Civil Rights UNDER 42 U.S.C. § 1983, 42 U.S.C. § 1985(3) (MO Const. Art. I, § 14 and Art. I, § 10)” (Count III); Deprivation of Constitutional Rights UNDER 28 U.S.C. § 1331 (MO Const. Art. I, § 14; Art. I, § 10; Art. I, § 25; Art. XI, § 3)” (Count IV); “Voting Rights Violation UNDER 52 U.S.C. § 20511(2)(b) (U.S. Constitutional First and Fourteenth Amendments) Missouri Const. Article I, § 25” (Count V); and “DECLARATIVE JUDGMENT UNDER 28 U.S.C. § 2201” (Count VI). (Id. at 49-55).
Plaintiff seeks the...
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