Raskin v. Jenkins

• Docket Number: Civil Action 3:22-CV-2012-E-BH
• Decision Date: 25 August 2023
• Parties: ALLYSON RASKIN, Plaintiff, v. HONORABLE CLAY JENKINS, DALLAS COUNTY JUDGE and MICHAEL SCARPELLO, DALLAS COUNTY ELECTIONS ADMINISTRATOR, Defendants.
• Court: U.S. District Court — Northern District of Texas

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ALLYSON RASKIN, Plaintiff,
v.
HONORABLE CLAY JENKINS, DALLAS COUNTY JUDGE and MICHAEL SCARPELLO, DALLAS COUNTY ELECTIONS ADMINISTRATOR, Defendants.

Civil Action No. 3:22-CV-2012-E-BH

United States District Court, N.D. Texas, Dallas Division

August 25, 2023

Referred to U.S. Magistrate Judge ^[1]

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE

Based on the relevant filings and applicable law, Defendants' Response to Plaintiff's First Amended Complaint, which moves to dismiss the plaintiff's first amended complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), filed on November 23, 2022 (doc. 22), should be GRANTED; Petitioner's Opposed Motion for Emergency Injunction, filed on November 17, 2022 (doc. 18), should be DENIED; Plaintiff‘s [sic] Memorandum in Support of Opposed Motion for Joinder of Parties, filed on November 22, 2022 (doc. 19), and Defendants' Motions Opposing Joinder of Plaintiffs and Defendants and to Strike Declarations and Affidavits from Plaintiff's First Amended Complaint, filed on November 23, 2022 (doc. 23), should be DENIED as moot.

I. BACKGROUND

Allyson Raskin (Plaintiff) is a voter registered in Dallas County, Texas, who voted in the 2020 election. (doc. 34 at 61.)^[2] She sues Dallas County Judge Clay Jenkins and Dallas County

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Elections Administrator Michael Scarpello (Defendants) for violations of her civil rights and various state and federal laws, alleging that they knowingly administered elections with voting system equipment that was not properly certified, unreliable, and vulnerable to hacking and unauthorized access, in violation of state and federal election laws. (Id. at 40-42.)

A. Factual Background

Plaintiff's 66-page amended complaint, which includes a 441-page appendix^[3] and adds two proposed plaintiffs, contends that “[s]ince at least the 2020 general election, Dallas County approved, adopted, and purchase [sic] computerized election equipment that was not properly certified as required by Texas legislative statutes, which then violates constitutional provisions for elections and voting.” (Id. at 10-11; see also doc. 17.) “Substandard equipment is vulnerable and the true results of an election that relies upon unlawful equipment can never be known with full confidence.” (doc. 34 at 11-13.) Defendants allegedly “have consulted, voted, and approved a memorandum of understanding/agreement with the Department of Homeland Security (DHS) through the Center of Information Security (CIS)” in violation of the Elections Clause, which has caused private information to be released unlawfully. (Id. at 11.) Additionally, “through the use of Electronic Voting Systems (EVS),” elections have been outsourced to third-party vendors or various federal agencies without Plaintiff's consent, and “[t]his overreach of power provides access to private information, including voting records.” (Id.)

According to the amended complaint, “DHS has infiltrated all aspects of Dallas County's election processes” through the Elections Infrastructure Information Sharing and Analysis Center

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(EI-ISAC) launched by the Election Infrastructure Subsector Government Coordinating Council (EIS-GCC) in March 2018, and through the Center for Internet Security, Inc., with which Dallas County contracted on October 19, 2018, in preparation for the 2018 general election, and on June 16, 2020, for cellphone, modem, and scanner connectivity. (Id. at 21-22.) After Election System and Software (ES&S) presented the Texas Secretary of State with EVS version 6.0.2.0 for examination and certification, the Secretary of State notified Dallas County in April 2019 that version 6.0.2.0 was certified for use in elections in Texas. (See id. at 23.) The laboratory that approved the certification was not accredited in accordance with a 2015 voting system manual. (See id. at 24.) Dallas County “contracted with ES&S for a regional transmission hardware and software for election night results,” and with another entity for election night reporting, a partner of which “merged with a Chinese company” in 2015 and “is ‘involved in' Texas' election infrastructure in more than one junction.” (Id. at 24-26.) The amended complaint alleges that the “contracts agreed to by Dallas officials have allowed for private voters' data to be shared with federal and foreign entities.” (Id. at 34.) It also claims that a guide “outlin[ing] the federal government's campaign for the general election of 2020” implants “the federal government in Texas' election at the local level.” (Id. at 26-27.)

Defendants allegedly “have provided CIS Security [sic], DHS, federal and third-party partners access to computerized voter file fields[,]” which “would undermine, and run afoul of, the State's carefully-crafted regulation of the use of voter data.” (Id. at 31-32.) The amended complaint claim that Defendants “would be sanctioning the disclosure of information regarding Petitioners to private firms and federal agencies, who could use such data without limitation and to the detriment of the privacy and associational rights of Texas voters.” (Id. at 34.) It also contends that Defendants “ignor[ed] the expiration of certifications of accreditation of VSTLs [voting system

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test laboratories] or the lack of legal signature per HAVA [the Help America Votes Act] thereby allowing voting machines to be used in elections since 2020,” and “allowed for the use of uncertified, non-compliant voting system equipment, software, and modifications for elections occurring in Dallas County in 2021 and 2022[.]” (Id. at 36.)

Plaintiff's sworn declaration,^[4] which is attached to the amended complaint, states that she voted in the 2020 election and is “not confident that [her] vote counted.” (Id. at 61.) She was not allowed to “poll watch” during the 2022 primary election or to observe the manual count of ballots at a “random audit” after a municipal election, and two election judges told her that “the data in the ePoll book during the 2022 Primary election was changing all throughout the day” and “did not look right.” (Id.) She was at a site during Election Day “where the tabulator stopped working and then [she] heard of several other locations that this also happened,” and “[p]eople started leaving the voting center because they didn't know if their vote would be counted.” (Id.) A sworn declaration by one proposed plaintiff states that she does “not have confidence that these machines [tabulators] and the internet connection were secure” at a polling location during Election Day 2020, she is “not confident that [her] vote was properly counted” in the 2020 election, she has “no confidence of election integrity in our 2022 midterm election . . .[and] zero confidence that [her] vote is protected or is represented correctly,” and “[w]e have been forced to vote on machines that have not been legally certified.” (Id. at 62.) A second states that he and others “lack confidence in the electronic voting systems utilized by Dallas County” based on his experiences as an alternate election judge in 2022 and a city council candidate in 2021. (Id. at 64-65.)

The amended complaint generally contends that Defendants “knowingly approved voting system/equipment, software, and modifications unlawfully, which deprives Petitioner

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constitutionally protected interests”; Defendants “have adopted, approved, and purchased an illegal, unconstitutional form of vote collection, which has already disenfranchised millions of voters who have been caused to vote illegally”; and Plaintiff was “harmed and continue[s] to be irreparably harmed by these unlawful acts, including by suffering forced contracts with representatives through deceptive practices and fraudulent certifications.” (Id. at 37-38.) It alleges due process violations under the First, Fourth, Fifth, Fourteenth, and Fifteenth Amendments; violations of equal protection under the Fourteenth and Fifteenth Amendments and 18 U.S.C. § 245; deprivation of civil rights under 42 U.S.C. § 1983, 42 U.S.C. § 1985, and the First, Fifth, and Fifteenth Amendments; deprivation of constitutional rights under 42 U.S.C. § 1986, the Declaration of Independence, the Preamble to the U.S. Constitution, and the First, Fourth, Fifth, Fourteenth, and Fifteenth Amendments; voting rights violations under 52 U.S.C. §§ 10101, 20507(a)(6), and 20510 of the Voting Rights Act, and 28 U.S.C. § 1343;^[5] and deprivation of rights under 5 U.S.C. § 522, 52 U.S.C. § 20507(a)(6), § 1983, § 1986, the Election Clause, Article 1, § 4 of the U.S. Constitution, and the Fourth Amendment. (Id. at 13-14, 44-54.) It also asserts claims for injunctive and declaratory relief under 28 U.S.C. §§ 1342, and 2201-02. (Id. at 53-54.) Its enumerated counts also appear to incorporate various violations of the Texas Constitution and the Texas Election Code. (Id. at 44-54.)

Plaintiff seeks a judgment declaring that Defendants' approval or adoption of electronic voting systems was unconstitutional and in violation of state and federal laws, and that Defendants' contracts or agreements relating to same are void and without legal force or effect; a court order

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that vacates and removes all uncertified and illegal voting systems, implements paper ballot voting and a hand-counting audit system, and requires the termination of involved parties and the inspection of past ballots; and an injunction that prohibits the use of electronic voting systems in future elections, the destruction of election records, and the implementation or enforcement of contracts or agreements relating to monitoring of election infrastructure. (See id. at 56-58.)

B. Procedural History

Plaintiff filed her original petition in state court on August 2, 2022. (See doc. 1-3 at 1-55.) After removing the case to federal court, on September 19, 2022, Defendants moved to dismiss it. (doc. 3.) On November 2, 2022, it was...