IN THE CIRCUIT COURT
SEVENTH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR VOLUSIA COUNTY, FLORIDA
SUSAN ROSE PYNCHON,
VOLUSIA COUNTY CANVASSING BOARD
And ANN McFALL,
COMPLAINT TO CONTEST ELECTION
Plaintiff, Susan Rose Pynchon, sues the Volusia County Canvassing Board and Ann McFall, defendants, and alleges:
1. This is an action brought under section 102,168, Florida Statutes (2004), to contest the certification that Ann McFall received more votes in the November 2 General Election in Volusia County, Florida, than did Patricia Northey.
2. Plaintiff is an elector resident and qualified to vote in Volusia County, Florida, residing at (redacted address).
3. Defendant Volusia County Canvassing Board consists of Joie Alexander, Member of the Volusia County Council, the Honorable Steven deLarouche, County Judge, and Deanie Lowe, Supervisor of Elections.
4. Defendant Ann McFall, (redacted address), is the candidate certified by the defendant Canvassing Board to have won the November 2, 2004 election for Supervisor of Elections.
5. Plaintiff has been informed that the Volusia County Canvassing Board certified the election results on November 12, 2004. Plaintiff is aware that the statutory deadline for filing this complaint is ten days following the date of that certification. Plaintiff alleges, however, that this complaint should be deemed timely filed for two reasons:
a. The Supervisor of Elections has unreasonably delayed providing information on which this complaint must be based, and still has not provided all of that information. The Canvassing Board is therefore estopped from asserting an untimely filing of this complaint.
b. The certification was based on inadequate and incomplete information regarding the election results, as will more particularly appear, and is, therefore, an invalid certification of those results.
6. A copy of the public records request emailed and faxed to the Supervisor of Elections on November 2, 2004, is attached. Some or all of the information requested is still missing from 59 of the 179 voting precincts, including portions of or all of the voting machine tapes for those 59 precincts, which are a vital part of official paper record of the election results from those precincts.
7. Complete information on problems with the voting machines prior to and during the election has not been provided.
8. Complete information relating to memory card failures during the election has not yet been provided.
9. Only a partial list of the transmission logs from the Accu-Vote optical scan server has been provided. Despite repeated requests, the Elections office has refused to provide to the Volusia County Democratic party the official election results, now stating that those results will not be available until December 1, 2004.
10. The Elections office has provided incomplete data regarding Early Voting and Absentee ballots. The Supervisor of Elections, for example, reported that the total number of absentee ballots and Early voting ballots, combined equaled 89,999 votes, yet the published figures for those totals is 84,100 votes, leaving over 5,800 votes unaccounted for.
11. Section 102, 168(3)(a) Florida Statutes (2004) provides that an election may be set aside for "misconduct, fraud, or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the election."
12. In Beckstrom v. Volusia County Canvassing Board, et al, 707 S. 2d 720 (Fla. 1998) the Florida Supreme Court said: "... if a court finds substantial noncompliance with statutory election procedures and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed the will of the voters, then the court in an election contest brought pursuant to section 102.168, Florida Statutes (1997), is to void the contested election even in the absence of fraud or intentional wrongdoing."
13. In addition to the pattern of delay in providing the requested information, the true election results are in doubt because of numerous violations of election law procedure and unanswered questions concerning the results.
14. The polls were opened early and closed late during Early Voting.
15. Many public records, including one signed results tape from a voting machine were found in the trash. Many of the requested records not furnished by the Elections office have been found in the trash. Results from the tapes found in the trash do not match the results of the copies of tapes furnished.
16. An email from Mark Earley, of Diebold Elections Systems, Inc., to the Elections office was provided which asked the recipient for an explanation of why Volusia County had more memory card failures than all of their other Florida customers combined, and then asked why the 17 memory card failures which the Elections office reported on November 3, increased to 25 before November 12, 2004.
17. The reported memory card failures were significant and troubling and included reporting zero votes after one week of voting, requesting permission to upload votes before the voting began, and messaging whether the card should be reformatted.
18. According to a statement by the Supervisor of Elections on November 17, 2004, the GEMS computer is not networked, and is "stand alone." The furnished computer logs show evidence of at least two attempts to remotely access the GEMS central tabulator, which is claimed to be secure. A computer screen shot printout on November 17, 2004 (found in the trash) shows that the GEMS computer at that time had two networked hard drives.
19. Plaintiff is reasonably concerned that access to the memory cards and voting machine tapes is presently not restricted, and that the opportunity for tampering with that critical evidence exists. Plaintiff accordingly requests that This Honorable Court immediately order the Supervisor of Elections to seal and sequester all memory cards and voting machine tapes pertaining to or used during the November 2, 2004 general election in Volusia County, during the pendency of this Cause.
WHEREFORE, Plaintiff respectfully requests that this court order the immediate sealing of all memory cards and voting machine tapes pertaining to or used during the November 2, 2004 general election, and after hearing the evidence in this cause, set aside that general election of November 2, 2004.
SUSAN ROSE PYNCHON
DANIEL R. VAUGHEN, P.A.
Attorney for Plaintiff
Fla. Bar No. 083486