barnett v. dunn response to defendants mtds

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Pamela Barnett, Pro se Plaintiff 2541 Warrego Way Sacramento, CA, 95826 Telephone: (415)846-7170 Fax: (866)908-2252 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ------------------------------------------------x PAMELA BARNETT, Plaintiff, v. DAMON JERRELL DUNN, etc., et al., Defendants. ------------------------------------------------x SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO -----------------------------------------------------------x Pamela Barnett ) Case No. 34-2010-00077415 Plaintiff, ) v. ) Damon Jerrell Dunn et al. ) Defendants ) -----------------------------------------------------------x PLAINTIFFs CONSOLIDATED RESPONSE TO THE EAC AND CALIFORNIA DEFENDANTS MOTIONS TO DISMISS THE COMPLAINT AND FOR CONSOLIDATE HEARING OF MOTIONS ON OCTOBER 22, 2010 /// /// /// /// /// /// Plaintiffs Consolidated Response to MTDs- Page i

Civil CASE: 10cv02216FCDDAD

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TABLE OF CONTENTS Page Plaintiffs Response as to Defendants Introduction Plaintiffs Response as to Defendants Factual Background. Plaintiffs Response as to Defendants Procedural History Plaintiffs Response as to Defendants Standard of Review Plaintiffs Response as to Defendants Arguments As for Plaintiffs response to State Defendants defense using the Eleventh Amendment . Amendment somehow bars Plaintiffs relief against Defendants Kelley, Brown and Bowen in federal court.. As to Defendants contention that the Court should grant defendants' motion to dismiss because Plaintiffs requested relief would substantially interfere with the conduct of the Election.. 10 As for Defendants' contention that Plaintiff somehow failed to state a claim for relief allege Dunn satisfied the eligibility requirements to run for Secretary of State, and is not disqualified by any omissions in his voter registration form As to Defendants contention that the Court should dismiss Plaintiff's seventh cause of action for unjust enrichment as to supporting facts . As For Defendants Failure To Maintain The Integrity Of The Voter Registration Database with the VRA... Plaintiff Argument As To Federal Jurisdiction and Authority... Plaintiffs Response Summary in Opposition to Dismissal Plaintiffs Consolidated Response to MTDs- Page ii 18 21 36 17 11 8 8 1 6 6 7 8

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TABLE OF AUTHORITIES Page CASES

Huston v. Anderson (1904) 145 Cal. 320,324, .. Pohlmann v. Patty (1917) 33 Cal.App. 390

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Hans v Louisiana , 134 U.S. 1 (1890).. 8- 10 Ex Parte Young., 209 U.S. 123 (1908).. Alden v. Maine, 527 U.S. 706 (1999). Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) Crawford v. Marion County Election Bd., 472 F.3d 949. U.S. v NYS BOE NDNY 06-cv-263//. United States v. Carmichael, 685 F.2d 903, 908 (4th Cir. 1982) United States v. Mason, 673 F.2d 737, 739 (4th Cir.1982) United States v. Malmay, 671 F.2d 869, 874-75 (5th Cir. 1982) United States v. Bowman, 636 F.2d 1003, 1010 (5th Cir.1981) United States v. Gradwell, 243 U.S. 476 (1917) Guinn v. United States, 238 U.S. 347 (1915) Newberry v. United States, 256 U.S. 232 (1918) United States v. Bathgate, 246 U.S. 220 (1918)..26 8,10, 10 10 19 20

United States v. Classic, 313 U.S. 299 (1941). 26,28 Reynolds v. Sims, 377 U.S. 533 (1964) United States v. Anderson, 481 F.2d 685 (4th Cir. 1973) United States v. Wadena, 152 F.3d 831 (8th Cir. 1998) United States v. Howard, 774 F.2d 838 (7th Cir.1985)

Plaintiffs Consolidated Response to MTDs- Page iii

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United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985) United States v. Stollings, 501 F.2d 954 (4th Cir. 1974) United States v. Slone, 411 F.3d 643 (6th Cir. 2005); United States v. McCranie, 169 F.3d 723 (11th Cir. 1999); United States v. Howard, 774 F.2d 838 (7th Cir. 1985); United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985); United States v. Garcia, 719 F.2d 99 (5th Cir. 1983); United States v. Mason, 673 F.2d 737 (4th Cir. 1982); United States v. Malmay, 671 F.2d 869 (5th Cir. 1982); United States v. Bowman, 636 F2d 1003 (5th Cir. 1981); United States v. Barker, 514 F.2d 1077 (7th Cir. 1975); United States v. Cianciulli, 482 F. Supp. 585 (E.D. Pa. 1979)27

Ex parte Yarborough, 110 U.S. 651 (1884). 28 Wilkins v. United States, 376 F.2d 552 (5th Cir. 1967); Fields v. United States, 228 F.2d 544 (4th Cir. 1955). United States v. Bradberry, 517 F.2d 498 (7th Cir. 1975) United States v. Nathan, 238 F.2d 401 (7th Cir. 1956). United States v. Haynes, 977 F.2d 583 (6th Cir. 1992)

United States v. Townsley, 843 F.2d 1070 (8th Cir. 1988) United States v. Howard, 774 F.2d 838 (7th Cir. 1985); United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985); United States v. Stollings, 501 F.2d 954 (4th Cir. 1974); United States v. Anderson, 481 F.2d 685 (4th Cir. 1973).. 29 United States v. Price, 383 U.S. 787 (1966),Plaintiffs Consolidated Response to MTDs- Page iv

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Williams v. United States, 341 U.S. 97 (1951); United States v. Classic, 313 U.S. 299 (1941). 30 United States v. Cole, 41 F.3d 303 (7th Cir. 1994) United States v. Sloane, 411 F.3d 643 (6th Cir. 2005); United States v. McCranie, 169 F.3d 723 (11th Cir. 1999) .. 31 United States v. Franklin, 188 F.2d 182 (7th Cir. 1951); Fotie v. United States, 137 F.2d 831 (8th Cir. 1943). United States v. DeFries, 43 F.3d 707 (D.C. Cir.1995),.FEDERAL STATUTES 28 U.S.C. 1746. 42 USC 1973C . 28 U.S.C. 2284. 1 1 1 32 33

42 U.S.C. 1973 I (c) 1,30,31 42 U.S.C. 1973 I (d). 42 U.S.C. 1973-J,. 42 U.S.C. 1973-N. 42 U.S.C. 1973GG-10. 42 U.S.C. 15544. 42 U.S.C. 1746. 42 U.S.C. 1746. 42 U.S.C. 1983. 42 U.S.C. 1985(3).. 42 U.S.C. 1986. 28 U.S.C. 1442(a) (1). Plaintiffs Consolidated Response to MTDs- Page v 1 1 1 1,3 1,3 1 1 1 1 1 3

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18 U.S.C. 666, 1341, 1346, 1951, and 1952..

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18 U.S.C. 241 and 242 26,28-30 18 U.S.C. 911. 18 U.S.C. 1346.. 18 U.S.C. 1341 18 U.S.C. 595. 8 USC 1324[a](1)(A)[iv][b](iii).. 32 33 33 35 35

CALIFORNIA CODE Cal. Admin. Code tit. 2, 19050.6. CAEC 2150 through 2154 CEC 18203, 18500 and 18501. The Constitution & Government Code 12511.

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US CONSTITUTION First and Fifth Amendment.. Ninth Amendment... Eleventh Amendment.. 8

Fourteenth Amendment10,29,36 U.S. CONST. art. I, 4.. 27 U.S. CONST. art. I, 8, cl. 18. 27

CALIFORNIA CONSTITUTION Section 3 of article XX of the California Constitution Plaintiffs Consolidated Response to MTDs- Page vi 13

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I, Pamela Barnett, declare under penalty of perjury, pursuant to 28 U.S.C. 1746: 1. Declarant / Plaintiff in esse is pro se herein without being an attorney. 2. Plaintiff / Declarant in anticipation of leave of the Court for economy and brevity hereby consolidates Plaintiffs response in opposition to the U.S. Election Assistance Commission by its director Thomas Wilkey (EAC) in its motion to dismiss as to it represented by Assistant U.S. Attorney Yoshinori H. T. Himel of the United States Attorney's Office in Sacramento filed on August 27, 2010 for a post General Election hearing November 12, 2010 and the California Attorney General Motion filed August 24, 2010 as to Defendants Brown and Bowen joined by Defendant Kelley for a hearing November 10, 2010 after the General Election and now together move as of October 4, 2010 for a combined hearing date on October 22, 2010 as applies to Plaintiffs Notice of Cross Motion for creation of a three judge panel with 42 USC 1973C in compliance with 28 USC 2284 for an expedited hearing as time is of the essence with imminent irreparable harm deserving of equity relief with a declaratory judgment and restraint. Plaintiff Response as to Defendants Introduction 3. Plaintiff seeks a declaratory judge pursuant to the cross motion with a combined hearing scheduled for October 22, 2010 for creation of a three judge panel with 42 USC 1973C in compliance with 28 USC 2284 to hear the Voting Rights Act (VRA) 42 USC 1973-C matter for a directed verdict with FRCP Rule 65 provisional and final relief with 28 USC 2201 and 2202 for issues raised as to 42 USC 1973 I (c), 1973 I (d), 1973-J, 1973-N, 1973GG-10 and 15544 as relates to 42 USC 1983, 1985(3) and 1986 accordingly involving the questionable defective voter registration of Defendant Damon Dunn who acted with Democratic Party partisans Defendants Orange

Plaintiffs Consolidated Response to MTDs- Page 1 of 40

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County Registrar (OCR) Kelley and Secretary of State (SOS)Bowen defined with 42 USC 1985(3) as well as AG Brown defined with 42 USC 1986 to interfere with the Republican Party Primary by conspiring to spoliate public records in anticipation of Defendant Dunns Republican Party candidacy for Secretary of State with ballot access at the November 2, 2010 General Election ballot for California Secretary of State. 4. That Plaintiffs claim is based upon SOS Bowen and OCR Kelley collusion to interfere as Democrats against SOS Bowens opponent SOS candidacy of Dr. Orly Taitz, Esq. that by favoring a weaker candidate allowed for Dunns acts of spoliation with the voter registration process so that Dunns affiliation with the Republican Party as a Republican opponent would be versus that of Dr. Orly Taitz to give Dunn a sufficient amount of time before the Republican Primary when registering to vote in California in March 2009; and that neither OCR Kelley nor SOS Bowen acted to conform the faulty Dunn registration with the ir-rebuttable presumptions of CA Election Code (CAEC) 2154, instead used the pre NVRA / HAVA administrative protocol process admitted to use of Cal. Admin. Code tit. 2, 19050.6 (shown at OCR Demurrer Memorandum page 3) that ignores any prior out of state registration in favor of California registration per se, and that Plaintiff in the complaint process to correct the Dunn filling both Defendant Bowen with AG Brown as Partisan Democrats show a pattern to marginalize and disparage Plaintiffs administrative complaints dating from before the 2008 General Election. 5. That Plaintiff does seek to substantive due process based upon California Code to bar Defendants; Damon Dunn, OCR Kelley, Secretary of State Debra Bowen and Attorney General Edmund G. Brown Jr. from the General Election ballot and further public office, claiming that they breached their fiduciary duties to Plaintiff along with Plaintiffs Consolidated Response to MTDs- Page 2 of 40

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those similarly situated as California Republican Party members without ministerial conforming to the requirements of CAEC 2150 through 2154 as applies to any state that maintains a voter registration database with 42 USC 1973gg and 15544 that with related law requires a properly completed timely voter registration form; and without such, thereby disqualifies Dunn as a candidate for Secretary of State and voting participation when the filing completed after 15 days before the June 8, 2010 Republican primary and until this very day when 15 days before the November 2, 2010 from participation at the General Election except by provisional ballot with the VRA. 6. That when co-defendant United States Election Assistance Commission (EAC) removed this matter to this Court under 28 U.S.C. 1442(a) (1) (as a suit against a federal agency), and under the voting rights, the EACs presence in this suit is NOT the only basis for federal jurisdiction in this matter as State Defendants are Federal Agents acting under color of state law that had not been pre-cleared as to the operation of the VRA for those states maintaining a Voter registration database. Therefore, if the Court decides to dismiss EAC, it then has to dispose of the VRA matter as applies to its State agents as Federal Agents with use of the Voter Registration database and thereafter with the discretion to remand this case to state court for settling the damages. Prior to removal, Defendants Brown and Bowen had filed a demurrer to Plaintiff's First Amended Complaint. Remanding this matter would allow the superior court to decide damages after a declaratory judgment is had with the VRA issues presented by Plaintiff. 7. That were the Court to retain jurisdiction of this matter, it should NOT grant Defendants Brown Bowen and Kelley's motions to dismiss without leave to amend, as Sovereign immunity under the Eleventh Amendment does not bar Plaintiff's claims against Defendants Brown Bowen and Kelley as referenced in the Argument below. Plaintiffs Consolidated Response to MTDs- Page 3 of 40

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Moreover, the issuance of Plaintiff's requested relief--orders to remove Dunn, Kelley, Bowen, and Brown from the General Election ballot or from further public service would not substantially interfere with the November 2, 2010 election as public policy to have both honest services of all public servants and an accurate fraud free ballot presented to the voters to prevent making the voters accomplices in a fraud and crime; and that otherwise as the primary election ended on June 8,2010, the parties have nominated candidates for the Secretary of State and Governor races, and the state's voters will elect a Secretary of State and Governor in the November 2, 2010 General Election. Plaintiff's requested relief, therefore, would result in the nullification of votes cast for Dunn, Kelley, Bowen, and Brown as would be required under the provisions of CEC 18203, 18500 and 18501 accordingly. 8. The Court should order that Dunn did not properly qualify as an eligible candidate for the Republican nomination for Secretary of State without a properly executed voter registration form. Because before declaring his candidacy, Dunn needed to have been affiliated with the California Republican party for at least three months, and not affiliated with any other qualified California party for at least twelve months as Dunn without filing a properly affirmed application to register to vote is not affiliated till this day, has not cleared both of these requirements, and without a properly completed voter registration he could not affiliate as a Republican nearly twelve months before declaring his candidacy for Secretary of State in March 2010. And although Dunn's prior registration in the Florida Democratic Party did not disqualify his candidacy, to the contrary because Defendant Dunns actions to expunge the prior record and conceal it from the State Defendants also involved an active Florida drivers license must nevertheless have been referenced on the Voter Registration application filed by Dunn with perjury; Plaintiffs Consolidated Response to MTDs- Page 4 of 40

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notwithstanding whether or not Dunns prior registration Florida had expired five years before he declared his candidacy, and notwithstanding whether or not the Florida Democratic Party is or is not a qualified political party in California is immaterial to the Dunn perjury in filling with the VRA when Florida must appear on line 16 when first filed to be a properly affirmed affidavit of registration that still is not done. State Defendants are not entitled to dismissal because Plaintiff's complaint does state the facts showing that Defendants breached their duties in the processing of Dunn's declaration for candidacy under the VRA. 9. That neither OCR Kelley nor the Secretary of State fulfilled their duties by presenting Dunn as one of the certified candidates for Secretary of State without a properly executed voter registration affidavit. That Defendant Bowen also confirms Dunns wrong doing by admitting the nonconforming registration with proof of intent was to defraud was done by Dunn is ineligibility after Plaintiff had requested an investigation. 10. As for the Attorney General, Defendant Brown does have a statutory duty to investigate Dunn's eligibility, especially when the Secretary of State found reason of nonconformance with intent to defraud as Plaintiff referred the matter to the Attorney General. And that Plaintiff's complaint does raise those facts showing that Defendants intentionally concealed or misrepresented information regarding Dunn's eligibility to run for Secretary of State, and for these reasons, the Court should grant the Plaintiff motion for a three judge panel for declaratory and injunctive relief accordingly and deny any of the defendants motion to dismiss; and in granting Plaintiffs motion the Court should also grant Plaintiff further leave to amend her complaint as to the Federal matters involved if the court deemed such matter necessary nunc pro tunc. Barnett has exercised her right to amend her complaint once before answering Defendants' initial Plaintiffs Consolidated Response to MTDs- Page 5 of 40

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demurrer filed in state court. However, even in her First Amended Complaint, Barnett has alleged facts stating a claim for relief as State Defendants actions beyond the required ministerial requirement of Election Code under color of the pre-VRA uncleared Cal. Admin. Code tit. 2, 19050.6, in which State Defendants cite the 1904 decision in

Huston v. Anderson (1904) 145 Cal. 320,324, and the 1917 decision in Pohlmann v. Patty (1917) 33 Cal. App. 390 show that the Defendants are liable, and that the Courtshould remand the complaint with declaratory judgment back to State Court for settling damages to close this matter. Plaintiff Response as to Defendants Factual Background 11. That Plaintiff realleges each and every allegation contained in the above paragraphs with the same force and effect as though herein set forth at length omits it for brevity, as to the Background facts as in part alleged by States Defendants motion are from Plaintiffs First Amended complaint that properly alleges Damon Dunn is the Republican candidate for California Secretary of State and that the facts speak for themselves. However in reference to the May 12, 2010 letter from the SOS shown as Exhibit M in the FAC the intent is shown in paragraphs at the First Amended Complaint Sixth Cause of action paragraphs 111 through 120 show thereby the required affirmative action by the State Defendant that was not done and is in conflict with the administrative code 19050.6. Plaintiff Response as to Defendants Procedural History 12. That Plaintiff realleges each and every allegation contained in the above paragraphs with the same force and effect as though herein set forth at length omits it for brevity, as to the Procedural History as in part alleged by States Defendants motion shown that the Plaintiffs actions were timely given the requested expedited process that Plaintiffs Consolidated Response to MTDs- Page 6 of 40

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was outrageously delayed or denied, Plaintiff is not subject to any claim of Laches given the extent of concealment and misdirection done by Defendants Dunn, Kelley Bowen and Brown with their agents; and that EAC is a named party due to the denial of substantive due process and unequal treatment accordingly as State Defendants are EACs agents with the VRA. Plaintiff Response as to Defendants Standard of Review

13. That Plaintiff realleges each and every allegation contained in the aboveparagraphs with the same force and effect as though herein set forth at length omits it for brevity, as to State Defendants stated Standard for Review, Plaintiff complies accordingly. Plaintiff meets the requirement under Federal Rule of Civil Procedure 12(b) (6), that as a matter of law it is clear that relief can be granted under any set of facts that could be proved consistent with the allegations. That Plaintiff has a cognizable legal theory, or sufficient facts alleged to support a cognizable legal theory. In considering the motion, the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. That the complaint does contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. That Plaintiffs claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' when but asks for more than a sheer possibility that defendant has acted unlawfully. That Defendant Kelley in his Demurrer to which Plaintiff contends there in effect raised the preclearance matter is a conflict of law under the VRA requiring a declaratory

judgment that may resolve the legal issue before a decision on the facts may be reviewed and decided.Plaintiffs Consolidated Response to MTDs- Page 7 of 40

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Plaintiff Response as to Defendants Arguments

14. That Plaintiff realleges each and every allegation contained in the aboveparagraphs with the same force and effect as though herein set forth at length omits it for brevity, as to State Defendants including Kelley, Bowen and Brown along with those agents similarly situated however as yet named, Defendant Dunn who merely filed an answer of general denial in State Superior Court without an appearance herein, and the EAC whose agent the DOJ is responsible for investigation of all complaints and submission for compliance with VRA and related law. As for Plaintiffs response to State Defendants defense using the Eleventh Amendment 15. That Plaintiff realleges each and every allegation contained in the above paragraphs with the same force and effect as though herein set forth at length omits it for brevity, and that Plaintiff opposes as inapplicable the California Defendants putative defense of Sovereign immunity with the 11th Amendment that would apply to Kelley Bowen Brown does not apply in that all are agents of the Federal government with duties under HAVA, the NVRA and VRA with related law; and furthermore as state agents are ultra vires by breach of fiduciary duties. 16. As for Plaintiff response to State Defendants defense using the Eleventh Amendment, it places no limitations on the power of the judiciary to entertain suits brought against a State by residents of that same State. That nonetheless, the SCOTUS in a controversial 1890 decision, Hans v Louisiana, concluded that the Eleventh Amendment was in fact a bar to federal suits against a state by that state's own citizens. The Court reasoned that at the time of the amendment's ratification in 1798 that such a limitation was taken for granted.


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17. The Court limited the effect of Hans somewhat in the 1908 case of Ex Parte

Young. The Court allowed a suit for injunctive relief against a state official reasoningthat if a state official violated the Constitution he cannot be acting on behalf of a state, which can only act constitutionally. Thus, state officials--but not states--might be sued when they violate the Constitution, even when they do so in the name of the state. 18. The question raised in this instant action is, does any State have sovereign immunity from abiding with the NVRA / HAVA / VRA and related laws regarding states that maintain a vote registration database and in this case sanction the harboring of undocumented aliens or tourists at will that effect Citizen suffrage privileges. That in

Printz v United States (1997), the SCOTUS found that Congress had unconstitutionallyintruded upon state sovereignty in the law in question in Printz was a provision of the Brady Act requiring chief law enforcement officers of states to run background checks on prospective handgun purchasers. The Court rejected the federal government's argument that it could enlist states in enforcing federal law, even though it might be unconstitutional to require states to make law--the problem identified in New York v U.

S. However such may not be applied to both the VRA / INA and related law in that as aresult of the enactment of the U.S. Constitution every State of the several States in perpetuity relinquished the right to determine the grant of US Citizenship to any alien as it once had power to grant under the Articles of Confederation; and therefore no public official of any State of the several states may ignore the provisions of VRA/INA and related law including the racketeering provisions of harboring without acting ultra vires and that any law passed to the contrary of Federal INA and related law except to adopt said law as the law of the State per se with both civil and criminal provisions to match as


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such any State action to the contrary may be enjoined by a Citizen of another state without bar by the Eleventh Amendment. 19. In Hans v. Louisiana, 134 U.S. 1 (1890), the Supreme Court ruled that the amendment reflects a broader principle of sovereign immunity. As Justice Anthony Kennedy, writing for a five Justice majority, stated in Alden v. Maine, 527 U.S. 706 (1999): [S]overeign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself....Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers. 20. Although the Eleventh Amendment immunizes states from suit for money damages or equitable relief without their consent, in Ex parte Young, 209 U.S. 123 (1908), the Supreme Court ruled that federal courts may enjoin state officials from violating federal law. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court ruled that Congress may abrogate state immunity from suit under the enforcement clause of the Fourteenth Amendment as is done with the INA and related Federal Law. As to Defendants contention that the Court should grant defendants' motion to dismiss because Plaintiffs requested relief would substantially interfere with the conduct of the Election 21. That Plaintiff realleges each and every allegation contained in the above paragraphs with the same force and effect as though herein set forth at length omits it for brevity, and that Plaintiff opposes as to alleged interference with elections as moot and that the California Defendants putative defense of compelling state interest to present to the voters a defective ballot at the general election that would apply to Dunn, Kelley Bowen Brown as to their actions; however in the alternative, Plaintiffs Consolidated Response to MTDs- Page 10 of 40

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22. Plaintiffs question to the Court is as to whether or not when the ballot as presented is a fraud as to even a single candidate that it invites the voter into an act of fraud also and whether not such statewide office also affects the votes cast for other candidates too which Plaintiff contends it does and is suffrage fraud. As for Defendants' contention that Plaintiff somehow failed to state a claim for relief allege Dunn satisfied the eligibility requirements to run for Secretary of State, and is not disqualified by any omissions in his voter registration form. 23. That Plaintiff realleges each and every allegation contained in the above paragraphs with the same force and effect as though herein set forth at length omits it for brevity, and that Plaintiff based upon the facts presented denies the Defendants putative defense that somehow Plaintiff failed to state a claim for relief as to Dunn, Kelley, Bowen, Brown and EAC. 24. As to Dunn, he did not satisfy the voter registration requirement with a properly executed registration affidavit according to the law, and still has not by a plain reading of the law and factual evidence shown by the actual registration form that is incomplete; and that the facts at FAC Paragraphs 111 through 120 show:

111. That the Background checks that was faxed to the California Board of ElectionChief confirms that Mr. Dunn had registered in both Texas and Florida (see Exhibit J-1). 112. On or about February 24, 2010 Defendant Kelley and or his agents issued a Declaration of Candidacy for Defendant Dunn located at 3131 Michelson Unit 708W Irvine CA 92612 pursuant to Elections Code Section 200, 8020 and 8040, certified it on March 10, 2010 and filed on March 15, 2010 by Defendant Bowen based upon the March 13, 2009 improperly executed Voter Affidavit of Registration shown as Exhibit A for the Republican Party Direct Primary Election to be held June 8, 2010 (see Exhibit K). 113. Because the Registration shown as Exhibit A is Fraudulent until Mr. Dunn amended a properly executed Affidavit of Registration to Vote in 2010, the November 5, 2009 Intent for Candidacy shown as Exhibit B is null and void along with the March 15, 2010 filed Declaration of Candidacy in that Mr. Dunn had not been affiliated with the California Republican Party for 3 months required with 8001(a) by the amendment. 114. That on page two of the Declaration of Candidacy shown as Exhibit K Plaintiffs Consolidated Response to MTDs- Page 11 of 40

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Respondent Dunn and or the Notary / agent of Neal Kelley Registrar of Voters affirmed in the BOX provided for prior registration that as to Party Affiliation "No Prior Registration exists; and 115. That on March 15, 2010, the time stamp shows that Defendant Bowen and or her agent deputy filed the Certified Declaration of Candidacy shown on Exhibit K first page. 116. That on March 30, 2010 Duval County Supervisor of Elections Jerry Holland wrote a letter to Mark Loren Chief Investigator of the Election Fraud Investigation Unit of Secretary of State that confirmed Mr. Dunn had a prior registration at 10135 Gate Parkway, North #1111, Jacksonville Florida (see Exhibit L). 117. That after May 12, 2010 Plaintiff received a letter from Mark Loren Chief Investigator of the Election Fraud Investigation Unit of the Secretary of State Office also confirmed Mr. Dunn had a prior registration in Florida and admitted that Mr. Dunn was in non-compliance with CEC 2150 (a) (10); however alleged that without evidence the omission was intentional no criminal sanctions for non-compliance exist (see Exhibit M). 118. That according to Exhibit A, Mr. Dunn intentionally left the Section 16 blank to conceal the prior registrations in both Texas and Florida in conjunction with his intended candidacy for CA SOS and lied in the affirmation by using "March 15,1976". 119. That according to Exhibit C Defendant Dunn attempted to spoliate his registration record in Florida and Texas in conjunction with his candidacy for CA SOS; and based upon information and belief Mr. Dunn was successful in expunging the registration record in Texas to no avail did turn up in the background check shown as Exhibit J-1 that had been sent to Mark Loren Chief Investigator of the Election Fraud Investigation Unit of the Secretary of State Office. 120. That according to Exhibit K page two, Defendant Dunn lied under oath taken by Defendant Kelley or his agent had "no prior registration based upon the March 13, 2009 improperly executed Voter Affidavit of Registration shown as Exhibit A. 25. Plaintiff based upon the facts presented opposes the California Defendants putative defense that somehow, Kelley, Bowen, Brown fulfilled all duties in ensuring Dunn and others candidacy in the past complied with election laws. 26. Mr. Kelley admitted use of the administrative code that is in conflict with the election code provision that is without rebuttable presumption with the duty to mandate that Dunn re-file a registration with complete information wasnt done and still isnt; also spoliated evidence of wrong doing in the course of ministerial duties. 27. Ms. Bowen admitted the Dunn registration is nonconforming and without a rebuttable presumption failed with the duty to mandate that Dunn re-file a registration Plaintiffs Consolidated Response to MTDs- Page 12 of 40

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with complete information wasnt done and still isnt; and when presented with proof of Dunns malicious intent to circumvent the code by expunging election records in other states and failed to change his Florida drivers license to a California driver license as is required with the law for a valid residency for over a year after attempting to file a voter registration form, Bowen failed to fulfill all duties in ensuring Dunns and as with other candidacies in the past to comply with election laws. 28. Mr. Brown admitted receipt of several complaints as to election law violations and has done nothing and that Mr. Browns oath office requires in Section 3 of article XX of the California Constitution provides:

Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation: I,_________________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter. And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking or this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows: ______________________________________________________________ (If no affiliations, write in the words No Exceptions) and that during such time as I hold the office of ______________ I will not (name of office) advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means.


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And no other oath, declaration, or test, shall be required as the qualification for any public office or employment. Public officer and employee includes every officer and employee of the State, including the University of California, every county, city, city and county, district, and authority, including any department, division, bureau, board, commission, agency, or instrumentality of any of the foregoing.29. The California Attorney General has a very broad general grant of authority from both the California Constitution and the Government Code. In addition, certain sections in the civil rights statutes delineate specific mandates for the Attorney General as to

General Authority: The Constitution & Government Code 12511, the CaliforniaConstitution establishes the general, broad grant of authority to the Attorney General. It establishes that subject to the powers and duties of the Governor, the Attorney General shall be the Chief Law Officer of the State. It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. Statutory law, in establishing the general operating structure of the Attorney General and the Department of Justice, reiterates the broad grant of authority:

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The Attorney General has charge, as attorney, of all legal matters in which the State is interested, except the business of the Regents of the University of California and of such other boards or offices as are by law authorized to employ attorneys. 30. That the Case law in this area has generally interpreted both the Constitutional and statutory grants of authority in unison. The courts have interpreted the provisions expansively, in that the Attorney General's authority is limited only when the legislature expressly deprives the Attorney General of the authority to pursue an action in a specified area through a legislative enactment. 31. The Attorney General has the authority to file any civil action which he or she deems necessary for the enforcement of the laws of California, the preservation of


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order, and /or the protection of the rights and interest of the public. In addition, the Attorney General may file any civil action which directly involves the rights and interests of the State. Since the Attorney General is the chief law officer of the state, "he

possesses not only extensive statutory powers but also broad powers derived from the common law relative to the protection of the public interest." The courts have heldunequivocally that it is the settled rule in California that the Attorney General is authorized "to file any civil action for the enforcement of the laws of the state or the United States Constitution, which in the absence of legislative restriction to the contrary, he deems necessary for the protection of public rights and interests." 32. That according to the published July 2010 analysis conducted by Hans Bader (1) of counsel to the Competitive Enterprise Institute of Washington District of Columbia Edmund G. Brown is The Nations Worst State Attorneys General (2) with the Executive summary, Introduction and particulars as to Mr. Brown see Exhibit A, as to Mr. Brown who fails in all four areas analyzed in the criteria for AG ratings states: 1. Ethical Breaches and Selective Applications of the Law. Using campaign contributors to bring lawsuits. Using the attorney generals office to promote personal gain or enrich cronies or relatives. Favoritism towards campaign donors and other uneven or unpredictable application of the law (including refusal to defend state laws or state agencies being sued when plausible defenses exist). 2. Fabricating Law. Advocating that courts, in effect, rewrite statutes or stretch constitutional norms in order to make new lawfor example, seeking judicial1

Hans Bader is Counsel for Special Projects at the Competitive Enterprise Institute. He

has litigated a variety of constitutional cases, focusing on federalism, civil rights, and First Amendment issues. He graduated from the University of Virginia with a Bachelors in economics and history, and later earned his Juris Doctor from Harvard Law School.2

http://cei.org/sites/default/files/Hans%20Bader%20-

%20The%20Nation%27s%20Worst%20State%20Attorneys%20General_0.pdf Plaintiffs Consolidated Response to MTDs- Page 15 of 40

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imposition of new taxes or regulations, or restrictions on private citizens freedom to contract. 3. Usurping Legislative Powers. Bringing lawsuits that usurp regulatory powers granted to the federal government or other state entities, or that are untethered to any specific statutory or constitutional grant of authority. 4. Predatory Practices. Seeking to regulate conduct occurring wholly in other statesfor example, preying on out-of-state businesses that have not violated state law and have no remedy at the polls. 1. Jerry Brown, California The worst attorney general in America is Californias Jerry Brown. One of the most fundamental duties of a state attorney general is to defend all state laws against constitutional challenges. California Attorney General Jerry Brown has abdicated that duty by picking and choosing which laws to defend, and even seeking to undermine those, he disagreed with (regardless of their constitutionality). For example, he refused to defend Proposition 8, an amendment to Californias constitution that prohibits gay marriagebut not civil unionseven after it was upheld by the state Supreme Court. Absurdly, Brown claimed that Proposition 8 somehow violated the state constitutioneven though it is actually part of Californias constitution. Brown also claimed that Proposition 8 violates the federal Constitution, even though the Supreme Court and other courts have already rejected such challenges to state gay marriage bans. While The author of this paper publicly opposed Proposition 8; it plainly does not violate the state constitution Browns fundraising practices raise ethical concerns. He collected $52,500 in campaign contributions from relatives and from a company his office had been investigating in a public pension fund corruption probe. Using his leverage as state attorney general, Brown raised nearly $10 million in contributions to favored charities from industries that he oversees as state attorney general, including utilities, casino operators, and health care organizations. Brown also conducted an investigation of the scandal-prone leftist activist group Association of Community Organizations for Reform Now, better known by its acronym, ACORN, that has been criticized as a whitewash. ACORN faced a public relations disaster in September 2009, when the conservative commentary website BigGovernment.com released a series of highly embarrassing hidden camera videos. In the videos, ACORN employees at several of the groups offices around the country are seen providing advice to the filmmakers, a man and woman posing as a pimp and prostitute, on how to conduct several illegal activities, including running a prostitution ring. In his report, Brown said that while ACORN did nothing criminal, his office found likely violations of state law. Brown closed his investigation without taking any action against ACORN, despite admitting that it had committed highly inappropriate acts, such as failure to file tax returns, illegally dumping 20,000 pages of documents, and four instances of possible voter registration fraud. Worse, Brown criticized the filmmakers who Plaintiffs Consolidated Response to MTDs- Page 16 of 40

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exposed ACORNs wrongdoing, claiming their videotape violated ACORNs privacyeven though the videos were all made at the ACORN offices public reception areas. and that at the Report page 21 states in Conclusion: Many state attorneys general across the nation conscientiously fulfill their duties every day. However, others, like those discussed above, have failed to heed the limits on their own power. Instead of focusing on their historical function of defending state agencies in court and providing legal advice, they have chosen to use lawsuits as a weapon by which to undemocratically impose new regulations on the public. In the process, they have usurped the lawmaking authority of state legislatures and Congress. To satisfy their ambitions, and enrich political allies, they have imposed great costs on our nations economy and system of government, while fostering corruption, and undermining constitutional checks and balances. The power of state AGs needs to be brought back under control. As to Defendants contention that the Court should dismiss Plaintiff's seventh cause of action for unjust enrichment as to supporting facts

33.

That Plaintiff realleges each and every allegation contained in the above

paragraphs with the same force and effect as though herein set forth at length omits it for brevity, as to Defendants unjust enrichment plaintiff along with those similarly situated have been denied honest service of elected and or appointed officials who have collected a salary and benefits under the basis of ultra vires activities in the failure to maintain the integrity of the State Database as is integrated into the national database of all states who maintain a voter registration database; and as for direct damages other than as a matter of liberty or intangibles as to Plaintiff along with those similarly situated as members of the Republican Party and other entitled to recover as members of a class with each having contributed to the respective candidate for California Secretary of State based upon the Campaign Finance Form 460 submitted by Mr. Dunn for his campaign has reported receiving $642,356.62 as of September 30, 2010 as shown on


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Campaign Disclosure Statement Summary Page (see Exhibit B) and as for Dr. Orly Taitz is about $52,000. That Plaintiff personally has expended and or donated less than $5,000. Defendants Failure To Maintain The Integrity of The Voter Registration Database With VRA 34. That Plaintiff realleges each and every allegation contained in the above paragraphs with the same force and effect as though herein set forth at length omits it for brevity, as to the State Defendants who are Federal agents of the EAC as a result of California voluntarily deciding to use a voter registration base, and that because such database is subject to fraudulent use requires Defendants Kelly, Bowen, Brown and their agents to exercise a heightened standard of care to remove the deceased, those relocated out of state, duplicate registrations, and ascertain that those who do register are US Citizens of the proper age and civil status, including the requirement that the person has a bona fide identity and that registration is not executed to circumvent the election law and or the VRA. That in part the NVRA and HAVA were enacted because those states that maintain a voter registration database have failed to exercise a heightened standard of care to prevent fraud in California and the several states that use a database. 35. That the pattern of failure of prior California State Officials to maintain a valid voter registration list is shown by Superior Court evidence in the 1996 re-election defeat of Robert K. Dornan (3), and the 2002 evidence of fraudulent use of the Voter registration3

The Robert K. Dornan (RKD) story is incomplete without further explanation of the 1996 RKD re-election defeat, after he had made a member speech on the floor of the US House attacking both the Republican and Democrat support of the homosexual agenda and exploitation of illegal aliens in June of 1996, in which his re-election was fraudulently interfered with by the state if


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database at the General Election for Dean Gardner as a candidate for Assembly (4) (see Exhibit C), and that when evidence is compared to the methods for fraudulent use of the voter registration database prior to the 1993 enactment of the National Voter Registration Act remains the same, with methods in use and comparable to the fraud evidence proven before a 1983 grand jury in Brooklyn New York by Elizabeth Holtzman as cited by Hans A. von Spakovsky, Esq. (5) in the March 10, 2008 Memorandum of law entitled Stolen Identities, Stolen Votes: A Case Study in Voter Impersonation filed in the case Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007 , w/ SCOTUS, cert. granted Sept. 25, 2007) (see Exhibit D); and based upon the pattern of the lax partisan standard of care shown by Defendants remains unchanged and that as a matter of fact the voter registration database is improperly maintained with the deceased, non-citizens, multiple registration and false registration and stolen impersonation for the purpose of obtaining reimbursement by EAC / DOJ under HAVA. California in his then Congressional district race wherein the State registered 4,023 alien noncitizens as proven on record with the Immigration and Naturalization Service (INS) [meaning at least they were on a visa or had permanent residence whereas illegal aliens are totally off the radar of the INS except for records of deportation upon arrest when there is illegal entry], and in which no less than 2,369 of those aliens voted for Loretta Sanchez with impunity; and despite RKD heroic efforts in seeking due process in State Court, in which the fraudulent election as a matter of public record was conducted by consent not competition of the Republican and Democratic National Parties, when about to be resolved in state court was removed by then Speaker of the House to be buried in the dark of night there in the US House by the traitor Gingrich and other bi-partisan Progressive partisans of both parties to hide vote fraud of their own, and promote exploitation of illegal alien harboring and sanctuary policies.4 5

http://www.portervillepost.com/politics/Voter-Fraud-Simple.html

years. Before that, he was Counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice, where he specialized in voting and election issues. He also served as a county election official in Georgia for five years as a member of the Fulton County Registration and Election Board.

Hans A. von Spakovsky served as a member of the Federal Election Commission for two


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36. That based upon the comparison of the voter registration database of Texas and California both states databases are significantly in variance with that of New York (see Exhibit E), wherein the necessary firewalls and safeguards are in place even with the inaccuracies therein admitted to by the NYS Board of Elections in 2006 on the Court record before Judge Sharpe in U.S. v NYS BOE NDNY 06-cv-263; and that New York fully complies with the current Voter Registration Form (see Exhibit F) that requests that the State of prior registration be designated by the Affirmant filling out the form for a properly executed form filing unlike ignored by the State Defendants in California. 37. That in September 2006, RKD corresponded with the US Ambassador to the Organization for Security and Cooperation in Europe (OSCE) and Office of Democratic Institutions and Human Rights (ODIHR) to determine the duties and responsibilities of each state of the several states, the Federal government and OSCE / ODIHR as to the national voter registration database that according to current reports is not accurately maintained as a Federal Issue of concern (see Exhibit G). 38. That according to Ruth Gardner as shown in Exhibit C, the 2002 Dean Gardner run for the 30th Assembly District tally showed 121,000 persons voted with the opponent ahead by 200 votes with a survey by mail of 2650 voters showed that 700 surveys were undeliverable with 1691 questionnaires that were answered and returned by electors, in which 83 admitted in writing that they were not citizens, 273 stated they were not registered to vote and did not live in the district while 69 more admitted they voted more than once; and it was proven that of the 1318 voting irregularities 37% of the Democrats were fraudulent and of the 2650 votes 905 were illegal meaning that Dean Gardner won but the State officials did nothing, as with RKD years earlier.


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Plaintiff Argument As To Federal Jurisdiction And Authority 39. That Plaintiff realleges each and every allegation contained in the above paragraphs with the same force and effect as though herein set forth at length omits it for brevity, as to the State Defendants who are Federal agents of the EAC, as Federal law also recognizes the broad authority of states' attorney generals. In any suit in federal court where the constitutionality of a state law is at issue, the state attorney general has an absolute right to intervene in that case and have all the rights of a party to the case. In addition to these broad grants of authority, many California statutes specifically delineate the Attorney General's authority. 40. Were there an alternative to Mr. Browns claim of inability to act in the state of California, if nothing else Mr. Brown must argue the constitutionality of the conflict in the SOS use of the Administrative Code versus the Election code, and in which Mr. Brown is properly named to respond as well as to the failure to act on the complaints filed with his office, then accordingly the U.S, Department of Justice Criminal Division's Public Integrity Unit has the power and authority to investigate such breach of fiduciary duty involving election fraud. Falsification of eligibility documentation by a candidate may fall under one or more of the causes of action that the DOJ's manual describes. For instance, "conspiracy to cause illegal voting". 41. It would seem possible that the DOJ is responsible to at least investigate Plaintiffs and others' accusations that Mr. Dunn committed acts of spoliation with the intent to defraud voters, as with Senator Obama were he not born in Hawaii and that


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especially applies to Senator John S. McCain (6) and Rger Calero (7 ) of the Socialist Workers Party on the 2008 General Election Ballot in California, outrageously wasnt done; and as was properly complained of by Plaintiff to both Bowen and Brown to no avail, and in that Congress has already granted authority to the DOJ to look into and resolve matters that may take away someone's opportunity to vote for an 'eligible' candidate of their choice or to verify that there is no corruption, conspiracy, misinformation or other irregularities that may taint an election, whether proven or not. Election fraud involves a substantive irregularity relating to the voting act, which has the6

McCain is not a Natural Born Citizen, who perjured his affidavit for ballot access. (Emphasis by Plaintiff).7

WITH THE PROVISO THAT THE CITIES OF PANAMA AND COLON and the harbors adjacent to said cities, WHICH ARE INCLUDED WITHIN THE BOUNDARIES OF THE ZONE ABOVE DESCRIBED, SHALL NOT BE INCLUDED WITHIN THIS GRANT

John Sidney McCain was born in Colon Hospital, Colon Panama according to the Panama Canal Health Department not in the Panama Canal Zone, and that according to the Hay-Banau-Varilla Treaty says Colon Panama the birth city cited on McCains 1936 long form birth certificate (where he was witnessed being born, and where his parents resided, Colon, Republic de Panama), has 26 articles in which the two pertinent to the status of the city of Colon under that Treaty refer to the Convention for the Construction of a Ship Canal (Hay-Bunau-Varilla Treaty), November 18, 1903: ARTICLE I The United States guarantees and will maintain the independence of the Republic of Panama. ARTICLE II The Republic of Panama grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction maintenance, operation, sanitation and protection of said Canal of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the Canal to be constructed; the said zone beginning in the Caribbean Sea three marine miles from mean low water mark and extending to and across the Isthmus of Panama into the Pacific ocean to a distance of three marine miles from mean low water mark

Calero was born in Nicaragua in 1969. He and his family fled via Los Angeles, California in 1985. Calero is now a permanent resident alien (holding a green card) since 1990. While in Los Angeles, Calero joined a socialist movement and helped mobilize support against Proposition 187 in the early 90s and is not a Natural Born Citizen. (Emphasis by Plaintiff).


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potential to taint the election itself. activity intended to interfere corruptly with any of the principles indicated below may be actionable as a federal crime: a. All qualified voters have the right to have their votes counted fairly and honestly as a vote for a usurper is not a vote, is in fact, voting for a usurper that may be treason and/or a criminal offence. b. Invalid ballots dilute the worth of valid ballots, and therefore will not be counted as ballots that do not have the name of an eligible candidate are invalid. Simply put, then, election fraud is conduct intended to corrupt. For example: The process by which ballots are obtained, marked, or tabulated; and The process by which election results are canvassed and certified. (invalid ballets/votes for a usurper cannot be certified as valid ballots or votes) 42. That Plaintiff did properly complain to Bowen and Brown of both Dunn and Obama, which rhetorically if not to them whose job is it to check eligibility and especially presidential eligibility when the states, the FEC, EAC, judiciary and even the OSCE/ODIHR fail in their duty? 43. The ANSWER: The U.S. Department of Justice Criminal Divisions Public Integrity Section has the duty, for as the following information is taken from the DOJ manual on prosecuting Election fraud requires that ultimately, it is the DOJ's Criminal Division's Public Integrity that has the authority to step in and sort out this mess...The federal government asserts jurisdiction over an election offense to ensure that basic rights of United States citizenship, and a fundamental process of representative democracy, remain uncorrupted...the federal interest is based on the presence of a federal candidate, whose election may be tainted, or appear tainted, by the fraud, a Plaintiffs Consolidated Response to MTDs- Page 23 of 40

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potential effect that Congress has the constitutional authority to regulate under Article I, Section 2, clause 1; Article I, Section 4, clause 1; Article II, Section 1, clause 2; and the Seventeenth Amendment. 44. That In 2002, the Department of Justice established a Ballot Access and Voting Integrity Initiative to spearhead its increased efforts to address election crimes and voting rights violations. Under the ongoing Initiative, election crimes are a high law enforcement priority of the Department. 45. That the Constitution confers upon the states primary authority over the election process. Accordingly, federal law does not directly address how elections should be conducted. However, local law enforcement often is not equipped to prosecute election offenses. Federal law enforcement might be the only enforcement option available. 46. Further that the federal prosecutors role in matters involving corruption of the process by which elections are conducted, on the other hand, focuses on prosecuting individuals who commit federal crimes in connection with an election. (This DOES NOT mean that preventative measures have never been taken by the DOJ, they have!) 47. Further that in determining whether an election fraud allegation warrants federal criminal investigation and possible prosecution requires that federal prosecutors and investigators answer two basic questions: a. Is criminal prosecution the appropriate remedy for the allegations and facts presented? Criminal prosecution is most appropriate when the facts demonstrate that the defendants objective was to corrupt the process by which voters were registered, or by which ballots were obtained, cast, or counted.


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b. Is there potential federal jurisdiction over the conduct? Answering this question requires determining whether the conduct is cognizable under the federal criminal statutes that apply to election crimes. These generally allow for the prosecution of corrupt acts that occur in elections when the name of a federal candidate appears on the ballot, that are committed under color of law, that involve voting by non-citizens, that focus on registering to vote, and when the election fraud is part of a larger public corruption problem reachable using general anti-corruption statutes, such as 18 U.S.C. 666, 1341, 1346, 1951, and 1952? 48. Justice Department supervision over the enforcement of all criminal statutes and prosecutive theories involving corruption of the election process, criminal patronage violations, and campaign financing crimes is delegated to the Criminal Divisions Public Integrity Section. This Headquarters consultation policy is set forth in the U.S. DEPT OF JUSTICE, U.S. ATTORNEYS MANUAL (USAM), Section 9-85.210. 49. The Public Integrity Section and its Election Crimes Branch are available to assist United States Attorneys Offices and FBI field offices in handling election crime matters. This assistance includes evaluating election crime allegations, structuring investigations, and drafting indictments and other pleadings. The Election Crimes Branch also serves as the point of contact between the Department of Justice and the FEC, which share enforcement jurisdiction over federal campaign financing violations. 50. A Historic background regarding the election process details many early Enforcement Acts that were put in place to ensure that elections were free from corruption for the general public. Many of the Enforcement Acts had broad jurisdictional predicates that allowed them to be applied to a wide variety of corrupt election practices Plaintiffs Consolidated Response to MTDs- Page 25 of 40

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when a federal candidate was on the ballot. In Coy, the Supreme Court held that Congress had authority under the Constitutions Necessary and Proper Clause to regulate any activity during a mixed federal/state election that exposed the federal election to potential harm, whether that harm materialized or not. Coy is still applicable law. United States v. Carmichael, 685 F.2d 903, 908 (4th Cir. 1982); United States v.

Mason, 673 F.2d 737, 739 (4th Cir.1982); United States v. Malmay, 671 F.2d 869, 87475 (5th Cir. 1982); United States v. Bowman, 636 F.2d 1003, 1010 (5th Cir.1981). 51. That after Reconstruction, federal activism in election matters subsided. The repeal of most of the Enforcement Acts in 1894 eliminated the statutory tools that had encouraged federal activism in election fraud matters. Two surviving provisions of these Acts, now embodied in 18 U.S.C. 241 and 242, covered only intentional deprivations of rights guaranteed directly by the Constitution or federal law. The courts during this period held that the Constitution directly conferred a right to vote only for federal officers, and that conduct aimed at corrupting nonfederal contests was not prosecutable in federal courts. See United States v. Gradwell, 243 U.S. 476 (1917); Guinn v. United

States, 238 U.S. 347 (1915). Federal attention to election fraud was further limited bycase law holding that primary elections were not part of the official election process,

Newberry v. United States, 256 U.S. 232 (1918), and by cases like United States v. Bathgate, 246 U.S. 220 (1918), which read the entire subject of vote buying out offederal criminal law, even when it was directed at federal contests. 52. In 1941, the Supreme Court reversed direction, overturning Newberry. The Court recognized that primary elections are an integral part of the process by which candidates are elected to office. United States v. Classic, 313 U.S. 299 (1941). Classic changed the judicial attitude toward federal intervention in election matters and ushered Plaintiffs Consolidated Response to MTDs- Page 26 of 40

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in a new period of federal activism. Federal courts now regard the right to vote in a fairly conducted election as a constitutionally protected feature of United States citizenship.

Reynolds v. Sims, 377 U.S. 533 (1964). In 1973, the use of Section 241 to addresselection fraud began to expand. See, e.g., United States v. Anderson, 481 F.2d 685 (4th Cir. 1973), affd on other grounds, 417 U.S. 211 (1974). Since then, this statute has been successfully applied to prosecute certain types of local election fraud. United

States v. Wadena, 152 F.3d 831 (8th Cir. 1998); United States v. Howard, 774 F.2d 838(7th Cir.1985); United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985); United States v.

Stollings, 501 F.2d 954 (4th Cir. 1974).53. That over the past forty years Congress has enacted new criminal laws with broad jurisdictional bases to combat false voter registrations, vote buying, multiple voting, and fraudulent voting in elections in which a federal candidate is on the ballot. 42 U.S.C. 1973i(c), 1973i (e), 1973gg-10. These statutes rest on Congresss power to regulate federal elections (U.S. CONST. art. I, 4) and on its power under the Necessary and Proper Clause (U.S. CONST. art. I, 8, cl. 18) to enact laws to protect the federal election process from the potential of corruption. The federal jurisdictional predicate underlying these statutes is satisfied as long as either the name of a federal candidate is on the ballot or the fraud involves corruption of the voter registration process in a state where one registers to vote simultaneously for federal as well as other offices. United States v. Slone, 411 F.3d 643 (6th Cir. 2005); United States v. McCranie, 169 F.3d 723 (11th Cir. 1999); United States v. Howard, 774 F.2d 838 (7th Cir. 1985);

United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985); United States v. Garcia, 719F.2d 99 (5th Cir. 1983); United States v. Mason, 673 F.2d 737 (4th Cir. 1982); United

States v. Malmay, 671 F.2d 869 (5th Cir. 1982); United States v. Bowman, 636 F2dPlaintiffs Consolidated Response to MTDs- Page 27 of 40

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1003 (5th Cir. 1981); United States v. Barker, 514 F.2d 1077 (7th Cir. 1975); United

States v. Cianciulli, 482 F. Supp. 585 (E.D. Pa. 1979).54. That as we can see, although election laws may have changed and evolved over the years, Congress has already granted authority to the DOJ to look into and resolve matters that may take away someone's opportunity to vote for an "eligible" candidate of their choice or to verify that there is no corruption, conspiracy, misinformation or other irregularities that may taint an election, whether proven or not. 55. The following is a basis for federal prosecution under the statutes referenced in each category: 56. Conspiring to prevent voters from participating in elections in which a federal candidate is on the ballot, or when done under color of law in any election, federal or nonfederal (18 U.S.C. 241, 242). (Tricking voters into thinking that an eligible candidate is on the ballot is a conspiracy to defraud) In the Conspiracy Against Rights. 18 U.S.C. 241, Section 241 makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States under color of law. The Supreme Court long ago recognized that the right to vote for federal offices is among the rights secured by Article I, Sections 2 and 4, of the Constitution, and hence is protected by Section 241. United States v. Classic, 313 U.S. 299 (1941); Ex parte

Yarborough, 110 U.S. 651 (1884). Wherein it is true that a vote for a usurper is NOT avote! A citizen can not exercise his/her voting right, if there is no equalized candidate to vote for in the same way as a citizen can not sell you his/her neighbor's car if he/she does not hold the title to the car. Therefore, the DOJ has an obligation to make certain Plaintiffs Consolidated Response to MTDs- Page 28 of 40

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before a federal election that a presidential candidacies is eligible to hold office. Section 241 has been an important statutory tool in election crime prosecutions. Originally held to apply only to schemes to corrupt elections for federal office. Section 241 embraces conspiracies such as to injure, threaten, or intimidate a voter in the exercise of his right to vote, Wilkins v. United States, 376 F.2d 552 (5th Cir. 1967); Fields v. United States, 228 F.2d 544 (4th Cir. 1955). Section 241 does not require that the conspiracy be successful, United States v. Bradberry, 517 F.2d 498 (7th Cir. 1975), nor need there be proof of an overt act. Section 241 reaches conduct affecting the integrity of the federal election process as a whole, and does not require fraudulent action with respect to any particular voter. United States v. Nathan, 238 F.2d 401 (7th Cir. 1956). That section 241 embraces conspiracies intended to injure. In this case, an injury does NOT even need to occur, nor does anyone have to have conclusive proof of an overt act. In the case of Misers Dunn, Obama, McCain and or Calero only the question has to be raised that he "may not" meet the "eligibility" requirements to become rightfully elected to the office of SOS and or POTUS. 57. In election fraud cases, this public official is usually an election officer using his office to dilute valid ballots with invalid ballots or to otherwise corrupt an honest vote tally in derogation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. See, e.g., United States v. Haynes, 977 F.2d 583 (6th Cir. 1992) (table) (available at 1992 WL 296782); United States v. Townsley, 843 F.2d 1070 (8th Cir. 1988); United States v. Howard, 774 F.2d 838 (7th Cir. 1985); United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985); United States v. Stollings, 501 F.2d 954 (4th Cir. 1974);

United States v. Anderson, 481 F.2d 685 (4th Cir. 1973), affd on other grounds, 417U.S. 211 (1974). In failing to fulfill his/her fiduciary duties, our Secretary of State and Plaintiffs Consolidated Response to MTDs- Page 29 of 40

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Federal Election Commission officials who allow "invalid" candidates to be placed on ballots corrupts an honest vote and violate the Equal Protection and Due Process Clause of the Fourteenth Amendment. 58. Deprivation of Rights under Color of Law 18 U.S.C. 242. Section 242, also enacted as a post-Civil War statute, makes it unlawful for anyone acting under color of law, statute, ordinance, regulation, or custom to willfully deprive a person of any right, privilege, or immunity secured or protected by the Constitution or laws of the United States. Prosecutions under Section 242 need not show the existence of a conspiracy. However, the defendants must have acted illegally under color of law, i.e., the case must involve a public scheme, as discussed above. This element does not require that the defendant be a de jure officer or a government official; it is sufficient if he or she jointly acted with state agents in committing the offense, United States v. Price, 383 U.S. 787 (1966), or if his or her actions were made possible by the fact that they were clothed with the authority of state law, Williams v. United States, 341 U.S. 97 (1951); United

States v. Classic, 313 U.S. 299 (1941). This law would make it a CRIME for ANYONEwho knowing acted in concert with Dunn, Obama, McCain and or Calero to cover up his scheme to defraud the American people, by posing as an "eligible" candidate." 59. False Information in, and Payments for, Registering and Voting. 42 U.S.C. 1973i(c) Section 1973i(c) makes it unlawful, in an election in which a federal candidate is on the ballot, to knowingly and willfully conspire with another person to vote illegally. Congress added Section 1973i(c) to the 1965 Voting Rights Act to ensure the integrity of the balloting process in the context of an expanded franchise. In so doing, Congress intended that Section 1973i(c) have a broad reach.


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60. If Dunn, Obama, McCain and or Calero or his co-conspirators knowingly registered voters because of a promise upon election, knowing full well that he was NOT "eligible" to hold office, not only did he commit fraud, but he committed a crime against 42 U.S.C. Section 1973i(c) that has been held to protect two distinct aspects of a federal election: the actual results of the election, and the integrity of the process of electing federal officials. United States v. Cole, 41 F.3d 303 (7th Cir. 1994). In Cole, the Seventh Circuit held that federal jurisdiction is satisfied so long as a single federal candidate is on the ballot even if the federal candidate is unopposed because fraud in a mixed election automatically has an impact on the integrity of the federal election process. See also United States v. Sloane, 411 F.3d 643 (6th Cir. 2005); and United States v.

McCranie, 169 F.3d 723 (11th Cir. 1999) (jurisdiction under Section 1973i(c) satisfied byname of unopposed federal candidate on ballot). Any conduct that violates the "integrity" of an election is a CRIME. Obviously, the integrity of this election has been compromised as more internet blogs pick up the story because of Obama's failure to provide the mysterious "vault copy" of his birth certificate. Therefore, the DOJ has an obligation to act, as a silent majority of Americans has already called the integrity of the presidential election into question. 61. Section 1973i(c) is particularly useful for two reasons: (1) it eliminates the unresolved issue of the scope of the constitutional right to vote in matters not involving racial discrimination, and (2) it eliminates the need to prove that a given pattern of corrupt conduct had an actual impact on a federal election.; and that this provisions applies as central, because this states that the DOJ can get involved in any matter not involving racial discrimination and it also eliminates the Plaintiff need to prove that a corrupt conduct had an actual impact on the election. Plaintiffs Consolidated Response to MTDs- Page 31 of 40

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62. Conspiracy to cause illegal voting. The second clause of Section 1973i(c) criminalizes conspiracies to encourage illegal voting. The phrase illegal voting is not defined in the statute. On its face, it encompasses unlawful conduct in connection with voting. This is important, because the phrase "illegal" voting has not been defined by statute. Surely, a vote for candidate you know or suspect does not meet the eligibility requirements could be considered an "illegal" vote," because, if it is proven, that this in deed IS the case, the person voting would be committing a CRIME. 63. Conspiracy against rights and deprivation of constitutional rights. 18 U.S.C. 241 and 242. Section 241 makes it a ten-year felony to conspire to injure, oppress, threaten, or intimidate any person in the free exercise of any right or privilege secured by the Constitution or laws of the United States including the right to vote. (Another CRIME committed by Mr. Obama, in conspiring with the DNC and the rest of his cronies by prohibiting Americans to exercise their rights under law. 64. False claims of citizenship. 18 U.S.C. 911. Section 911 prohibits the knowing and willful false assertion of United States citizenship by a noncitizen. See, e.g., United

States v. Franklin, 188 F.2d 182 (7th Cir. 1951); Fotie v. United States, 137 F.2d 831(8th Cir. 1943). Violations of Section 911 are punishable by up to three years of imprisonment as noted; all states require United States citizenship as a prerequisite for voting. Section 911 requires proof that the offender was aware he was not a United States citizen, and that he was falsely claiming to be a citizen. Violations of Section 911 are felonies, punishable by up to three years of imprisonment. If Mr. Obama, McCain and or Calero presents himself as a natural-born U.S. Citizen and they are NOT, when he votes in this election, he is committing yet, another CRIME.


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65. Honest services fraud. 18 U.S.C. 1346 As summarized above, prior to McNally nearly all the circuits had held that a scheme to defraud the public of a fair and impartial election was one of the intangible rights schemes covered by the mail and wire fraud statutes. McNally repudiated this theory in an opinion that not only rejected the intangible rights theory of mail and wire fraud, but also did so by citing several election fraud cases as examples of the kinds of fraud the Court found outside these criminal laws. It is noted that the following year, Congress responded to McNally by enacting 18 U.S.C. 1346, which defined scheme or artifice to defraud to include the intangible right of honest services. However, this language did not clearly restore the use of these statutes to election frauds. This is because Section 1346 encompasses only schemes to deprive a victim of the intangible right of honest services, and most voter fraud schemes do not appear to involve such an objective. Moreover, jurisprudence in the arena of public corruption has generally confined Section 1346 to schemes involving traditional forms of corruption that involve a clear breach of the fiduciary duty of honest services owed by a public official to the body politic, e.g., bribery, extortion, embezzlement, theft, conflicts of interest, and, in some instances, gratuities. Obviously, whether knowingly or not, elected officials and other public servants have breached their fiduciary duty to provide "honest services" to American citizens. 66. Cost-of-election theory. 18 U.S.C. 1341 One case, United States v. DeFries, 43 F.3d 707 (D.C. Cir.1995), has held that a scheme to cast fraudulent ballots in a labor union election, which had the effect of tainting the entire election, was a scheme to defraud the election authority charged with running the election of the costs involved. DeFries was not a traditional election fraud prosecution. Rather, it involved corruption of Plaintiffs Consolidated Response to MTDs- Page 33 of 40

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a union election when supporters of one candidate for union office cast fraudulent ballots for that candidate. When the scheme was uncovered, the United States Department of Labor ordered that a new election be held, thereby causing the union to incur an actual pecuniary loss. The D.C. Circuit held that the relationship between that pecuniary loss and the voter fraud scheme was sufficient to satisfy the requirements of McNally. The fraud that Mr. Dunn, Obama, McCain and or Calero would have perpetrated on the American people if he were later found out to be ineligible for president will have indeed caused another candidate the presidential election. Worse yet, if it is found out AFTER the election that Dunn and or for that matter Obama / McCain Calero and or whomever did not meet the eligibility requirements to hold office, off votes for Obama/Biden would be "illegal" and "invalid" votes and would therefore should not be counted. Therefore, Biden cannot be President either if an "illegal" and "invalid" vote was cast for any Dunn / Obama / McCain / Calero tickets. That at this point in time the election will, most likely, have to be re-held no matter who would be declared the winner, because the Dunn / Obama / McCain / Calero tickets would have received the most "valid" and "legal" votes. 67. Election-related allegations range from minor infractions, such as campaigning too close to the polls, to sophisticated criminal enterprises aimed at ensuring the election of corrupt public officials. Such matters present obvious and wide disparities in their adverse social consequences. In theory the Department must strive to achieve a nationally consistent response to electoral fraud, it is important that federal investigators and prosecutors avail themselves of the expertise and institutional knowledge that the Public Integrity Section possesses in this sensitive area of law enforcement.


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68.

Lastly, Interference in election by employees of federal, state, or territorial

governments: 18 U.S.C. 595, Section 595 was enacted as part of the original 1939 Hatch Act. The statute prohibits any public officer or employee, in connection with an activity financed wholly or in part by the United States, from using his or her official authority to interfere with or affect the nomination or election of a candidate for federal office. This statute is aimed at the misuse of official authority. Section 595 applies to all public officials, whether elected or appointed, federal or nonfederal. For example, an appointed policymaking government official who bases a specific governmental decision on intent to influence the vote for or against an identified federal candidate violates Section 595. This Code may certainly apply to those officials who used public computers and or facilities to "disparage" Dr. Orly Taitz as shown in FAC Exhibit or Plaintiff for that matter for supporting her and or pursue justice herein, if it can be proved, that the intent was to discredit Dr. Taitz to interfere or "affect" the election process. 69. That there is a question to be addressed by every elected official charged with the maintenance of the integrity of the respective State Voter registration database and the EAC for the National integrity of election in that every elected official in regards to the National Voter Registration Act and HAVA and related law must be in compliance with the Federal Immigration and Nationality Act of 1952 and related law passed by a Congress that had insight, under Section 8 USC 1324[a](1)(A)[iv][b](iii) any US citizen that knowingly assists an illegal alien, provides them with employment, food, water or shelter has committed a felony. City, county or State officials that declare their jurisdictions to be "Open Cities, Counties or States are subject to arrest; as are law enforcement agencies who chose not to enforce this law. Police officers who ignore officials who violate Section 8 USC 1324[a](1)(A)[iv][b](iii) are committing a Section 274 Plaintiffs Consolidated Response to MTDs- Page 35 of 40

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federal felony. Furthermore, according to Federal Immigration and Nationality Act of 1952, if you live in a city, county or State that refuses to enforce the law for whatever reason, the officials making those rules are financially liable for any crime committed within their jurisdiction by an illegal alien. Plaintiffs Response Summary in Opposition to Dismissal 70. The State of California and its agents have denied Plaintiff, a US Citizen equal protection under the law and deprived Plaintiff life, liberty, or property, without due process of law as is guaranteed in the 14th Amendment Section 1. As all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 71. The State of California and its agents as a result of sanctuary policies have denied Plaintiff as a US Citizen and Citizen of California the right to vote for and have adequate proportional representation in the US House of representatives from the State of California and the district in which Plaintiff resides by allowing Aliens to vote and registered without taking affirmation precautions as if evidenced by the clear evidence presented in the matter of the 1996 election fraud infringing the reelection of Congressman Robert K. Dornan then, recently in 2002 election fraud infringing the election of Dean Gardner in that both criminal matters involve the lack of enforcement of law with the California Voter registration database as with the matter complained of herein.


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72. When a person signs anything under penalty of perjury as with the declaration of registration (which is not an affidavit that requires such affirmation before a living breathing witness) and that when a person is competent for their act signs such statement without a witness such person has taken responsibility for what he/she signed no matter what anybody else may say in the process. The signature on such an unwitnessed statement is an admission against interest that may only be reversed by reregistering to vote or affiliate after being notified for confirmation of the submitted registration form is done by the local county registrar (must be done as per the code) which when done should be the check against fraud ONLY when Mickey mouse or Donald duck returns the confirmation with the signature as the only means of identification. 73. To prevent registration fraud we first must go back to an affidavit affirmed before a notary witness who must also sign after verifying the person's identification especially in regards to voter registration as the only means to get a conviction on fraud in that a piece of paper may not be cross examined in court only a person may be cross examined. Of course, without the necessary check by the registrar of the other state databases to verify that the actual signer is (separate from the guarantee of impersonation) not also registered in another state must notify the state registrar there to prevent multiple voting frauds. The National Voter Registration Act of 1993 was enacted to wrest control of registration from the firewall protection of a local registrar and giving such control to the devil himself to conduct registration and voting at a distance, and now with the so-called Help America to Vote Act of 2002 has become possible to register, vote and count that vote at a distance too. Therefore, without say a


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thumb print given by the voter at every election there is no way to stop multiple voting and impersonation fraud. 74. That Plaintiff suffers irreparable harm with time as the essence because the ongoing challenge as before the Primary and now after the Primary is without a timely fair hearing in State Court as to the ballot status of Mr. Dunn that as a matter of law requires a hearing on the presentment of certain facts there denied, and with imminent irreparable harm were the Ballots to be printed to proceed to the General Election without Plaintiffs requested relief granted before that printing is done for the November 2, 2010 General Election for State and Federal Officers to proceed; and 75. That notwithstanding the issues of damage, that Plaintiff has standing with 42 USC Section 1973GG-9: Civil enforcement and private right of action and as related State law similarly adopted to be here as in State Court if the Petition were granted in the matter of irreparable harm to Plaintiff along with those similarly situated with time as the essence is due to State action(s), as all State Defendants are Democrats including the Court Judge, who delay and deny substantive due process with intent to interfere with the First and Fifth amendment rights and liberty of Republicans in violatio

barnett v. dunn response to defendants mtds

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