Plaintiffs, by their attorneys, and as and for their complaint against defendants, allege as follows:
JURISDICTION AND VENUE
1. This Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343(4).
2. Venue of this action is properly in this district, pursuant to 28 U.S.C. § 1391(b), on the ground that the claims herein alleged arose in this district.
3. Plaintiff The Voting Integrity Project (VIP) is a non-profit, non-partisan public interest organization headquartered in Arlington, Virginia. VIP is dedicated to preserving and protecting the fundamental right to vote and the integrity of American elections. VIP contends that Internet voting maximizes white electoral participation at the expense of African-Americans, Native Americans, Hispanics, and other minority groups.
4. Plaintiff Lucius Bain, Jr., is a duly registered voter and an enrolled member of the Democratic Party residing and voting in the State of Arizona, Maricopa County. Plaintiff Bain intends to vote in the Arizona Democratic Primary for President. Plaintiff Bain is an African-American.
5. Plaintiff Olivia Lizarraga Bussey is a duly registered voter and an enrolled member of the Democratic Party residing and voting in the State of Arizona, Pinal County. Plaintiff Bussey intends to vote in the Arizona Democratic Primary for President. Plaintiff Bussey is a Hispanic American.
6. Plaintiffs Bain and Bussey contend that Internet voting maximizes white electoral participation at the expense of African Americans, Native Americans, Hispanics, and other minority groups.
7. Defendant Marc Fleisher is a member and the duly elected Chairman of defendant Arizona Democratic Party, which is an unincorporated association created and existing pursuant to § 16-825 of the Arizona Revised Statutes. Defendant Fleisher is sued in his official capacities in connection with actions taken under color of state law with respect to the upcoming Arizona Democratic Primary for President.
8. Defendant Arizona Democratic Party (State Party) is a state committee created and existing pursuant to § 16-825 of the Arizona Revised Statutes. It has its principal office at 13610 North Black Canyon Fairway, Phoenix, Arizona. The State Party acts under color of state law in connection with the upcoming Arizona Democratic Primary for President.
The Arizona Democratic Primary
9. In 1995, the Arizona legislature enacted A.R.S. § 16-241 et seq., which establishes a state-run presidential preference election to give qualified voters the opportunity to express their preference for the presidential candidate of their political party.
10. In 1996, the State Party sued then-Secretary of State Jane Dee Hull. The State Party sought to enjoin Hull from placing the Democratic Party on the 1996 presidential preference election ballot. The State Party prevailed, and the 1996 presidential preference election ballot featured only the Republican candidates for President.
11. In 2000, the State Party has again opted out of the states presidential preference election mandated by A.R.S. § 16-241 et seq.
12. Instead, the State Party has announced plans to hold its own Democratic Primary for President on March 7-11, 2000 (Democratic Primary).
13. The Democratic Primary will feature voting by Internet. The Internet voting will be managed by Votation.com, a privately held corporation based in Garden City, New York, which has contracted with the State Party. The Democratic Primary will be the first legally binding election in the United States to feature Internet voting.
14. All registered voters who are enrolled Democrats as of January 22, 2000, will receive information by mail that they can use to vote over the Internet from a remote location at any time from March 7, 2000, 12:01 AM, to March 10, 2000, 11:59 PM. Voters with Internet access will have approximately 96 hours in which to vote.
15. Voters who do not have access to the Internet will be offered the opportunity to vote on March 11, 2000, from 7:00 AM to 7:00 PM, at a public polling place. Such voters will have a window of only 12 hours in which to vote.
16. In an Arizona election run by the state, 2,027 public polling locations are opened. Upon information and belief, the State Party may make available as few as 40 public polling places across the entire state of Arizona, and certainly no more than 90 polling places.
17. Less than 60 days before the Democratic Primary, the State Party has not determined who will be elligible to vote in the Democratic Primary, how many public polling places will be available, where these polling places will be located, and precisely how Internet voting will work.
18. The United States Department of Justice has determined that the state of Arizona is a jurisdiction covered by the preclearance requirement of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
19. In addition to statewide coverage, Apache County, Cochise County, Coconino County, Mohave County, Navajo County, Pima County, Pinal County, Santa Cruz County, and Yuma County are individually subject to Section 5 coverage.
20. As a political party in a covered jurisdiction, the State Party is subject to Section 5 coverage for the purposes of the Democratic Primary, because the Democratic Primary is a public electoral function.
21. Upon information and belief, Section 5 preclearance for the Democratic Primary has been neither sought nor received.
22. Upon information and belief, a declaratory judgment from the United States District Court for the District of Columbia that the State Partys plans for the Democratic Primary do not violate the Voting Rights Act has been neither sought nor obtained.
The Digital Divide
23. On average, minority voters have less access to the Internet than white voters.
24. Whites are more likely to have Internet access from home than African-Americans and Hispanics from any location, including home, work, school, or library. Only 19% of African-Americans and 16% of Hispanics have Internet access from any location, compared to 38% of whites.
25. From 1997 to 1998, the gap for home Internet access between white and African-American households grew by 37.7%. From 1994 to 1998, the gap for computer ownership widened by 39.2%. Even among households that own computers, whites are 37% more likely than blacks to have home Internet access.
26. Taken together, African-American and Hispanic households are only 40% as likely as white households to have home Internet access.
27. Hispanic households are only half as likely as white households to own a computer, and Hispanic households are nearly 2.5 times less likely to have Internet access.
28. As a group, Native Americans are almost 50% less likely to have home Internet access than the population as a whole.
29. The Internet voting system planned for the Democratic Primary will have the effect of maximizing affluent white participation relative to non-whites in such election. Persons with Internet access in their homes will not have to travel to vote and will have more time to cast their ballots than voters without Internet access in their home or place of employment.
Preclearance: Section 5 of the Voting Rights Act
30. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 29 hereof as if set forth herein at length.
31. The State Partys plan to allow Internet voting in the Democratic Primary represents a standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972. The State Party is subject to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, pursuant to 28 C.F.R. § 51.4.
32. The plan has not been approved by the U.S. Department of Justice or the U.S. District Court for the District of Columbia.
33. By reason of the foregoing, under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, the State Partys plan to allow Internet voting for the Democratic Party cannot be lawfully enacted or administered.
Denial and Abridgement of Voting Rights on Account of Race
Section 2 of the Voting Rights Act
34. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1- 33 hereof as if set forth herein at length.
35. Under the procedures for Internet voting planned by the State Party, the Democratic Primary will not be equally open to participation by African-American, Hispanic, and Native American citizens. African-American, Hispanic, and Native American citizens will, as a class, have less opportunity than other members of the electorate to participate in the Democratic Primary.
36. By reason of the foregoing, the State Party plans to impose and apply a standard, practice, or procedure which results in a denial or abridgement of the rights of citizens of the United States to vote on account of race or color. This denial or abridgement is unlawful under Section 2 of the Voting Rights Act, 2 U.S.C. § 1973.
WHEREFORE, plaintiffs demand judgment of defendants as follows:
(a) a declaration under 28 U.S.C. § 2201 that, pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, the State Partys plans to allow Internet voting in the Democratic Primary on March 7-11, 2000, constitute a standard, practice, or procedure requiring either U.S. Department of Justice preclearance or a declaratory judgment by the U.S. District Court for the District of Columbia that the plans do not violate the Voting Rights Act;
(b) a declaration under 28 U.S.C. § 2201 that the State Partys plans to allow Internet voting constitute a denial or abridgement of voting rights on account of race or color in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973;
(c) granting appropriate equitable relief under 28 U.S.C. § 2202, including issuing an injunction preventing the State Party from implementing its plans for Internet voting in the Democratic Primary;
(d) awarding plaintiffs the costs of this action and their reasonable attorneys fees pursuant to 42 U.S.C. §§ 1973l(e) and 1988.
(e) granting such other, further, and different relief as the Court may deem just and proper.
DATED this _____ day of January, 2000.
SNELL & WILMER, L.L.P.
Timothy J. Casey
One Arizona Center
Phoenix, Arizona 85004-2202
M. Miller Baker
Michael S. Nadel
CARR GOODSON WARNER
A Professional Corporation
1301 K Street, N.W.
Suite 400, East Tower
Washington, D.C. 20005
Attorneys for Plaintiffs
Copyright © 1998 Voting Integrity Project. All rights reserved.
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