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Kerlin v. Chicago Board of Elections

United States District Court, N.D. Illinois, Eastern Division

April 3, 2017

REBECCA A. KERLIN, et al., Plaintiffs,
v.
CHICAGO BOARD OF ELECTIONS and JAMES M. SCANLON, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN ROBERT BLAKEY UNITED STATES DISTRICT JUDGE.

         Plaintiffs Rebecca Kerlin, William Shipley, Michelle Gale, Katherine Wuthrich, and Claire Tobin (collectively, the “Plaintiff Monitors”) served as election monitors in Chicago during the March 15, 2016 Illinois primary election. Plaintiff Nina Marie cast an electronic ballot in downtown Chicago during the election's early voting program.

         On July 21, 2016, Plaintiffs filed suit in this Court seeking declaratory and injunctive relief against the Chicago Board of Elections (“BOE”) and its General Counsel, James Scanlon (“Scanlon”) (collectively, “Defendants”). Plaintiffs allege that Defendants' actions both during and after the election violated their right to vote (Count I) and their rights to freedom of association and to petition the government (Count II). On November 8, 2016, Defendants jointly moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiffs' Amended Complaint for failure to state a claim. Defs.' Mot. Dismiss [18]. For the reasons explained below, Defendants' motion is granted in part and denied in part.

         I. Background

         A. The Illinois Election Code and Direct Recording Electronic Voting Systems

         The Illinois Election Code authorizes election precincts to use Direct Recording Electronic Voting Systems (“Electronic Voting Systems”) during both regular and early voting. 10 ILCS § 5/24C-1. When an Electronic Voting System is utilized, voters cast votes via an electronic ballot display “with mechanical or electro-optical devices that can be activated by the voters to mark their choices for the candidates of their preference and for or against public questions.” Id. These voting devices are ostensibly capable of: (1) electronically recording and storing ballots; (2) tabulating votes; and (3) producing a permanent paper record for each ballot cast. Id.

         After each voter completes his or her electronic ballot, the Electronic Voting System records an image of the completed ballot, and, upon request, prints the permanent paper record, which shows the votes cast in readable form. Id. at §§ 5/24C-2, 5/24C-12. The permanent paper record for each respective ballot contains a unique, randomly assigned identifying number that corresponds to the number randomly assigned by the voting system to each ballot as it is electronically recorded. Id. Permanent paper records are preserved and secured by election officials in the same manner as traditional paper ballots, and are available as an official record for any recount, redundant count, or verification or retabulation of the vote count. Id. at § 5/24C-12.

         In addition to creating the permanent paper record, the Electronic Voting System also independently records each vote cast for or against any candidate and for or against any public question. Id. at § 5/24C-11(u). Upon the close of voting, these vote totals are tabulated by the Electronic Voting System and an “In-Precinct Totals Report” is generated for return to the election authority. Id. at § 5/24C-12. This report includes the total number of ballots cast for each candidate and public question and constitutes the official return of each precinct. Id. at § 5/24C-15.

         To ensure the accuracy of the automatic counts generated by Electronic Voting Systems, the Illinois Election Code requires each election authority to, inter alia, test the voting devices and equipment in five percent of the precincts within each election jurisdiction, as well as five percent of the voting devices used in early voting. Id. These tests are conducted after Election Day, but prior to the proclamation of election results. Id.

         The tests consist of counting individual votes recorded on the permanent paper record of each ballot and comparing the totals with the results tabulated by the Electronic Voting System. Id. If any error is detected, the Illinois Election Code requires the cause to be “determined and corrected, ” and an errorless count to be made before election results are officially canvassed and proclaimed. Id. Furthermore, if either: (1) an error is detected and corrected; or (2) an errorless count cannot be conducted because there continues to be a discrepancy between the count from the permanent paper records and the results produced by the Electronic Voting System, the election authority must “immediately prepare and forward to the appropriate canvassing board a written report explaining the results of the test and any errors encountered.” Id. This report must be made available for public inspection. Id.

         By statute, advance written notice of the time and place of these tests must be provided to the State Board of Elections, the State's Attorney, appropriate law enforcement agencies, the county chairman of each established political party, and, of particular relevance here, “qualified civic organizations.” Id. Representatives of these institutions are permitted to attend the tests. Id.

         B. Testing for the March 15, 2016 Illinois Primary Election

         From March 23, 2016 through March 29, 2016, the Chicago BOE tested the required five percent of the Electronic Voting Systems used in the March 15, 2016 primary. Am. Compl. [17] ¶ 18. One or more of the Plaintiff Monitors were credentialed by a qualified civic organization to attend each test performed. Id. ¶ 19.

         According to Plaintiffs, the BOE conducted the tests by having one BOE employee read aloud votes from the permanent paper record of individual ballots. Id. ¶ 20. Meanwhile, another BOE employee created a written tally sheet of the oral vote count. Id. Plaintiffs contend, however, that the total vote counts tabulated by the Electronic Voting System were printed on these tally sheets before the test count began. Id. Moreover, BOE employees tallied the oral vote count in pencil, allowing for erasures. Id. Plaintiffs allege that the combination of the preprinted vote totals and the use of pencils allowed BOE employees to alter tallies from the oral vote count so that they matched vote totals tabulated by the Electronic Voting System. Id.

         Plaintiffs allege that, throughout the testing process, multiple BOE employees tallied oral vote totals that departed significantly from the results generated by the Electronic Voting Systems. Id. ¶ 22. BOE employees did not, however, undertake the steps required by statute (i.e. determine, correct, and report the error encountered). Id. ¶ 23. Instead, BOE employees intentionally altered tally numbers to match the results that had already been placed on the tally sheets, regardless of the oral vote count from the permanent paper record. Id. Specifically, BOE employees changed votes from one candidate to another, added or subtracted votes from candidates, and stopped counting votes once they reached the result that was pre-printed on the tally sheet. Id. ¶ 31. BOE employees then falsely reported that no inconsistencies were discovered. Id. Plaintiffs claim that these improprieties were pervasive throughout the “test counts” for Electronic Voting Systems from the March 15, 2016 primary election. Id. ¶ 24.

         Additionally, Plaintiffs allege that BOE employees took active measures to “hinder or outright prevent” the Plaintiff Monitors from monitoring and recording the improprieties as they occurred. Id. ¶ 25. Plaintiffs claim, for example, that BOE employees physically obstructed the Plaintiff Monitors from observing employees perform the tests and prevented Plaintiffs from photographing or documenting the results of the tallies until any discrepancies were fraudulently “resolved.” Id. Plaintiffs claim that when they challenged these actions, BOE employees and their supervisors-including Scanlon-refused to acknowledge or correct any of the discrepancies. Id. ¶ 26.

         Following the testing process, several of the Plaintiff Monitors attended an April 5, 2016 BOE meeting in order to notify BOE commissioners of Plaintiffs' observations before election results were certified. Id. ¶ 27. Plaintiffs claim that the gathering was supposed to be an open meeting subject to public comment. Id. Plaintiffs allege, however, that the BOE commissioners prevented the Plaintiff Monitors from presenting evidence of their observed irregularities. Id. Instead, the BOE immediately closed public comment, certified the election results, and adjourned the meeting in less than two minutes. Id.

         II. Legal Standard

         A motion to dismiss under Rule 12(b)(6) “challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted.” Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). A motion to dismiss tests the sufficiency of a complaint, not the merits of a case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). To survive a motion to dismiss, a complaint must first provide a “short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice” of what the claim is “and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         Second, the complaint must contain “sufficient factual matter” to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). That is, the allegations must raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs. Inc., 496 F.3d 773, 776 (7th Cir. 2007). A claim has facial plausibility “when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The plausibility standard “is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). The “amount of factual allegations required to state a plausible claim for relief depends on the complexity of the legal theory alleged, ” but “threadbare recitals of the elements of a cause of action, supported by ...


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