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A big piece of news I've had to sit on since $#%$# NOVEMBER!!!

Discussion in 'Legal' started by Jim March, Jul 9, 2004.

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  1. Jim March

    Jim March Member

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    First, here's the press release:

    --------------

    BLACK BOX VOTING LAUNCHES FIRST PUBLICLY FUNDED CONSUMER PROTECTION ORGANIZATION FOR ELECTIONS

    California lawsuit unsealed seeking restitution from Diebold for fraud - may fund Black Box Voting organization

    There are no other groups fulfilling the role of consumer investigation in elections.

    Trust in our voting system is the element that keeps us from taking to the streets every time we disagree with something our government does. Perceived lack of integrity in the voting system can cause a whole country to quit cooperating, or lose interest in voting. It is only because our representatives were chosen by our own voice that we agree to abide by the laws they vote upon, on our behalf.

    Black Box Voting, a new, nonpartisan, publically funded organization, was founded by investigative writer Bev Harris, who began investigations into election procedures in 2002, uncovering story after story with journalistic integrity by providing solid documentation for her discoveries.

    14 stories broken by Harris - http://www.blackboxvoting.org/bev-harris.htm

    Private donations provided start-up funds for Black Box Voting. Potential funding may come from a lawsuit filed against Diebold Election Systems in California. Unsealed on July 9, 2004, it will, if successful, provide additional funding for the organization.

    "Qui Tam" is a term for a whistleblower suit seeking to recover government funds spent based on fraudulent claims. The Qui Tam suit filed by Bev Harris and Jim March seeks to recover funds for the state of California from Diebold Election Systems. As part of the Qui Tam action, a bounty for the whistleblowers is paid, and Diebold will be asked to pay this to Harris and March as part of additional damages, which in turn will help fund Black Box Voting.

    This case was originally filed back in November of 2003, and the existence of the case was held under seal by the courts while various government attorneys decided whether or not to "join in the case". When it became clear that the seal would still be intact through the California primaries (March 2nd), Harris, March and attorney Finley "split out" elements of the case that could be made public immediately in an attempt to improve the security of the primaries. That attempt via preliminary injunction failed, although those weaker case elements are still in play, but now the other shoe has dropped: the much stronger "financial fraud-based" elements of the case are now public.

    The state and county attorneys are still officially undecided as to whether to join in or not. Should they do so, the plaintiffs and their attorney will split a 15% "bounty" on all funds recovered -- should Harris and March have to prosecute the entire matter without government legal assistance, the state and county will still get their money back but the "bounty" jumps to 30%. Note that when fraud can be proven in a Qui Tam action under California state law, damages are subject to triple damage penalties. In Alameda County alone, this would cost Deibold $42 million, which would go towards restitution to the taxpayer.

    As a result of this Qui Tam action, ALL California counties attempting to use Diebold's equipment now have the option of joining in the Qui Tam action and recieving up to triple their costs for the fraud committed against them. Taxpayers in any county trying to remain with Diebold while this option is now publicly on the table should be asking harsh questions of their local officials.

    Harris opposed using Qui Tam suits in most cases for fraudulent claims against voting machines because Qui Tam generally requires keeping evidence secret from the public, under seal. The case against voting machines is time sensitive and evidence is critical to the public interest. Attorney for Harris and March, Lowell Finley, found legal precedent in California showing that in cases of overriding public interest, Qui Tam succeeds without withholding information from the public. Both Harris and March insisted on and have continued activism for clean voting during the sealed phase of this particular case, bringing to light critically important information including locating and taking delcarations from Diebold technician James Dunn, who was instructed by Diebold to install uncertified patches on machines for California and Kansas before the March 2 primary election, and locating criminal documents of convicted felons who had access to the Diebold system.

    Harris and March were not inhibited one iota in continuing activism for clean voting or in continuing research on Diebold Harris and March's attorney, Lowell Finley, believes case law supports their position. In cases where a compelling public interest is served, precendence exists for allowing plaintiffs to recover Qui Tam claims without keeping evidence secret. Whether or not Harris and March prevail, the State of California is likely to recover funds spent on Diebold equipment as a result of fraudulent claims, claims in large part investigated and proven by Harris and March. If Harris and March prevail, they will apply a significant portion of the settlement to fund the Black Box Voting consumer protection group for elections Black Box Voting is the only organization focused on investigating local election procedure to find out what’s going on and make the public aware of specific problems to improve electoral integrity.

    All elections, even national elections, take place at the local level. The Federal Elections Commission consists of six people who set broad national policy guidelines but generally do not investigate specific, local complaints. The newly formed Election Assistance Commission (EAC) publishes policy guidelines and may help set standards but is not staffed or funded for investigation of local problems. The Carter Center monitors elections only in foreign countries.

    Black Box Voting investigates elections in the real world, in the field. It has attracted thousands of citizen volunteers who will assist in monitoring elections and catching problems. Two full time staff investigators (Bev Harris and Associate Director Andy Stephenson) visit and interview local election officials, candidates, poll workers, national ITA certifiers, and the programmers who design the software used in today's election systems.

    Why do elections need an independent consumer organization? Election procedures have changed.

    - Modern-day voting systems have largely been privatized. Key functions are run by private for-profit corporations. These corporations have a habit of hiring their own regulators.

    - “To err is machine†— Voting machines have been found to miscount. Some miscounts are ridiculous (i.e. Allamakee County Iowa, 2000 national election, counted 4 million votes though just 300 voters showed up to vote). Many miscounts, if they are less obvious, are never flagged at all.

    - The certification system for voting machines is so fundamentally flawed that it allows machines to miscount and lose votes. Four studies in a row spotted serious errors that passed through certification without a hitch.

    - Voting software has been found to contain hidden “back doors†that allow end runs around the voting system.

    - Recent changes in voter registration systems may bring new problems with voter roll accuracy. Outsourced voter roll verification has resulted in wrongfully purged voters

    - Ballot production, performed by private companies, can cause certain kinds of votes to be omitted from the count. This applies to optical scan ballots (fill in the dot) and punch card ballots.

    - New systems are designed to replace the poll book sign in with a computerized, digital system made by private companies, using proprietary software that the public is not allowed to examine. Such a system, improperly used, would enable whole cemeteries to sign in and vote.

    - Certified and sworn election officials now outsource — even during live elections — to technicians employed by private manufacturers. Private vendors, in turn, outsource election support to temporary employees hired by third parties.

    - Redistricting software, also produced by private companies who hold it proprietary, now allows instant and precise data designed to manipulate districts for political gain.

    - Election officials are often appointed, not elected. In many states there is no requirement for election officials to disclose personal financial information, inviting conflict of interest.

    - Election checks and balances have eroded: Voter Verified Paper ballots have been removed in as many as 20 percent of all voters in the U.S. Paperless touch screen machines do not permit recounts. Even when paper ballots exist, in many states it is now illegal to compare them to computer counts, even in a recount.

    - Absentee voting: In most locations, there is no way to know whether all the ballots mailed in were counted. At no point is there a comparison of the count received by the Post Office with the count received by the elections division.

    - Polling place results used to be compared with the overall totals, to make sure each polling place result was correctly reported when all votes are added up. This key audit has been eliminated in most locations, opening the door for tampering by replacing memory cards and/or tampering with the central server at the county level. We have independent consumer protection organizations for toasters. You can read about problems with baby car seats in consumer publications. But until now, no independent, publicly funded consumer protection organization has existed for the most fundamental piece of democracy we have: Elections.

    Who runs Black Box Voting?

    Board of directors:

    - Linda Franz (Washington state), with knowledge of HAVA and pending voting machine legislation;

    - Jim March (California), with expertise in lobbying and computer programming. March has been heavily involved in analysis of the Diebold software, and testifies regularly at California Voting Systems Panel hearings;

    - Joseph M. Bailey III (Washington state), founder of an electrical workers union for people of color

    - Thalia Dudley (Washington state), a member of the Dudley family, an African-American family who has fought for the right to vote every generation for five generations;

    - Vickie Karp (Texas), who is also chairperson for the Coalition for Visible Ballots, and recently made the news with a billboard campaign about the need for paper ballots - Agrippa Williams (Washington state), renowned for his work keeping black history alive, and the recipient of many awards for outstanding citizenship (he once gave a kidney to a complete stranger in order to save his life.)

    Staff:

    - Bev Harris - executive director. An investigative journalist who has been profiled in Vanity Fair, Time Magazine, and has provided stories to most major news outlets in the U.S.

    - Andy Stephenson - associate director. Stephenson was one of the original and most productive of the researchers who have worked with Bev Harris. He recently resigned his candidacy for Washington secretary of state and will work on the national level with consumer research and education with Black Box Voting.

    Funding

    Black Box Voting is a nonprofit, nonpartisan, 501(c)(3) organization. Funding comes from private donation, public citizens, nonpartisan house parties, town meetings, and other venues.

    Public funding for Black Box Voting is raised through private donors, and public citizens through nonpartisan house parties and town meetings. Harris donated her rights to the “Black Box Voting†book, and its proceeds, to the nonprofit group. All proceeds for the Talion Publishing version of the book were gifted to Black Box Voting, the nonprofit.

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    Jim again.

    What does it all mean?

    :)

    It means Viacom and Diebold are now engaged in a race to see who can make ol' Jim a millionaire first :D:D:D.

    OK, the backstory:

    I first got involved in this whole electronic voting thing in late June of '03, after seeing a Craigslist (www.craigslist.com) posting (in the political forums) on Bev Harris's early work taking apart the Diebold "GEMS" vote-tally software, based on her posts on the New Zealand "Scoop" website. I was interested out of general principles, plus I had experience with both the California Public Records Act and as a former professional computer techie, I had the skills to recreate and fine-tune some of Bev's "lab results".

    By October of '03, I'd been in heavy contact with Bev and had made some breakthrough finds of my own; not quite on par with Bev but still some pretty good stuff.

    Attorney Lowell Finley came to me in Octobet offering to be my lawyer for a Qui Tam suit, explaining how much massive potential "bounty" was at stake. I refused to get involved unless Bev was a co-plaintiff, getting as much money out of it all as I got. Bev was initially against the idea because it wasn't the first Qui Tam approach she'd gotten; the difference with Lowell's approach is that under California rules and court precident, people who were "initial information generators" (which includes both Bev and myself) did NOT have to "completely seal up" what they were doing. They'd have to keep quiet about the Qui Tam suit itself, but they could still dig up new data and share it with the public. Which we've done, in spades...finding and getting a declaration from James Dunn for example cost Diebold four counties in late April of '04.

    In other states or the Federal Qui Tam systems, plaintiffs probably have to go "totally stealth" to maintain standing. Which is one possible reason so many early activists have "dropped off the radar"; Bev and I remain convinced there's a veritable feeding frenzy of Qui Tams quietly sneaking up on Diebold and possibly other vendors (ES&S and Sequoia are definately vulnerable)...ours is just the first one to go public.

    So anyways...the profit potential here is just crazy. If the various Sheriffs and PD Chiefs think I've been a nuisance while running on a shoestring, wait'll they get a load o' me and a couple million bucks to toss around :evil:.

    I don't think buying a whole town would be a good idea though. Too easy for legislation to screw us.
     
  2. fjolnirsson

    fjolnirsson Member

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    Awesome!

    Jim, you're my hero.:p
    I wish I could see the look on Warren Rupf's face as he pulls out handfuls of hair while reading your latest adventures.:D
     
  3. Harry Tuttle

    Harry Tuttle Member

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    i knew there was a reason i paypaled you 20 bucks

    let me know when the west coast range opens

    :D
     
  4. Kingcreek

    Kingcreek Member

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    Jim, you deserve a payback for your hardwork. I'll bet there are some Diebold folks with bowel issues about now. I wish you the best and look forward to toasting your victory.
     
  5. 4570Rick

    4570Rick Member

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  6. Jim March

    Jim March Member

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    Can somebody who has post-access to Democratic Underground go do me a favor?

    Cross-post this link over at this DU thread:

    http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x1960084

    What "Eloriel" over there doesn't understand is the following:

    * The first few lawyers who tried to get Bev roped into a Qui Tam were all clear that she'd have to stay SILENT in all future activism in order to retain standing. She was loudly, vocally against doing so. By that time (oct/nov of '03) a number of prominent activists had "dropped out of sight" and yes, Bev suspected it was about Qui Tams. I have no idea whether or not she was correct about any given persons BUT with the amount of money at stake, I for one am dead certain that some of the "dropouts" went the "secret Qui Tam" route.

    * I (Jim March) liked the idea of doing a *California* Qui Tam under the rules Lowell Finley laid out for this state: I could still be an active, public activist sharing new research with the public, the California SecState's office, etc. The only thing I had to "shut up about" was the Qui Tam suit's existance. Even then, I wouldn't do it without Bev and I had to argue and plead and practically drag her kicking and screaming in :D because she'd had such bad experiences with other lawyers.

    * Bev knew there was going to be some PR hell from some circles because yes, she was indeed vocally against Qui Tams at one point. That was because she was under the initial impression that to go that route required ceasing public activism, which would have crippled any possibility of reforms before November.

    * Because Bev and I did NOT "go quiet", a number of very positive things happened, the biggest being contacting and documenting the James Dunn info (he EMailed Bev, she bounced him to me because I was local to him, I recorded his declaration and put him in touch with the right people). Dunn's testimony was THE key element in getting Diebold thrown out of four California counties by the Calif SecState on 4/30/04.

    Upshot: Neither Bev nor myself have anything to feel guilty about here.
     
  7. Standing Wolf

    Standing Wolf Member in memoriam

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    Well done! Very well done!
     
  8. Das Pferd

    Das Pferd Member

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    <------------------ needs cliff notes or abridged version please.
     
  9. Jim March

    Jim March Member

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    Diebold sold about $114 million bucks worth of crappy, substandard and easily riggable voting systems in California. They advertized it as being secure - they lied. They said it was legal to use (fully certified). They lied on that point too...along with a lot of other points :rolleyes:.

    Bev and I are going to try and get the state and various counties their money back, possibly triple if we can prove fraud and Diebold doesn't settle.

    For doing all this, Bev and I are due to split a cut of the winnings (a "bounty"). It'll vary between "bigtime fun money" each to "retirement-level" loot, depending on how it all shakes out.

    Condensed enough for ya?
     
  10. Bruce H

    Bruce H Member

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    Jim not only is this a big feather in your and Bev's hat for voter fraud, it lets people in Sacramento know you are to be taken very seriously. Well done sir, very well done.
     
  11. Ellery Holt

    Ellery Holt Member

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    Cudos and Bravo!

    Jim, that's no small sum of money; is personal safety an issue with suits so large, or perhaps the it's gone so far that no amount of 'hushing people' would do Dumballs any good?
     
  12. Jim March

    Jim March Member

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  13. Pendragon

    Pendragon Member

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    This is great new Jim.

    I hope you take them for a good eight figures.

    Oh the misery you could cause with that kind of money :)
     
  14. Jim March

    Jim March Member

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    Eight figures in my pocket is...unlikely, almost bordering on impossible. Diebold would have to be REALLY dumb to let it go that far. More likely they'll settle to avoid tripplers.

    We found out recently that the STATE'S payments to Diebold (their portion from helping the counties out) totals somewhere between $8mil and $12mil. Any settlement on that might be managed through the California AG's office.

    Now let's remember two things:

    1) Democrat Kevin Shelley (SecState) roundly condemned Diebold circa April 30th 2004. He recommended both criminal and civil charges be investigated by State Attorney General Lockyer (also a Dem).

    2) This puts the ball both practically and politically into Lockyer's hands.

    3) Both Shelley and Lockyer are considered contenders for Governor in '06.

    4) This Qui Tam suit gives Lockyer a big ol' club to hold over Diebold's head. A Qui Tam has more of a "guaranteed" (close to it, anyhow) damage tripler than anything Lockyer could come up with on his own.

    5) Lockyer could TRY and kick Bev and I out (try and argue we don't have standing) but first our legal position is pretty dang good and second we've got ourselves one heck of a fine little PR machine going - read tomorrow's http://www.oaklandtribune.com for an example :).

    Upshot: it's a damned good thing Bev and I didn't have to "shut up". As it is, our continued activism has created a "perfect storm" whereby Lockyer in particular can't risk being seen as a roadblock on this issue. Diebold's credibility is so far in the toilet they've got less brand name credibility than Enron. Shelley has been having a FIELD DAY beating up on them (justifiably). Lockyer now has the same opportunity and he's liable to drag Bev and I along on a VERY profitable (kaCHING!) ride :D.
     
  15. RevDisk

    RevDisk Member

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    Congrads, Mr March. Diebold has done some seriously shady dealings with their system. I've read some of the internal memos and as a geek, I was horrified of the flaws admitted. (No internal audit trails? Orya!) I would expect a better product from a team of CS students at any college or university.

    I imagine you're gonna hear from a lot of honked people about *gasp* profitting from legal action against slime like Diebold. My thoughts? Cool! :D

    Just one request... if you buy any nice pretty toys, can we come over to play? :neener:

    Best of luck in the bounty hunting career. Good luck, and good hunting.
     
  16. twoblink

    twoblink Member

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    Jim, you millionaire, this means dinner's on you next time we meet right?

    :evil:

    Great job.. Give them hell!!

    Diebold down... Next on the menu, Boxer and Feinstein!
     
  17. 4570Rick

    4570Rick Member

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    Jim...Ya ever think of running fer office? You could be getting a campaign contribution.:D
     
  18. fallingblock

    fallingblock Member

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    Way to go, Jim!

    Persistence certainly paid off.:D

    Keep 'em hoppin'.;)
     
  19. Kharn

    Kharn Member

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    Good luck.
    Maybe winning this will buy you a meeting with ARnold, so you could try to get in a short briefing on CCW. :D

    Kharn
     
  20. Ellery Holt

    Ellery Holt Member

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    http://www.oaklandtribune.com/Stories/0,1413,82%7E1865%7E2264641,00.html

    Suit alleges Diebold led county astray

    E-voting firm falsely claimed its touchscreens were secure, activists say


    By Ian Hoffman, STAFF WRITER

    In a lawsuit unsealed Friday, electronic voting critics charge that Diebold Election Systems Inc. gained its first major West Coast sale by misleading Alameda County about the security and legality of its touchscreen voting systems.
    The case seeks millions of dollars under California's False Claims Act and is thought to be the first application to the elections arena of a class of high-stakes, whistleblower actions more common in health care billing, construction and defense-contract frauds.

    It could be the leading edge of a nationwide legal assault that, if successful, could drive the income of e-voting sales back into the coffers of government -- and create a cash windfall for activists seeking voting reform.



    In California, e-voting activists Jim March of Sacramento and Bev Harris, the Seattle-based founder of BlackBoxVoting.org, sued Diebold Election Systems and its parent, Diebold Inc. of Canton, Ohio, on behalf of Alameda County and the state of California, which supplied three-fourths of the $11.8 million that the county spent on Diebold touchscreens.

    March and Harris allege that Diebold officials falsely claimed their touchscreens were secure

    against tampering and knowingly supplied Alameda County with uncertified voting software, contrary to the purchase contract and state law.

    "Diebold said that their voting system had state-of-the-art security. It wasn't. It was kindergarten-level security," said March, a former programmer and an e-voting activist on the board of BlackBoxVoting. "They used uncertified, illegal software in Alameda elections when their contract with Alameda said they shouldn't do that."

    Diebold officials could not be reached for comment.

    So far, the California Department of Justice and Alameda County have not said whether they will join in the lawsuit. A spokesman for Attorney General Bill Lockyer said the state is "continuing its investigation" of the merits of the False Claims Act case.

    Lockyer's office already is evaluating potential criminal and civil actions against Diebold, on the recommendation of Secretary of State Kevin Shelley, who accused the nation's leading e-voting vendor of breaking California election law and lying to state election officials.

    Alameda County officials dressed Diebold representatives down last spring after a string of failings.

    The firm was late delivering printed ballots. Its core vote-tabulating software tended to give thousands of optically scanned votes to the wrong candidates in certain circumstances. In the March primary, Diebold shipped hundreds of hastily assembled and barely tested voter-card encoders that broke down in the early hours of Election Day at about a third of the county's polling places, temporarily shutting down electronic voting there.

    Alameda County Counsel Richard Winnie could not be reached Friday. But in an earlier interview, he said the county is focused on getting Diebold to live up to its contract and supply a fully approved, fully functional voting system.

    "We continue working with Diebold and this contingency of whether we have electronic voting or not. The time is approaching when we have to make a choice," Winnie said.

    County officials haven't ruled out switching to a new voting-system supplier.

    "We don't have our eyes closed to other possibilities but they are the contractor that we have a contract with," Winnie said. "In the end we're going to have some problems with them if they don't produce."

    Diebold lately is meeting the county's demands. New voting and vote-counting software has passed national testing and California's testing of its electronic-voting functions. The state hasn't tested its handling of high volumes of optically scanned ballots, a problem that cropped up in the October gubernatorial recall in Alameda County and in the March primary in San Diego County.

    March, Harris and other Diebold critics say the county should join their suit, which offers damages of up to three times the original contract value to both the county and the state if they prevail.

    "This puts the onus on them to justify to the taxpayers of Alameda County why they are using a flawed system when they could get all their money back and then some," Harris said.

    If the county and state choose not to join the suit, the governments still would reap a portion of any damages awarded, but March, Harris and their attorney, Lowell Finley, a longtime elections lawyer in Oakland, would garner a larger, 30 percent share.

    "It's common for governments not to want to admit they've been taken. They have a lot of professional and political capital invested in these decisions. That's the reason why there's the 30-percent option, so citizens can get their money back," March said.

    Diebold caught wind of the lawsuit soon after it was filed and hired Daniel McMillan, a senior litigator and false-claims expert at the Los Angeles office of Jones Day law firm.

    McMillan sent a legal budget to Diebold, suggesting it spend at least $35,000 to $50,000 a month preparing for the false-claims case and developing defenses. One argument is that Alameda County and California checked out Diebold's products and knew what they were getting.
     
  21. Gray Peterson

    Gray Peterson Member

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    Jeez, with that kind of money, you could buy yourself a legislative seat. :)
     
  22. Harry Tuttle

    Harry Tuttle Member

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    NAh, don't send good money after bad

    Set up an RKBA foundation and buy 1000 22lr Bushmasters for training the children
     
  23. gp59

    gp59 Guest

    Way to go Jim. I'm glad someone is taking on this kind of fraud. never did trust computers, and i fix them for a living. go figure. good luck and keep up the fight.

    :D :D :D :cool: :cool: :cool:
     
  24. Jim March

    Jim March Member

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    As I can't post to the DU thread, I have to reply to things there over here, hoping they're tracking it.

    Zan_of_Texas: The reason Bev used the term "may fund Black Box Voting organization" is that she has no control over how I spend my chunk. Or how attorney Lowell Finley spends his, for that matter...Lowell will get a 25% cut of any pre-trial settlement, 33% (same as myself and Bev each) if it goes to trial.

    Mind you, Lowell is a very effective voting rights activist in his own right, he's not just in this for the money. I've seen him do things in this field that he didn't get paid for and that were unconnected with the cases, such as attend and give testimony at the various California SecState voting system panel meetings.

    I'm a voting rights activist too...have been for just about a year now. BUT for the last six years, I've been fighting to end racism, corruption, nepotism and cronyism in the handling of California's gun control system, esp. where "Carry Concealed Weapons" permits are concerned.

    This lawsuit started LONG before Bev started assembling a 501(c)(3). Will I kick in some of my share into that? Sure. Guaranteed. But I'm also going to go hunting crooked sheriffs :D. Bev's known that from the get-go.

    Hence the phrasing of the press release.
     
  25. Chipperman

    Chipperman Member

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    This is putting a big smile on my face.
    See? ---------------> :D
     
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