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No.87837-4 SUPREME COURT OF THE STATE OF WASHINGTON

Appellant v Secretary of State Sam Reed

) ) )

STATEMENT OF GROUNDS FOR DIRECT REVIEW

Respondent ) ____________________________________________________________

OPINION AND DECISION and ORDER DISMISSING CASE entered by

2012. Both were attached to the Notice of Appeal. 1. NATURE OF CASE AND DECISION

On the afternoon of Friday August 24, 2012, Secretary of State Sam Reed (Secretary) certified the names of candidates who will be on the

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Washington State 2012 General Election ballot. That same day the ballot printing process began. 1 Early Monday morning, August 27, citizen Linda Jordan (Jordan), a registered voter, challenged the placement of Candidate
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Thurston County Superior Court Judge Thomas McPhee on August 29th,

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Appellant Linda Jordan seeks direct review of the COURTS

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Linda Jordan

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Barack Obamas name on the General Election ballot under RCW 29A.68.011(1)(3) 2 . The challenge must be filed within three days of the certification. The Court is directed to resolve the matter within five days

the proceedings was set. 3 The States Response Brief was due by noon on Tuesday August 28th. Jordans Reply Brief was due by 9:30 am on

3:00pm. Judge Thomas McPhee dismissed the case with prejudice on

II. ISSUES PRESENTED FOR REVIEW

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RCW29A.68.011Preventionandcorrectionofelectionfraudsanderrors. Anyjusticeofthesupremecourt,judgeofthecourtofappeals,orjudgeofthesuperior courtinthepropercountyshall,byorder,requireanypersonchargedwitherror, wrongfulact,orneglecttoforthwithcorrecttheerror,desistfromthewrongfulact,or performthedutyandtodoasthecourtordersortoshowcauseforthwithwhythe errorshouldnotbecorrected,thewrongfulactdesistedfrom,orthedutyorordernot performed,wheneveritismadetoappeartosuchjusticeorjudgebyaffidavitofan electorthat:(1)Anerrororomissionhasoccurredorisabouttooccurinprintingthe nameofanycandidateonofficialballots;or(2)Anerrorotherthanasprovidedin subsections(1)and(3)ofthissectionhasbeencommittedorisabouttobecommitted inprintingtheballots;or(3)Thenameofanypersonhasbeenorisabouttobe wrongfullyplacedupontheballots;or(4)Awrongfulactotherthanasprovidedforin subsections(1)and(3)ofthissectionhasbeenperformedorisabouttobeperformed byanyelectionofficer;or(5)Anyneglectofdutyonthepartofanelectionofficerother thanasprovidedforinsubsections(1)and(3)ofthissectionhasoccurredorisaboutto occur;. 3 EmailfromThurstonCountySuperiorCourtJATrinaWendell

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August 29, 2012.

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Wednesday August 29th and the hearing would be held that afternoon at

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of receiving the complaint. The same day Jordan filed the timeframe for

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No. 1 Did the trial court error by receiving an exhibit and declaration, ex parte, that was then used to formulate the Courts Opinion and Decision? No. 2 Can convention, ballot printing and mailing schedules render RCW 29A.68.011(1)(3) effectively null and void, thereby denying citizens their right to make use of it?

No. 3 Can the Secretary, on his own initiative and outside the legislative and rule making process, create a new way of certifying the names of

major party candidates for President and Vice-President, to the General

Election ballot, that violates current laws and rules governing the process?
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WAC434215165AgencyfilingsaffectingthissectionPresidentialnominationsby majorpoliticalparties.Nominationsforpresidentandvicepresidentbymajorpolitical partiesareconductedateachparty'snationalconvention.Immediatelyfollowingthe convention,eachpartymustsubmitacertificateofnominationandlistofelectorsto thesecretaryofstateinordertoplacethenomineesonthepresidentialgeneral electionballot.RCW29A.04.620Rules.Thesecretaryofstateaschiefelectionofficer maymakerulesinaccordancewithchapter34.05RCWtofacilitatetheoperation, accomplishment,andpurposeofthepresidentialprimaryauthorizedinRCW 29A.56.010through29A.56.060.Thesecretaryofstateshalladoptrulesconsistentwith thischaptertocomplywithnationalorstatepoliticalpartyrules.[2003c111162; 19951stsp.s.c204;1989c47(InitiativeMeasureNo.99).FormerlyRCW 29.19.070.]RCW29A.56.360Slateofpresidentialelectors.Inayearinwhichthe presidentandvicepresidentoftheUnitedStatesaretobeelected,thesecretaryof stateshallincludeinthecertificationpreparedunder*RCW29A.52.320thenamesofall candidatesforpresidentandvicepresidentwho,atleastfiftydaysbeforethegeneral election,havecertifiedaslateofelectorstothesecretaryofstateunderRCW 29A.56.320andhavebeennominatedeither(1)byamajorpoliticalparty,ascertified bytheappropriateauthorityunderpartyrules,or(2)byaminorpartyoras independentcandidatesunderchapter29A.20RCW.Majororminorpoliticalpartiesor

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No. 4 Did the Trial Court error by deliberately misrepresenting material facts on which this case pivots? No. 5 Can the Secretary and the Court ignore the findings of a law enforcement agency concerning a forged identification document that has been presented, by a presidential candidate, as an offer of proof that he is eligible for the office?

No. 6 Is the Secretary bound to uniformly apply, to all presidential and

vice presidential candidates, the requirement to swear the eligibility oath that write in candidates for president and vice president have to swear? III. GROUNDS FOR DIRECT REVIEW

independentpresidentialcandidatesmaysubstituteadifferentcandidateforvice presidentfortheonewhosenameappearsontheparty'scertificationornominating petitionatanytimebeforefortyfivedaysbeforethegeneralelection,bycertifyingthe changetothesecretaryofstate.Substitutionsmustnotbepermittedtodelaythe printingofeitherballotsoravoters'pamphlet.Substitutionsarevalidonlyifsubmitted underoathandsignedbythesameindividualwhooriginallycertifiedthenomination,or hisorherdocumentedsuccessor,andonlyifthesubstitutecandidateconsentsin writing.[2003c1111429.Prior:2001c301.FormerlyRCW29.27.140.] 5 RCW29A.04.611Rulesbysecretaryofstate.Thesecretaryofstateaschiefelection officershallmakereasonablerulesinaccordancewithchapter34.05RCWnot inconsistentwiththefederalandstateelectionlawstoeffectuateanyprovisionofthis titleandtofacilitatetheexecutionofitsprovisionsinanorderly,timely,anduniform mannerrelatingtoanyfederal,state,county,city,town,anddistrictelections.

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Pursuant to Rap 4.2(A)(4), direct review is permitted in [a] case involving a fundamental and urgent issue of broad public import which requires prompt and ultimate determination. The issues raised go directly to the

accepted direct review in cases like this one that involve issues of voters

rights and election law. See Becker v County of Pierce, 126 Wn.2d 11, 15 (1995) (granting direct review pursuant to RAP 4.2(a)(4) and (5) in case involving statutory limits on procedures for vote counting and

court order dismissing the plaintiffs claim. The Court granted the review

involving a state officer. (direct review granted where plaintiffs action commenced two years after the election had taken place). The need for direct review is of greater urgency here than in Becker. The General Election is fast upon us and ballots do need to be printed and mailed.

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Appellant did ask the Superior Court to prohibit a public official, the Secretary of State, from certain acts. (RAP 4.2(a)(5)) The Court can order an accelerated review (RULE 18.12). This appeal is expedited under controlling statute RCW 29A.68.011(1)(3) RAP 5.2(d.). Without this Courts accelerated direct review Jordan will be denied effective relief.

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noting that the direct appeal presented issues of broad public importance

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canvassing). In Becker, the appeal was brought directly from a superior

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integrity and stability of our election process. This Court has previously

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IV. FACTS PERTAINING TO ISSUES PRESENTED No. 1 Before walking in to the courtroom on August 29th at approximately 2:45 pm, Solicitor General Jeffery Even, representing the Secretary, handed citizen Jordan a Declaration from Shane Hamlin with an attached exhibit A. Inside the courtroom Jordan saw Even hand a copy of

a document to the clerk of the court for the Judge and heard him say that it was the same one he had just given me. Exhibit A was a letter from the

Democratic National Committee (DNC) to the Secretary which included a Provisional Certification for candidate Barack Obama and Joe Biden. Jordan objected to the late entry of the declaration and exhibit but the

in closing arguments, and nothing Ive heard in those arguments have

I will have it immediately available as a written decision for the parties

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The decision was already written when he walked in to the courtroom and he was not going to change it. Then McPhee continues, I will first address part of this case that is not in that opinion, and that is the issue

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convinced me to change that decision. So I will read this decision and then

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says, I have written out my opinion conditioned upon what I heard here

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Judge allowed it. In the verbatim report of the hearing 6 Judge McPhee

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of the Hamlin declaration.The declaration of Hamlin and the attachment in the form of the letter dated July 24 from the Democratic National Committee Chair is important evidence.

right before the hearing and the Judge is saying that he is going to address

it first orally because it is not addressed in his written opinion. How could it be? He had never seen it. However McPhee goes on to read his written opinion which includes a verbatim recitation of the DNC letter that

opinion included the same verbatim recitation of the DNC letter. 8 No. 2 On the afternoon of Friday August 24, 2012 the Secretary certified

could begin printing ballots. Before Jordan could even file a challenge,

ballots. By the time the court ruled they were three and a half days in to

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the process. Ballot printing schedules influenced the Courts decision 9 but

should they trump the law? And was their really a printing crises? In

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VerbatimReportofProceedings,P22L19throughp23L20 CourtsOpinionAndDecision,p4L14 9 VerbatimReportofProceedings,p15L19

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early Monday morning, counties were already going forward with printing

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candidate names for the general election ballot. That same day counties

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was attached as Exhibit A to the Hamlin declaration. 7 The written

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(Emphasis added) This is the document that we both had just received

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response to the late entry of the Declaration of Shane Hamlin, Jordan filed, on August 29th, a FOIA request with the Secretarys Election Division for any and all communication between their office, the DNC and

certifications. 10 The major party conventions this year were held on

August 27-30 (RNC) and September 4-7 (DNC). In a letter from Katie

raised in May about making sure the submission of their Certificate of

RNC had citedRCW 29A.56.360. Blinn details that military ballots must

their candidates for president and vice president on August 30 and requests that the RNC issue their Certificate of Nomination no later than September 4, 2012. She knew all the facts concerning mailing deadlines and convention schedules and set September 4th as the deadline to receive

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the nomination certificate. So why were ballots in the process of being printed on August 24? And why did the Secretary argue, on August 28, that the deadline for being included in the Voters Pamphlet was August

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JordanAugust29,2012FOIAtoSOSElections KatieBlinnisalawyerandtheCoDirectorofElectionsfortheWashingtonSecretary ofStatesOffice.

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be mailed by September 22, that she understands the RNC will nominate

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Nomination would comply with Washingtons legal requirements. The

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Blinn, 11 to the RNC dated July 6, 2012, she responds to concerns the RNC

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the Republican National Committee (RNC), relating to provisional

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29? 12 Why set September 4th as the deadline when Blinn knew the DNC nomination would not occur until September 7th? Why set September 4th as the deadline when major party president and vice president candidate

vice presidential candidates may be substituted up until September 24th ? (RCW 29A.56.360) The end result of changing the deadline from

right to challenge under RCW 29A.68.011(1)(3). Ballots were already

No. 3 In the same July 6, 2012 letter, Blinn offers the RNC the option of sending in a provisional certificate earlier in the week of the

then. 13 On August 14, 2012 Blinn notified the DNC 14 that she planned to

24th, 2012 even though she knew the nomination would not take place

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until September 7th. She makes no suggestion in this email to the DNC to

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SecretaryofStatesResponseMemorandumDeclarationofTamiDavisandSheryl Moss 13 TheRNCprovidedonebutitwascuriousthattheProvisionalCertificationhadan August20,2012notarydateonitwhiletheletterfromtheRNCitwasattachedtowas datedAugust14,2012. 14 8/14/12emailfromBlinntoDNCKipWainscott,CounselforObamaforAmerica

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certify the DNC nominees for President and Vice President on August

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convention because the identity of the nominees will be obvious by

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being printed and the pressure was on to keep things moving.

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September 4 to August 29 was that citizens were effectively denied their

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names can be submitted, by law, up until September 17th and major party

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send in a provisional nomination like she did earlier with the RNC. However Wainscott responds on August 15th that Blinns plan to certify DNC candidates on August 24 is fine but then asks, Can you confirm that

over to you? On August 16 Blinn responds that, We did. I apologize; it had not made its way to my desk yet. I have it now. This provisional certification process violates every single law, procedure and rule in

Washington State for the placement of major party candidate names, for

rules of the DNC convention procedure for nominating candidates.15 The

mailed. I can find no evidence that the Secretary adopted this new method of certifying candidates to the general election ballot through established Rule Making Procedure (RCW 34.05.310-365) It certainly was outside the legislative process. Did the DNC Convention schedule dictate this new

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procedure? Purportedly, in a last minute effort to comply with the MOVE Act, the Secretary engaged in the abject violation of Washington State election laws and procedures. This was not the answer to whatever mess they thought they were in. One I think was contrived.

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SeePlaintiffJordansReplytoSecretaryofStatesResponseMemorandump.2L31

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Secretary has known for four years when military ballots needed to be

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president and vice president, on the general election ballot. It violates the

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you received the provisional certification that I asked the DNC to mail

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No. 4 Judge McPhee grossly and I think deliberately misrepresents the affidavit of software expert Mara Zebest. 16 McPhee writes that Jordan offered a report by a part-time computer programmer last employed in

birth certificate and concluded that the original was forged. No where in the Affidavit and Report that Jordan offered from Zebest, did Zebest say that she was a part time computer programmer or that she was un-

employed. No where did she say that she concluded that the original [birth

Zebest correcting this misrepresentation. 17 McPhee also based a good deal

determine if Obama was a natural born citizen.Quite the contrary Jordan never asked the Secretary or the Court to ascertain if Obama was a natural

issue because the forged identity document was in the way. However,

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Plaintiffs first focus is on the forged identity document that Candidate Obama is using in an attempt to prove his eligibility to be a candidate. Plaintiff would directly address the Constitutional eligibility issue if the

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CourtsOpinionandDecision,p6L9 DeclarationofMaraZebest

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born citizen. Jordan argued that we could not even get to the citizenship

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of his opinion on the false assertion that Jordan had asked the Secretary to

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certificate] was forged. Please see the attached declaration from Mara

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May 2077, who examined a copy of the pdf image of President Obamas

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Secretary or Candidate Obama introduced an authenticated birth certificate but at this stage the forged document is the matter at hand. A forged birth certificate can not be used to prove anything except that someone has

using a forged birth certificate to gain access to the ballot. 18 19 20 The

Secretary is allowed to be influenced by the media and is authorized to act

for president and vice president. (RCW 29.A.56.030) It is not outside the

concerning the identification document Candidate Obama revealed on the

No. 5 Is there reciprocity between states concerning findings of forgery? The Maricopa County Sheriffs Department spent nine months conducting

on their website on April 27, 2011 purporting to be an image of a scanned

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photo copy of Barack Obamas original birth certificate. Investigators

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JordanMemorandumandAppendixofLaw,p4L66throughp5L72 CourtsOpinionandDecision,p6L16throughp7L18 20 Clarification:JordanAffidavit(p11L203,p14L261):Ofcourseascanneddocument canbesavedasaPDFfile.WhatrevealstheforgednatureofthePDFfileontheWhite Housewebsiteisthatthefiledidnotoriginatefromasinglesourcescanneddocument. Itisafilethatoriginatedinthecomputer,containingmultiplelayersandmanipulations resultinginanimagethatwascompiledorfabricated.

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a full fledged investigation of the PDF file revealed by the White House

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White House website on April 27, 2011.

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pale to conclude that the Secretary can also be influenced by the media

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on that influence concerning the placement of names on the primary ballot

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engaged in the act of forgery and, in this case, that Candidate Obama is

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concluded that the file is a completely manufactured and manipulated file, made up of many different layers and that the image it contains never existed in paper form. It is a forgery. The Secretary ignored this finding

sheriff Joe Arpaio. 21 This forged document and the use of it is a violation of the Federal Wire Fraud Statute 18 USC 1343 and 18 USC 1028 (Fraud and related activity in connection with identification documents,

authentication features, and information) Is Washington State required to

identification document also violates RCW 9A.60, RCW9A.60.020.

Courts have upheld that Treating candidates equally is, as a matter of law, an important state interest. 23 The Secretary developed a write in

oath that candidates are required to swear or the form will not be accepted.

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The oath states, I declare that the above information is true, that I am a natural born citizen of the United States residing at the address listed

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CourtsOpinionandDecisionp6L9 RCW29A.04.611 23 See,e.g.,CouncilofAlternativePoliticalPartiesv.Hooks,179f3d.64,78(3d.Cir.1999)

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candidate form for president and vice-president that include an eligibility

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No. 6 The Secretary is required to uniformly apply election procedures. 22

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follow federal laws on fraud and forgery? The use of a forged

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and Judge McPhee dismissed it as the musings of the infamous Arizona

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above, that I am a write-in candidate for the office as indicated above, and that, at the time of filing this write-in declaration, I am legally qualified to assume office. The natural born reference is an assertion that the

presidential candidates should have to swear at least the same oath. This

lack of uniformity breeds confusion. For example the DNC Certificate of

in 2008, stated that, the following were duly nominated as candidates

respectively. 24 No mention of being qualified much less qualified per the

by the DNC states, the following are the nominees of said Party for President and Vice President of the United States respectively, and that the following are legally qualified to serve as President and Vice President respectively under the applicable provisions of the United States

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Constitution. (attached) (Emphasis added) Does this mean that the definition of applicable provisions is open to debate? We need uniformity on this issue of Constitutional qualifications not confusion.

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SeeJordanMemorandumInSupportofMotionforOrdertoShowCause,Exhibit4

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United States Constitution. The 2012 Certificate of Nomination submitted

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of said Party for President and Vice President of the United States

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Nomination for Barack Obama and Joe Biden, submitted to the Secretary

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candidate meets the Constitutional qualifications. All presidential and vice

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Respectfully submitted,

September 18, 2012 Linda Jordan, Appellant Pro Se

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