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CODE NO. 3688

RENO NV 89501
BAR NO. 3049

9655 Gateway Dr., Suite B
Reno, NV 89521
(775) 786-6664
BAR NO. 2690

Attorneys for Contestant Rick Davis


* * *

In re The Contest of the 2004
General Election                                                  CASE NO.CV04-02764

                                                                            Dept. No. 7


     Contestant presents the within Memorandum to the Court with the purpose of outlining to the Court the nature and purpose of these proceedings, as perceived by Contestant.


     The Contest is made up of two independent grounds of Contest: (1) Malfunctions of the Voter Registration Process and (2) Unreliability of the Voting Machine Vote Tallying and Counting Process. These grounds will be referred to as (1) Registration Malfunction and (2) Voting Machine Unreliability. Each of these grounds is intended to stand alone as grounds for contesting the election of Presidential electors. This Memorandum addresses the first of these grounds in preliminary fashion, to educate the Court upon this issue.

     Summary Statement of Contestant’s Case

     As stated in his Written Statement of Election Contest, Contestant relies on a number of NRS sections, but particularly on NRS 293.407 and NRS 293.410. With regard to these provisions, Contestant relies in particular upon the grounds at 293.310 (2) (a) through (f); however, Contestant further asserts that NRS 293.210 (2) states that an election "may" be contested on enumerated grounds but not that a contest "must" or "shall" be restricted to enumerated grounds. Contestant, in addition to relying on enumerated grounds (a) through (f), avers that the registration of voters in Nevada was fatally flawed to the extent that thousands of qualified electors were denied the right to vote, in such a manner that the election results fail to reflect the intentions of all persons who were qualified to vote and who intended to vote had their eligibility to vote not been frustrated by what appears to be an intentional interruption and invalidation of the entire election process. If it is true, as Contestant contends, that thousands of Nevada electors were denied the right to vote, then Contestant submits that out of this contest should come an order that all disenfranchised citizens should be allowed to register and vote.

     At this juncture, Contestant asserts as his principal ground for contest that had all Nevada citizens who were eligible to vote been allowed to vote, the results of the election would have been different and Democratic rather than Republican electors would have been elected. Breaking down this assertion, Contestant contends: (1) That a large number of eligible voters, qualified electors, expressed their intention to vote in the 2004 general election by completing registration by appearing at registration sites designated with a "Register to Vote Here" or similar sign; (2) That when large numbers of persons learned that their registrations were not effective (either at the polling place or by contacting the registrar of voters) at a time when the registration period had expired, these persons were not permitted to vote and were, therefore, denied the right to vote by malfunctions in the registration process and by felonious actions to be referred to later in this memorandum; (3) That although the exact number of disenfranchised voters is not known, it is known or reported by reliable media sources, that most (by a reported ratio of more than six to one) of the "lost" or destroyed registration applications were Democratic registrations; (4) That if, as it appears, thousands of Democrats were denied the right to vote in the manners stated, it is highly probable that the results of the election would have been different if prospective Democratic voters had not been denied their right to vote.

     As stated, Contestant’s main ground for contest is that irregularities in registration process and unlawful actions by persons acting under color of law denied many qualified electors their right to vote. There are several of the enumerated grounds contained in NRS 293.410 that are also relied upon as grounds for this contest. These grounds are: (i) NRS 293.410 (2) (a) refers to election board "misfeasance." Contestant claims that the entire election process, which includes the participation and action of the election boards, are fraught with dangerous omissions and failures in supervision, all of which contributed to the deprivation of voting rights mentioned in the previous paragraph. (ii) NRS 293.410 (2) (c) refers to "illegal votes cast or counted for the defendant[s]." Although this ground relates primarily to Voting Machine Unreliability (see below), Contestant contends that if, as claimed, thousands of eligible voters were unlawfully denied the right to vote, it is fair and accurate for him to state that illegal, unbalanced, votes were cast and counted for defendants and that "if taken from [defendants] will reduce the number of [their] legal votes below the number necessary to elect [them]." (iii) NRS 293.410 (2) (f) refers to "possible malfunction of any voting or counting device." If voting device can be defined in terms of registration systems or devices, (f) applies to the registration disaster referred to above. This subparagraph clearly relates to Voting Machine Unreliability discussed in our second Memorandum.

     Having made this Summary Statement, Contestant will move to discussion of the first of the two above-stated grounds.

     Registration Malfunction

     Contestant respectfully submits to the Court that registration malfunction in Nevada’s 2004 general election cannot be denied. Contestant would begin by saying that such malfunction has been adjudicated by the Second Judicial District Court and should be considered res judicata. Attached to this memo is the transcript from the Election Day hearings before Hon. Brent Adams, including his Order and Decision in Case No. CV04-02648. Contestant asks that judicial notice be taken of the Order and Decision and that Contestant not be required to establish and prove herein that: (1) There were eligible voters and qualified electors (e.g., Mr. and Mrs. Amberson) who completed, according to law, official registration applications designated by the Secretary of State and furnished by duly acting voter registrars, but were not permitted to vote because of the malfunctions and irregularities in the registration process identified by the Court in Case No. CV04-02648; (2) That all Nevada eligible voters, qualified electors who, having expressed their intention to vote in the 2004 general election, by completing official registration applications which were not, as required by law, turned in and recorded in the voter register and poll books are entitled to vote; (3) That all such eligible voters should, upon presentation of a proof of having completed registration applications are entitled to an order that permits them to register to vote and to vote, notwithstanding the expiration of time limitations upon registration and voting.

     As stated, this is a "preliminary" memorandum, and Contestant seeks guidance of the Court as to what proofs are necessary to convince the Court of the basic fact that substantial portions of the eligible voters in this state have been denied the right to vote by being denied the right to register to vote. Contestant has taken the position in his Written Statement of Contest that the issue before the Court is not whether eligible voters have been denied their right to vote but, rather, how many eligible voters have been denied. If this position is accepted by the Court, then Contestant submits to the Court that the following order should be entered:


      It appears to the Court that a number of qualified electors in this State expressed their intention to vote in the 2004 general election by appearing before duly authorized voter registrars and, according to law, by completing the official voter registration application prescribed by the Secretary of State and local voter registrars and county clerks, and
     It further appears that, for reasons not fully known to the Court, a certain number of eligible voters who duly filled out and swore to official voter registration applications did not have their names registered on the voter register or the poll books; and, hence were not permitted to vote in the matter intended; and
     It further appears to the Court that by reason of the fact that the reason that the above-described persons were denied their right to vote was that persons other than themselves were at fault in the registration process; now, therefore,


      That all qualified electors of Nevada, who have expressed their intention to vote in the 2004 general election by registering with authorized voter registrars by completing official voter registration forms and which qualified electors were not permitted to vote by reason of the fact that their names were not registered on the voter register or poll books are declared eligible to vote and have their vote tallied in the 2004 general election; and


     That all of the qualified electors described above shall be permitted to vote at any time from November___, 2004, at 7:00 a.m. until November __, 2004 at 5:00 p.m. by presenting themselves to the voter registrar of the voting area in which they reside and by presenting credible proof, by application receipt or by affidavit or declaration under penalty of perjury that they have in fact completed a registration application but were denied the right to vote; and


      That the Secretary of State and all voter registrars and county clerks shall allow to register and to vote all persons who present the proofs stated above in this Order.

DATED THIS __________ DAY OF___________________, 2004.


     Should the Court decide not to accept as res judicata the decision and order of the District Court in Case No. CV04-02648, Contestant will ask the Court for leave to call witnesses who, as reported in the news media, will testify that they were employed to register Republican voters and that they were instructed to "trash" Democratic registrations.

     Contestant notes that it has been reported that approximately 300 voter registrars were employed in Clark County alone, which registrars, it has been reported, were instructed to register Republican voters. Available figures show that these registrars registered one Democrat for every six Republicans. If 300 paid registrars worked, as reported, for up to three months in Clark County alone, the discrepancies in registrations is enormous and certainly enough to change the results of the election, were the Democrats who intended to register to vote but were prevented from registering and voting permitted to vote.

     Voting Machine Unreliability

     Contestant has received a number of reports of irregularities in the voting process. These irregularities are summarized in the affidavit attached to this memorandum.

DATED this 23rd day of November, 2004.





     Pursuant to N.R.C.P 5(b), I certify that am of Martin G. Crowley, Esq., and that on this ______ day of November, 2004 , a true copy of the within document was hand delivered to:

Rew Goodenow, Esq.
Marshall, Hill Cassas & de Lipkau
333 Holcomb Ave. Ste 300
Reno, Nevada 89502

Martin G. Crowley, Esq.



Election Challenge Filed

Transcript of first Amberson hearing in Judge Adams' court on election day

Hearing on motion to reconsider, held as the closing of the polls loomed on election day

Analysis of the result of the Amberson case

Associated Press national story on election challenge

GOP files response, forces change of judges

GOP Voter Suppression Continues

Earlier stories

REFORMS NEEDED — Nevada voter registrars tossing provisional ballots
Associated Press 11-9-2004

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