Amended Complaint Loeber et al. v Spargo et al. NDNY 04-Cv-1193

8/14/2019 Amended Complaint Loeber et al. v Spargo et al. NDNY 04-Cv-1193

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK Case: 04-cv-1193--------------------------------------------------------------------------------- x

In the 42 USC 1983 suffrage and autonomy discrimination (LEK / RFT)

Matter of: Ronald G. Loeber, Burr V. Deitz, William E. Bombard,William A. Gage, John Joseph Forjone, H. William Van Allen,Fairlene G. Rabenda, Roy-Pierre Detiege-Cormier, Ronald E. Sacoff,Gabriel Razzano, Edward M. Person, Jr., Christopher Earl Strunk and

The AD HOC New York State Citizens for Constitutional VERIFIEDLegislative Redistricting

Petitioners / Plaintiffs, : AMENDED-against-

COMPLAINTTHOMAS J. SPARGO, individually and as Justice of the NYS SupremeCourt and all Justices of the State Supreme Court, JOSEPH L. BRUNO,61 JOHN and JANE DOE NYS SENATORS all individually and as state

Senators past and present; SHELDON SILVER, 149 JOHN and JANE DOENYS ASSEMBLY MEMBERS all individually and as past and present;

GEORGE E. PATAKI individually and as NYS Governor;RANDY A. DANIELS, NYS Secretary of State with authority per CRL andRepository for corporations and unincorporated associations service;per CPLR 1012 New York State Attorney General ELIOT SPITZER;THE NEW YORK STATE BOARD OF ELECTIONS, and everyMunicipal Board of Elections, along with every Corporation Counsel of everyMunicipality with a Board of Elections, THE CITY OF NEW YORK (NYC),Michael Bloomberg NYCs Mayor, UNITED STATES ELECTION ASSISTANCECORPORATION (EAC), THOMAS R. WILKEY EAC Executive Director,

THE NATIONAL ASSOCIATION OF SECRETARIES OF STATE(NASS) by LESLIE REYNOLDS Executive Director for theExecutive Committee and PETER KOSINSKI, individually andhis official capacity at the NASS; and per 28 USC 2403The United States Attorney General ALBERTO GONZALEZ.

Respondents / Defendants.

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Plaintiffs are US Citizens,relators resident in a municipality within the state of New York, Eligible Voters (EV)

whether registered or not entitled toBottom-up(1)

suffrage and Home-rule autonomy therein,some are in Northern District of New York, and All Plaintiffs are pro se without any one beingan attorney.

1Bottom-up versus Top-downsuffrage and autonomy is subject to Homerule authority in each municipal entity

entitled to a municipal board of elections that maintains the original registration and enrollment records within the

municipality of domicile rather than at a remote centralized location outside of Homerule authority and control.


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Loeber v Spargo Amended Complaint NDNY 04-cv-1193

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JURISDICTION and VENUE

By authority of: the United States Constitution Article 1 Section 2, Article 1 Section

4, Article I Section 8 Clause 18, Article I Section 9 Clause 3 (No bill of attainder or expost

facto Law shall be passed) as applies to the Voting Rights Act(VRA),National Voter

Registration Act(NVRA) and theHelp America to Vote Act(HAVA), Article III court

case and controversy for the Federal Question of HAVA unconstitutionality with rotten

boroughs suffrage infringement requiring a 28 USC 2284 panel on statewide senate

reapportionment question, Article IV guarantee of a republican form of government, Article

V HAVA mandates that burdens U.S. Citizen individual fundamental rights as to state citizen

suffrage and autonomy of the PEOPLE(2) imposed by Federal and State concerted acts that

infringe the First, Fourth, Fifth, Eighth, Ninth, Tenth, Thirteenth, Fourteenth, Fifteenth,

amendment protection in the US Constitution; and this Court has jurisdiction of this claim

under 28 U.S.C. Sections 1331, 1332(a), 1343(a), 1357, 1361, "Venue" Section 1391(e), and

under 14th Amendment authority in 42 U.S.C. Section 1981 and 1983 and 31 USC 3729 thru

3733 as applies to application and administration of the New York Constitution and Laws.

Civil Rights - Civil action for deprivation of rights, Conspiracy to interfere with civil

rights 42 USC Section 1986, Section 1985, Section 1983 and Section 1982; as well as under

the due process rights of the 5th, and protection against an unreasonable statute by Congress

under the 9th 10th Amendments pertains to the federal government, and other due process

rights in the 14th Amendment empowers Congress to protect persons from State actions.

2New York State Constitution Article IX Local Government definition of the PEOPLE (d) Whenever

used in this Article the following terms shall mean or include (3) PEOPLE. Persons entitled to vote as

provided in section one of Article two of this constitution.


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42 U.S.C. Section 1985 (3):

Depriving persons of rights or privileges if two or more persons in any State or Territory

conspire or go in disguise on the highway or on the premises of another, for the purpose

of depriving, either directly or indirectly, any person or class or persons of the equal

protection of the laws, or of equal privileges and immunities under the laws; or for thepurpose of preventing or hindering the constituted authorities of any State or Territory

from giving or securing to all persons within such State or Territory the equal protection

of the laws; or if two or more persons conspire to prevent by force, intimidation, or

threat, any citizen who is lawfully entitle to vote, from giving his support or advocacy in a

legal manner, toward or in favor of the election of any lawfully qualified person as an

elector for President or Vice President, or as a Member of Congress of the United States;

or to injure any citizen in person or property on account of such support or advocacy; in

any case of conspiracy set forth in this section, if one or more persons engaged therein

do, or cause to be done, any act in furtherance of the object of such conspiracy, hereby

another is injured in his person or property, or deprived of having and exercising any

right or privileges of a citizen of the United States, the party so injured or deprived mayhave an action for the recovery of damages occasioned by such injury or deprivation,

against any one or more of the conspirators.

Moreover, that the guarantee clauses of the Federal Constitution require Federal intervention to

enforce applicable sections of the New York State Constitution (NYSC) Article I Sections

1,6,7,11,17 especially NYSC Bill of Rights Article I. Section 1. "No member of this state shall

bedeprived of any of the rights or privileges secured to any citizen thereof, unless by the law of

the land, or the judgment of his peers

" in that Article II, III, VI, IX, X thru XIX apply herein.

See US Supreme Court decisions: Baker v Carr, 369 U.S. 186 (1962); WMCA v.

Lomenzo, 377 U.S. 633 (1964) with malicious use oftotal population in equal districts alleged

as if in Reynolds v. Sims, 377 US. 583 (1964) one man one vote, Arbor Hill v. Albany County

NDNY 03 cv 502, Rodriguez v Pataki SDNY 02 cv 618.

This action filed in October 2004 is timely commenced within the applicable statute of

limitations and as per the State reapportionment of legislative districts dated April 22, 2002, and

pursuant to the Order of District Judge Lawrence E. Kahn on September 22, 2005 for leave to

amend the complaint herein and for 28 USC 2284 relief to follow:


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PARTIES

1. At all times relevant to the instant action all PETITIONERS / PLAINTIFFS are

associated with The AD HOC New York State Citizens for Constitutional Legislative

Redistricting (AD HOC Citizens) for this suit as of right seeking remedy as an unincorporated

association granted recognition by the NYS Civil Rights Consolidated Law Chapter 6 Article

5A, that operates according to the NYSC founded on April 20, 1777 with associated laws to

facilitate Elector member suffrage and autonomy within the municipal entity of residence where

only the PEOPLE who are those citizens entitled to vote are Electors, as relator stakeholders

with sovereignty and may be registered to vote at the respective Board of Elections and or

entitled by affidavit to vote; and hereinafter known as Petitioner, Plaintiff with specific use

of the last name and collectively as Petitioners, Plaintiffs; is located at 351 North Road

Hurley New York 12443 with Petitioner / Plaintiff members, are all natural persons, Electors of

the State of New York Citizens, as the independent part of the PEOPLE apart from the Bi-

partisan majoritarians with control over the State Legislature, State Judiciary and State

Executive, and whereas Petitioners / Plaintiffs do not have any control over patronage, policy

and purse, and that each Petitioner / Plaintiff is a member of a large class described below as

whistleblowers and by individual relator affidavit of verification attached, as part of a class

of state Citizens jus tertii of the PEOPLE to numerous to name, herein are pro se as follows:

2. Ronald G. Loeber, 2130 Burne Altamont Road Altamont New York 12009 Phone:

518- 872-2154, County of Albany with Neil D. Breslin in 46th SD and John J. McEneny in 104th

3. Burr V. Deitz, 444 Whitehall Street, Albany New York 12008 Phone: 518- 489-

0167, County of Albany with Neil D. Breslin in 46th SD and John J. McEneny in 104th AD.

4. William E. Bombard, 71 Saratoga Avenue South Glens Falls New York 12803 with

service mailing at PO Box 882 Glens Falls New York 12801, Phone: 518-743-0108, County of


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Saratoga with Joseph L. Bruno in the 43rd SD and Theresa Sayward in the 113th AD

5. William A. Gage 10 Greenfield Lane Hampton New York 12837 Phone: 518-282-

9818 County of Washington, Elizabeth OC. Little in 45th SD and Roy McDonald in 112th AD

6. John Joseph Forjone, 5367 Upper Holley Road mailing address POB 28 Clarendon

NY 14429 Phone: 585-721-7673 County of Orleans with George D. Maziarz 62nd SD and

Charles Nesbitt 139th AD

7. H. William Van Allen, 351 North Road Hurley New York 12443 Phone: 845-389-

4366 FAX 845-338-5979 County of Ulster with John J. Bonacic in the 42nd SD and Kevin A.

Cahill in the 101st AD

8. Fairlene G. Rabenda, 8 Claudia Lane, Poughkeepsie, New York 12603 Phone: 845-

462-5820, County of Dutchess, Stephen M. Saland in 41st SD and Joel M. Miller in 102nd AD

9. Roy-Pierre Detiege-Cormier, 25 Hattie Jones Circle Brooklyn, N.Y. 11213 Phone

718-288-1827, City of New York with Velmanette Montgomery in the 18th SD and Annette

Robinson in the 56th AD

10. Ronald E. Sacoff, 84 Boylan Street Staten Island New York 10312, Phone: 917-709-

0039, City of New York, with John J. Marchi in the 24th SD and Robert A. Straniere in 62nd AD

11. Gabriel Razzano, 135 Gordon Place Freeport, New York 11520, Phone 516-223-

6883, County of Nassau, with Charles J. Fuschillo, Jr. in the 8th SD and David G. McDonough

in the 19th AD

12. Edward M. Person, Jr., 392 Saldane Avenue North Babylon N.Y. 11703 Phone

631-667-7316, County of Suffolk, Owen H. Johnson in 4th SD and Andrew P. Raia in 9th AD

13. Christopher Earl Strunk, 593 Vanderbilt Avenue #281 Brooklyn, N.Y. 11238

Phone 845-389-0774, City of New York, Velmanette Montgomery in 18th SD and Roger L.

Green in the 57th AD.


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14. At all times hereinafter mentioned each and every of the 613 Defendants:

STATE RESPONDENTS / DEFENDANTS are named as natural persons, individually and as

public officers, who are collectively associated with membership in the Bi-partisan

majoritarian Republican or Democratic State Party structure are incumbents who hold public

office in the State Legislature, State Executive, and as those who also are Officers of the State

Judiciary by required oath of office and undertakings prescribed by law and that as for those

retired State Legislators that previously held office and are under the jurisdiction of the State

retirement system and represents a class to numerous to name dating back to the 1960 census and

1962 State reapportionment.

15. THE STATE JUDICIARY with 264 State Supreme Court justices plus 69

senior certified justices representative in the person of THOMAS J. SPARGO

(Respondent , Defendant, Justice Spargo, collectively as Respondents, Defendants,

State Judiciary), is the state of New York Supreme Court Justice duly elected for the Third

Judicial District within the Third Department Appellate Division with authority to hear all

election law, reapportionment and real property matters; as counsel to the NYS Senate under

Senator Marino and Senator Bruno in the matter of previous reapportionments as well as the

current reapportionment challenged herein, is the go to guy in all election matters, is closely

associated with Peter Kosinski, is the go to guy for putting together business deals with out of

state corporations investment involving special legislation, is the go-to guy for formation of

minor parties for the bi-partisan majoritarian State parties for use of the fusion candidate

process, is the go-to-guy for national Republican party interest involving Federal control over

State suffrage by private interest through the foot in the door legislation promulgated by the

HAVA; is involved in the April 2002 reapportionment of the Senate and Assembly using the


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2000 Census; and in his capacity as a Republican State Party member as a Judge maker past

and present who as a class in the Judiciary are too numerous to name herein; with place of

business located at Albany County Courthouse 16 Eagle Street Albany, New York 12207;

16. STATE SENATE in the person ofJOSEPH BRUNO individually and as a public

officer (Respondent , Defendant, Senate President, collectively as Respondents,

Defendants, State Senate State Legislature), is the State of New York Senate President Pro

Tempore duly elected Republican Party Senator from the 43rd Senate District (SD)with office

located at the State of New York Capital Albany New York 12247; who in April 2002 is jointly

responsible in conjunction with Speaker of the Assembly Sheldon Silver for the reapportionment

of the Senate and Assembly using the 2000 Census; and that in his official capacity as a

Republican State Party member is associated with Sixty-one (61) other JOHN AND JANE DOE

SENATORS past and present who as a class in the Senate too numerous to name herein include

but are limited to the following Senate members: Neil D. Breslin in the 46th SD, Elizabeth OC.

Little in the 45th SD, George D. Maziarz in the 62nd SD, John J. Bonacic in the 42nd SD,

Stephen M. Saland in the 41st SD, Suzy Oppenheimer in the 37th SD, Thomas K. Duane in the

29th SD, Velmanette Montgomery in the 18th SD, John J. Marchi in the 24th SD, Charles J.

Fuschillo, Jr. in the 8th SD, Owen H. Johnson in the 4th , forty-nine (49) JOHN AND JANE

DOE STATE SENATORS past and present

17. STATE ASSEMBLY in the person ofSHELDON SILVER individually and as a

public officer (Respondent , Defendant, Assembly Speaker, collectively as

Respondents, Defendants, State Assembly State Legislature), is the State of New York

Assembly Speaker duly elected Democratic Party Senator from the 64th Assembly District

(AD) within the City of New York in lower New York County and extending over to water to


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the Kings County docks, with an office located at the State of New York Capital Albany New

York 12247; who in April 2002 is jointly responsible in conjunction with the Senate President

Bruno for the reapportionment of the Senate and Assembly using the 2000 Census; and that in

his official capacity as a Democratic State Party member is associated with One hundred forty-

nine (149) other JOHN AND JANE DOE ASSEMBLY MEMBERS past and present who as a

class in the Assembly too numerous to name herein include but are limited to the following

Assembly members: John J. McEneny in the 104th, Theresa Sayward in the 113th AD, Roy

McDonald in the 112th AD, Charles Nesbitt in the 139th AD, Kevin A. Cahill in the 101st AD,

Joel M. Miller in the 102nd AD, Sandy Galef in the 90th AD, Richard N. Gottfried in the 75th

AD, Annette Robinson in the 56th AD, Robert A. Straniere in the 62nd AD, David G.

McDonough in the 19th AD, Andrew P. Raia in the 9th AD, Roger L. Green in the 57th AD, and

One Hundred Thirty-six (136) JOHN AND JANE DOE STATE ASSEMBLY MEMBERS past

and present

18. STATE EXECUTIVE in the person of GEORGE F. PATAKI individually and as

a public officer, is the State of New York Governor duly elected Republican Party chief

executive officer (Respondent, Defendant, Governor, collectively as Respondents,

Defendants, State Executive), with offices located at the State of New York Capitol Albany

New York 12247, is the State of New York Governor duly elected as a Republican State Party

Governor who appointed the Secretary of State; and who in April 2002 approved the Senate and

Assembly Reapportionment plan, is jointly responsible in conjunction with the Senate President

Bruno and Speaker Silver for reapportionment of Senate and Assembly using the 2000 Census;

19. The New York Secretary of State in the person ofRANDY A. DANIELS

individually and as a public officer, is the Secretary of the State of New York is a Republican


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Party member duly appointed and serves at the pleasure of Governor (Defendant, Secretary of

State, SOS, collectively as Defendants), with offices located at The New York State

Department of State 41 State Street Albany, NY 12231, is a member of NASS and by law is the

Public Officer charged with responsibility to safeguard civil rights under CRL to review for

compliance and repository for all, incorporated and unincorporated association due process

including 57 municipalities with Boards of Elections within, safeguards all records for New

York;

20. The New York Attorney General in the person of ELIOT SPITZER, individually

and as public officer is the State of New York Attorney General duly elected Democratic Party

chief law enforcement officer (Respondent, Defendant, Attorney General, collectively as

Court Officers, Respondents, Defendants), with offices located at the State of New York

Capitol Albany New York 12224 and per CPLR 1012 is vested with the authority to defend the

State Constitution, Civil Rights Law and Public Officers with duties during good behavior;

21. THE NEW YORK STATE BOARD OF ELECTIONS, created under EL 3-100

two bi-partisan co-chairman and two bipartisan commissioners with jurisdiction and

authority over every one of the 57 Municipal Boards of Elections, along with every Corporation

Counsel of every Municipality including the Board of Elections, of the city of New York, by

their special counsel Todd Valentine Esq. with place of business located at 40 Steuben Street

Albany, New York 12207-2109

22. THE CITY OF NEW YORK, a municipal entity created by the State Legislature

under State Constitution Article IX, which as a corporate entity subsumes pre existing Counties,

without Homerule since 1964 are now boroughs of the Bronx, Manhattan, Queens, Brooklyn,

Staten Island, that NYC exist at State Legislature pleasure; (Defendant, NYC, Person,


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collectively as Defendants, City Defendants, State Defendants, State Entity, Person)

with place of service at the NYC Corporation Counsel. Michael A. Cardozo Corporation Counsel

of the City of New York 100 Church Street New York, NY 10007 (212) 788-0995

23. MICHAEL BLOOMBERG City of New York Major, duly election chief executive

officer of the Municipal Corporation entity the City of New York with authority over the City of

New York Board of Elections and policy regarding bottom-up suffrage and autonomy for US

Citizens resident within; (Defendant, Mayor of NYC, Mayor, collectively as

Defendants, City Defendants, State Defendants, State Public Officer, Public Officer)

with place for service at One Centre Street, New York New York 10007;

24. The United States ELECTION ASSISTANCE CORPORATION (EAC),

Address United States Election Assistance Commission 1225 New York Avenue N.W., Suite -

1100 Washington, DC 20005 Telephone (202) 566-3100 Toll Free (866) 747-1471 Fax (202)

566-3127 E-mail Address [email protected]

25. THOMAS R. WILKEY as the EAC Executive Director Address United States

Election Assistance Commission 1225 New York Avenue N.W., Suite - 1100 Washington, DC

20005 Telephone (202) 566-3100 Toll Free (866) 747-1471 Fax (202) 566-3127 E-mail

Address [email protected].

26. THE NATIONAL ASSOCIATION OF SECRETARIES OF STATE by its

Director Leslie Reynolds individually and as a Congressionally sanctioned alliance

(Respondent , Defendant, NASS, collectively as Respondents, Defendants),

accordingly to the NASS Constitution and Bylaws NASS aims and purposes of the association,

the oldest national organization of major public officials, are to disseminate and exchange

information among its members their duties, responsibilities, methods of operation, suggestions


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and proposals for improvement in their respective offices thought mutually beneficial to

themselves, their states, and the nation with executive offices located at Hall of States 444 N.

Capitol St., NW Suite 401 Washington , DC 20001 PHONE: (202) 624-3525 FAX: (202) 624-

3527 and

27. PETER KOSINSKI, individually and his official capacity at the NASS individually

and as a Public Officer duly appointed as the Executive Director of THE NEW YORK STATE

BOARD OF ELECTIONS, is an officer of the Judiciary, is named herein individually and as a

member of the Republican State party appointed by the Bi-partisan Majoritarians to be

representative of the State of New York along with the Secretary of State in the National

Association of Secretaries of State (NASS) pursuant to New York State Constitution Article II

Section 8, facilitates questionable operation of the OSCE / ODIHR, notwithstanding NYS

Election Law and State Officer duties (Defendant, Respondent, Bipartisan BOE,

collectively as Defendants or Respondents) with place of business located at 40 Steuben

Street Albany, New York 12207-2109

28. ALBERTO GONZALEZ is the Honorable United States of America Attorney

General, is a statutory party herein under 28 USC 2403 takes orders from the chief law

enforcement officer of the United States President George W. Bush (Respondent, U.S.

Attorney General, collectively as Respondents),serves at the pleasure of the President with

advice and consent of Congress has offices other than Washington D.C. in every State and here

in this venue such ancillary office is located at the Federal Office Building Albany New York

12201; The US Attorney General has the duty and authority to defend the Federal Constitution,

Congressional Law, Civil Rights Law, the Voting Rights Act Immigration and Nationality Act,

HAVA, and Public Officers with duties during good behavior;


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29. That Petitioners / Complainants by reason of prima facie evidence and foregoing

facts, actions and malicious intent of the Respondents / Defendants their agents and those yet

named both of the state of New York and Federally as individuals and public officers act under

color of Federal Law effecting the current state of New York Election Law EL, the April 22,

2002 reapportionment of the state of New York Legislatures fifty (50) Senate Districts (SD),

one-hundred fifty (150)Assembly Districts (AD), twelve (12)Judicial Districts (JD), and

twenty-nine (29) CongressionalHouse Districts (CD), all pre-cleared by the United State

Department of Justice (DOJ) Voting Rights Section under the Voting Rights Act(VRA),

with conformance to the 1993National Voter Registration Act(

NVRA

) and the October 29,

2002Help America to Vote Act(HAVA), P.L. 107-252, 116 Stat. 1666; and

30. That Plaintiffs as US Citizens are denied equal protection and substantive due process

suffer injury to individual Bottom-up suffrage and Homerule autonomy of the PEOPLE within a

municipal entity as a firewall against corruption entitled to a respective board of elections

therein, suffer infringement of speech in the state legislature the US House, unequal due process

in the judiciary and unreasonable unequally reimbursed unfunded financial burden upon New

York citizen property differently than that for citizens of the several states, as a taking imposed

by unconstitutional provisions of HAVA in the Congressional definition ofVoting Age

Person (VAP) rather than Citizen Voting Age Persons (CVAP), is prima facie

discrimination evidence proven in related case Arbor Hill v. Albany County NDNY 03 cv 502,

notwithstanding the limited finding by the Courts analysis inRodriguez v Pataki SDNY 02 cv

618, in the March 15, 2004 Decision per VRA applied only to selected SDs within NYC rather

than statewide.

31. Plaintiffs complain that injury is inflicted statewide in political districts drawn by


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Defendants to protect incumbents and partisan control over patronage policy and purse in the

state legislature by consent not competition, so that bipartisan control over each and every

municipal entity entitled to a board of elections under color of NVRA and HAVA is done

without a constitutional amendment for Congressional authority beyond Federal Article 1

Section 4 to impose top down control over suffrage with mis administration and application of

the State Constitution and related Laws.

32. That Plaintiffs, as a jus tertii class of CVAP, suffer rotten boroughs injury, in New

York that involves 37 existing mal-formed municipalities whose People / CVAP are without any

anti-corruption firewall despite the political district supposedly being pre-cleared under color of

the VRA with impunity since after 1964, and suffer since April 22, 2002 by disproportionate

diminished dilution (DDD) injuries to Plaintiffs individually, as the representative class jus

tertii, differently on an entity by entity basis statewide.

33. That Plaintiffs injury to the Peoples Homerule autonomy and bottom-up suffrage

varies differently, and as special injury Plaintiffs as People jus tertii are denied equal treatment

without compelling state interest, that requires strict scrutiny on the totality effect of the causes

of actions with injuries as follows:

34. As and for a First Cause of Action, Petitioners Allege Defendants both State and

Federal their agents ad those yet to be named pursuant to above paragraphs 1 thru 33

intentionally act by consent not competition use VAP statewide including non-citizens of

voting age to unequally distribute CVAP to cause Disproportionate Diminished Dilution

(DDD) of non-majoritarian Electors voting strength for Senate Districts by misapplication

of the State Constitution and Laws anti-gerrymander provisions for control over the Bi-

partisanpatronage policy and purse, and all Boards of Elections.


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35. That on or about May 2001 Defendants Spargo Bruno Silver Pataki and Daniels et.al.

created a Joint Task Force on Demographics for conducting a reapportionment of senate,

assembly and CDs with mis application and administration of the State Constitution and Laws.

36. Those agents of the Task force at the direction of Defendants Spargo, Bruno, Silver,

Pataki and Daniels et.al. as of April 22, 2002 using the total 2000 Census enumeration of all

persons resident in New York State net citizens resident overseas totals 18,976,459 includes the

total of alien non-citizens 2,084,389, reapportioned 62 State Senate District (SD) Seats, 150

Assembly District (AD) Seats and 29 Congressional House District (CD) Seats, by

intentional mis administration and application of the State Constitution and related laws..

37. On or about April 22, 2002 Defendants Spargo, Silver, Bruno, Pataki and Daniels

et.al. proposed SD and AD reapportionment for the 2002 General Election with total inhabitants

includes aliens, uses a ratio 306,072 per Senate District and ratio 126,509 persons per Assembly

District by dividing 18,976,459 by 62 for the Senate Districts and 18,976,459 by 150 for the

Assembly Districts and along with Twenty-nine (29) Congressional Districts, for pre-clearance

under the VRA to the US DOJ Voting Rights Division- who thereafter approved same.

38. Those Defendants intentionally did not draw the one SD and one AD to include

Hamilton and Fulton municipal entities to elect together within one State Senate District,

containing at least one AD conterminous within and coterminous in one Congressional District.

39. That Congress under HAVA and Defendants define Voting Age Population (VAP)

as any person enumerated in the Federal Census 2000 resident in a state or territory at the time

of the enumeration being 17 years or older, includes: (i) citizens eligible to vote whether

registered or not; (ii) those incarcerated in prison being adjudged civilly dead not having been re-

enfranchised; (iii) all aliens whether documented or not; and (iv.) those adjudged civilly dead by


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due process of law;

40. VAP however does NOT include any minor under the age of 18 not of voting age

does not differentiate between children who are citizens by birth or those aliens whether

documented or not.

41. That Congress has unreasonably set a deadline for January 1, 2006 under HAVA for

New York and the several states to implement regulations and a plan for acquisition of new

voting machines for the US House Election in November of 2006, and as critically effects the all

important gubernatorial cycle here in New York,

42. In the state of New York, HAVA compliance involves DOJ certification for EAC

reimbursement of say $221 million to New York that Plaintiffs contend MUST be greater using

CVAP rather than VAP calculations compared to the other states, especially California, Texas,

New Mexico, Arizona, Florida, Georgia, South Carolina and others to numerous to name.

43. Those Defendants have created The Citizen's Election Modernization Advisory

Committee comprises Stanley Zalen, co-executive director of the Board of Elections with

Defendant Peter Kosinski, along with two Democratic county elections commissioners, two

Republican county elections commissioners, four representatives of the disability community,

and one appointment each by the Senate and Assembly.

44. Under the federal Help America Vote Act of 2002, states have to improve access to

voting and modernize elections.

45. The new machines have to be in place for the 2006 elections.

46. Some of New York's requirements for the new voting machines are that they produce

a permanent paper record that a voter can verify before casting a ballot, and that they have an

audio voting feature for people with vision problems.


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47. In New York of the slated $221 million under HAVA, most of which will go toward

new machines and that Counties must decide which machines they want, provide for training,

maintenance and storage as part of the real property tax levy under EL 4-138.

48. Those Defendants both State and Federal their agents ad those yet to be named in

concert under color of the Voting Rights Act including the National Voter Registration Act

and Help America to Vote Act maliciously act under color of HAVA and by mis application

and administration of the NYSC anti-gerrymandering provisions to impose tremendous burden

upon CVAP, whose only remedy is to petition for ballot access under color of EL 6-136, 140,

142 and 154, thereby injures CVAP by imposing unequal protection of US Citizen fundamental

rights in the State of New York in participation for Federal and State electoral process; and

49. Those Defendants both state and Federal are obligated to define Citizen Voting Age

Population / CVAP as any U.S. Citizen enumerated in the Federal Census 2000 resident in a state

or territory at the time of the enumeration being 17 years or older, that CVAP ONLY includes

U.S. Citizens eligible to vote whether registered or not, without the civilly dead;

50. CVAP however, does NOT include: (i.) those incarcerated in prison being adjudged

civilly dead not having been re-enfranchised; (ii.) no aliens whether documented or not; (iii.) no

citizen adjudged civilly dead by due process of law; and (iv.) does NOT include any minor under

the age of 18 not of voting age does not differentiate between children who are citizens by birth

or those aliens whether documented or not.

51. Those Defendants intentionally use total population including persons of the VAP

class including Citizens and non-citizens whether documented or not along with those who are

civilly dead by operation of law, as enumerated by the 2000 Census within a 5% deminimus of

the total population per district.


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52. That during the 2000 Florida National Presidential Election controversy arouse in

which Defendant Thomas Spargo was a material participant there, thereafter conspired with the

NASS and State Defendants when intentionally missing a Democratic Party Co-Chairman Carol

Berman EL 3-100 assignment to the State Board of Elections, in order to broadly impose HAVA

top-down over all Federal and State elections as if under color of Federal Article I Section 4,

despite the limited power of Congress, and without an express Federal Constitutional amendment

that substitutes VAP for CVAP in every state accordingly.

53. That Congress has somehow granted authority to provide non-citizen VAP virtual

representation at the state level without deference to U.S. Citizens exclusively sovereign as State

Citizens entitled to bottom-up suffrage and Homerule autonomy within one state of several

states.

54. That US Citizens have no venue to vote at the Federal level unless elected to

government as representation or otherwise being resident in a territory, must be state citizens

resident within a state to vote in any Federal and or State elections.

55. Those Defendants use total population premise to reapportion political districts,

however intentionally used VAP in conjunction with VRA and HAVA passed on October 29,

2002 to draw all political districts to protect partisan voter distribution for control over patronage

policy and purse by mis application and administration of the State Constitution and related laws

56. Those Defendants drew the Senate Districts in order to protect partisan control of

patronage policy ad purse by mis application and administration of the State Constitution and

related laws thereby.

57. Those Defendants did not give equal protection deference to Eligible Voters whether

registered or not who are properly defined as Citizen Voting Age Persons.


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58. Those Defendants intentionally deny equal protection deference to Eligible Voters,

who are citizens defined by the VRA whether registered or not, properly defined as CVAP.

59. Those Defendants intentionally cause DDD for Eligible Voters, Plaintiffs and or

CVAP statewide in reapportionment of Senate Districts with total EV and or CVAP within each

62 SDs varying from negative 58% EVs to plus 28% EVs on either side of the 179k mean EVs

within a total population mean of 306k with a 5% variation at the top,

60. Those Defendants intentionally cause DDD for Eligible Voters and Plaintiffs or

CVAP in the city of New York (NYC) to be treated differently than statewide CVAP in

reapportionment of Senate Districts, so that within NYC varies specifically in the range of minus

37% to plus 47% DDD for NYC-EV with a mean 156,300 NYC-EV per NYC SD within a total

population mean of 306k with a 5% variation at the top.

61. As and for a Second Cause of Action, Petitioners Allege Defendants both State

and Federal by their agents and those yet to be named pursuant to above paragraphs 1 thru 60

maliciously violate the NYSC Article III Section 4 1/3 Rule in the matter of the NYC

municipal entity, that is equivalent to a county entity, with five boroughs within without

Homerule autonomy.

62. Those Defendants pursuant to above paragraphs 1 thru 61 as individuals and officials

with control over the Bi-partisan patronage policy and purse in a power sharing conspiracy

with Federal Defendants intentionally allotted the NYC municipal entity twenty-six (26)

senators SDs twenty four (24) SDs of which are coterminous within NYC and

63. Those Defendants pursuant to above paragraphs 1 thru 62 despite the mandates of

NYSC Art. III Section 4 - 1/3 Rule and Rule flout the rule of law by intentionally

allotting 26 Senate Districts to exceed the maximum allowable total number of senators of


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Twenty (20) that when combined with Nassau County with five (5) for a total of 31 State

Senators and with Westchester with a net three (3) all total thirty-four (34), despite no entity may

combine SDs with adjoining entities to have more than of all SDs.

64. Those Defendants pursuant to above paragraphs 1 thru 63 intentionally act to disrupt

state constitutional process including amendments and conventions thereto.

65. As and for a Third Cause of Action, Petitioners Allege Defendants both State

and Federal their agents and those yet to be named pursuant to above paragraphs 1 thru 64

maliciously maintain illegal municipal boards of elections without equal protection of

provision of Bottom-up suffrage and Homerule autonomy for the People within existing

municipal entities as required in application and administration of State Constitution and Laws.

66. Those Defendants do not provide at least two ADs dedicated to represent the People

resident coterminous within an existing municipal entity.

67. Those Defendants gerrymander the ADs to afford the State Board of Elections

control over ballot access and associated election due process.

68. Those Defendants intend that ballot access and election process is more difficult in

ill-formed entities not entitled to a Board of Elections within, than for municipal entities with the

proper number of representatives coterminous within.

69. As and for a Fourth Cause of Action, Petitioners Allege Defendants both State


intentionally act to prevent a ratio of one (1) senator to three (3) assembly members

coterminous within the reapportionment required in the application and administration of the

State Constitution and laws.

70. Those Defendants act under color of the WMCA decision that declares the NYSC


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Article III Section 4 in the so-called SD enlargement formula from the minimum required fifty

(50) SDs unconstitutional - without a replacement formula, NYSC mandates express use of 50.

71. As and for a Fifth Cause of Action, Petitioners Allege Defendants both State and

Federal their agents and those yet to be named pursuant to above paragraphs 1 thru 70

intentionally act by consent not competition use VAP statewide including non-citizens of

voting age to unequally distribute CVAP to cause Disproportionate Diminished Dilution

(DDD) of non-majoritarian Electors voting strength for Assembly Districts for partisan

incumbent control differently from AD to AD.

72. That Defendants both State and Federal their agents and those yet named

intentionally cause DDD for Eligible Voters, Plaintiffs and or CVAP statewide in

reapportionment of Assembly Districts with total EV and or CVAP within each of 150 ADs that

varies from a negative 53% EVs to plus 29% EVs from the statewide 74k mean EVs within the

total of say 126k persons varying by say 5% of total persons.

73. That Defendants both State and Federal their agents and those yet named

intentionally cause DDD for Eligible Voters, Plaintiffs and or CVAP in a NYC AD created

differently than a statewide AD, so that reapportionment of ADs within NYC vary in the range

of negative 49% to plus 64% DDD for NYC- EV / NYC- CVAP with mean 64,827 NYC-EV per

NYC-AD.

74. As and for a Sixth Cause of Action, Petitioners Allege Defendants both State and

Federal their agents and those yet to be named pursuant to above paragraphs 1 thru 73

intentionally cause the NYC municipal entity unequal virtual representation to those not

entitled to register and vote

75. As and for a Seventh Cause of Action, Petitioners Allege Defendants both State


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intentionally cause DDD partisan advantage in the seating of Assembly Delegates to the

Judicial Convention Nominating process under EL 6-124 for 14 year and 10 year Judicial

elective office integrally linked to reapportionment of Assembly Districts by creation of ADs

improperly overlapping municipal entity borders to cause DDD for delegates at the EL 6-124

Convention process.

76. Those Defendants are intent on limiting the number of judicial representatives in ill-

formed undersized municipalities to facilitate the taking of personal and real property, and to

limit the equal provision of plain, speedy and efficient remedy.

77. Those Defendants use gerrymandering to create judicial delegate voting advantage in

portions of ADs with DDD of delegate voting power different from entire ADs.

78. As and for a Eighth Cause of Action, Petitioners Allege Defendants both State


intentionally reapportion SDs and ADs without being in as compact form as practicable,

and without at all times consisting of contiguous territory within a Homerule municipal

entity to thereby abridge the PEOPLEs speech in the legislature deny representatives

dedicated to autonomous PEOPLE of a Homerule municipalitys own Board of Elections.

79. That the Defendant Secretary of State has a duty under NYS Civil Rights Law

Chapter 6 Article 5a to equally protect the fundamental and civil rights of all CVAP against

injury caused by agents of ill-formed municipal corporations whose agents act ultra vires.

80. That the Defendant Secretary of State has ignored the petition of Plaintiffs and other

CVAP for civil rights relief against agents of ill-formed municipalities in the matter of bottom-up

suffrage and Homerule autonomy.


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81. As and for a Ninth Cause of Action, Petitioners Allege Defendants both State


intentionally reapportion under color of the HAVA to create centralized national control of

voting away from State control to facilitate disenfranchisement of those Eligible Voters as

part of the CVAP.

82. As and for a Tenth Cause of Action, Petitioners Allege Defendants both State


intentionally reapportion and act under color of VRA and HAVA to maliciously prevent

equal protection for non-majoritarian Eligible Voter participation who challenge incumbent

control of patronage policy and purse.

83. As and for a Eleventh Cause of Action, Petitioners Allege Defendants both State


intentionally act under color of HAVA use VAP as if those ineligible to vote were entitled

bottom-up suffrage and Homerule autonomy in New York in the purchase of voting

machines reimbursed by EAC and the several states that have adopted the HAVA provisions.

84. Those Defendants by each state of the several states must meet all the requirements

of HAVA implementation if entitled to Federal funding reimbursement using a formula in each

state proportionate to the total VAP of the entire USA with Territories, or say, NY-VAP divided

by the USA-VAP equals the NY-VAPPA (VAP Proportional Amount).

85. Those Defendants do not act so that the People of New York would be federally

reimbursed with a share based upon CVAP in each state not VAP and that the EAC formula

must be NY-CVAP divided by USA-CVAP to determine the reimbursement amount by EAC

and DOJ.


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86. Those Defendants would require a preliminary injunction on time deadlines

nationally until a hearing of the issues involving equal protection of the CVAP in each State and

Territory may be effected, and so that no special treatment for one state may be afforded over

that of another in the matter of the ratio of CVAP per VAP in one state that burdens the CVAP in

one state or territory differently than the CVAP in any other state in matters of Suffrage and

autonomy.

87. Those Defendants arbitrarily act as if the People of the state of New York are not

entitled to a greater HAVA reimbursement- an example of which subject to the actual Census

2000 facts asserts that California CA-CVAP is say 46% of total persons whereas CA-VAP is say

72%, because a very large number of non-citizens, compares to West Virginia with a small non-

citizen population, a large elderly citizens total so that WV-CVAP of say 72% equals WV-VAP

of say 72%, and to be compared with New York NY-CVAP of say 65% and NY-VAP of 72%.

88. As and for the Twelfth Cause of Action, Petitioners Allege Defendants both State


intentionally use those adjudge civilly dead as if part of the CVAP,

89. As and for the Thirteenth Cause of Action, Petitioners Allege Defendants both

State and Federal their agents and those yet to be named pursuant to above paragraphs 1 thru 88

intentionally act under color of VRA and HAVA prevent equal enforcement of law upon all

Municipalities of the State of New York with Boards of Election in compliance with the

State Constitution and Election Laws as to the existing EDs, ADs, SDs, JDs as effects CDs

accordingly,

90. That Municipalities entitled to a Homerule Board of Elections are not entitled to get

any HAVA money until they prove compliance with application and administration of the State


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Constitution and Laws.

91. As and for the Fourteenth Cause of Action, Petitioners Allege Defendants both

State and Federal their agents and those yet to be named pursuant to above paragraphs 1 thru 90

intentionally act under color of HAVA for all Municipalities of the State of New York with

Boards of Election not in compliance with the State Constitution and Election Laws as to the

conduct of elections as a result of noncompliance with existing EDs, ADs, SDs, JDs as effects

CDs accordingly, and

92. Those Defendants and the State Board of Elections, despite warning by Plaintiffs on

October 25, 2004, allow some municipalities with Boards of Election therein do not provide

Bi-

partisan inspectors for elections in each and every Election District or polling place under

Election Law to receive a new machine under HAVA, and

93. That on November 2, 2004 Defendant State Board of Elections does not supervise

Election Law compliance ofBipartisan inspection by each board.

94. Those Defendants intentionally infringe the speech and disenfranchise Plaintiffs by

DDD as People resident within existing Municipalities with a Board of Elections totaling 37

entities that do not have at least two ADs coterminous within.

95. Those state Defendants and existing municipalities entitled to a Board of Elections

per requirements of above paragraphs 1 thru 94 as such are not entitled to any HAVA money

until they prove compliance with application and administration of State Constitution and Laws.

96. That Injury to Plaintiffs is significant and palpable by the very nature of the

underlying causes of action stated above in paragraphs 34 thru 95, Petitioners / Plaintiffs

individually and collectively as a class as those similarly situated are irreparably injured by

Respondents / Defendant as a result as follows:


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97. As and for a First Injury to Petitioners per above paragraphs 1 thru 96

Respondents injure Petitioners by Denial of Substantive Due Process required of Defendants

under proper administration and application of NYSC and Laws.

98. As and for a Second Injury to Petitioners per above paragraphs 1 thru 97

Respondents injure Petitioners by denial of equal treatment under Election Law Substantive

Due Process for redistricting as a violation of the NYSC Art III, deny expectation of effective

ballot access and voting.

99. As and for a Third Injury to Petitioners per above paragraphs 1 thru 98

Respondents infringe Petitioners

speech and association fundamental rights otherwise

available for U.S. Citizens in the Federal 1st amendment as related to the 14th Amendment by

denial of due process and equal treatment under Election Law and redistricting violation of the

NYSC Art III, infringe speech in the Legislature.

100. As and for a Fourth Injury to Petitioners per above paragraphs 1 thru 99

Respondents disenfranchise Petitioner suffrage rights by disproportionate diminished dilution in

gerrymandering and under the use of EL.

101. As and for a Fifth Injury to Petitioners per above paragraphs 1 thru 100

Respondents injures Petitioners suffrage rights as reverse discrimination prohibited by VRA.

102. As and for a Sixth Injury to Petitioners per above paragraphs 1 thru 101

Respondents infringement of Petitioners speech, association, bottom-up suffrage and Homerule

autonomy rights thereby deny a republican form of government.

103. As and for a Seventh Injury to Petitioners per above paragraphs 1 thru 102

Respondents injures Petitioners 1st, 4th, 5th, 9th, 10th Amendment Right as U.S. Citizens who as

New York State Citizens with sovereignty granted in each state of the several states are to be


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protected against foreign interference with suffrage arent by use of VAP instead of CVAP.

104. As and for a Eighth Injury to Petitioners per above paragraphs 1 thru 103

Respondents injure Petitioners as jus tertii classes where they reside since April 22, 2002 having

expended state available remedy are without a means to provide for reasonable amendment to the

State Constitution.

105. As and for a Ninth Injury to Petitioners per above paragraphs 1 thru 104 in the

matter of CVAP unequal treatment of the unfunded HAVA mandate on a municipal entity-by-

entity basis Defendants deny substantive due process for the EL 4-138 unfunded mandate

without notice and segregation of the election costs on real property tax levy, is a taking of

property.

106. As and for a Tenth Injury to Petitioners per above paragraphs 1 thru 105

notwithstanding 28 USC 1341 does not apply herein, the EAC under HAVA absent equity relief

would deprive Plaintiffs and the PEOPLE of NYS and of the several States by either Top-down

or Bottom-up suffrage, with Homerule autonomy, must afford equal protection of the law against

HAVA false claims, would otherwise qualify under the False Claims Act 31 USC 3729-3733.

107. As and for a Eleventh Injury to Petitioners per above paragraphs 1 thru 106

that damages to individual plaintiffs jus tertii within each respective municipality entitled to a

board of elections not in compliance with application and administration of the state constitution

and laws who by ultra vires offense, not least of which impose unequal EDs non-conforming

with EL 4-100 and without elections conducted without bipartisan election inspection, and by

denying competitive bi-partisan inspector employment, and under color of Election Law

denying non-partisan inspector employment, and maliciously using an excessive number of

voting machines to cause unequal protection of CVAP at any election, and maliciously requiring


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of real property tax per EL 4-138 by excessive expense to provide and maintain machines non-

complying with EL 4-100, and thereby require Plaintiffs jus tertii reimbursement as the class of

those suffering arbitrary and capricious taking of personal and real property as a result.

108. As and for a Twelfth Injury to Petitioners per above paragraphs 1 thru 107

that were any claim against the HAVA reimbursement transacted with DOJ and EAC for the

state of New York without bottom-up suffrage and Homerule compliance with the application

and administration of the state constitution and related laws such would be a false claim as

defined under 31 USC 3729 thru 3733 subject to treble damages and penalties against

Defendants with payment due to Plaintiffs as whistleblower / relator jus tertii as U.S. Citizens in

the name of the United State Government entitled to 15% to 30% of that recovered and a fee for

each false claim filed by any municipality not conforming as well as any state effecting as a false

claim, and that the fee due relators per transaction is in the amount not to exceed $11,000 for

each occurrence, and notwithstanding the False Claims Act (FCA) damages that financial

injury to individual plaintiffs being denied expectation of effective suffrage participation date

exceeds $75,000.00.

WHEREFORE, Petitioners as whistleblower / relators and those similarly situated as

a Federal class of CVAP within the state of New York and in the several states and territories

urge remedy from irreparable harm that warrants a 28 USC 2284 three judge panel for

preliminary injunction suspending HAVA filing deadlines, permanent injunction for equal

treatment of suffrage and autonomy for all New York State Citizens and CVAP nationwide

entitled to suffrage separate from non-citizens, minors and those adjudged civilly dead, urge the

Court order:

1. That there must be a 28 USC 2284 trial to hear the statewide senate district


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reapportionment including those of NYC and for HAVA constitutional infringement issues.

2. That the HAVA January 1, 2006 compliance deadline for each state of the several

states be stayed nationwide until such time that the court determines the constitutionality of the

use of VAP funding rather than CVAP without those adjudged civilly dead, and determines

equity for reimbursement using CVAP nationwide accordingly.

3. That each municipality entitled to a Board of Elections within must produce a

compliance plan proving conformance with the administration and application of the State

Constitution and laws in order to receive HAVA reimbursement for equity statewide in voting

machine acquisition.

4. That U.S. DOJ voting rights section must pre-clear municipal compliance plans

before certification is sent to the Election Assistance Commission for reimbursement.

5. That the municipalities of Hamilton and Fulton must elect together conterminous

within one single SD, AD and CD.

6. That the US Supreme Court held in the WMCA case that the State Constitution

Article III Section 4 formula for enlarging the number of SDs beyond the expressed provision of

fifty (50) is unconstitutional, and as such until such time that the NYSC is amended accordingly

with a new formula, there shall be fifty (50) SDs that shall each contain three ADs coterminous

within a CD and JD by proper application and administration of the NYSC and laws to meet the

requirements of the VRA, the U.S. Constitution and HAVA reimbursement for ED voting

machines.

7. That in the matter of EL 4-100 creation of Election Districts shall not to exceed 950

active voters (AV) each statewide, and further, every ED statewide shall be of equal size with

the exception that for the convenience of the active voters any ED may be subdivided and

additional voting machines provided and paid for by the EL 4-138 real property tax levy, and

furthermore, at the direction of any municipal legislature to the board of elections within may


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Amended Complaint Loeber et al. v Spargo et al. NDNY 04-Cv-1193

Documents

Transcript of Amended Complaint Loeber et al. v Spargo et al. NDNY 04-Cv-1193