Fillable Printable Answer and Counterclaim - Ohio

Answer and Counterclaim - Ohio

IN THE COURT OF COMMON PLEAS

FRANKLIN COUNTY, OHIO

PREMIER ELECTION SOLUTIONS, INC., CASE NO. 08-CV-05-7841

ET AL.,

PLAINTIFFS,

vs. JUDGE SCHNEIDER

BOARD OF ELECTI ONS OF JURY DEMAND

CUYAHOGA COUNTY, ET AL., ENDORSED HEREON

DEFENDANTS.

ANSWER AND COUNTERCLAIM OF

OHIO SECRETARY OF STATE JENNIFE R BRUNNER

Now comes Ohio Secretary of State Jennifer Brunner and for her answer to the Plaintiffs’

complaint states the following:

1. Denies each and every allegation not specifically admitted to in this Answer.

2. Admits the allegations contained in Paragraph 1 of the Complaint.

3. Admits the allegations contained in Paragraph 2 of the Complaint.

4. Admits the allegations contained in Paragraph 3 of the Complaint.

5. Admits the allegations contained in Paragraph 4 of the Complaint.

6. Admits the allegations contained in Paragraph 5 of the Complaint.

7. Admits the allegations contained in Paragraph 6 of the Complaint, and states that

the statutory powers and duties listed in the Complaint are not exhaustive, and if

taken to be so, denies the allegations.

8. Denies the allegations contained in Paragraph 7 of the Complaint.

9. Admits the allegations contained in Paragraph 8 of the Complaint.

10. Admits the allegations contained in Paragraph 9 of the Complaint.

11. Admits the allegations contained in Paragraph 10 of the Complaint.

12. Denies the allegations contained in Paragraph 11 of the Complaint.

13. Denies for lack of knowledge the allegations contained in Paragraph 12 of the

Complaint.

14. Denies for lack of knowledge the allegations contained in Paragraph 13 of the

Complaint.

15. Denies for lack of knowledge the allegations contained in Paragraph 14 of the

Complaint.

16. With respect to the alleg ations contained in Paragraph 15 of the Complaint, the

Secretary admits that her predecessor entered into a contract with Diebold

Election Systems, Inc. in July 2004 for the purposes of acquiring voting systems

and related services. The Secretary further admits that what appears to be a true

copy of that contract is attached to the Complaint as Exhibit A. The Secretary

denies the remaining allegations contained in Paragraph 15 of the Complaint.

17. With respect to the alleg ations contained in Paragraph 16 of the Complaint, the

Secretary states that the contract speaks for itself. To the extent a response is

required, the Secretary denies the allegations contained in Paragraph 16 of the

Complaint.

18. With respect to the alleg ations contained in Paragraph 17 of the complaint, the

Secretary states that the contract speaks for itself. To the extent a response is

required, the Secretary denies the allegations contained in Paragraph 17 of the

Complaint.

19. With respect to the alleg ations contained in Paragraph 18 of the Complaint, the

Secretary states that the contract speaks for itself. To the extent a response is

required, the Secretary denies the allegations contained in Paragraph 18 of the

Complaint.

20. With respect to the alleg ations contained in Paragraph 19 of the Complaint, the

Secretary states that Plaintiffs cite one or more legal conclusions that are not

allegations of facts, and as such, no response is required. To the extent a response

is required, the Secretary denies the allegations contained in Paragraph 19 of the

Complaint.

21. With respect to the alleg ations contained in Paragraph 20 of the Complaint, the

Secretary admits that DIMS and the Cuyahoga County Board of Elections entered

into a Voter Registration System Limited License, and that what appears to be an

accurate copy of the agreement is attached to the Complaint. The Secretary

further states that the licensing agreement speaks for itself. To the extent any

further response is required, the Secretary denies the allegations.

22. With respect to the alleg ations contained in Paragraph 21 of the Complaint, the

Secretary admits that DIMS and the Cuyahoga County Board of Elections entered

into an extension of the limited licensing agreement and that the extension speaks

for itself. She further admits that what appears to be an accurate copy of the

limited licensing agreement extension is attached to the Complaint as Exhibit C.

To the extent any further response is required, the Secretary denies the

allegations.

23. With respect to the alleg ations contained in Paragraph 22 of the Complaint, the

Secretary admits that DIMS and the Cuyahoga County Board of Elections entered

into another extension of the limited licensing agreement in June of 2005 and that

what appears to be an accurate copy of the agreement is attached to the Complaint

as Exhibit D. The Secretary further states that the extension of the licensing

agreement speaks for itself, and no further answer is necessary to these

allegations. To the extent any further response is required, the Secretary denies

the allegations.

24. With respect to the alleg ations contained in Paragraph 23 of the Complaint, the

Secretary admits that her predecessor entered into Amendment Number 1 to

Master Contract Number 217 with Premier’s predecessor, Diebold Election

Systems, Inc. (hereinafter “DESI”) and that what appears to be an accurate copy

of that amendment is attached to the Complaint as Exhibit E. The Secretary

further states that the amendment speaks for itself and that no further answer is

necessary to these allegations. To the extent any further response is required, the

Secretary denies the allegations.

25. With respect to the alleg ations contained in Paragraph 24 of the Complaint, the

Secretary admits that her predecessor and the Cuyahoga County Board of

Elections submitted a purchase order to DESI for the purchase of certain goods

and services and that what appears to be an accurate copy of the purchase order is

attached to the Complaint at Exhib it F. The Secretary further states that the

purchase order speaks for itself and that no further answer is necessary to these

allegations. To the extent any further response is required, the Secretary denies

the allegations.

26. With respect to the alleg ations contained in Paragraph 25 of the Complaint, the

Secretary admits that the Cuyahoga County Board of Elections entered into a Sole

Source Agreement with DESI and that what appears to be an accurate copy of the

agreement is attached to the Complaint as Exhibit G. The Secretary further states

that the agreement speaks for itself and that no further answer is necessary to

these allegations. To the extent any further response is required, the Secretary

denies the allegations.

27. With respect to the alleg ations contained in Paragraph 26 of the Complaint, the

Secretary admits that DESI and its insurance and surety companies executed a

performance bond and that what appears to be a copy of the bond is attached to

the Complaint as Exhibit H. The Secretary further states that the bond speaks for

itself and that no further answer is necessary to these allegations. To the extent

any further response is required, the Secretary denies the allegations.

28. With respect to the alleg ations contained in Paragraph 27 of the Complaint, the

Secretary admits that DESI and the Cuyahoga County Board of Elections entered

into a Sole Source agreement and that what appears to be an accurate copy of that

agreement is attached to the Complaint as Exhibit I. The Secretary further states

that the sole source agreement speaks for itself and that no further answer is

necessary to these allegations. To the extent any further response is required, the

Secretary denies the allegations.

29. With respect to the alleg ations contained in Paragraph 28 of the Complaint, the

Secretary admits that DESI and the Cuyahoga County Board of Elections entered

into Amendment Number 3 of the limited license and that what appears to be an

accurate copy of the agreement is attached to the Complaint as Exhibit J. To the

extent any further response is required, the Secretary denies the allegations.

30. With respect to the alleg ations contained in Paragraph 29 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into a sole source agreement for a “level 2/3 support specialist” and that

what appears to be an accurate copy of the agreement is attached to the Complaint

as Exhibit K. To the extent any further response is required, the Secretary denies

the allegations.

31. With respect to the alleg ations contained in Paragraph 30 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into an additional sole source agreement and that what appears to be an

accurate copy of the agreement is attached to the Complaint as Exhibit L.

32. With respect to the alleg ations contained in Paragraph 31 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into an additional sole source agreement and that what appears to be an

accurate copy of the agreement is attached to the Complaint as Exhibit M.

33. With respect to the allegations in Paragraph 32, the Secretary admits that the

Plaintiffs and the Cuyahoga County Board of Elections entered into an addition al

sole source agreement and that what appears to be an accurate copy of the

agreement is attached to the Complaint as Exhibit N.

34. With respect to the alleg ations contained in Paragraph 33 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into an agreement to purchase additional equipment and services pursuant

to a contract and that what appears to be an accurate copy of the agreement is

attached to the Complaint as Exhibit O.

35. With respect to the alleg ations contained in Paragraph 34 of the complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into an agreement to provide technical training and that what appears to

be an accurate copy of the agreement is attached to the Complaint as Exhibit P.

36. With respect to the alleg ations contained in Paragraph 35 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into an agreement to provide poll worker training and that what appears to

be an accurate copy of the agreement is attached to the Complaint as Exhibit Q.

37. With respect to the alleg ations contained in Paragraph 36 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into an amended agreement to provide poll worker training and that what

appears to be an accurate copy of the agreement is attached to the Complaint as

Exhibit R.

38. With respect to the alleg ations contained in Paragraph 37 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into a sole source agreement and that what appears to be an accurate copy

of the agreement is attached to the Complaint as Exhibit S.

39. With respect to the alleg ations contained in Paragraph 38 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into a sole source agreement and that what appears to be an accu rate copy

of the agreement is attached to the Complaint as Exhibit T.

40. With respect to the alleg ations contained in Paragraph 39 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into an evaluation license agreement and that what appears to be an

accurate copy of the agreement is attached to the Complaint as Exhibit U.

41. With respect to the alleg ations contained in Paragraph 40 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into an addendum to the evaluation licensing agreement and that what

appears to be an accurate copy of the agreement is attached to the Complaint as

Exhibit V.

42. With respect to the alleg ations contained in Paragraph 41 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into a sole source agreement and that what appears to be an accurate copy

of the agreement is attached to the Complaint as Exhibit W.

43. With respect to the alleg ations contained in Parargaph 42 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into a rental agreement and that what appears to be a true copy of that

agreement is attached to the Complaint as Exhibit X.

44. With respect to the alleg ations contained in Paragraph 43 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into a rental agreement and that what appears to be a true and accurate

copy of that agreement is attached to the Complaint as Exhibit Y.

45. With respect to the alleg ations contained in Paragraph 44 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into a rental agreement and what appears to be a true copy of that

agreement is attached to the Complaint as Exhibit Z.

46. With respect to the alleg ations contained in Paragraph 45 of the Complaint, the

Secretary admits that the Plaintiffs and the Cuyahoga County Board of Elections

entered into a rental agreement and what appears to be a true copy of that

agreement is attached to the Complaint as Exhibit AA.

47. Admits the allegations contained in Paragraph 46 of the Complaint.

48. Admits the allegations contained in Paragraph 47 of the Complaint.

49. Admits the allegations contained in Paragraph 48 of the Complaint.

50. Denies the allegations contained in Paragraph 49 of the Complaint.

51. Denies for lack of knowledge the allegations contained in Paragraph 50 of the

Complaint.

52. Denies for lack of knowledge the allegations contained in Paragraph 51 of the

Complaint.

53. Denies for lack of knowledge the allegations contained in Paragraph 52 of the

Complaint.

54. Denies for lack of knowledge the allegations contained in Paragraph 53 of the

Complaint.

55. Denies for lack of knowledge the allegations contained in Paragraph 54 of the

Complaint.

56. Denies for lack of knowledge the allegations contained in Paragraph 55 of the

Complaint.

57. Denies for lack of knowledge the allegations contained in Paragraph 56 of the

Complaint.

58. With respect to the allegations contained in Paragraph 57, admits that a judge

ordered polls to remain open past the statutorily prescribed closing time. The

Secretary denies for lack of knowledge the remaining allegations contained in

Paragraph 57 of the Complaint.

59. Denies for lack of knowledge the allegations contained in Paragraph 58 of the

Complaint.

60. With respect to the alleg ations contained in Paragraph 59 of the Complaint,

admits that the Cuyahoga County Board of Elections ordered a paper ballot which

the Plaintiffs’ machines did not read and that, as a result, all absentee ballots cast

in the 2006 primary election were tabulated by hand count. The Secretary further

admits that logic and accuracy testing should be conducted within a sufficient

time prior to the election to facilitate use of the voting equipment and to promote

an accurate vote count. The Secretary denies for lack of knowledge the remaining

allegations contained in Paragraph 59 of the Complaint.

61. Denies for lack of knowledge the allegations contained in Paragraph 60 of the

Complaint.

62. Denies for lack of knowledge the allegations contained in Paragraph 61 of the

Complaint.

63. Admits the allegations contained in Paragraph 62 of the Complaint.

64. Admits the allegations contained in Paragraph 63 of the Complaint.

65. With respect to the allegations contained in Paragraph 64, the Secretary states that

the Election Review Panel’s report speaks for itself and that it is unnecessary to

either admit or deny any of the claims in this Paragraph. To the extent any further

answer is required to the allegations in Paragraph 67, those allegations are denied.

66. Admits the allegations contained in Paragraph 65 of the Complaint.

67. Admits the allegations contained in Paragraph 66 of the Complaint.

68. With respect to the alleg ations contained in Paragraph 67 of the Complaint, the

Secretary states that the SysTest Labs, Incorporated report speaks for itself. The

Secretary further states that the question of whether or not Premier breached its

contractual obligation with either the Secretary or the Cuyahoga County Board of

Elections is a legal question unable to be determined by SysTest, a testing

laboratory qualified to perform testing of voting machines by the National

Institute of Standards and Technology (http://vote.nist.gov/LabRec.htm). To the

extent any further answer is required to the allegations in Paragraph 67, those

allegations are denied.

69. With respect to the alleg ations contained in Paragraph 68 of the Complaint, the

Secretary states that the SysTest report speaks for itself. The Secretary further

states that the question of whether or not Premier breached its contractual

obligation with either the Secretary or the Cuyahoga County Board of Elections is

a legal question unable to be determined by SysTest, a testing laboratory qualified

to perform testing of voting machines by the National Institute of Standards and

Technology (

http://vote.nist.gov/LabRec.htm. To the extent any further answer is

required to the allegations in Paragraph 68, those allegations are denied.

70. Admits the allegations contained in Paragraph 69 of the Complaint.