joined by KERN, RIVERSIDE, AND SAN BERNARDINO COUNTIES
http://www.psephos-us.org/SDCvBowen_press-release.htmlThe following are only the conclusion points from the ruling and is not yet on the website - stay tuned to www.psephos-us.org for more...
CALENDAR NUMBER 11.. SAN DIEGO SUPERIOR COURT - DEPARTMENT 67 JUDGE PATRICIA A.Y. COWETT LAW & MOTION CALENDAR, TENTATIVE RULINGS FOR January 17, 2008.
The first issue to be addressed with regard to whether the PEMT requirements exceed Bowen's authority is the 10% Manual Tally.
1) Petitioners have not met their burden establishing there is a conflict between the 1 % manual tally specified by the Elections Codes and the 10% manua1 tally mandated by the PEMT Requirements.
The next issue is whether the PBMT requirements are arbitrary and capricious.
2) The SOS instituted the 10% Manual Tally based upon the conclusions of Post Election Audit Standards Working Group. (Bretschneider ¶ 19.) Thus, based upon all the evidence, the SOS's actions implementing the PEMT requirements were not arbitrary and capricious.
The final issue is whether PEMT requirements constitute regulations and thus must comply with the Administrative Procedures Act ("APA")
3) Here, the PEMT requirements only apply to certain voting mashines (Diebold, Hart and Sequoia systems), not to all voting machines. The SOS issued separate conditional certifications for each of the voting machines. (Ex. 5, 6 and 8.) This conclusion is also supported by the fact the PEMT requirements were not imposed on all voting machines, specifically excluding optical scanning machines. (Finley Dec. '24.) Thus, because the PEMT requirements do not apply to a class, they are not subject to the APA.
The court declines to rule on Petitioners' request for a declaratory judgment. Resolution of this issue must be determined via summary judgment or trial.
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