Complaint Against Hart InterCivic Withdrawn Following Adverse Ruling Limiting Whistleblower Claims
VIDEO/AUDIO: Brad on This Weekend's 'Ring of Fire' Discussing Latest Case Developments with Attorneys Papantonio and Schultz...
By Brad Friedman on 6/27/2008, 12:35pm PT  

Reported by Brad Friedman, from the road...

The whistleblower lawsuit against voting machine company Hart InterCivic, as filed in federal court on behalf of former employee William Singer, has been withdrawn following a decision by the Supreme Court that makes pursuing the case nearly impossible, according to the law firm who originally filed the complaint.

The suit had been sealed for nearly two years as the Dept. of Justice asked for extension after extension during their decision on whether or not to join the case. Earlier this year, they ultimately decided not to join the case, as we reported last March, leaving the firm of Levin Papantonio Thomas Mitchell Echsner & Proctor, P.A to proceed on their own. The DoJ declines to join some 76% of such cases.

In the interim, while waiting for the DoJ, the case of Rockwell Intl Corp. v. U.S. [PDF] came before the U.S. Supreme Court, and the findings in that decision, as attorney Mike Papantonio told The BRAD BLOG, has "made it next to impossible to proceed with any and all federal whistleblower (qui tam) cases."

The decision found that Rockwell was required to pay millions of dollars under the federal False Claims Act to the federal government, but that the relator of the case --- the insider who blew the whistle --- was not entitled to any of that money, nor even for the millions of dollars accrued in legal costs since the amended complaint, filed with the Justice Dept., included information about which the relator did not have direct inside knowledge.

The SCOTUS finding, as expressed for the majority by Justice Antonin Scalia, may well hamstring future whistleblower cases in federal courts, according to legal experts.

"I used to think qui tam was the way to go," Papantonio told me as his firm was weighing their decision on how to proceed after the case was finally unsealed, "but now I just don't know anymore."

Papantonio's Florida law firm has used the qui tam laws successfully in the past, and has taken on giants such as the Tobacco Industry. After he and his radio partner Robert F. Kennedy Jr. had learned about Singer's case from The BRAD BLOG --- we originally reported Singer's extraordinary saga back in early 2006 --- they decided to launch the federal fraud suit on his behalf later that year.

(I was interviewed about the withdrawal of the federal case by Mike Papantonio for this weekend's Ring of Fire radio program, which he co-hosts with Robert F. Kennedy, Jr.. A video version of the interview is also posted on their GoLeft.TV site. Both versions are now posted in full at the end of this article.)

Though the attorneys working on the case have gone out of their way to express their faith in both Singer and his remarkable complaint --- detailing more than 40 federal fraud allegations, and accusing Hart of doctoring voting machines, covering up system failures, including the loss and miscounting of votes, and other malfeasance, in order to attain contracts and payment under the Help America Vote Act (HAVA) of 2002 --- the chance that millions of dollars spent pursuing the case might be unrecoverable at the end of the process, even if successful, in light of the Rockwell decision, forced them to withdraw the complaint from federal court...

For their part, in response to the original announcement of the case, Hart InterCivic had attempted to claim that Singer was a "disgruntled" employee. That, despite glowing internal performance reviews for Singer from the company itself, and the fact that Singer resigned on his own accord, following the problems he witnessed at the company and the firm's alleged lack of interest in addressing them.

When we originally reported on the unsealing of the case last March, we noted "significant legal developments, most notably from the U.S. Supreme Court, which have occurred during the time since the case was filed" that might affect the disposition of the case. This is the matter that the attorneys were mulling at the time.

While both Papantonio's firm and several other attorneys have been looking at alternate options for re-filing the Singer case in a state court, at this time there are no concrete plans to do so.

The suit itself [PDF], however, and its very specific and detailed allegations of fraud by the company, had a number of implications in various jurisdictions around the country, even from the start. In Austin, Texas, where Hart InterCivic systems are used and where the company is based, a "point-by-point" review of their voting systems was promised by Count Clerk Dana DeBeauvoir after activists shared the complaint with her. In Illinois, where Hart InterCivic systems are used in Kane County, the complaint prompted detailed coverage by the local media.

Singer himself was finally asked to testify this week before the Texas Legislature's House Committee on Elections. His opening statement, in full, is available here [RTF].

(DISCLOSURE: I was also asked by the office of the Republican chair of that committee to testify at this week's hearings as well, but was unable to do so due to previous travel commitments.)

In his written testimony, Singer points legislators to our coverage of his case and charges Hart InterCivic as being "malicious dishonesty in trying to cover up their criminal and deceptive practices by attacking me."

He excoriates election officials for a "total lack of interest, of any kind, by any officials across the entire nation, not because I assume my own opinions have any necessary value, but rather because my experiences in this field dictates that any competent election official should at least have followed up [his original, and finally well-publicized complaints here at The BRAD BLOG] to determine my credibility if not also asking for any assistance I might offer. And if my very serious complaints were ignored then I think it is reasonable to ask how many other complaints were ignored. How many other people with unusual and genuine expertise were, or are, being ignored?"

He goes on to detail "the complete lack of effective oversight for electronic voting and elections" and writes that "The whole of my 2004 complaints and lawsuit are still entirely valid and I stand by them."

In conclusion, he says:

I would like this Committee to explain to the public why a voting machine company, in Hart Intercivic, is allowed to do business in Texas despite proof that they are dishonest. They have lied about every issue in the lawsuit (such as the audit report issue, which is easily proven from official election backups) and lied about me directly on several occasions and in several ways, first claiming I was fired, then "disgruntled", then that I was a "tin-hat" and somehow in league with people who may simply fear electronic voting (though Hart employees know perfectly well that I have always supported electronic voting (just not run or supported by people who are dishonest.)) It is not difficult to demonstrate that Hart Intercivic is dishonest, but I am loss to understand why the state seeks to do business with a dishonest election vendor, of all things.
Hart's equipment and software cannot be legally used in any election anywhere in the United States, nor has any election run on Hart's equipment been valid.

Singer finally points out his belief that Hart's machines cannot be used legally in any election, due to the "triplicate original" ballots that Hart InterCivic cites as a sales point for their system. That design, he points out, cannot be used in any election because it requires election officials to choose between the three possibly-different election results reported by the voting system.

"If a vote was missing then you could not legally count either of the two remaining 'original' votes," Singer charges. "You cannot count votes on a Hart machine any more than you could count 3 paper votes submitted by a single person, whether such votes all agreed or not."

Unfortunately, given the recent decision by the U.S. Supreme Court, Singer's scores of such detailed allegations, made from his unique position as a voting machine company insider, may never be examined in a court of law.

In April, Papantonio spoke about the unusual delay in the unsealing of the original complaint on Ring of Fire, the weekly radio show he co-hosts with Robert F. Kennedy, Jr.. He complained, at the time, about the long delay in waiting for the DoJ to ultimately make their decision.

While I'm on the road right now and for the next week or so, with very limited online time, I'm unable to cover in much more detail for the moment. I did come out of the woods, however, where I was camping for a few short days, to tape an interview about the withdraw of the case for Papantonio/Kennedy's radio program. I was joined during the interview by Levin Papantonio's superb lead attorney on the case, Matt Schultz.

That interview, which offers more detail than I have time to cover here, will air this weekend on Air America affiliate stations and has now been posted on Papantonio/Kennedy's They were kind enough to share it with us early so we could run it here at The BRAD BLOG. The video version of the interview follows, with the audio version posted below it (appx. 20 mins)...

The audio version for Air America follows. Download the MP3 or listen below...

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