PATRICK S.M. MCMILLAN
POST OFFICE BOX 96192
LAS VEGAS, NEVADA 89193

1. Plaintiff Patrick S.M. McMillan seeks Declaratory relief on issues of law.

2. The primary injunctive relief sought here is the prohibition of the use in Clark County of a balloting device which fails to meet Nevada constitutional and statutory requirements and Federal Election Commission requirements (herinafter FEC).

3. In addition, injunctive relief is sought in the petition to enjoin Defendant Registrar of Voters, Kathryn Ferguson from preventing public access to the ballot counting process and from preventing the public from photographing or filming all stages of the ballot counting, handling, transporting and canvassing procedures.

4. Injunctive relief is sought in the petition to remove Defendant from any position of authority or involvement in ballot handling or counting procedures, in Nevada elections.

5. Declaratory relief is sought that the revision of NRS § 293.025 adopted by the legislature in 1995, be declared to be unconstitutional and void ab initio.

Jurisdiction of this Court is invoked pursuant to:

28 U.S.C. § 1331, the general federal statute and

28 U.S.C. § 1367 (a), the pendant jurisdiction statute and

28 U.S.C. § 2201, and 2202, the Declaratory Judgement Act and

42 U.S.C. § 1974, Retention and Preservation of ballot records, and

42 U.S.C. § 1983.

The Court has the inherent power and the authority to declare a provision of a State law unconstitutional. See Yniguez v. Mofford, 730 F.Supp. 309, 317, (D.A. 1990).

6. Plaintiff, Patrick S.M. McMillan, is an inhabitant of Clark County Nevada, and receives mail at P.O. Box 96192, Las Vegas, NV 89193-6192.

Defendant

7. Defendant, Clark County Registrar of Voters, Kathryn Ferguson, is a resident of Clark County, and resides, to the best of Plaintiff's knowledge, within Las Vegas, Nevada, and executes her civil responsibilities and duties at the Clark County Building, 500 S. Grand Central Parkway, Las Vegas, Nevada 89106. She is sued in both her individual and professional capacity.

8. Plaintiff ran for public office in Clark County in the 1994 primary and believes that he and other candidates may have lost due to election fraud committed by Defendant Registrar of Voters Kathryn Ferguson and/or some of her employees and associates. Plaintiff is again running for office and anticipates election fraud may again be practiced by the Defendant and/or her employees and associates to the detriment of Plaintiff and other candidates Plaintiff will vote for. Plaintiff brings this cause of action to enlist the Court's intervention to prevent election fraud in the coming elections.

9. Plaintiff and others have witnessed unlawful practices by the Defendant and her employees, to wit;

10. Defendant and her employees, during the Primary Election of 1994, prevented the precinct ballots from being counted immediately after the closing of the depositing of ballots in the precinct ballot boxes, as per The Nevada Constitution, ELECTION ORDINANCE, § 5. ELECTION RETURNS;

"The judges and inspectors of said elections shall carefully count each ballot immediately after said elections, and forthwith make duplicate returns thereof to the clerks of the said county commissioners of their respective counties, . . . "

11. And The Nevada Constitution, ELECTION ORDINANCE, §.10.

"Each ballot . . . for the election of state officers, supreme and district judges, members of the legislature, representative in Congress, . . . said officers having charge of the election shall count the votes and compare them with the check list, immediately after the closing of the ballot box." (Emphasis added)

12. Instead, the defendant caused the ballots to be transported to Cashman Field, lacking public protective security from tampering. The ballots were removed from public view for a number of hours while they were transported by election office insiders, in their private vehicles, to the central counting facility at Cashman Field. The public was prevented from observing the journey of the ballots and were prevented from being able to witness and determine if they were tampered with in transit.

13. Upon their arrival at the central counting facility at Cashman Field, Plaintiff and others, see affidavits attached, observed many of the ballot containers delivered with metal seals and/or adhesive seals missing, or evidenced as having been tampered with. Some of the ballot transfer boxes were lacking in tamper proof integrity in that the metal and plastic seals were not engaged in the locked position and the adhesive seals were torn or placed in such a manner as to allow entry into the boxes. At a later legislative hearing, Defendant, when prompted by Nevada State Senator John Porter, was seen to be able to distort the box lid, creating an opening and she inserted her hand within, according to Defendant, a properly sealed ballot transfer box. Defendant was then able to remove and replace ballots, thereby demonstrating how simple it would have been for the ballots to be tampered with while en route to Cashman Field.

14. Following delivery of the 1994 Primary Election ballots to Cashman Field, Defendant and her employees prevented Plaintiff and others from public access to the ballot counting procedures, violating the law, to wit; NRS 293.3602. § 6;

"The county clerk shall allow members of the general public to observe the handling of the ballots pursuant to subsection 5 . . ."

and in NRS 293.363 . . .

The counting procedure must be public and continue without adjournment until completed."

15. Once the ballots were delivered to the central counting facility at Cashman Field, Plaintiff heard the Defendant issue orders to one of her employees to prohibit an individual, Thomas Stown, from entering the counting area reserved for the public. Mr. Stown and Robert Rose entered the counting area and began video taping the procedures. After being confronted by Metro Officers and Deputy District Attorney, Mary Ann Miller, Mr. Stown and Mr. Rose were forced, at the Defendant's orders, to leave the counting area with their video cameras. Plaintiff was threatened with arrest, at the behest of Defendant, by employees of the Las Vegas Metropolitan Police Department, for attempting to gain photographic evidence of ballot boxes being delivered with broken or missing seals. The action of the Defendant to violate the Nevada Constitutional provisions and laws, supra, and her unwillingness to avoid the appearance of improprieties, exhibits a willful disregard for the laws of Nevada and the rights and expectations of Nevada's inhabitants.

16. Defendant and her employees, following the Primary Election of 1994, prevented members of the public, Thomas and Judy Stown, from witnessing the canvassing procedures as provided for in The Nevada Constitution, ELECTION ORDINANCE, § 6;

"it shall be the duty of the board of canvassers . . . to canvass the returns in the presence of all who may wish to be present. . ."

17. This act by Defendant of creating a canvassing procedure to be held in secret, is in violation of The Nevada Constitution, supra.

18. Defendant also caused SEQUOIA PACIFIC AVC ADVANTAGE (hereinafter Sequoia), DIRECT RECORD ELECTRONIC VOTING MACHINES (hereinafter DRE), which failed to meet Nevada Statutes and Federal Election Standards (herinafter FES) (adopted as Nevada Law, effective January 1995), to be used to count and record voters' ballots. The Sequoia machines are devoid of the capability to retain unalterable evidence of the voter's original intent and to maintain an image of each complete ballot cast by each voter. This requirement is set forth in FEC 4.8 System Audit Requirements,

". . . present a concrete, indestructable archival record . . ."

This failure to produce an original paper image is also in violation of the Nevada Constitution, ARTICLE 11, RIGHT OF SUFFRAGE, SECTION 5;

"All elections by the people shall be by ballot,"

19. The definition of ballot was found at the time of the 1994 primary election in NRS 293.025;

"'Ballot' means the printed paper bearing the listing of candidates' names, and of questions to be voted upon at an election." (Added to NRS by 1960, 236).

20. And in the Nevada Constitution, ELECTION ORDINANCES, SECTION 10;

"Each ballot . . . for the election of state officers, supreme and district judges, members of the legislature, representative in Congress, and three presidential electors, the name and office of the person voted for shall be plainly written or printed on one piece of paper." (Emphasis added)

21. The lack of the ability of the Sequoia DRE machines to allow for the preservation of an original source document ballot or to maintain an image of each ballot also violates the provisions of the FEC standards, January 1990, for Punchcard & Marksense (hereinafter P&M) and DRE Systems that they maintain images of each individual ballot, to wit; FES § 2.3.2, ACCURACY AND INTEGRITY, paragraph 4;

"To attain a measure of integrity over the process, the DRE systems must also maintain an image of each ballot that is cast, such that records of individual ballots are maintained by a subsystem independent and distinct from the main vote detection, interpretation, processing and reporting path." (Emphasis added)

22. And FES §4.5, VOTE RECORDING ACCURACY AND INTEGRITY, Paragraph 3;

". . . To attain a measure of integrity over the process, DRE systems must also maintain images of each ballot that is cast, such that records of individual ballots are maintained by a subsystem independent and distinct from the main vote detection, diagnostic, processing and reporting path." (Emphasis added)

23. And FES § 4.8.2.3, IN-PROCESS AUDIT RECORDS, paragraph 2, subsection (d);

"for DRE machines the event (and time, if available) of enabling/casting each ballot" (i.e.; each voter's transaction as an event).

24. Defendant authorized the purchase of the Sequoia machines at a cost of over $6 Million, without putting the purchase out for competitive bid, as required by Nevada law NRS 332.039 and 332.045.

25. NRS 332.039 provides;

"Contracts in county whose population is 100,000 or more: Advertising required if estimated amount (of purchase by county) exceeds $25,000; requests for bids required if estimated amount exceeds $10,000."

26. NRS 332.045 provides;

"1. The advertisement required by paragraph (a) of subsection 1 of NRS 332.035 and NRS 332.039 must be published at least once and not less than 7 days before the opening of bids."

27. Defendant acted to thwart the law by constructing her writing of the specifications for purchase of the Sequoia DRE machines in a manner that precluded the acceptance of other fully auditable voting machines. Many of the other manufacture of machines met FEC standards by preserving evidentiary paper ballot records. The Sequoia DRE does not. The Defendant specified a machine that did not incorporate an original, evidentiary paper ballot record as required by the Nevada Constitution, nor an electronic image of each ballot as required by FEC standards. This action exhibits a willful disregard by the Defendant for the laws of Nevada and the United States. Another purchase provision was included that the device must have at least 500 voting positions. The Sequoia was the only machine with such a capability. The other manufacture of machines had more than enough voting positions for any practical application to a state election. Since neither Nevada nor any other state has ever had an election requiring the necessity of 500 positions, the requirement can only be seen as frivolous and designed to exclude the legitimate balloting devices which are fully auditable.

28. The Sequoia was used in Boulder City during the 1994 elections. The average use time for a voter to be within the Sequoia booth was from about 3 to 5 minutes. This was for an election that had less than 100 button choices. This required all of the voters using the machine to be in violation of NRS 293B.320, to wit;

"A voter shall not remain within the voting booth longer than 2 minutes."

29. Should an election be held where there were 500 button choices, the voter would be required to remain in the booth for 15 or 20 minutes, or more, in flagrant violation of the NRS 293B.320. Such a provision to require the 500 positions as a purchase standard, can only be seen as frivolous, and designed solely to exclude all other manufacture of machines, because no other manufacturer provides 500 choices.

30. In an effort to install the Sequoia DRE in use in the county prior to the State's adoption of FEC guidelines in January 1995, which would have prevented its purchase, Defendant ordered the purchase of the Sequoia machines late in 1994. She did this, knowing that FEC prohibited the vendor from the marketing of the system purchased, after January 1992, to wit; FES, IMPLEMENTATION, EXHIBIT A, January 1992, paragraph 4;

"No later than this date, vendors cease marketing systems not designed to comply with the new state standards."

31. FES § 4.1.4, MODIFIED NEW VENDOR DEVELOPED SYSTEMS, State Certification Testing for Modified New Vendor-Developed Systems, paragraph 3;

"States may also wish to consider what sanctions to apply to vendors who might market modified new systems that have not been reviewed by the ITA or the state. Options states may choose include decertifying the system, levying monetary penalties, or initiating criminal sanctions against the vendor."

32. And Defendant knew or should have known that she facilitated the purchase of the Sequoia which had already failed to qualify for states which had adopted the FES guidelines, to wit; IMPLEMENTATION, EXHIBIT A, January 1992, paragraph 2;

"Local jurisdictions procuring new systems within these states select only from this pool of certified systems."

33. And FES, IMPLEMENTATION, EXHIBIT A, January 1992, paragraph 1;

"After this date (January 1, 1997), all computerized voting systems in use within the states comply with the new state standards."

34. This unconstitutional tampering with the founders intent to protect the balloting procedure with historical paper documentation and the subsequent purchasing of a federally rejected device constitutes willful disregard for the Constitution and laws of the state of Nevada and of the United States.

35. FES guidelines provided for a transitional period to come into compliance. This was done to avoid overburdensome cost to localities who already had DRE machines, but that might not comply. The guidelines provided however, that no machines which did not meet the guidelines could be marketed after 1992. Nor could any state, once they had adopted the guidelines, certify any noncompliant machines after 1993. The guidelines were clearly established to relieve overburdensome financial burden, not to allow facilitation of purchase of noncompliant machines between the years 1992 and 1997.

36. However, that is exactly what defendant accomplished. Because the Nevada Legislature set an adoption date of FES standards, which were effective in 1992 by adopting states, to become effective in Nevada by January 1, 1995, and because the Sequoia DRE could not meet those standards, the Defendant used the apparent loophole to facilitate the purchase of the machines just weeks before the effective date.

37. The machines were ordered by the Defendant following their alleged testing and certification by then Secretary of State Cheryl Lau, which was done without effective testing or verification by her to determine that the Sequoia complied with Nevada election laws. The Secretary admitted this fact to Plaintiff and further admitted that she certified the system solely because Nevada Attorney General Frankie Sue Del Papa had told her to do it. Defendant was advised by numerous individuals of the lawful requirements for approving the machines, that any voting system in Nevada was required to utilize a paper ballot, but Defendant ignored the information and approved the purchase.

38. The original machines were approved by the Secretary of State without testing for compliance with existing Nevada Statutes, as would have been required when the FEC standards became adopted into Nevada law, to wit; FEC standards § 8.1 ACCEPTANCE TESTS,

"General, Acceptance tests are performed by the jurisdiction procuring the system . . ."

39. Nor were they ever properly tested by an ITA firm as required in FEC standards § 7.1 SCOPE OF TESTS AND APPLICATION CRITERIA, paragraph 1;

"An independent test authority (ITA) shall conduct tests to evaluate system compliance with the requirements of Sections 2 through 6"

and FEC standards § 7.2.8,

"The testing agency shall prepare a qualification test report, documenting the tests and conclusions of system compliance with the requirements of the test plan and standards."

40. The machines ultimately ordered were provided with an upgraded software and firmware version, later than the approved 4.1 version, which were never tested, in accordance with lawfully specified parameters, by an ITA, nor was the later version approved by the Secretary of State, and the purchase was done in violation of FEC standard § 1.2.2;

"If there are modifications to software or hardware after the system has completed qualification or acceptance testing, further examination and testing is required."

And the purchase of modified versions was in violation of NRS 293B.105 § 6,

"Before a city or county may change or improve a system or device that has been approved by the Secretary of State, it must obtain approval from the Secretary of State."

41. Defendant knew or should have known that the approval by the Secretary of State of the machine absent the federally required testing for compliance with FEC standards, would be in violation of Nevada Law within weeks of the purchase, to wit; NRS 293B.104;

"Secretary of State not to approve system that does not meet federal standards."

(Added to NRS by 1993, 2198).

42. The Defendant's purchase of the Sequoia machines, which fail to meet the requirements of the Nevada Constitution and Statutes, and FEC standards, just weeks before the FES were to take effect in Nevada, and knowing full well the machines would be in noncompliance just a year later, on January 1, 1997, and that such a purchase would be wasting in excess of $6 Million of Clark County's funds, is evidence of a willful action to thwart the intent of the law. To cause to be installed, the easily rigged Sequoia DRE in the County's election system, knowing that the intent of the laws of the United States and Nevada were to prohibit the use of a rigable device, must only be interpreted as an attempt to compromise election integrity in Clark County.

43. Defendant's activities in violation of the laws of the United States and Nevada is done willfully and constitutes professional misconduct.

44. In the Presidential Preference Primary of 1996, the Defendant's office caused an individual, Thomas Stown to be prevented from observing the counting procedure of the ballots and was threatened with arrest. Defendant's office willfully violated Nevada Law, to wit; NRS 298.410;

. . . "The counting procedure (of Preferential Presidential Primary ballots) must be public and continue without adjournment until completed."

45. Thomas Stown witnessed, as is born out in his attached affidavit, that he observed the box in which the early voting ballots were being deposited in the 1994 Primary, at the Election Department in Henderson, and the box contained neither of the two padlocks required by Nevada law.

NRS 293.359 mandates that;

"The ballot box for early voting in which voted ballots which are paper ballots or ballots which are voted by punching a card are deposited must have two locks, each with a different key and must be designed and constructed so that the box can be sealed to detect any authorized deposit in the box. The seals for the boxes must be serially numbered for each election."

46. This was a further violation of Nevada law, by the Defendant.

47. Defendant lobbied the Nevada Legislature in 1995 to unlawfully modify and change the intent of the Nevada Constitution by modifying the NRS definition of "Ballot", NRS 293.025, to include electronic tape recordings.

48. Plaintiff or other candidates chosen by Plaintiff's ballot, may want to demand a recounting of the ballots. Nevada law provides in that circumstance that; NRS 293.404. §3;

. . . "A recount by computer must be made of all the selected ballots."

49. FEC standards provide - FES § C.4 GENERAL RULES FOR RETENTION OF DATA, paragraph 1,

"The purpose of retaining an election audit trail is to leave a documented, clear record of all election activity."

Paragraph 4,

"At a minimum, the records shall include . . . information that shall be retained includes: (the 5th item provides) For DRE machines, records of individual ballot images."

50. FEC standard § E.5 VOTER CONFIRMATION IN DRE SYSTEMS, paragraph 3;

. . . "After a voter has made all voting selections, the DRE machine should display or print on a paper ballot a summary of the voter's selections." (Emphasis added)

51. Since the Sequoia machine is incapable of meeting any of the foregoing recounting provisions, and ballot image retention provisions, it is not in compliance with applicable Nevada and United States laws and must be prohibited from further use in Nevada.

52. On October 21, 1995, in an election in Metarie Louisiana, a test of 12 consecutive Sequoia DRE machines, immediately following the election, documented on video tape, showed that the machines transfered 1 of every 3 votes cast for her, to her opponent.

FES § 3.2 provides that;

". . . During system performance, the desired system level error rate shall be no more than 1 in 10,000,000. . . "

53. The machine clearly fails the Accuracy and integrity requirements of the FES, and to employ it in further usage in Nevada without testing its software and hardware extensively by an ITA, and by comprehensive acceptance testing by the Secretary of State, must be considered to be done with willful intention to violate Nevada Election law and FEC standards. The Sequoia DRE must be disqualified from use in Nevada and banned from further use in an election until it can be proven to meet all of Nevada's constitutional laws and FES requirements.

54. The current procedures of transporting the ballots from the precinct to a central counting facility violate the Nevada constitutional requirement of counting of the ballots at the precinct immediately after the closing of acceptance of ballots into the ballot box. This unconstitutional procedure provides an opportunity for tampering, not witnessable by the public, and it must be prohibited.

55. Since the current policy of Defendant is to unlawfully exclude public witnessing of ballot counting, and custodianship of the ballots during transportation from the precincts to the central counting facility, she has demonstrated her predisposition for violating Nevada and United States law and she must be prevented from committing further violations of election laws.

56. Since the Defendant consistently exhibits willful disregard for the laws of Nevada and the United States, she must be prohibited from exercising any control or authority over Clark County's election procedures, and ballot handling procedural authority must be assumed and executed by the Secretary of State, until lawful procedures can again be guaranteed by the Clark County Government.

57. In addition to the foregoing facts, Defendant was acting in the alleged official capacity of Clark County Registrar of Voters. This assertion of official capacity was in violation of Nevada Revised Statutes, and Defendant was actually without lawful authority to act in any official capacity on behalf of Clark County and more specifically lacked any lawful authority to either purchase or recommend the purchase of any devices or materials for use in Clark County elections. The Nevada Statutes that apply are as follows:

293.044

"County Clerk" defined; synonymous with "registrar of voters" in Certain counties. . . . whenever the term "county clerk" is used in this Title it means "registrar of voters" in those counties where such office has been created . . . "

246.020 Oath and bond.

1. Each county clerk shall, before entering upon the duties of his office:

(B) Execute to the county a penal bond in the sum of #10,000, conditioned for the faithful discharge of the duties of his office, which bond must be approved by the district judge and filed in the office of the county recorder, unless a blanket fidelity bond is furnished by the county.

58. When these provisions are not met, the Nevada Revised Statutes provides that the "registrar of voters" is removed from office, to wit:

NRS 283.040 "1. Every office becomes vacant upon the occurring of any of the following events before the expiration of the term;

(e) A refusal or neglect of the person elected or appointed to take the oath of office, as prescribed in NRS 282.010; or when a bond is required by law, his refusal or neglect to give such bond within the time prescribed by law." (emphasis added)

59. In Nevada, the Courts have consistently held that the use of the word "shall" presumptively indicates mandatory, rather than directory statutory terms and, therefore, creates a duty. See for example, State -v- American Bankers Insurance Co., 106 Nev. 880, 802 P 2d 1276, 1278 (1990); Givens -v- State, 99 Nev. 50, 657 P 2d 97, 100 (1983) overruled on other grounds, Telancon -v- State Nev 721 P 2d 764 (1986); Woofter -v- O'Donnell , supra.

60. The intent of the legislature in this state, therefore, could not be more clearly stated. Any official required to file a bond is simply unqualified and unauthorized to act unless and until he files an acceptable bond. The Attorney General of this State has, in fact, so determined. See 5 Op Attorney General 6 (1907) (where required, filing of an acceptable bond is a condition precedent to qualification to act.)

61. The Plaintiff acknowledges that some jurisdictions still approve of the de facto doctrine, under which the acts of a person actually performing the duties of an office under color of title are valid as to the public and as to interested third parties. See e.g. State -v- Whelan, 103 Idaho 651, 651 P 2d 916 (1982); Appleby -v- Belden Corporation, 22 Ark App 243, 738 S.W. 2d 807 (1987). Under the settled principles of statutory construction discussed supra, the de facto doctrine cannot apply in this State because officials are required to provide an official bond, as required, before entering upon the duties of their office. Even if the de facto doctrine were found to be generally applicable in Nevada, however, it would not reasonably apply in this case as the Court of Appeals for the District of Columbia explained in Andrade -v- Lauer, 729 P 2d 1475, 1498-99 (D.C. Cir. 1984) as follows:

"Applying the de facto doctrine would likely leave the plaintiffs seeking to challenge the regularity (and even more important, the constitutionality) of the government officers without any remedy at all and would thus render the legal norms under which appellants are proceeding unenforceable. . . . In feudal times, when the writ of quo warranto originated, public officers were similar to a form of property right, and a quo warranto action was like an action of ejectment in which the only party who could bring a lawsuit was a claimant who sued to regain possession from one who was unlawfully in possession . . . . This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate. . . . .The Court should avoid an interpretation of the de facto officer doctrine that would likely make it impossiblefor these Plaintiffs to bring their assumedly substantial constitutional claim and would render legal norms concerning appointment and eligibility to hold office unenforceable.

. . . .The core purposes of the doctrine are served if a plaintiff challenging government action on the ground that the officials taking that action improperly hold office, meets two requirements. First, the plaintiff must bring his action at or around the time that the challenged action is taken. Second, the plaintiff must show that the agency or department involved has had reasonable notice under all the circumstances of the claimed defect in the official's title to office. This does not require that the plaintiff perform any particular rituals before bringing suit, nor does it mandate that the agency's knowledge of the alleged defect must come from the plaintiff. It does, however, require that the agency or department involved actually knows of the claimed defect. These two requirements adequately protect citizens' reliance on past government actions and the government's ability to take effective and final action--the two interests served by the de facto officer doctrine. Prohibitingattacks on government actions taken long before suit was filed protects those who have relied on those actions and avoids the chaos that might ensue if all of the actions taken by an official improperly in office for years were subject to invalidation.

Requiring that the government have actual knowledge of the defect claimed protects the government's ability to take effective and final action by enabling it to remedy any defects (especially narrowly technical defects) either before it permitsinvalidly appointed officials to act or shortly thereafter. Yet, while the two requirements protect the interests underlying the de facto officer doctrine, they do so without unduly interfering with other important interests that are equally worthy of protection: individuals' interest in having legal process available to redress specificlegitimate claims and the public interest in enforcing legal norms governing appointment and eligibility to hold public office and exercise the powers of the state." (footnote omitted)

62. See also, Olympic Federal Savings & Loan Association -v- Office of Thrift Supervision, 732 F Supp 1883, 1895, 1896 (D.D.C. 1990) (de facto doctrine did not transform unconstitutionally appointed director into officer). The impermissible effect of allowing de facto status in this case would be to frustrate the Plaintiff's constitutional claims whichwould be a denial of Petitioner's right of recovery against the required bond and to render the legal norms established for office holding unenforceable and meaningless.

63. The acts of the Defendant are without legal effect since the Defendant is without legal authority to act, having failed to fulfill the statutory prerequisites to her offices, said prerequisites being the `condition precedent' to taking any action in representing the County.

64. Defendant is not a lawful holder of the office of Registrar of voters. She is ineligible from holding official office by being in violation of NRS 283.040.

65. Even if Defendant were lawfully holding the Office of Registrar of Voters, a Nevada civil service employee has no authority to violate Federal and State constitutional statutes nor to violate the United States and Nevada constitutions.

66. A state legislature has no inherent authority to modify by statute, the intent of the United States or Nevada constitutions, nor to enact an unconstitutional statute.

67. Tit. 42 U.S.C. §1974, and Appendix C.2 of the FES requires retention of all records necessary to detect election fraud for 22 months after an election. Since the Sequoia is incapable of retaining a complete individual ballot for any time at all, it is in violation of the Appendix and Tit. 42 U.S.C. §1974, et Seq., to wit;

"Every officer of election shall retain and preserve, for a period of 22 months from the date of any general, special, or primary election . . . all records . . . act requisite to voting in such election. . . Any officer of election or custodian who willfully fails to comply with this section shall be fined not more than $1,000, or imprisoned not more than one year, or both."

68. Plaintiff moves this court to:

1. Declare pursuant to NRS 283.040 that Defendant was at all times, and currently is, without official capacity to act as Clark County Registrar of Voters, in any manner whatsoever.

2. Declare pursuant to 28 U.S.C. §§ 1331 and 2201 and 42 U.S.C. §1974, that Defendant Ferguson had no authority to order or recommend the purchase of Sequoia Pacific DRE voting machines.

3. Declare that Defendant Ferguson violated Nevada and United States laws when, following the 1994 elections, she broke the chain of continual public scrutiny of the ballots until counting is completed, by facilitating the removal of the ballots from the precincts prior to their immediate counting as required by the Nevada Constitution, ELECTION ORDINANCE, §.5 and 10.

4. Declare that Defendant and her employees, during the Primary Election of 1994, prevented Plaintiff and others from public access to the ballot counting procedures, violating Nevada law NRS 293.3602. § 6.

5. Declare that Defendant and her employees, during the Primary Election of 1994, prevented Plaintiff and others from public access to the ballot counting procedures, violating Nevada law ARTICLE 2, RIGHT OF SUFFRAGE, [Elections by Ballot] SECTION 5.

6. Declare that Defendant Ferguson violated Nevada and United States laws when she prevented a member of the public, Mr. Thomas Stown, from witnessing the canvassing procedures following the 94 election, as required by the Nevada Constitution, ELECTION ORDINANCE, §.6, therefore constituting a professional misbehavior or worse, by Defendant.

7. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 2.3.2, ACCURACY AND INTEGRITY.

8. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES §4.5, VOTE RECORDING ACCURACY AND INTEGRITY.

9.Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 4.8.2.3, IN-PROCESS AUDIT RECORDS, para. 2, subsection (d).

10. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES Appendix C.2.

11. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 8.1 ACCEPTANCE TESTS.

12. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 7.1 SCOPE OF TESTS AND APPLICATION CRITERIA, paragraph

13. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES §1.2.2.

14. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of NRS 293B.104.

15. Declare that the Sequoia Pacific DRE machine failed in the 1994 elections to demonstrate compliance with the requirements of NRS 293.025 and that it was utilized in the election of 1994 in violation of Nevada Law, therefore constituting professional misbehavior or worse, by Defendant.

16. Declare that the Defendant violated the requirements of NRS 298.410.

817. Declare that the Defendant knowingly facilitated the purchase of the Sequoia machines which were in violation of FES, IMPLEMENTATION, EXHIBIT A.

18. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of NRS 293.404. §3, and FES § C.4.

19. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § E.5.

20. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 3.2.

21. Declare that the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 7.2.8,.

22. Declare that the revision of NRS § 293.025, adopted by the Nevada Legislature in 1995 be declared to be unconstitutional and void ab initio.

23. Declare that the purchase of Sequoia machines was done in violation of NRS 332.039 and 332.045, and therefore done in violation of Nevada Law, constituting a criminal act by Defendant, requiring the removal of Defendant from any further responsibilities or duties concerning ballot handling procedures in Clark County.

24. Declare that all responsibility and authority for verifying ballot authenticity, submission, counting, transportation and storage of said ballots is now the responsibility of the Nevada Secretary of State.

25. Declare that Defendant failed in the 1996 Presidential Primary election to demonstrate compliance with the requirements of NRS 293.359 by failing to install two separately keyed padlocks and a serially numbered seal on the Early Voting ballot box. And that this was done in violation of Nevada Law, therefore constituting a negligent or intentional act by Defendant for which she should, among other remedies available to the state, be prohibited from further acting in an official capacity in overseeing elections in Clark County.

69. Plaintiff moves this court to:

26. Order pursuant to NRS 283.040 that an injunction be issued prohibiting Defendant from acting in any official capacity as Clark County Registrar of Voters.

27. Order pursuant to 28 U.S.C. §§ 1331 and 2201 and 42 U.S.C. §1974, that because Defendant Ferguson had no authority to order the purchase of Sequoia Pacific DRE voting machines, and that because of their ability to be illegally manipulated, an injunction be issued prohibiting use of the Sequoia Pacific voting machines in any elections in Clark County, Nevada.

28. Order that, because Defendant Ferguson violated Nevada and United States laws when, following the 1994 elections breaking the chain of continual public scrutiny of the ballots until counting is completed, by facilitating the removal of the ballots from the precincts prior to their immediate counting as required by the Nevada Constitution, ELECTION ORDINANCE, §.5 and 10, an injunction be issued prohibiting the Defendant from further acting in any official capacity in overseeing elections in Clark County.

29. Order that, because Defendant and her employees, during the Primary Election of 1994, prevented Plaintiff and others from public access to the ballot counting procedures, violating Nevada law NRS 293.3602. § 6, an injunction be issued prohibiting the Defendant from further acting in any official capacity in overseeing elections in Clark County.

30. Order that, because Defendant and her employees, during the Primary Election of 1994, prevented Plaintiff and others from public access to the ballot counting procedures, violating Nevada law ARTICLE 2, RIGHT OF SUFFRAGE, [Elections by Ballot] SECTION 5, an injunction be issued prohibiting the Defendant from further acting in any official capacity in overseeing elections in Clark County.

31. Order that, because Defendant Ferguson violated Nevada and United States laws when she prevented a member of the public, Mr. Thomas Stown, from witnessing the canvassing procedures following the 94 election, as required by the Nevada Constitution, ELECTION ORDINANCE, §.6, therefore constituting a professional misbehavior or worse by Defendant for which she, among other remedies available to the state, an injunction be issued prohibiting Defendant from further acting in any official capacity in overseeing elections in Clark County.

32. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 2.3.2, ACCURACY AND INTEGRITY, an injunction be issued prohibiting its use in Nevada elections.

33. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES §4.5, VOTE RECORDING ACCURACY AND INTEGRITY, an injunction be issued prohibiting its use in Nevada elections.

34. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 4.8.2.3, IN-PROCESS AUDIT RECORDS, paragraph 2, subsection (d), an injunction be issued prohibiting its use in Nevada elections.

35. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES Appendix C.2, an injunction be issued prohibiting its use in Nevada elections.

36. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 8.1 ACCEPTANCE TESTS, an injunction be issued prohibiting its use in Nevada elections.

37. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 7.1 SCOPE OF TESTS AND APPLICATION CRITERIA, paragraph 1, an injunction be issued prohibiting its use in Nevada elections.

38. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES §1.2.2, an injunction be issued prohibiting its use in Nevada elections.

39. Order that because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of NRS 293B.104, an injunction be issued prohibiting its use in Nevada elections.

40. Order that, because the Sequoia Pacific DRE machine failed in the 1994 elections to demonstrate compliance with the requirements of NRS 293.025 and that it was utilized in the election of 1994 in violation of Nevada Law, therefore constituting professional misbehavior or worse, by Defendant for which she, among other remedies available to the state, an injunction be issued prohibiting Defendant from further acting in any official capacity in overseeing elections in Clark County.

41. Order that, because the Defendant violated the requirements of NRS 298.410, an injunction be issued permanently prohibiting Defendant from acting in any authority involving voting or ballot handling and/or counting procedures in Nevada.

42. Order that, because the Defendant knowingly facilitated the purchase of the Sequoia machines which were in violation of FES, IMPLEMENTATION, EXHIBIT A, an injunction be issued permanently prohibiting Defendant from acting in authority involving voting or ballot handling and/or counting procedures in Nevada.

43. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of NRS 293.404. §3, and FES § C6.4, an injunction be issued prohibiting its use in Nevada elections.

44. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § E.5, an injunction be issued prohibiting its use in Nevada elections.

45. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 3.2, an injunction be issued prohibiting its use in Nevada elections.

46. Order that, because the Sequoia Pacific DRE machine fails to demonstrate compliance with the requirements of FES § 7.2.8, an injunction be issued prohibiting its use in Nevada elections.

47. Order that pursuant to FES § 4.1.4, sanctions by the State of Nevada must be pursued, such as decertifying the system, levying monetary penalties, and initiating criminal sanctions against the "vendor," and that the Defendant, having acted in complicity with the vendor, be similarly sanctioned or criminally charged.

48. Order that, because the purchase of Sequoia machines was done in violation of NRS 332.039 and 332.045, and therefore done in violation of Nevada Law, constituting a criminal act by Defendant, an injunction be issued prohibiting Defendant from engaging in any further responsibilities or duties concerning ballot handling procedures in Clark County.

49. Order that all responsibility and authority for verifying ballot authenticity, submission, counting, transportation and storage of said ballots be transferred to and assumed by the Nevada Secretary of State.

50. Order that because Defendant failed in the 1996 Presidential Primary election to demonstrate compliance with the requirements of NRS 293.359 by failing to install two separately keyed padlocks and a serially numbered seal on the Early Voting Ballot Box, and that this was done in violation of Nevada Law, therefore constituting a negligent or intentional act by Defendant, an injunction be issued prohibiting Defendant from further acting in any official capacity in overseeing elections in Clark County.

Respectfully submitted,

June ____, 1996

BY:______________________________

PATRICK S.M. MCMILLAN

P.O. Box 96192

Las Vegas, Nevada 89193

VERIFICATION

The foregoing Complaint, by the hand of Patrick S.M. McMillan, is given subject to the penalties of perjury pursuant to U.S.C. § 1746.

_______________________________

Patrick S.M. McMillan