'amela Barnett, Pro se Plaintiff SEP - 8 2010

2541 Warrego Way ,CLERK, U.S. OlSTRlCTCOUF

Sacramento, CA, 95826 EASTERN DISTRICTOF CALIF0
relephone: (415)846-7170 BY
DEPUTVCLEAK

'b-realestate@yahoo.com

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

X
'AM ELA BARNElT,
Plaintiff, Civil CASE: 10-cv-02216-FCD-DAD
I.

lAMON JERRELL DUNN, etc., et al.,

Defendants.
Y
X

5UPERlOR COURT OF CALIFORNIA

IOUNTY OF SACRAMENTO
X
'amela Barnett ) Case No. 34-2010-00077415
Plaintiff, 1
v. )
lamon Jerrell Dunn et al. 1
Defendants )
X

PLAINTIFF DECLARATION IN SUPPORT OF NOTICE OF CROSS MOTION FOR A

THREE JUDGE PANEL WITH 42 USC 51973C AND 28 USC $2284

, Pamela Barnett, declare under penalty of perjury, pursuant to 28 U.S.C. 51746:

1. Declarant I Plaintiff in esse is pro se herein without being an attorney.

2. That Declarant hereby supports the Notice of Cross Motion (NOCM) for creation

of a three judge panel with 42 USC 51973C in compliance with 28 USC $2284, and for

an expedited hearing as time is of the essence with imminent irreparable harm before

the ballots are printed for the November 2,2010 General Election; and that Plaintiff is
 1  in opposition to the U.S. Election Assistance Commission and its director Thomas

2  Wilkey (EAC) motion to dismiss as represented by Assistant U.S. Attorney Yoshinori

3  H. T. Himel of the United States Attorney's Office in Sacramento filed on August 27,

4  2010 for a post General Election hearing November 12, 2010 and the California

5  Attorney General Motion filed August 24, 2100 for a post General Election hearing

6  November 10, 2010, and response will be made separately.

7  3. That Plaintiff requests a three judge panel with 42 USC §1973C in compliance

8  with 28 USC §2284 and for an expedited hearing before the ballots are printed for the

9  November 2, 2010 General Election as time is of the essence with imminent

10  irreparable harm complained of in the underlying First Amended Complaint filed on

11  July 12, 2010 in the State Court (see Exhibit 1).

12  4. Plaintiff has standing herein with 42 USC §1973GG-9: Civil enforcement and

13  private right of action and as related State law similarly adopted, in which Plaintiff’s

14  complaint is against Defendant Dunn’s interstate fraud with use of a Florida driver’s

15  license obtained with motor voter registration provisions while domiciled in Florida for

16  continual use in California until February 2010, when Mr. Dunn obtained a California

17  Drivers license a year after proffering California voter registration in Orange County on

18  or about March 13, 2009 in the matter of irreparable harm to Plaintiff, a Republican

19  Party Member along with those similarly situated; and

20  5. That Mr. Dunn has been found by the State to have a non-conforming voter

21  registration as shown in the State letter in Exhibit 1-M, and that Plaintiff has shown Mr.

22  Dunn intended to spoliate records and conceal not only his prior registration in Texas

23  and Florida but with intent to defraud and conceal records.

Plaintiff Declaration in Support of NOCM for 3 Judge Panel - Page 2 of 9

 1  6. That the State Defendant’s questionable administrative decision(s) to register Mr.

2  Dunn under color of state and federal voter registration law as federal agents of the

3  EAC is/are beyond the discretion afforded by law, that is done without section 5 pre-

4  clearance with the US DOJ and that without preclearance any action should only be a

5  strict ministerial duty without discretion. That by State Defendants made arbitrary and

6  capricious selective changes in the registration rules in an affirmative action meant for

7  Mr. Dunn’s registration for ballot access at the June 8, 2010 Republican primary and

8  General Election designed to injure Plaintiff and Republican Party members and to

9  serve the reelection of Democrat Defendant Bowen..

10  7. That an expedited hearing is warranted under FRCP Rule 65 provisional, and

11  with final relief under 28 USC §2201 and §2202 for Declaratory Judgment injunction

12  and stay as required against State Defendants who are Democrats including the Court

13  Judge, who have delayed and denied Plaintiff substantive due process and equal

14  treatment under the law with intent to interfere with the First and Fifth amendment

15  rights and liberty of Republicans in violation of 42 USC §1981, §1983, §1985(3) and

16  §1986, as time is of the essence with imminent irreparable harm were a hearing

17  delayed further before the deadline for printing ballots for the November 2, 2010

18  General Election.

19  Arbitrary change of rules without pre-clearance

20 
21  8. As to the Arbitrary change of procedures regarding the rebuttable presumption

22  reference, Exhibit 1, Third Cause of Action paragraphs 72 through 79 that with CEC

23  2154 as shown on Exhibit 1-A ,where the prior address of registration is omitted and

24  the affirmation date is intentionally erroneous as alleged at the First Amended

25  Complaint Sixth Cause of action paragraphs 111 through 120; That thereby required

Plaintiff Declaration in Support of NOCM for 3 Judge Panel - Page 3 of 9

 1  an affirmative action by the State that was not done as required by CEC 2150 (a) 10

2  and (b). Kelley’s Answer to 1st Amended Complaint - Page 12, line 14 references CA

3  administrative code 19050.6 (1) filed August 18, 1978, as to why he failed in his

4  responsibility to take affirmative action in regard to Dunn’s voter registration, despite

5  CA Election Code stating the opposite of the administrative code regarding the

6  rebuttable presumptions regarding the registration, application review, and follow-up

7  action . That State Defendants knowing that CEC 2150 (a) 10 and (b) is presumed to

8  have been pre-cleared under Section 5 by the US DOJ Voting Rights Section under

9  NVRA, and that their less restrictive change as to discretion within available rebuttable

10  presumptions for registration, application review, and follow-up action conflicts with

11  the requirements of the NVRA as to rebuttable presumptions under California Election

                                                            
1
   Cal. Admin. Code tit. 2, § 19050.6 Barclays Official California Code of Regulations
Currentness Title 2. Administration Division 7. Secretary of State Chapter 1. Voter Registration
Article 2. Postal Registration of Voters § 19050.6. Requirements for Valid Registration. In the
event that the county clerk receives an affidavit of registration that does not include portions of
the information for which space is provided, the county clerk or registrar of voters shall apply the
following rebuttable presumptions: (a) If no middle name or initial is shown, it shall be assumed
that none exists. (b) If no occupation is shown, it shall be presumed that the person is
unemployed or has no occupation. (c) If no party affiliation is shown, it shall be assumed that the
registrant has “declined to state” a party affiliation. (d) If the year of birth is omitted, it shall be
presumed that the year of birth was eighteen years or more prior to the date of the next
succeeding election, in accordance with the voter's statement under penalty of perjury that he or
she will be eighteen years of age at the time of the next election. (e) If no prior registration is
shown, it shall be presumed that the person is not registered to vote in California. An elector's
affidavit of registration as a voter shall be valid notwithstanding the failure to complete the
information to which the above presumptions apply, absent evidence rebutting the presumption.
(f) If the date of execution is omitted but: (1) the affidavit is received in the office of the county
clerk, on or before the 29th day prior to the election; or (2) the registration affidavit is postmarked
on or before the 29th day prior to the election and arrives in the office of the county clerk not
later than four days after the 29th day, it shall be presumed that the affidavit was executed on or
before the 29th day prior to the election. HISTORY: 1. New section filed 5-20-77; effective
thirtieth day thereafter (Register 77, No. 21).2. New subsection (f) filed 8-18-78; effective thirtieth
day thereafter (Register 78, No. 33). 2 CCR § 19050.6. This database is current through 8/20/10
Register 2010, No. 34
 

Plaintiff Declaration in Support of NOCM for 3 Judge Panel - Page 4 of 9

 1  Code 2150 (a) 10 and (b). That even the Administrative code does not offer a

2  rebuttable presumption for a signature date that is given on the registration form.

3  “(a) The affidavit of registration shall show: (10) A prior registration portion indicating
4  whether the affiant has been registered at another address, under another name, or
5  as intending to affiliate with another party. If the affiant has been so registered, he or
6  she shall give an additional statement giving that address, name, or party…(b) The
7  affiant shall certify the content of the affidavit as to its truth and correctness, under
8  penalty of perjury, with the signature of his or her name and the date of signing. If
9  the affiant is unable to write he or she shall sign with a mark or cross.”
10  That according to CEC 2154 there is no rebuttable presumption afforded for omissions

11  with use of CEC 2150 (a) 10 and or (b) as to the March 13 2009 application shown as

12  Exhibit 1- A thereby requires an affirmative action with CEC 2153 that mandates the

13  State not only to reject the application, but requires:

14  “(c) If the affidavit does not contain all of the information required, and the
15   county elections official is not able to collect the missing information by
16   telephone, but the mailing address of the affiant is legible, the county elections
17   official shall inform the affiant of the reason for rejection and shall send to the
18   affiant a new California Voter Registration Form.”
19 
20  And thereby the mandatory affirmative action to be done without a rebuttable

21  presumption conflicts with less restrictive California Administrative Code 19050.6

22  “(e) If no prior registration is shown, it shall be presumed that the person is not
23  registered to vote in California. An elector's affidavit of registration as a voter
24  shall be valid notwithstanding the failure to complete the information to which the
25  above presumptions apply, absent evidence rebutting the presumption. “
26 
27  9. That the Plaintiff’s evidence shown in the First Amended Complaint referenced in

28  paragraphs 111 through 120 is clear and convincing evidence indicating that the crime

29  is proved as highly probable or reasonably certain for CEC §18203 and §18500

30  sanction of Defendant Dunn as with 42 USC §1973 –I (c), 42 USC §1973- J , 42 USC

31  §1973GG-10 and 42 USC §15544 for Criminal penalties .

32  Spoliation / concealment of records that would be used in litigation

33 

Plaintiff Declaration in Support of NOCM for 3 Judge Panel - Page 5 of 9

 1  10. As to Defendants Dunn, Kelley, Bowen’s spoliation / concealment of records that

2  would be used in litigation, they allegedly commit violations under 42 USC §1973– I (d)
(2.)
3  . The First Amended Complaint Sixth Cause of Action paragraphs 101 through

4  135 allegations shown as Exhibit 1, support Plaintiff’s charge of spoliation and

5  concealment that warrants a declaratory judgment, injunction, stay and expedited

6  discovery for a three judge panel trial for a directed verdict with 42 USC §1973-J,

7  §1973-N, and §15544 accordingly.

8  Conspiracy to deny rights in furtherance of unjust enrichment

9 
10  11. As for Defendants Dunn, Kelley, Bowen and Brown, plaintiff alleges denial of

11  honest services in a Conspiracy to deny rights under color of state and federal law in

12  furtherance of unjust enrichment and personal aggrandizement under 42 USC §1973-

13  J, §1973-N, §15544 and accordingly with 42 USC §1983, §1985(3) and §1986, the

14  First Amended Complaint Seventh Cause of Action paragraphs 136 through 137

15  allegations shown as Exhibit 1, support Plaintiff’s charge of Defendants’ self

16  aggrandizement using discrimination, singling out individuals or targeted group for

17  unequal treatment under the law that with denial of substantive due process for

18  Republican party member Plaintiff along with those similarly situated for the purpose is

19  for unjust enrichment, that warrants a declaratory judgment, injunction, stay and

                                                            
2
42 USC §1973-I (d) Falsification or concealment of material facts or giving of false
statements in matters within jurisdiction of examiners or hearing officers; penalties Whoever, in
any matter within the jurisdiction of an examiner or hearing officer knowingly and willfully falsifies
or conceals a material fact, or makes any false, fictitious, or fraudulent statements or
representations, or makes or uses any false writing or document knowing the same to contain
any false, fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or
imprisoned not more than five years, or both.
 

Plaintiff Declaration in Support of NOCM for 3 Judge Panel - Page 6 of 9

 1  expedited discovery for a trial before the three judge panel for a directed verdict with

2  42 USC §1973-J, §1973-N, and §15544 accordingly.

3  12. Further, according to the background check extracted from databases on April 7,

4  2010, Plaintiff was able to determine the following (See Exhibit 2):

5  a. Mr. Dunn’s Florida driver’s license was last seen in April 2010.

6  b. There was no CA driver’s license listed for Mr. Dunn on his background check

7  on April 7, 2010.

8  c. There were no current CA car registrations listed for Mr. Dunn.

9  d. Suspiciously, Mr. Dunn had three businesses begin and end in 2009. Mr.

10  Dunn has other businesses listed but appears as if part of possible money

11  laundering of campaign funds that warrants investigation herein.

12  e. The prior background check listed a voter registration address for Dunn in

13  Arlington, Texas.

14  13. That Plaintiff suffers irreparable harm with time as the essence because the

15  ongoing challenge as before the Primary and now after the Primary is without a timely

16  fair hearing in State Court as to the ballot status of Mr. Dunn, that as a matter of law

17  requires a hearing on the presentment of certain facts there denied, and with imminent

18  irreparable harm were the Ballots to be printed to proceed to the General Election

19  without Plaintiff’s requested relief granted before that printing is done for the

20  November 2, 2010 General Election for State and Federal Officers to proceed. That

21  the State is intent to print the ballot for the General Election with Damon Dunn on it, as

22  expressed by the State’s Demurrer of June 11, 2010 to the Complaint and the State

23  and Orange County Demurrers of August 13, 2010 and August 12, 2010 respectively

24  to the First Amended Complaint, and therein requested and have been granted a

Plaintiff Declaration in Support of NOCM for 3 Judge Panel - Page 7 of 9

 1  State Court hearing on October 25, 2010 after the ballots have been printed and have

2  outrageously even requested in their second demurrer request a state court

3  November 10, 2010 hearing after the general election – what an outrage!

4  14. Under color of state law State Defendants acted against 42 USC §1973C

5  regarding their alterations of voting qualifications and procedures, therefore Plaintiff is

6  entitled to a three-judge district court with appeal to Supreme Court; as to Section

7  1973-I(c)(d): Prohibited acts , with breach of fiduciary duty as per 42 USC Section

8  1973FF-1 State responsibilities; and with 42 USC §1973-gg that applies herein with

9  any State that maintains and uses a voter registration data base; and whose State

10  Officers are Federal agents; and

11  15. That notwithstanding the issues of damage, that Plaintiff has standing with 42

12  USC §1973-GG-9: Civil enforcement and private right of action and as related State

13  law similarly adopted to be here as in State Court if the Petition were granted in the

14  matter of irreparable harm to Plaintiff along with those similarly situated with time as

15  the essence is due to State action(s), as all State Defendants are Democrats including

16  the Court Judge, who delay and deny substantive due process with intent to interfere

17  with the First and Fifth amendment rights and liberty of Republicans in violation of 42

18  USC §1981, §1983, §1985(3) and §1986; and

19  16. Thereby State Defendants deny Plaintiff and those similarly situated equal

20  protection of the law and substantive due process with a fair hearing by a three judge

21  panel in time to correct the ballot, and for that reason alone Plaintiff desires the

22  bifurcation of liability and damages with an expedited declaratory judgment on equity

23  issues as to liability with the law and expedited jury trial on the facts as to liability

Plaintiff Declaration in Support of NOCM for 3 Judge Panel - Page 8 of 9

under the law with the compounding damages severed and remanded back to State

Court jury trial there.

17. That Damon Dunn and the State Defendants act across state lines to deny

Plaintiff and those similarly situated as Republicans equal protection of the law and

substantive due process as if persons under the notorious Jim Crowlaws.;

a. That the facts prove Damon Dunn acts with intent to wmniit a crime;

b. That the facts prove State Defendants act with intent to commit a crime.

c. That the Law provides the Court with a remedy for relief and

d. That all Defendants must be barred from the ballot and holding office.

e. That the Ballot must be printed with the next runner up in the Republican

Primary for Secretary of State;

f. That the matter of Liability for damages must be remanded back to State

Court for further jury hearing on extent and scope of damages to include

punitive award, costs of the proceeding and Attorney fees as necessary; and

g. That Plaintiff is entitled to further and different relief the Court herein deems

necessary for justice to be done herein to prevent further vote fraud,

irreparable harm and injury in the State of California and of the several States.

18. I do solemnly declare under penalty of perjury with 28 USC 51746 and

the laws of the State of California this date September i, 2010 in the County of

Sacramento, that the facts and circumstances described above are true and correct to

the best of my knowledge.

2541 Warrego Way

Sacramento, CA, 95826
Telephone: (415)846-7170