The Electronic Voting Machine Company Qui Tam Cases Explainedâ€¦ ‘Citizen media is replacing mainstream mediaâ€¦and a lot more successfully than anybody dreamed.’
Mike Papantonio and Bobby Kennedy co-host Ring of Fire  on Air America. The two attorneys have filed qui tam lawsuits against the Electronic Voting Machine (EVM) companies for defrauding the government. We previously posted an exclusive interview  with Robert F. Kennedy, Jr. about this case.
Papantonio is a Florida attorney who has already gone after a number of big corporations for the American people. He is named partner and head of the Mass Tort Department at his firm. He has handled many famous cases throughout the nation, including asbestos, breast implants, Dalkon Shield, Fen-Phen, hemophiliac-AIDS, L-Tryptophan, railroad disasters and the Florida Tobacco litigation. He is listed in Best Lawyers in America and Leading American Attorney. He is also the author of In Search of Atticus Finch, A Motivational Book for Lawyers ; Clarence Darrow, The Journeyman ; Resurrecting AESOP, Fables Lawyers Should Remember  and a co-author of Closing Arguments â€” The Last Battle . In addition to all this, he is a popular lecturer in the legal field.
We would like to say something about what a dynamic and articulate man he is, and how much we think he’s doing for our country, but, really, res ipsa loquitur, the thing speaks for itself, and this is no accident. Mike Papantonio is a hard-working, extremely generous, friendly and personable â€” and dedicated â€” man. One would be hard-pressed to find a better duo for the difficult job ahead. The Kennedy/Papantonio alliance is a particularly brilliant one. Mike took the time to talk to us about aspects of the qui tam cases they have set in motion alreadyâ€¦
BRAD BLOG: Can you tell us about these qui tam cases?
MIKE PAPANTONIO: What we’re doing with these qui tam cases is really not much different than the approach we used in the national tobacco litigation. Weâ€™ve put together that same kind of team, not the same people, but the same kind of people who are used to working with complex litigation. Because of that, thereâ€™s a benefit to the U.S. attorney saying, â€œWell, you know, we donâ€™t know if we really want to do this.â€ And once they say that, those are the golden words that will allow us to go in and handle the case ourselves. Exactly like weâ€™ve done with tobacco, asbestos, virtually every major pharmaceutical case in the country, itâ€™s always originated with the same kind of lawyers. And those are the kind of lawyers that do fairly complex stuff.
BB: I want to thank you for doing those cases, by the way, Mike.
MP: Thank you for saying that, sometimes it just takes a while to register, to where you say, well you know, I didnâ€™t want to have to do this, but apparently we have to. Thatâ€™s how I feel about this right now.
BB: How do you feel about the idea that you might be saving our Democracy?
MP: Morris Dees  is a civil rights lawyer and a very good friend of mine. As a matter of fact he started the Southern Poverty Law Center  in Montgomery. If you talk to someone like Morris, and you ask him, what is it that brought some closure, some beginning for closure to the civil rights movement, heâ€™d say it was really no one event; it was kind of a collection of displaced separate events. Thatâ€™s always stuck with me, because with anything thatâ€™s worth doing, itâ€™s rare that you will accomplish it with one event that you are able to manage, or one success that you are able to gain. It rarely works like that. I think there are some similarities here, just like I thought the same thing with tobacco. When we first started talking about tobacco, everybody thought we were pretty much nuts, because we were taking on some of the biggest corporations in the world. But it wasnâ€™t just our effort, it had been the effort of people whoâ€™d gone before us, and all we did was take what they’d already done for us and make it a little bit better â€” a small reinvention of the wheel, in a way that just helped the wheel roll a little better. Itâ€™s the same thing here.
I think of Lowell Finley. Lowell Finley is a great lawyer whoâ€™s handled these voter cases a long time, but heâ€™s had to handle them by himself. First of all there’s the economics of it, and if all you are doing is going to court and arguing with some Judge, about the fact that he ought to enjoin the further use of the company, the product, or that he ought to put limitations on how the productâ€™s used, that doesnâ€™t really get you where you need to go, and it costs you instead of the company. The only thing that corporate America understands is when they have to say to their stockholders, or to their partners in their businesses, â€œHey, we have to write a big check now and it could put us out of business.â€ Thatâ€™s all they respond to. Having done complex litigation for 25 years, Iâ€™ve never seen any other formula. You know, in a perfect world we could throw them in jail.
In Japan, for example, if you are following this latest story â€” I think it has to do with an auto case where they didnâ€™t tell the consumers the truth â€” the consumer doesnâ€™t really get to sue them the same way they do in the States, but the good news is that they throw them in jail. So thatâ€™s where I wish we were. I would gladly give up the multi-million-dollar recoveries from all the pharmaceutical cases, from everything weâ€™ve done, for the last 25 years. If I knew we had a law that said, â€œWell, you guys canâ€™t really sue them for money but we can have these creeps thrown in jail,â€ Iâ€™d gladly give up every dime. But, unfortunately, in the US, the only avenue we have to punish these companies is to take their money away. And so thatâ€™s the method of operation that weâ€™ve used in pharmaceutical cases, in asbestos cases, and tobacco cases, and roll-over cases â€” all of those consumer cases are only driven by the fact that greed is such a driving force with corporate America that they only react when you take some of their ill-gotten money away from them.
BB: So itâ€™s not only the machine fraud. The Republican Party has been involved with all kinds of methods to disenfranchise voters, from intimidation, to destruction of Democratic voter registrations, and all kinds of other things that result in people not having their votes counted, or not being able to vote. Is there any possibility of a class action lawsuit down the line for the American people because they had their election stolen?
MP: I donâ€™t really see that. I understand class action suits very, very well, and I donâ€™t really see that as a possibility. Itâ€™s not likely that youâ€™re going to have a case where you say the same offense that prevented person A from voting also prevented person B and person C, where you can show those three events are exactly the same. And unfortunately in a class action suit there are certain hoops that you have to jump through, like similarity in action, numerosity, all of these things that you really have to be specific about to get to the class action threshold. There may be some small cases, for example, where the Indians are disenfranchised, in a particular area â€” yes, that has a ring to it. Or where the Hispanics in a certain state are disenfranchised â€” that has some appeal to it. I donâ€™t think that we are ready to get there yet with these. The trick to any particular litigation is to lay out the best strategy you can with what you have.
When I look at this, the best strategy that Iâ€™m able to come up with, and Bobbyâ€™s able to come up with, is a strategy that forces us into a room with the people who are making these decisions â€” so Iâ€™m able to sit across the table from those people and ask them some tough questions. That: a.) forces them into committing perjury; and b.) exposes them as being the criminals that they are. I think that the best way to get there, is to do it by way of qui tam lawsuits and I may be wrong, but sometimes you have to stick with your strategy and thatâ€™s where weâ€™re headed with it.
BB: Bobby was talking about how widespread this machine tampering is getting. It suggested to me that since these machines donâ€™t tamper themselves, and since the Republicans donâ€™t do things ad hoc, there may be a room filled with high level people who are sitting around analyzing data, plotting strategies, coming up with numbers and giving instructions, and if you could find out who those are wouldnâ€™t you have a massive conspiracy case?
MP: Yes, you would. Tom, I keep hearing of people afraid to say that thereâ€™s any design, that everything that happened in Ohio must have just happened to be coincidental, disjointed events. Iâ€™m not afraid to say I think there is something that has more of a design to it.
For example, there is no question Feeney, down in Florida, met with people who were trying to put together a system to game voting. Here you have a Republican Congressman, this guy who represents Floridians, who represents Americans, and heâ€™s sitting down trying to figure out how he can defraud Americans of their right to vote. Now, youâ€™ve got to find that here too. Does it all fit together? It might.
[Ed Note: We have been reporting on Florida vote-rigging whistleblower Clint Curtis for the past year and a half. He is the programmer who has alleged Republican Congressman Tom Feeney asked him to create a software prototype to flip votes on electronic voting machines. A summary of our coverage is posted here . Curtis is now running for Congress in Florida’s 24th district in hopes of unseating Feeney this fall. The Clint Curtis for Congress website is here .]
I think for something as critical as this is, you have to have a very methodical approach, just the same kind of an approach I would use if I were going to sue Merck for a defective product for 10,000 people. But thatâ€™s not new stuff. If you were to follow me around in a given month, you would see that I use the same methodology almost all the time, because itâ€™s proven methodology, and thatâ€™s the way this has to be approached. Itâ€™s easy to get your attention pulled in so many directions that you forget that you still have a methodology that you need to follow. So all of these things are issues. You say to yourself, â€œMy God, I know this is happening,â€ but you have to be patient. You have to say to yourself, â€œI gotta get there.”
BB: Thatâ€™s not to say in following your planned strategy you might not turn up a lot of things in the woodwork during the process.
MP: Yes, I think you will. I think weâ€™ll turn up exactly what youâ€™re talking about in the process. And then at some point, thatâ€™s something that will become useable. Right now with the way that politics are situated in Washington, if you were to turn up the fact that Dick Cheney, for an example â€“ just for an example â€“ if Dick Cheney and Karl Rove had sat down and said, here is the master strategy thatâ€™s even better than Lee Atwaterâ€™s Southern Strategy, and hereâ€™s how we are going to create this Republican machine thatâ€™s never going to go away â€” if they were to have said that, and I actually had documents to show that they said it, that ordinarily would workâ€¦. But with the present environment, with the media that we are confronted with, and with the Justice Department, (not so much the Justice Department, but the people who are running the Justice Department, because we have very good U.S. Attorneys who are career people and they donâ€™t like this anymore than we do) â€” unfortunately, until we take back Congress and then take back the White House, we could have all the smoking guns you want, but the infrastructure to do anything with it is not there.
Every time I talk about this Democrats get mad, but itâ€™s just absolutely the truth: Had Bill Clinton gone after and really sustained his investigation into the Iran-Contra affair for the full two years that he was there with a Democratic Congress, had he aggressively gone after the people he needed to, we wouldnâ€™t have had Wolfowitz, we wouldnâ€™t have had Rumsfeld, we wouldnâ€™t have had Richard Perle, we wouldnâ€™t have most of the Neocons that are running things right now. They would be in jail. But he didnâ€™t do it. So the question is, if we can get Congress back one more time, and we can gain control of the infrastructure that puts thugs in jail, then we can have some change, but it has to begin in November, it has to happen.
This is it â€” 2006 is the test.
But until we have either the House or the Senate, we donâ€™t even have a bully pulpit. We have a press that is a completely dismal failure. And thereâ€™s a clear reason why theyâ€™re a dismal failure. Want to hear it?
BB: Of course!
MP: In the next 900 days, they have the last opportunity to enhance the 1996 Telecommunications Act. Michael Powell, if you will remember, took a shot at it last year, and he was very close, a lot closer than anybody thought. If they can get there, then what you are going to have is that Viacom, or NBC, or Rupert Murdoch is going come to your home town, and own your newspaper, own your radios, own your televisions, own everything, so that the one message that, say, Rupert Murdoch wants to deliver is delivered on virtually every venue available to you.
BB: Thatâ€™s so dangerous.
MP: Itâ€™s awful. But the corporate media understands that this is it.
THIS IS IT!
Really, theyâ€™ll never again have this opportunity to have such a bumpkin President, such a lapdog bunch of Congressmen, and such a bottom-feeding kind of Administration. Theyâ€™ll never have this again. They are afraid they will lose this opportunity by actually telling the stories, that people like you are telling. They are afraid to tell the story about the fact that 80,000 votes were shifted from John Kerryâ€™s name to George Bushâ€™s name in Ohio; or, that in the same state of Ohio, in one district, there were only 800 people who were registered, but 4000 votes showed up on the ledger.
BB: About qui tam: I understand that when you file, the government has the option of taking the case, instead of the citizen who files. Is that true?
BB: Is there any chance that the government might take the case and then go ahead and spike it?
MP: You mean sit on it?
MP: Yes, thatâ€™s exactly everybodyâ€™s fear, and thatâ€™s what we are trying to work around right now. The answer is, yes, that could very well happen, and weâ€™re doing the best we can to not allow it to happen. Interestingly enough, within 60 days they have to make a decision, the decision if they are going to take the case, and they have a right to have one extension, they can get one continuance for that decision, so thatâ€™s one thing we have to be very conscious of.
BB: That can leave the disclosure until after the election then.
MP: Oh, absolutely. Weâ€™re trying to do what we can in that regard too.
BB: Itâ€™s too bad it couldnâ€™t have been filed a little bit earlier.
MP: We had to have the facts. You have to have the relator, you have to have the whistleblowers, without those you canâ€™t really do anything.
BB: I want to thank you for doing this. I really appreciate it.
MP: Well thank you, and I appreciate what youâ€™re doing. Iâ€™m very optimistic about what youâ€™re doing, because I think thereâ€™s a real rise in the citizen media. Citizen media is replacing mainstream media, and I think itâ€™s doing it a lot more aggressively, and a lot more successfully than anybody dreamed. If you look at the numbers right now, 60% of Americans donâ€™t trust the news. 60% say that they donâ€™t even believe that the news can be adequately reported because government or corporations donâ€™t allow it to happen. So what happens out there, is that the market always takes care of itself. There is some truth to that. And the market right now is moving rapidly towards the same kind of citizen media that youâ€™re involved with. Itâ€™s one of those events that I talked about earlier, which coalesces with other things that are happening, so citizen media does get a story like this out, and itâ€™s very effective. Itâ€™s amazing.
So when you run this story, somebody somewhere might read it and they might say, â€œWell I have information,â€ and they call someone or they call us, and you have a whole new dimension to the case that develops. Every day, somebody inside one of these voter corporations is mistreated, becomes disgruntled, finds their conscience, gets fearful that they are going to be arrested â€” because all those things do happen â€” and every time another of these key people decides to do the right thing, we have a better chance of getting to the whole story, so what youâ€™re doing has a dramatic effect.
BB: Well I hope so, I just want to save this country.
MP: [Laughing] Well, I thank you for that. I will keep you posted as this story develops. Itâ€™s not something that happens right away. I think people may believe things are going to happen so rapidly that itâ€™s going to be a huge flash, itâ€™s more like a smoldering fire. And thatâ€™s not such a bad thing.
BB: No, because sometimes a smoldering fire will do a lot more damage in the long run than a flash. Iâ€™m hoping that this will actually change the consciousness in America so that when everybody goes to vote they look carefully at whatâ€™s going on around them. If we can at least get it out there that these voting machine companies are being sued, then maybe there will be more attention paid during the 2006 election, even if the case hasnâ€™t been concluded.
MP: Joy, let me ask you something. Just put yourself in the position of an insider. The number ten guy with a huge voting machine company. All of a sudden, you understand that weâ€™re already going fairly aggressively against one of your competitors. And you as number ten person in that company have firsthand knowledge that the company is committing fraud, and that the fraud is resulting in people being disenfranchised â€” just totally being disenfranchised from the right to vote. If you are that number ten guy, and as you listen to the story unfold, there ought to be a certain pucker factor. That fear factor is what you should react to, rather than being somebody that is brought into a lawsuit or a criminal case. The thing to do is to come forward now, and let people know up front that, yes, you know about it, and, yes, you’re willing to help correct it.
BB: And thatâ€™s part of the message we need to get outâ€¦.
MP: Thatâ€™s it!
BB: You were saying the other day itâ€™s â€œlike the civil rights issueâ€ I think this is the civil rights issue.
MP: Oh yes, it is the civil rights issue; itâ€™s the heart of the civil rights issue. Itâ€™s what people were murdered for, why they had to march in lines where they had dogs sicâ€™d on them, and tear gas thrown at them, and bullets shot over their heads, or sometimes into their bodies. Thereâ€™s no difference from whatâ€™s happening here, itâ€™s just that people donâ€™t understand or react to the racial aspect of it. Because itâ€™s not simply a racial issue, itâ€™s a class issue.
BB: Exactly, itâ€™s the poor, as well as minority groups, as well as anyone who might commit the crime of voting while Democrat.
MP: If you think that this is happening in upper middle class neighborhoods, where white people drive 15 minutes to vote, youâ€™re wrong. The problem was in the places where people had to take buses, and walk and take taxicabs to go vote, and then they would have to stand in line for four hours.
BB: And they might not even be in the â€œrightâ€ line in the same polling precinct. In Ohio there were frequently two polling precincts in one place, like a high school gym, and people would get in the wrong line, wait four hours, and then have to go to the end of the other line.
MP: Yesâ€¦ and, then when they get there, their name isnâ€™t even on the voting roll. So those are the nuances. We have to handle the direct issue right now. The direct issue is, even when they got there, the voting was probably gamed after they voted.
BB: Do you think that ChoicePoint is pulling peopleâ€™s names off the rolls in 2006 as they did in 2000 in Florida?
MP: Oh, I just donâ€™t know that yet. Thereâ€™s no way to tell yet.
BB: This whole story is so intricate and so complicated, if they game the system again in 2006, itâ€™s going to be a lot harder to tell because there are so many small races compared to the big major races for Presidentâ€¦.
MP: You hit a very good point. The point is: What about the developer who wants to have two of his friends put on the county commission so he can build a new high-rise? Nobody wants the high-rise, but, if he can get his friends put on there, my God, he might stand to make $15 million. Isnâ€™t that just as much of a threat? The local issue is not quite as important as the national, but itâ€™s pretty damned important.
BB: And, if the poll workers can take these machines home and have a sleepover with them, you can have one person put in a nasty chip, and change the whole outcome of the race!
MP: And without any evidence at all, so there would be no way to tell.