Docs 1 18 2017

In The
Supreme Court of The United States

DIANNE  NANCY  DONNA

Petitioners, Pro Se

JOSEPH A. BIDEN, PRESIDENT OF U.S. SENATE (114TH CONGRESS)

MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVES (114TH CONGRESS)

MEMBERS OF THE UNITED STATES SENATE (114TH CONGRESS)

PRESIDENT-ELECT DONALD J. TRUMP VICE PRESIDENT-ELECT MIKE PENCE

DIRECTOR, U.S. OFFICE OF PERSONNEL MANAGEMENT (OPM)

Respondents,

Case No. __________

vs.

EMERGENCY MOTION FOR STAY PENDING REVIEW OF PETITION FOR A WRIT OF MANDAMUS AND FOR A TEMPORARY ADMINISTRATIVE STAY PENDING FULL CONSIDERATION OF THIS MOTION

Diane

Donna

Nancy

INTRODUCTION
Pro Se Petitioners request that the U.S. Supreme Court deploy its powers of

judicial review, declaratory relief, and injunctive relief to prevent cyber terrorists from perfecting a sinister scheme to undermine the U.S. government and its citizens. Beginning in 2015, cyber terrorists—said to be working on behalf of Russia—engaged in a yearlong criminal effort to materially determine 2016 congressional and presidential election outcomes.1

The U.S. Constitution prescribes the inaugural process that must be carried out to accomplish a peaceful transition of power. The process encompasses several official acts that include swearing in newly elected Senators and Members of the House of Representatives, ratifying electoral votes, and swearing into office the President and Vice President of the United States.

During Congressional swearing-in ceremonies, members of Congress raise their right hand and recite the Congressional Oath of Office, as required by Article VI § 3. The oath, enacted into law by Congress in 1884, reads:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this

1 FBI/DHS Summary Report: GRIZZLY STEPPE–Russian Malicious Cyber Activity: https://www.us- cert.gov/sites/default/files/publications/JAR_16-20296A_GRIZZLY%20STEPPE-2016-1229.pdf

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obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

In 2017, existing members of the 114th Congress were confronted with a constitutional conflict. They could either:

  1. Fulfilltheirconstitutionallymandatedtransition-of-powerdutiesand ratify electoral votes on January 6, 2017, that were materially determined by a foreign cyber invader; andSwear into office on January 3, 2017, newly elected leaders—some of whom were materially helped by a third party invader; or
  2. Refusetoperformtransition-of-powerdutiesonJanuary3and January 6 in order to uphold their oath of office pledge to protect our nation against enemies, foreign and domestic.

During that period, all 17 U.S. intelligence agencies comprising the U.S. Intelligence Community (IC) were reconfirming to the President of the United States and Congressional leaders their findings that Russia had intervened in the 2016 U.S. elections for the explicit purpose of determining election outcomes.

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The IC reported that the cyber invasion began in 2015 and included multiple cyber intrusions into State election data bases, and hacking and exfiltration of emails from the Democratic and Republican National Committee members’ email accounts. Numerous states also reported cyber intrusions: Illinois reported that a third party extracted more than 200,000 records from voter registration files. The Cyber Division of the FBI reported that election data bases in at least 12 states were hacked.

Cyber security experts acknowledged they cannot know for sure the degree to which hackers partly or wholly determined U.S. presidential or congressional election outcomes (Appendix A).

America Is a Nation-State with Many Boundaries, Including a Cyber Territory

America is a sovereign nation-state that has a government, territories, and population. With the advent of computing, new territorial boundaries emerged in the form of cyber territory:

It is the sovereignty that a state enjoys over territory that gives it the right to control cyber infrastructure and cyber activities within its territory. Accordingly, cyber infrastructure situated in the land territory, internal waters, territorial sea (including its bed and subsoil), archipelagic

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waters, or national airspace is subject to the sovereignty of the territorial state.2

New nomenclature emerged such as cyber warfare, cyber intrusions, cyberattacks, and cyber invasions—all of which are similar to terms used to characterize encroachments upon other types of U.S. territories such as air, land, and sea. While these terms are often used interchangeably, Petitioners note that the intent of a cyber invader is often very different from a cyber intruder.

The nature of cyber intrusions is spelled out in 18 U.S.C. § 1030: Fraud and Related Activity in Connection with Computers,3 which also describes the damaging effects of cyber intrusions4 and the need to protect against them. A cyber invader, however, generally acts on behalf of a nation-state such as Russia that is intent on undermining the stability of a government such as the United States by harvesting trade or other secrets from its target or disrupting affairs.

Petitioners find support for their distinctions in several books written by U.S. government security experts. Richard A. Clarke, in his book titled Cyber War (May 2010) defines “cyberwarfare” as “actions by a nation-state to penetrate another nation’s computers or networks for the purposes of causing damage or disruption.”

2Tallinn Manual Sovereignty by Martin Walls (June 12, 2015): http://insct.syr.edu/wp- content/uploads/2015/06/Tallinn-Manual-Sovereignty.pdf
3 Legal Information Institute: https://www.law.cornell.edu/uscode/text/18/1030
4 FBI—What We Investigate, Cyber Crimes: https://www.fbi.gov/investigate/cyber

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Some governments have made cyberwarfare an integral component of their overall military strategy.5,6 and have adopted a warfighting strategy7 for preventing cyberattacks that involves:8 1) Preventing cyberattacks against critical infrastructure; 2) Reducing national vulnerability to cyberattacks; and 3) Minimizing damage and recovery time from cyberattacks.” Nations also employ offensive national level cyber strategies in conjunction with officially declared wars and undeclared secretive operations.”

The Federal Government and States Have Long Known State Voting Systems Are Vulnerable

Voting is the bedrock of the U.S. electoral process outlined in the Constitution’s Twelfth Amendment. While the right to vote for electors may not be enshrined in the U.S. Constitution,9) voting is the mechanism by which citizens participate in our republic. Without the citizens’ votes, Secretaries of State would be unable to determine which party’s electors to seat for the Electoral College and, consequently, which electors are entitled to vote for the President and Vice President of the United States.

The American system of voting utilizes various methods to capture and count votes, including paper ballots, optical scan paper ballot systems, direct recording

5 Clarke, Richard A. Cyber War, HarperCollins (2010) ISBN 9780061962233
6 B Lynn, William J. III. “Defending a New Domain: The Pentagon’s Cyberstrategy,” Foreign Affairs, Sept/Oct. 2010, pp. 97–108
7 USAF HQ, Annex 3–12 Cyberspace Ops, U.S. Air Force, 2011

9 “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States.”] (Bush v. Gore)

8 Clapper, James R. “Worldwide Threat Assessment of the US Intelligence Community,” Senate Armed Services Committee, 26 February 2015 p. 1

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electronic (DRE) systems, ballot marking devices and systems, punch card voting systems, mechanical lever voting machines, and online balloting by military and overseas Americans. Some electronic voting systems create a paper audit trail and some do not.

Computer experts, advocacy organizations, think tanks, and security experts have perpetually warned states and the federal government that state election laws, policies, processes, and machines that comprise America’s voting system during a federal election are plagued by numerous vulnerabilities and irregularities that allow for voter suppression, manipulation, and invasion by third-party actors who have sinister intent.10

On multiple occasions throughout the 2016 election cycle, the U.S. Department of Homeland Security and the U.S. Intelligence Community, warned that a third-party actor—alleged to be Russia—was invading U.S. cyberspace and intruding into election systems.11 The President of the United States acknowledged that he and Congressional leaders were briefed about the invasions throughout the 2016 election cycle. FBI Alerts12 also reveal that Secretaries of State were made aware of the widespread election system breaches.

10 http://www.sos.ca.gov/elections/voting-systems/oversight/top-bottom-review/ 12

A CBS News website article titled More State Election Databases Hacked Than Previously Thought, dated September 28, 2016, reveals that government

11 Joint Statement from the Department of Homeland Security and Office of the Director of National Intelligence on Election Security: (October 7, 2016): https://www.dhs.gov/news/2016/10/07/ joint-statement-department-homeland-security-and-office-director-national

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officials were growing increasingly concerned about Russian efforts to disrupt or influence the 2016 election. The report also claimed that a total of about 10 states had their systems probed or breached by hackers, similar to the election systems breaches that had already occurred in Arizona and Illinois.13

The United States Failed to Protect States Against Invasions As Required by the Guarantee Clause (Article IV § 4)

The Guarantee Clause of the U.S. Constitution requires the United States to protect all its territories from invasion:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

While the Founding Fathers could not have envisioned today’s technological society, the United States’ obligation to protect States against invasion of all the nation’s borders today would include a state’s cyber territory.

Protection against invasion was a continuation of an established centralized foreign policy and defense under the Articles of Confederation and Perpetual Union. The Framers understood that protection of the

13 More State databases hacked than previously thought, CBS News (September 28, 2016): http://www.cbsnews.com/news/more-state-election-databases-hacked-than-previously-thought/

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borders was essential to both the security of the people and the viability of the economy.14

U.S. leaders who were aware of ongoing cyber invasions in 2016 failed to stop the invasions into state election systems or develop stopgap measures that would have allowed for easy detection of terrorists’ intrusions.15

STATEMENT OF THE CASE

Petitioners in the present action before the U.S. Supreme Court filed their Extraordinary Petition for Writ of Mandamus on January 5, 2017, with the United States Court of Appeals for the Fifth Circuit (Appendix B). The writ asserts:

  1. The hacking of the 2016 elections provides a new context for examining the intent of our Founding Fathers as it relates to the Guarantee Clause;
  2. The non-political remedy of permanent injunctive relief and declaratory relief are available to the courts under Article IV § Section 4 (The Guarantee Clause);
  3. The United States failed to protect States from invasion during the 2016 elections as required by Article IV § Section 4;

What does Article IV, Section 4 really mean? The American View:

15 FBI/DHS Summary Report: GRIZZLY STEPPE–Russian Malicious Cyber Activity: https://www.us- cert.gov/sites/default/files/publications/JAR_16-20296A_GRIZZLY%20STEPPE-2016-1229.pdf

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  1. The Court is required to uphold the rule of law without regard to political consequence; and
  2. Members of Congress who ratified the 2016 federal electoral votes participated de facto in a scheme orchestrated by an invader.

The Petition for Writ of Mandamus also requested the Court permanently enjoin the President of the U.S. Senate, Members of the U.S. Senate, Members of the U.S. House, and other persons in the U.S. Government from swearing in newly elected congressional members on January 3, ratifying electoral votes on January 6, and inaugurating Donald J. Trump President and Mike Pence Vice President on January 20, 2017. The petition also requested the Office of Personnel Management be enjoined from issuing public official performance bonds to members of Congress and the executive branch who were elected on November 8, 2016.

Almost all of the scheduled inauguration activities had been completed by January 6, 2017—the day on which the Appeals Court rendered its decision (Appendix B) dismissing Petitioners’ action.

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ARGUMENT

Legal Standard for Granting a Stay Pending Appeal

In determining whether to grant a stay pending appeal, the Court considers four factors: “1) whether stay applicants have made a strong showing that they are likely to succeed on the merits; 2) whether the applicant will be irreparably injured absent a stay; 3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and 4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) [internal quotation marks omitted]; see also Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559F.2d 841, 842- 43 & n.1 (D.C. Cir. 1977); D.C. Cir. R. 8(a)(1). “The [probability of success]” element “is inversely proportional to the degree of irreparable injury evidenced.” Cuomo v. NRC 772 F.2d 972, 974(D.C. Cir. 1985) [per curriam]. “A stay may be granted with either a high probability of success and some injury or vice versa.” Id.

In accordance with precedent, Courts judge the four criteria on a sliding scale Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). They also “balance the strengths of the requesting party’s arguments in each of the four required areas,” such that “[i]f the movant’s showing is particular strong in one area, [a stay] may issue even if the showing in the “other areas are rather weak,” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297, (D.C. Cir. 2006).

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Petitioners Have a Substantial Likelihood of Success on the Merits
The decision from the United States Court of Appeals for the First Circuit states

that Pro Se Petitioners introduced “novel constitutional arguments” in their original Petition for Writ of Mandamus. The Court also did not reject Petitioners’ argument that Article IV § 4 is justiciable as follows:

  1. TheCourthasthepowerofjudicialreviewasitrelatestotheExecutive and Legislative Branches;
  2. TheCourtcanreviewthemannerinwhichmembersoftheExecutive Branch or Legislative Branch exercise their powers; and
  3. TheCourtcanprovideinjunctiveanddeclaratoryreliefonthebasisof Article IV § 4 in accordance with its powers of judicial review.

Petitioners’ case, in addition to presenting a “novel constitutional issue,” purports to contribute to an area of law where precedent is almost non-existent (Court’s authority to order a special election). It also promises to unify the limited precedent that does exist as it relates to key matters pertaining to special elections:

  1. Fladellv.ElectionCanvassingCommission,statingthatarevotewas constitutionally impermissible.
  2. Donohuev.BoardofElections,inwhichtheDistrictCourtruledithadthe authority to order a new election.

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3. PoliticalQuestiondoctrine,whichholdsthatcourtscannotdirecteitherof the co-equal branches of government to carry out a specific act.

4. Article II, Section 1, requirement [3 U.S.C. Sec 1], that the presidential election take place on a particular Tuesday in early November.

Petitioners and Their Nation Will Suffer Incalculable Long-term Harm Absent a Stay

The hacking of the U.S. elections in 2016 was unprecedented in scope. It contaminated the election process to such an extent, it is impossible to determine to what degree election outcomes for the highest offices in our Nation, i.e., President, Vice President, and Congress, were determined by the people of the United States.

There is no disputing that an “emergency stay” and a “stay pending review of petition for writ of mandamus and for a temporary administrative stay pending full consideration of this motion” will have a temporary seismic effect and significant disruption throughout the United States. But the incalculable harm to U.S citizens and our democracy of being presided over by officials selected by a foreign adversary is far weightier than our nation can bear.

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A Ruling Granting Injunctive Relief Will Have Positive Unintended Consequences

A ruling granting the remedy sought, permanent injunctive relief and declaratory relief, will have the unintended consequence of causing the President and members of the Legislative Branch—many of whom were beneficiaries of the cyber hacks—to join together, devise procedures for holding new elections, enact revote legislation, and implement measures to ensure state and federal elections are tamper-free in the future. Without such remedies, the door to undermining America’s democracy will remain wide open.

Public Interest Favors Granting a Stay

The hijacking of U.S. 2016 elections may have allowed one of the nation’s fiercest adversaries to accomplish the ultimate coup by helping to “elect” leaders at the highest levels of the U.S. Government.

Granting a stay to allow Petitioners to defend their claim of an unconstitutional election while affording them an opportunity to demonstrate the need for injunctive and declaratory relief “advances ‘broader’ public interests in the observance of law . . . .” (Upjohn, 449 U.S. 389).

A favorable granting of the relief petitioners ultimately seek will have unintended positive consequence. The 2016 elections revealed a gaping hole in our democracy, which is the inability to quickly hold new elections in the face of an

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attack or national disaster. There exists a clear need for a Supreme Court-invoked process for holding new presidential and congressional elections.

A ruling from the High Court granting permanent injunctive relief and declaratory relief will have the unintended consequences of causing the President and Legislative Branch to join together, devise procedures for holding new elections, speedily enact revote legislation with public input, and implement measures to ensure state and federal elections are tamper-free in the future. Without such remedies, the door to undermining America’s democracy will remain wide open.

CONCLUSION

During the 2016 election cycle, the United States was humiliated nationally and internationally as the world observed our voting processes undermined. The U.S. Supreme Court can help reestablish faith in our election process and our democracy by demonstrating that—like the Ukraine and Austria—this Nation will engage in extraordinary measures to protect our right to vote and preserve the strength and stability of our Union.

A stay will provide the Court an opportunity to determine if elected officials in the Executive Branch and Legislative Branch exercised their vast powers in a manner that was inconsistent with the U.S. Constitution in both spirit and intent and thus determine if this election rises to the intent set forth in the U.S. Constitution.

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January 18, 2017

Respectfully Submitted:

—————————————

Diane

Donna

Nancy

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APPENDIX A
Limited Number of Election Hack Scenarios
by Brian Fox-CAVO (California Association of Voting Officials)

SCENARIO I — Hack Early, Reap Later

In this scenario, a machine has its software changed during the primary elections. The goal of the change is to install software that will run during the general election, and will change the way the votes are counted during that election. This type of attack often generates a sense of safety and security among the election officials, because when they hand count and otherwise audit the results of the primary election, the results match perfectly. Election officials then believe that the machines are working and have not been tampered with. When the votes are tallied for the general election, the hack is activated, and the counts are skewed.

This type of attack can be carried out by an individual who shows up to vote at a precinct.

SCENARIO II— Hack and Reap

In this scenario, the election equipment is used as normal, but, at tally time, the memory card associated with the tally is modified (this can be done in seconds, but not likely by a voter). Once again, the counts are skewed, and the election results are different than they would have been. However, after this has happened, ballots are either destroyed or discarded, so that there is no record or auditable verification of the false count.

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Because of the way our Electoral College works, in both of these scenarios, the place to attack is within states that are expected to vote about 50/50 between the two major parties. In those states, find a couple of larger precincts to hack, where you expect the vote to be overwhelmingly for the candidate that you do not want to win. Steal 10% of the votes cast there for your candidate, and you’ve not changed the precinct results, but you have changed enough votes to change the state’s results.

About the Author—Brian J. Fox

Brian J Fox is an American computer programmer, entrepreneur, consultant, author, and free software advocate. He was the original author of the GNU Bash shell, which he announced as a beta in June 1989. He continued as the primary maintainer for Bash until at least early 1993.

In 1985, Fox and Richard Stallman began Stallman’s newly created Free Software Foundation. At the FSF, Fox authored GNU Bash, GNU Makeinfo, GNU Info, GNU Finger, and the readline and history libraries. He was also the maintainer of Emacs for a time, and made many contributions to the software that was created for the GNU Project between 1986 and 1994. He is founder of CAVO and pioneered the initial OS vote tabulation systems.

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APPENDIX B
United States Court of Appeals for the First Circuit January 6, 2017, Decision

NO. 16-

IN THE

Supreme Court of The United States

               ______________________

DIANNE , NANCY , DONNA  Petitioners, Pro Se
v.

JOSEPH A. BIDEN, PRESIDENT OF U.S. SENATE (114TH CONGRESS), MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVES (114TH CONGRESS), MEMBERS OF THE UNITED STATES SENATE (114TH CONGRESS), PRESIDENT- ELECT DONALD J. TRUMP, VICE PRESIDENT-ELECT MIKE PENCE, DIRECTOR, U.S. OFFICE OF PERSONNEL MANAGEMENT (OPM),
Respondents. ______________________

On Petition for a Writ of Mandamus to the United States Court of Appeals

For the First Circuit ______________________

EMERGENCY PETITION FOR WRIT OF MANDAMUS

             ______________________

NANCY

DONNADIANEQUESTIONS PRESENTED

  1. Did the Appeals Court Err by Requiring Petitioners to Provide Legal Precedent for their “Novel Constitutional Claim” in Light of the Expert Evidence Provided?
  2. Did the Appeals Court Err by Not Issuing a Declaratory Finding that U.S. Officials Exercised their Powers in an Unconstitutional Manner While Performing 2016 Inauguration Duties?
  3. Did the Appeals Court Err by Not Issuing a

Writ of Mandamus Prohibiting the Inauguration of Donald J. Trump and Mike Pence Based Upon 2016 Presidential Election Outcomes?

IV. Did the Appeals Court Err by Failing to Find that 17 U.S. Intelligence Agencies Under the Executive Branch of Government Concluded that Russia Invaded U.S. Cyber Territory in 2016 to Influence Election Outcomes?

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TABLE OF CONTENTS

QUESTIONS PRESENTED …………………………….i TABLE OF AUTHORITIES ……………………………iv JURISDICTION……………………………………………. 3 ARTICLE III STANDING ……………………………… 4 RELIEF SOUGHT ………………………………………… 4 ARGUMENT ………………………………………………….6

I. Contrary to well-settled law, injunctive relief and declaratory relief—non-political remedies—are available under Article IV § 4 pursuant to the Court’s powers of judicial review…………………………………6

  1. The manner in which U.S. elected officials have exercised their powers during the 2016 Inauguration is unconstitutional………………………………8
  2. There has never been a more urgent need for the Court to issue an Extraordinary Writ of Mandamus ….. 10
  3. The U.S. Supreme Court has authority to deploy its powers of judicial review to determine if a federal election rises to the standards set forth in the U.S. Constitution …………………………………. 10ii

Page

FACTS PRESENTED ………………………………….. 11 REASONS WRIT SHOULD ISSUE ………………. 13 CONCLUSION ……………………………………………15 APPENDICES ……………………………………………..17

APPENDIX A: Decision from the United States Court of Appeals for the First Circuit…………a1 APPENDIX B: Limited Number of Election Hack Scenarios …………………………………………………a3

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TABLE OF AUTHORITIES CITED

Baker v. Carr, 369 U.S. 186 (1962) ……………….. 13 Bush v. Gore, 531 U.S. 98 (2000) ………………….. 15 Flast v. Cohen, 392 U.S. 83 (1968) …………………. 8 New York v. United States, 112 S. Ct. 2433

(1992) ………………………………………………………… 11 New York v. United States, 505 U.S. 144, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992) ………………………11

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Constitution, 12th Amendment……………….10 U.S. Constitution, Article II …………………………..10 U.S. Constitution, Article III …………………………..8 U.S. Constitution, Article IV § 4 …………………….10 18 U.S.C. § 1030 ……………………………………………..7 28 U.S.C. § 1331 ……………………………………………. 8 42 U.S.C. § 1983 …………………………………………….8

OTHER AUTHORITIES CITED

http://thehill.com/blogs/blog-briefing- room/news/293636-fbi-foreign-hackers-penetrated- state-election-databases ……………………………….15 https://www.dni.gov/index.php ……………………….11 https://www.fbi.gov/investigate/cyber …………..5, 7 https://www.law.cornell.edu/uscode/text/18/1030 …. 7 http://www.politico.com/story/2016/12/michael- morell-russia-us-elections-232495…………………..10 Richard A. Clarke, Cyber War (May 2010)…………7 The Tallinn Manual Sovereignty by Martin Wells (June 12, 2015) ……………………………………………….6

iv

IN THE

Supreme Court of The United States

              ______________________

DIANNE , NANCY , DONNA

 

v

Petitioners, Pro Se

JOSEPH A. BIDEN, PRESIDENT OF U.S. SENATE (114TH CONGRESS), MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVES (114TH CONGRESS), MEMBERS OF THE UNITED STATES SENATE (114TH CONGRESS), PRESIDENT-ELECT DONALD J. TRUMP, VICE PRESIDENT-ELECT MIKE PENCE, DIRECTOR, U.S. OFFICE OF PERSONNEL MANAGEMENT (OPM),

Respondents

              ______________________

On Petition for a Writ of Mandamus to the United States Court of Appeals

For the First Circuit

              ______________________

EMERGENCY PETITION FOR WRIT OF MANDAMUS

Petitioner Seeks to Prove:

The United States had an obligation to protect the States against cyber invasions during the 2016 elections pursuant to Article IV § 4.

The United States knew that a foreign adversary was invading U.S. cyberspaces and intruding into State election systems.

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The United States failed to take sufficient actions to prevent cyber intrusions into State election systems during the 2016 elections.

No one can identify with certainty the extent to which cyber intrusions determined election outcomes.

Congressional leaders and the President of the United States took an oath of office to defend the Constitution of the United States “against all enemies foreign and domestic.”

The manner in which U.S. elected officials exercised their powers during the 2016 Inauguration is in conflict with their oath-of-office pledge.

Permitting a foreign adversary to help select America’s most powerful leaders is likely to have a catastrophic consequence.

Contrary to well-settled law, the U.S. Supreme Court can provide injunctive relief and declaratory relief—non-political remedies—under Article IV § 4 pursuant to the Court’s powers of judicial review.

There has never been a more urgent need for the Court to provide injunctive and declaratory relief in order to compel the Executive Branch and Legislative Branch to hold new presidential and congressional elections.

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JURISDICTION

This court has jurisdiction and authority to provide injunctive relief and declaratory relief under the following statutes and laws: 28 U.S.C. § 1331, 42 U.S.C. § 1983.

Petitioners were faced with overcoming longstanding, well-settled precedent in its original Petition for Writ of Mandamus filed with The United States Court of Appeals for the First Circuit:

Is the Non-political Remedy of Permanent Injunctive Relief and [Declaratory Relief] Available to the Court Under Article IV § 4 (The Guarantee Clause)?

Petitioners argued that the hacking of the 2016 elections provides a new context for examining the intent of our Founding Fathers as it relates to the Guarantee Clause. Petitioners assert that the remedies they seek are judicial in nature (injunctive relief and declaratory relief) and are not within the authority of the Executive Branch or Legislative Branch to grant.

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ARTICLE III STANDING

The U.S. Court of Appeals for the First Circuit labeled Pro Se Petitioners’ case a “novel constitutional claim.”

Petitioners were registered voters in a national election held on November 8, 2016, whereby Donald J. Trump and Mike Pence were selected as President and Vice President of the United States. Several other candidates were selected to serve in the U.S. House of Representatives and the U.S. Senate. Petitioner is challenging the constitutionality and lawfulness of current federal officials’ exercise of power (Flast v. Cohen) in accordance with the Twelfth Amendment and Article II of the U.S. Constitution, beginning on January 3, 2017, and culminating soon after Friday, January 20, 2017.

During the referenced timeframe, representatives of the political branches of government will have unwittingly participated in cyber terrorists’ scheme to subvert the U.S. election process and the “people’s” republican form of government.

RELIEF SOUGHT

There exists compelling evidence that operatives acting on behalf of a third party (named as the Government of Russia) illegally and repeatedly invaded U.S. election systems, extracted voter records, and engaged in other criminal acts of cyber terrorism, yet to be discerned, during the 2016 election cycle to materially influence congressional and presidential election outcomes.

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While it cannot be ascertained—due to the nature of clandestine cyber-attacks1—the degree to which cyber invasions were or were not determinative of election results, there exists clear and convincing evidence that some elected officials who prevailed in the 2016 elections were “selected” by a foreign power rather than “elected” in accordance with states’ electoral voting processes.

Petitioners request:

The Court permanently enjoin all U.S. officials, including judges, the President of the Senate, Members of the U.S. Senate, Members of the U.S. House, and other persons from:

1) Swearing Donald J. Trump into the Office of the U.S. President on January 20, 2017;

  1. 2)  Swearing Mike Pence into the Office of Vice President on January 20, 2017;
  2. 3)  Procuring and or issuing public servant performance bonds to President Donald J. Trump and Mike Pence; and
  3. 4)  Engaging in all other acts that would be in accordance with the peaceful transition of power as defined in the U.S. Constitution.

Petitioners also seek declaratory relief and request the Court find that persons who exercised inauguration-related powers in accordance with Amendment 12 and Article II following the 2016 elections acted unconstitutionally by violating the spirit and intent of the U.S. Constitution and their oath of office.

1 FBI Cyber Crime website:https://www.fbi.gov/investigate/cyber

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ARGUMENT

I. Did the Appeals Court Err by Requiring Petitioners to Provide Legal Precedent for Their “Novel Constitutional Claim” in Light of the Expert Testimony Provided?

Petitioners assert that the Guarantee Clause (Article IV § 4) imposes upon the United States Government an obligation to protect a State’s cyber territory against invasions.

While Petitioners were not able to identify precedent in support of its “novel constitutional claim,” Petitioners did provide fact-based evidence from cyber experts confirming a State’s right to control its cyber infrastructure and the cyber activities within its cyber territory. The publication, The Tallinn Manual Sovereignty by Martin Wells (June 12, 2015), is published by the NATO Cooperative Cyber Defence Centre of Excellence (CCDCOE) in collaboration with distinguished international law scholars and practitioners.

The Tallinn manual sets forth non-binding standards governing a nation-state’s sovereignty and right to exercise jurisdiction and control over its cyberspace. It states:

Although no state may claim sovereignty over cyberspace per se, states may exercise sovereign prerogatives over any cyber infrastructure located on their territory, as well as activities associated with that cyber infrastructure. . . .

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Petitioners make a key distinction between a cyber invasion and a cyber intrusion. 18 U.S.C. § 1030: Fraud and Related Activity in Connection with Computers2 describes the importance of protecting cyber boundaries and the damaging effects of cyber intrusions. The statute outlines the criminal nature of intrusions into systems under the jurisdiction and control of another party. The FBI Cyber Division investigates cybercrimes.3

A cyber invasion, however, involves a cyber act by a foreign terrorist or nation-state intent on undermining the stability of the United States or harvesting U.S. trade or other secrets. During an act of cyber terrorism, a foreign actor invades U.S. cyberspace and intrudes into systems operated by the Government or other entities. The intent of a cyber invader is often very different from the intent of a cyber intruder.

Petitioners find support for their distinctions. U.S. government security expert Richard A. Clarke, in his bookCyber War(May 2010), defines “cyberwarfare” as “actions by a nation-state to penetrate another nation’s computers or networks for the purposes of causing damage or disruption.”

Petitioners note that the nomenclature (cyber attacks, cyberwarfare, cyber terrorists, etc.) used to define cyber invasions is analogous to the nomenclature that would be used to characterize other hostile acts of war taken by an adversary against the United State or a U.S. territory, i.e., U.S. airspace, U.S. waters, and U.S. land territories.

2 https://www.law.cornell.edu/uscode/text/18/1030 3 https://www.fbi.gov/investigate/cyber

7

II. Did the Appeals Court Err by Not Issuing a Declaratory Finding that U.S. Officials Exercised Their Powers in an Unconstitutional Manner While Performing 2016 Inauguration Duties?

The hacking of the U.S. elections in 2016 was unprecedented in scope and contaminated the election process to such an extent that it is impossible to ascertain if cyber terrorists determined election outcomes for the highest offices in our nation.

Expert testimony confirms that no one except for the invader can know the degree to which the invader impacted systems, records, or outcomes, given the number of election systems deployed on Election Day in the U.S. (Appendix B).

Expert testimony also confirms the existence of multiple access points and vulnerabilities a third party can exploit in order to determine election outcomes (Appendix B).

News reports, Senate hearings, and reports from the U.S. Intelligence Community confirm that a third party invaded U.S. cyber space in 2016 and intruded into U.S. election systems.

News reports and details from press conferences confirm that the political branches of the U.S. Government knew of the cyberspace invasions, but failed to take the extraordinary precautions needed to protect State election systems from intrusion during the 2016 election cycle.

8

Associate Director of the International Security and Defense Policy Center, Christopher S. Chivvis, who is also a senior political scientist, says there are ways to render attempts at cyber invasions ineffective. He states:

[T]he United States could seek simply to make such operations impossible by developing highly effective cyber-network defenses—a strategy akin to what was sometimes called active defense.

While FBI alerts4 indicate the United States took some action to prevent election cyber invasions during the 2016 elections, actions taken by the United States were not sufficient to prevent cyber terrorists from significantly influencing U.S. election outcomes.

The Twelfth Amendment to the U.S. Constitution provides a list of requirements Secretaries of State, the President of the U.S. Senate (Vice President of the United States), Members of the Congress, and Members of the Executive Branch must complete to accomplish a peaceful transition of power.

In 2016, political leaders charged with transition- of-power responsibilities were forced to make a difficult choice: Comply with Amendment 12 of the U.S. Constitution and ratify electoral votes significantly determined by hackers or comply with their oath of office to uphold the Constitution and thereby refuse to help perfect the criminal acts of

4 https://www.fbi.gov/investigate/cyber 9

cyber terrorists. Never has the Court’s counterbalancing influence been more needed.

III. Did the Appeals Court Err by Not Issuing a Writ of Mandamus Prohibiting the Inauguration of Donald J. Trump and Mike Pence Based Upon 2016 Presidential Election Outcomes?

Deputy Director of the Central Intelligence Agency (CIA), Mark J. Morell, labeled Russia’s meddling in the U.S. presidential election to help President-elect Donald Trump as “the political equivalent of 9/11.” The quote, which Petitioners observed Morell reiterate on CNN, was also publicized in numerous online and print publications.5

The extraordinary nature of a Writ of Mandamus renders it the perfect instrument for remedying an egregious terrorist act that threatens to obliterate the integrity of our Nation’s foundational structure. In 2016, cyber terrorists invaded U.S. cyberspace and launched a highly public, pervasive, and unprecedented attack on the U.S. voting process— the root from which all political power in this nation stems.

IV. Did the Appeals Court Err by Failing to Find that 17 U.S. Intelligence Agencies Under the Executive Branch of Government All Concluded that Russia Invaded U.S.

5 http://www.politico.com/story/2016/12/michael-morell-

russia-us-elections-232495
10

Cyber Territory in 2016 to Influence Election Outcomes?

The United States Intelligence Community (IC) is a coalition of 17 agencies and organizations, including the ODNI, which is in the Executive Branch. The intelligence agencies work both independently and collaboratively to gather and analyze the intelligence necessary to conduct foreign relations and national security activities.6 The Coalition is headed by the Director of National Intelligence (DNI).

On January 5, 2017, following the submission of Petitioners’ original Writ of Mandamus to the Appeals Court, DNI James Clapper reaffirmed a finding issued by the IC on October 7, 2016. Clapper stated that all 17 U.S. intelligence agencies had concluded that Russia directed the election interference that occurred during the 2016 elections.

FACTS PRESENTED

Pro Se Petitioners Sought to Find a Path to the U.S. Supreme Court’s Door.

Petitioners began by filing an Extraordinary Petition for Writ of Mandamus in a Federal Court of Appeals on January 5, 2017. Petitioners argued:

1. The hacking of the 2016 elections provides a new context for examining the intent of our Founding Fathers as it relates to the Guarantee Clause;

6 Intelligence Community: https://www.dni.gov/index.php 11

  1. The non-political remedy of permanent injunctive relief is available to the courts under Article IV § 4 (The Guarantee Clause);
  2. The United States failed to protect States from invasion during the 2016 elections as required by Article IV § 4;
  3. The Court is required to uphold the rule of law without regard to political consequence; and
  4. The hacking of the 2016 election enlisted Congressional leaders who ratified the election results de facto in a scheme orchestrated by an invader.

The Petition for Writ of Mandamus also requested the Court permanently enjoin the President of the U.S. Senate, Members of the U.S. Senate, Members of the U.S. House, and other persons in the U.S. Government from:

  1. Swearing in on January 3, 2017, persons newly elected to the U.S. House of Representatives and the U.S. Senate;
  2. Ratifying on January 6, 2017, electoral votes cast by state electors and transmitted to the President of the U.S. Senate;
  3. Swearing in of Donald J. Trump on January 20, 2017;
  4. Procuring and issuing performance bonds to persons elected to federal office on November 8, 2016; and12

5. All other acts commensurate to the peaceful transition of power following a valid election.

Almost all of the scheduled inauguration activities had been completed by January 6, 2017— the day on which the Appeals Court rendered its decision (Appendix B).

REASONS WRIT SHOULD ISSUE

Officials overseeing the political branches of government (Legislative Branch and Executive Branch) were aware of cyber terrorists’ invasions into U.S. election systems long before November 8, 2016. Yet U.S. Government officials failed to sufficiently protect systems against invasion or implement revised voting processes to mitigate the threat. As a result, a foreign adversary invaded U.S. cyberspace and intruded into election systems to materially influence—and perhaps determine—U.S. 2016 election outcomes.

During Congressional swearing-in ceremonies, members of Congress raise their right hand and recite the Congressional Oath of Office, as required by Article VI § 3. The oath, enacted into law by Congress in 1884, reads:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and

13

that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

In 2017, existing members of the 114th Congress were confronted with a constitutional conflict. They could either:

1) Fulfill their constitutional duties by swearing into office newly elected leaders—some of whom were materially helped by a third party invader— and ratifying electoral votes that were impacted by a foreign cyber invader;

or

2) Refuse to perform transition-of-power duties and thereby uphold their oath of office pledge to protect our nation against enemies, foreign and domestic.

At the same time, all 17 U.S. intelligence agencies, comprising the U.S. Intelligence Community (IC), were reaffirming to the President of the United States and Congressional leaders their findings that Russia had intervened in the 2016 U.S. elections for the explicit purpose of determining election outcomes.

The IC reported that the cyber invasions began in 2015 and included multiple cyber intrusions into State election databases and the extraction of emails from the Democratic and Republican National Committee members’ email accounts. Numerous states also reported cyber intrusions. The Cyber

14

Division of the FBI reported that election databases in at least 12 states were hacked.7

Cyber security experts acknowledge they cannot know for sure the degree to which hackers partly or wholly determined U.S. presidential or congressional election outcomes (Appendix B).

While the U.S. President has responded by taking steps to retaliate against Russia for the cyber invasions, including expelling 35 Russian diplomats, the President’s acts do little to redress the impact of the hacks on states, electors, voters, and the nation as a whole.

The leaders of our government have enormous influence. They determine national and international policy, oversee military and intelligence assets, manage our economy, oversee our government’s vast resources, and chart our future. The extraordinary risks of allowing such an openly tainted election to stand are incalculable and undermine our nation’s position and image on the world stage.

CONCLUSION

Petitioners request the Court issue an Extraordinary Writ of Mandamus permanently enjoining the inauguration of Donald J. Trump as President and Mike Pence as Vice President of the United States.

Petitioners also request that the U.S. Supreme Court declare unconstitutional the acts of Senate

7 http://thehill.com/blogs/blog-briefing-room/news/293636- fbi-foreign-hackers-penetrated-state-election-databases

15

President Joseph Biden and other officiants involved in the 2016 inauguration process, since such acts unwittingly enlists U.S. officials in cyber terrorists’ scheme to undermine the U.S. Government.

The Supreme Courts in Austria and the Ukraine ordered new elections after cyber terrorists invaded their elections. The citizens of this great nation are asking our Supreme Court to declare the 2016 election results unconstitutional in order to pave the way for a new election.

16

APPENDICES

1a

APPENDIX A
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
————
No. 17-1029
————
IN RE: DIANE  NANCY ; DONNA,

Petitioners. ————

Before

Lynch, Kayatta and Barron, Circuit Judges.

———— JUDGMENT Entered: January 6, 2017

Mandamus is an extraordinary remedy reserved for those occasions when a petitioner demonstrates a clear entitlement to relief. See In re Sterling-Suarez, 306 F.3d 1170, 1172 (1st Cir. 2002). Petitioner cites no precedent legitimately supporting her novel constitu- tional claim, and we see no basis for concluding that there is a clear entitlement to relief. See California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997)(“For this Court to determine that the United States has been ‘invaded’ when the political branches have made no such determination would disregard the constitutional duties that are the specific responsibil- ity of other branches of government, and would result in the Court making an ineffective non-judicial policy decision.”).

2a

For this reason, the motion for a stay is denied and the emergency petition for a writ of mandamus is dismissed.

By the Court:
/s/ Margaret Carter, Clerk

cc: Diane Blumstein

3a

APPENDIX B

Limited Number of Election Hack Scenarios

by Brian J. Fox, CAVO (California Association of Voting Officials)

SCENARIO I — Hack Early, Reap Later
In this scenario, a machine has its software changed during the primary elections. The goal of the change is to install software that will run during the general election, and will change the way the votes are counted during that election. This type of attack often generates a sense of safety and security among the election officials, because when they hand count and otherwise audit the results of the primary election, the results match perfectly. Election officials then believe that the machines are working and have not been tampered with. When the votes are tallied for the general election, the hack is activated, and the counts are skewed.
This type of attack can be carried out by an individual, who shows up to vote at a precinct.

SCENARIO II— Hack and Reap

In this scenario, the election equipment is used as normal, but at tally time, the memory card associated with the tally is modified (this can be done in seconds, but not likely by a voter). Once again, the counts are skewed, and the election results are different than they would have been. However, after this has happened, ballots are either destroyed or discarded, so that there is no record or auditable verification of the false count.

Because of the way our Electoral College works, in both of these scenarios, the place to attack is within

4a

states that are expected to vote about 50/50 between the two major parties. In those states, find a couple of larger precincts to hack, where you expect the vote to be overwhelmingly for the candidate that you do not want to win. Steal 10% of the votes cast there for your candidate, and you’ve not changed the precinct results, but you have changed enough votes to change the state’s results.

About the Author—Brian J. Fox

Brian J. Fox is an American computer programmer, entrepreneur, consultant, author, and free software advocate. He was the original author of the GNU Bash shell, which he announced as a beta in June 1989. He continued as the primary maintainer for Bash until at least early 1993.

In 1985, Fox and Richard Stallman began Stallman’s newly created Free Software Foundation. At the FSF, Fox authored GNU Bash, GNU Makeinfo, GNU Info, GNU Finger, and the readline and history libraries. He was also the maintainer of Emacs for a time, and made many contributions to the software that was created for the GNU Project between 1986 and 1994. He is founder of California Association of Voting officials (CAVO) and pioneered the initial OS vote tabulation systems.

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