IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT, COUNTY DIVISION

Board of Election Commissioners of the City of Chicago,

LANGDON D. NEAL, RICHARD A. COWEN, and THERESA M. PETRONE,

Plaintiffs,

vs.

HANS BERNHARD, LUZIUS A. BERNHARD,

OSKAR OBEREDER, CHRISTOPH JOHANNES MUTTER, JAMES BAUMGARTNER and DOMAIN BANK, INC.,

Defendants.

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MEMORANDUM OF LAW

IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

OR PRELIMINARY INJUNCTION

Introduction

Plaintiffs BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO, LANGDON D. NEAL, RICHARD A. COWEN and THERESA M. PETRONE bring this action against the Defendants, HANS BERNHARD, LUZIUS A. BERNHARD, OSKAR OBEREDER, CHRISTOPH JOHANNES MUTTER, JAMES BAUMGARTNER and DOMAIN BANK, INC., seeking declaratory judgment, injunctive relief and other legal and equitable remedies. Defendants either own, operate, maintain, service or support an Internet web site called “Voteauction.com.” Voteauction.com is an “auction” site that encourages, solicits and allows voters in the United States and in the State of Illinois register to sell their votes to be cast at the November 7, 2000 General Election for President and Vice President of the United States. Voteauction.com also encourages, solicits and allows individuals or entities to “bid” on and buy these votes. Plaintiffs submit that Defendants, either jointly, severally or in the alternative are in violation of the election laws of the State of Illinois and the United States prohibiting the buying and selling of votes at an election, or the attempted buying and selling of votes at an election. These laws also prohibit anyone from soliciting others to buy or sell votes or from conspiring with others commit the offenses of buying or selling votes. At issue is whether Defendants should be allowed to continue to knowingly and willfully ignore Federal and State laws designed to protect the ballot box from fraud and corruption.

BRIEF STATEMENT OF RELEVANT FACTS

In or about August of this year, defendant JAMES BAUMGARTNER, a resident of the State of New York, created and launched an Internet web site called “Voteauction.com.” Voteauction.com encourages American voters to sell their votes for the November 7, 2000 General Election for President and Vice President to the highest bidder. The Voteauction.com web site states in part, “Now you can profit from your election capital by selling your vote to the highest bidder.” See Complaint, ¶26, Exhibit A, 1. The web site solicits and allows individuals to register with Voteauction.com by going to an on-line computer screen, filling in the form on the screen provided (including name, address and political affiliation), and then clicking the “sell” button on the left hand portion of the screen. (Complaint, ¶26, Exhibit A, 6-7)

Voteauction.com also solicits and allows individuals, corporations or others to “bid” on the votes being offered for sale by registering on-line using a computer screen registration form. Bidders can submit bids for a block of votes consisting of all the votes offered for sale in any particular state. The Voteacution.com web site provides that the starting bid for each state is $100, with a minimum bid increase of $50. The site states, “The winning bidder for each state will be able to choose who the group will vote for en masse.” The site further states that, “The winning bidder will have to contact the voteauction.com voters in order to provide payment and for the voters to provide verification.” (Complaint, ¶28, Exhibit A, 8-19)

According to the Voteauction.com web site, Voteauction.com is concentrating on just the U.S. Presidential election in the November 7, 2000 General Election, but Voteauction.com hopes that in future it will be able to “grow our business into every election market niche from Senatorial races to municipal water commissioner.” (Complaint ¶32, Exhibit, 19)

As of October 12, 2000, the Voteauction.com web site claims that 1,131 Illinois residents (or about 7.5% of the total number of registrants throughout the United States) had registered on-line through Voteauction.com offering to sell their votes for the November 7, 2000 General Election to the highest bidder. (Complaint, ¶27, Exhibit A, 16) As of October 12, 2000, the Voteauction.com claims that the highest bid offered for the purchase of Illinois residents’ votes for the November 7, 2000 General Election was $14,000, equaling $12.38 per vote. (Complaint, ¶29, Exhibit A, 16)

Articles posted on the Voteauction.com web site indicate that Defendant Baumgartner planned to have voters mail to him their absentee ballots to verify the selections they made for President and Vice President of the United States. He is reported as saying in August that potential vote sellers were being notified that the Voteauction “legal agreement,” which was still being drafted, would be sent out at the end of the month. Baumgartner is also reported as saying that he was “considering a process in which the Voteauction participant fills out an absentee ballot and votes for whomever they want in every race but the presidency.” “Whether that choice will be Bush, Gore, Nader, Buchanan, or someone else entirely is determined by the outcome of the online auction.” “Then when the time comes, whoever wins the auction decides who this group is going to vote for,” Baumgartner is quoted as saying, “So I tell those people you should vote for this person. Then they fill in the form, and then they send it to me. And I just verify that they’re voting for the correct person.” (Complaint, ¶30, Exhibit A, 34)

Sometime in August, Baumgartner purportedly sold the rights to Voteauction.com to Defendant Hans Bernhard, an Austrian businessman. Bernhard is reported to have said that his holding company would operate Voteauction.com outside of the United States to circumvent federal and state laws that forbid purchasing and buying ballots. (Complaint ¶53, Exhibit A, 29)

In an article appearing on The Lycos Network on September 6, 2000, a copy of which is posted on Voteauction.com’s web site, an unidentified spokesman for Voteauction.com is reported to have said:

“Verification will now be the responsibility of the winning bidder. *** They can choose from a variety of methods for verification of the votes. They may have the voters send in their absentee ballots for verification, they may have the voters take photographs inside the voting booth, or they go to the honor system – that is the system that many vote-purchasing endeavors have used in the past. We have chosen to have the winning bidders responsible for the verification because it would not be feasible to have people send their absentee ballots all the way to Austria and have us send them back to America within an appropriate time frame.”

(Complaint, ¶31, Exhibit A, 42-43)

The Voteauction.com web site claims that it will not receive any money from the auction. However, Bernhard has stated that “We bought the domain name and related business because we see this as a serious business venture in which we can make money.” (Complaint, ¶33, Exhibit A, 19, 29)

On September 20 and again on October 5, the general counsel to the Illinois State Board of Elections, A.L. Zimmer, sent e-mails to Voteauction.com warning that the buying or selling of votes in Illinois is a Class 4 felony. (Complaint ¶52, Exhibit A, 107-108) In fact, there also federal laws that make the buying or selling of votes at any election involving candidates for federal office a criminal offense.

But nowhere on the Voteauction.com web site does it state or warn visitors to the site that the selling and buying of votes, or offering to buy or sell votes is illegal. Nor does the site warn that individuals selling or offering to sell their votes, and individuals buying or offering to buy votes may be committing a crime.

### I. ILLINOIS JURISDICTION

### Defendants are subject to the jurisdiction of the courts of the State of Illinois under Illinois’ so-called “long-arm statute.” Section 2-209 of the Illinois Code of Civil Procedure (10 ILCS 5/2-209) provides in relevant part:

(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this States;

(2) The commission of a tortious act within the State;

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(7) The making or performance of any contract or promise substantially connected with this State.

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(c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.

Thus, the Illinois long-arm statute permits Illinois courts to exercise personal jurisdiction over defendants who engage in a variety of conduct in connection with the State and “on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.” The long-arm statute of Illinois has been characterized as “one which provides jurisdiction over nonresidents to the fullest extent permitted by due process concepts.” Connelly v. Uniroyal, Inc., 55 Ill.App.3d 530, 536, 370 N.E.2d 1189 (First Dist. 1977). “An Illinois nonresident may be sued in Illinois if (1) jurisdiction is authorized under the Illinois long-arm statute, and (2) the minimum contacts required by due process are present.” FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990). “The Illinois Constitution requires the court to inquire whether it is ‘fair, just and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant’s acts which occur in Illinois, or which affect interests located in Illinois’.” Robbins v. Ellwood, 141 Ill.2d 249, 565 N.E.2d 1302, 1316 (1990). While Illinois authorizes courts to exercise personal jurisdiction under the long-arm statute, they must do so within the limits of federal constitutional standards. Federal due process requires minimum contacts with the forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Transcraft Corporation v. Doonan Trailer Corp., 1997 WL 733905, *2 (N.D. Ill. 1997), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). If the contacts between the defendants and Illinois are sufficient to satisfy the requirements of due process, then the requirements of both the Illinois long-arm statute and the United States Constitution have been met, and no other inquiry is needed. Scherr v. Abrahams, 1998 WL 299678 (N.D.Ill.)) “Minimum contacts” have been defined as “some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws.” Transcraft, supra, 1997 WL 733905, *2, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). “Put another way, the federal due process standard requires courts to consider whether the defendant’s purposeful contacts with the forum state were such that the defendant could reasonably expect the courts of that state to assert jurisdiction.” Id. “The definition of ‘minimum contacts,’ however, depends on the type of personal jurisdiction asserted.” Pheasant Run, Inc. v. Moyse, 1999 WL 58562, *2 (N.D. Ill.)

“General jurisdiction permits a court to exercise personal jurisdiction over a non-resident defendant for non-forum related activities when the defendant has engaged in ‘systematic and continuous’ activities in the forum state.” Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1122. “In the absence of general jurisdiction, specific jurisdiction permits a court to exercise personal jurisdiction over non-resident defendant for forum-related activities where the relationship between the defendant and the forum falls within the ‘minimum contacts’ framework of International Shoe Co. v. Washington [citation].” Id.

In the present case, this Court has specific jurisdiction over these Defendants. Defendants either own, operate, maintain, service or support the Internet web site called “Voteauction.com,” which is the vehicle by and through which these Defendants have conducted illegal and tortious activity. Defendants have submitted to the jurisdiction of Illinois courts on four grounds. First, they have transacted business within the State of Illinois for purposes of Section 2-209(a)(1) of the long-arm statute. Second, Defendants have committed tortious acts within the State of Illinois under Section 2-209(a)(2) of the statute. Third, Defendants have made and/or performed a contract or promise substantially connected with the State of Illinois under Section 2-209(a)(7) of the statute. Fourth, because the Court may also exercise jurisdiction on any other basis permitted by the Illinois Constitution, jurisdiction over the Defendants is established by their conspiracy with Illinois residents to commit tortious acts by their knowing, willful and continuing violations of the election laws of the State of Illinois and of the United States of America. “Specific jurisdiction over a non-resident defendant who has not consented to suit in a forum state will be shown where ‘the defendant has purposely directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities’.” Vitullo v. Velocity Powerboats, Inc., 1998 WL 246152, *3 (N.D. Ill. 1998).

Transaction of business within the State of Illinois

Over the last several years, “a jurisprudence of ‘web’ personal jurisdiction has begun to develop” with regard to whether Internet web operators have transacted business in a forum state. Transcraft Corporation v. Doonan Trailer Corp., 1997 WL 733905, *8 (N.D. Ill.). The cases have generally followed a “sliding scale” analysis first articulated in Zippo Manufacturing Co. v Zippo Dot Com Inc., 952 F.Supp. 1119 (W.D. Pa. 1996) that divided “web” cases into three categories. Federal courts interpreting Illinois’ long-arm statute have adopted the Zippo “sliding scale” framework. See, Vitullo v. Velocity Powerboats, Inc., 1998 WL 246152 (N.D. Ill. 1998). The first category includes cases where defendants actively do business on the Internet. In those instances, personal jurisdiction is found because the defendants “enter into contracts with residents of a foreign jurisdiction that involve knowing and repeated transmission of computer files over the Internet." Zippo, 952 F.Supp. 1119, 1124. The second category deals with situations “where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” Id. The third category involves passive Web sites; i.e., sites that merely provide information or advertisements to users. Courts have not exercised jurisdiction in this category because to do so “would mean that there would be a nationwide (indeed, worldwide) personal jurisdiction over anyone and everyone who establishes an Internet Web site. Such Nationwide jurisdiction is not consistent with traditional personal jurisdiction case law ….” Transcraft Corporation, supra, 1997 WL 733905 *8, quoting Hearst Corp. v. Goldberger, 1997 WL 97097, *1 (S.D.N.Y. 1997).

“By considering the actual nature of the contacts between a defendant and Illinois via the Internet, the court avoids the risk of ‘eviscerat[ing] the personal jurisdiction as it currently exists’.” Vitullo, supra, 1998 WL 246152, *4. Vitullo observed that no court has ever held that an Internet advertisement alone is sufficient to confer jurisdiction – there had to be “something more” to indicate that the defendant “purposely (albeit electronically) directed his activity in a substantial way to the forum state.” 1998 WL 246152, *4-5. Vitullo further observed that “something more” could be the specific intent to cause harm to a forum State’s citizen, or for example, active use of the Internet to run a gambling game with contestants from the forum State. 1998 WL 246152, *5. For example, jurisdiction has been found in the following cases.

In Hasbro Inc. v. Clue Computing Inc., 994 F. Supp. 34 (D. Mass. 1997), the court found jurisdiction where the defendants’ web site encouraged and enabled anyone, including residents of the forum state, to send e-mail to the company.

In Park Inns International v. Pacific Plaza Hotels Inc., 5 F.Supp. 2d 762 (D. Ariz. 1998), the court found jurisdiction where an interactive web site accepted hotel reservations from residents of the forum state.

In American Network Inc. v. Access America/Connect Atlanta Inc., 975 F. Supp. 494 (S.D.N.Y. 1997), the court found jurisdiction where purposeful availment was found based on the defendant’s sale of subscriptions for Internet services to residents of the forum state, and contracts were executed with those residents through its web site.

In Digital Equipment Corp. v. Alta Vista Technology Inc., 960 F.Supp. 456 (D. Mass. 1997), jurisdiction was found where the defendant had purposely availed itself of the benefits of the forum by entering into an agreement with the residents of the forum state and thereafter sold products to forum residents on at least three occasions through its web site.

In GTE New Media Services Inc. v. Ameritech Corp., 21 F.Supp.2d 27 (D.D.C. 1998), the court found jurisdiction where defendant’s national “Yellow Pages” directory services were highly interactive and the quality and nature of the contacts were significant enough to allow the assertion of personal jurisdiction. The defendant actually derived substantial ad revenues from the sites from residents of the forum accessing and using the site.

In Panavision International v. Toeppen, 141 F.3d 1316 (9th Cir. 1998), jurisdiction was found where the defendant knowingly registered established trademark names as domain names for its web sites, then attempted to sell the rights to the domain name to the holder of the trademark.

In State of Minnesota v. Granite Gate Resorts Inc., 568 N.W.2d 715 (Minn. 1997), the Minnesota appellate court held that defendants were subject to personal jurisdiction in the state based on their actions of advertising on the Internet a forthcoming on-line gambling service and developing from the Internet a mailing list that included one or more Minnesota residents. Gambling was illegal in Minnesota, but defendant’s web site failed to advise Minnesota residents of that fact in violation of the state’s consumer protection laws. Computers located throughout the United States, including Minnesota, accessed defendant’s web sites and during a two-week period at least 248 Minnesota computers accessed and received transmissions from defendant’s web site. The court found that advertising in the forum state, or establishing channels for providing regular advice to customers in the forum state indicates the defendant’s intent to serve the market in that state. The Minnesota court concluded that defendants who know their message will be broadcast in that state are subject to suit there. The court also relied on its strong interests in enforcing its consumer protection statutes and regulating gambling.

In Vitullo, supra, 1998 WL 246152, the court found jurisdiction over out of state defendant where its web site solicited Illinois residents to attend a local boat show within Illinois. The web site provided a hyperlink with information about the show. Therefore, the court found the web site’s targeting of local residents was that “something more” that was sufficient to assert specific jurisdiction.

In Thompson v. Handa-Lopez Inc., 998 F. Supp. 738 (W.D. Texas 1998), the court held that defendant California company operating an Internet casino game had sufficient minimum contacts with Texas to permit specific jurisdiction over defendant in Texas. Defendant’s web site did more than advertise and maintain a toll free number – it continuously interacted with Texas casino players, entering into contracts with them as they played the various games. The court also held that Texas clearly had a strong interest in protecting its citizens by adjudicating disputes involving alleged breach of contract, fraud, and violations of the state’s deceptive trade practices act by an Internet casino on Texas residents.

In International Star Registry of Illinois v. Bowman-Haight Ventures Inc., 1999 WL 300285 (N.D. Ill. 1999), the court found that defendant Virginia corporation submitted to jurisdiction in Illinois under the state’s long-arm statute where defendant’s web site invited inquiries from potential customers in Illinois via electronic mail and at least 22 Illinois residents purchased “star” registrations over the Internet. The fact that defendant secured an economic benefit from Internet users in Illinois that purchased defendant’s goods over the Internet signals that the defendant purposely availed itself of the privilege of conducting activities within Illinois.

In the case at bar, the Internet web site address, or “URL,” through which Voteaction.com can be accessed is “http://www.vote-auction.com/.” Voteauction.com can be, and has been, accessed by residents of the State of Illinois using computers located in the State of Illinois. Indeed, Voteauction.com’s own web site claims that as of October 12, 2000, as many as 1,131 Illinois residents (or about 7.5% of all residents nationwide) had registered with Voteauction.com, using its on-line registration form, for the purpose of selling their votes to the highest bidder. The lead paragraph on the first page of Voteauction.com’s web site states:

“Are you planning on staying home this election day? Now you can profit from your election capital by selling your vote to the highest bidder. To register with voteauction.com, click on the ‘sell’ button on the left hand portion of your screen.”

There are three hyperlinked boxes appearing to the left of this message: (1) “SELL, register to sell your vote”; (2) “BID, register to bid on a voting block”; and (3) “CHECK the current price of a voting block.” (Complaint, Exhibit A, 1) Voteauction.com then provides an on-line registration form that is to be completed by the vote seller. The vote seller then hits the “Submit” button and the registration is transmitted to Voteauction.com via the Internet. (Complaint, Exhibit A, 6-7) The site then advises vote sellers that, “When you register on this page, you will also be registered for the voters email list which will contain important updates for voteauction voters.” (Complaint, Exhibit A, 6) According to reports posted on the Voteauction.com web site, vote sellers were to be notified that a “Voteauction legal agreement” was being drafted and would be sent out to sellers at the end of August. (Complaint ¶30, Exhibit A, 34) Upon information and belief, all or substantially all 1,131 Illinois residents who, according to Voteauction.com, have registered with Voteauction.com to sell their votes and to register for the voters email list did so while located in the State of Illinois and using computers located in Illinois.

A similar procedure is available for individuals or corporations who wish to register to bid for and buy votes. (Complaint, Exhibit A, 8-15)

These facts demonstrate that Voteauction.com falls within the first category of web cases described under the Zippo “sliding scale” analysis: Defendants have clearly transacted business in Illinois over the Internet. Defendants have accepted over 1,100 on-line registrations from Illinois residents agreeing to sell their votes at auction and have entered into or will enter into agreements with these Illinois residents for the purpose of selling such votes at auction. Even if Defendants have not accepted money from these Illinois residents, Defendants have secured a business advantage by utilizing these residents’ votes in their auction scheme. Clearly, these actions constitute the transaction of business within the State of Illinois by Defendants for purposes of Section 2-209(a)(1) of the Code of Civil Procedure, thus subjecting Defendants to the jurisdiction of Illinois courts.

Commission of Tortious Acts within the State of Illinois

“Under the Illinois long-arm statute, torts that are committed in Illinois authorize the exercise of jurisdiction here.” International Star Registry of Illinois v. Bowman-Haight Ventures Inc., 1999 WL 300285, *6 (N.D. Ill. 1999) See also, FMC Corporation v. Varonas, 892 F.2d 1308 (7th Cir. 1990) The word “tortious,” when used by Illinois’ long-arm statute, “ is not restricted to the technical definition of a tort, but includes any act committed in this State which involves a breach of duty to another and makes the one committing the act liable to respondent in damages.” Braband v. Beech Aircraft Corporation, 51 Ill.App.3d 296, 300, 367 N.E.2d 118 (First Dist. 1977), affirmed 72 Ill.2d 548, 382 N.E.2d 252 (1978), certiorari denied 442 U.S. 928, 99 S.Ct. 2857 (1979) “A tort to be an actionable wrong, requires a duty, a breach of the duty and an injury.” Braband, 51 Ill.App.3d at 301.

In the case at bar, Defendants owe a duty to the citizens of Illinois not to violate Federal and State election laws designed to protect the integrity of the voting process. Certainly Defendants owe a duty to Plaintiffs and to the citizens of the State of Illinois under Section 29-17 of The Election Code not to cause them to be deprived of any right, privilege or immunity under the Constitution and laws of the State of Illinois and of the United States pertaining to the conduct of elections, voting, or the election of candidates for public office. See, Complaint, Count III, ¶64-65. Defendants also owe a duty to Plaintiffs and to the citizens of the State of Illinois under Section 29-19 of The Election Code not to conspire to encourage illegal voting. See Complaint, Count IV, ¶¶62-63. Both of these statutes create a duty the breach of which makes the offender liable to the persons injured.

Defendants’ conduct violates the election laws of the State of Illinois and of the United States and has caused Plaintiffs and the citizens of the State of Illinois to be deprived of their rights and privileges to a free and equal election guaranteed under Article 3, Section 3 of the Illinois Constitution (Complaint, Count III, ¶62) and a fair and impartially conducted election (Complaint, Count III, ¶63). Defendants have, therefore, breached their duties to Plaintiffs and to the citizens of the State of Illinois and Defendants are, therefore, liable for their breach of duty.

Here, the injury occurs in Illinois, for it is here where the illegal and fraudulent ballots will be received, processed, counted and canvassed and it is here where the results of the illegal voting will be felt. (Complaint, ¶¶18-23) Tortious acts occur where the injury is sustained. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761, 762-63 (1961) (“[T]he place of a wrong is where the last event takes place which is necessary to render the actor liable.”) Defendants’ deliberate and on-going communications via the Internet to residents in Illinois in furtherance of their scheme to auction votes and thereby defraud the people of Illinois were clearly made to affect Illinois interests. In so doing, they have subjected themselves to jurisdiction under Section 2-209(a)(2) of the long-arm statute for tortious activities committed in Illinois.

The fact that the Defendants have not had a physical presence in Illinois does not defeat jurisdiction. See, e.g., FMC Corporation v. Varanos, 892 F.2d 1308 (7th Cir. 1990) (telexes and telecopied communications from defendant in Greece to plaintiffs in Illinois, coupled with an intent to commit fraud and affect interests in Illinois, subjected defendant to long-arm jurisdiction). The phrase “commission of a tortious act” as employed in the long-arm statute applies not only to an injury which occurs in Illinois, but also to all elements and conduct which significantly relate to or have significant causal connection with the injury suffered. Connelly v. Uniroyal Inc., 55 Ill.App.3d 530, 534, 370 N.E.2d 1189, 1192 (First Dist. 1977) And the fact that the illegal and fraudulent ballots have not yet been deposited into the ballot box in Illinois does not deprive the court of jurisdiction. “For the purpose of the state long-arm statute a ‘tortious act’ may be committed before a cause of action accrues and the statute of limitations commences to run.” Id. Thus, “Nothing *** requires that the words ‘tortious act’ as used in the long-arm statute be construed to require an injury to occur in Illinois before the courts of this state may acquire jurisdiction.” Id.

Defendants’ present, past and future violations of Federal and State election laws and their continuing breach of duty to Plaintiffs’ and Illinois citizens in depriving them of a fair, free and equal election constitute the commission of tortious acts within Illinois so as to subject them to jurisdiction of Illinois courts under 735 ILCS 5/2-209(a)(2)

Making or performance of a contract or promise

substantially connected with the State of Illinois

Illinois courts have held that despite the lack of physical presence within Illinois the long-arm statute and due process permit Illinois courts to gain jurisdiction over a person or corporation who enters into a contract knowing that it will be performed in Illinois. Biltmoor Moving and Storage Company v. Shell Oil Company, 606 F.2d 202 (7th Cir. 1979) Here, the Defendants have induced over 1,100 Illinois residents to register on-line through the Defendants’ web site to sell their votes for the November 7, 2000 General Election. Voteauction.com then arranges to have other individuals bid on and buy these votes. Voteauction.com’s web site indicates that those persons who register with Voteauction.com to sell their vote will be sent Voteauction.com’s “legal agreement.” This “legal agreement” constitutes the making of a contract or promise substantially connected with the State of Illinois. Even without a formal “legal agreement” the conduct of the Defendants, the sellers (those Illinois residents who offer their votes for sale) and the bidders constitute a promise to sell, and a promise to buy such votes. Defendants have promised both sellers and buyers to act as the auctioneer or facilitator of the illegal sale and purchase of votes. The performance by any party of the contract or promise would be substantially connected with the State of Illinois in that the votes of Illinois residents would be sold and bought illegally. Under the laws of Illinois, these ballots, unless detected, will be cast, counted and canvassed in Illinois. Defendants’ conduct, and the conduct of their co-conspirators, is intended by them to affect the interests of Illinois by infecting Illinois ballot boxes with fraudulent votes. Accordingly, Defendants have, by operation of Section 2-209(a)(7) of the Code of Civil Procedure, subjected themselves to the jurisdiction of Illinois courts.

Conspiracy Theory

In 735 ILCS 5/2-209(c), the Illinois long-arm statute also has a “catch-all” provision which allows Illinois state courts to assert personal jurisdiction to the maximum extent to assert personal jurisdiction by the Illinois and United States Constitutions. United Phosphorus Ltd. v. Angus Chemical Company, 43 F.Supp.2d 904 (N.D. Ill. 1999). “Moreover, if jurisdiction exists under the ‘catch-all’ provision, a defendant does not have to perform any of the enumerated acts set forth in the remainder of the statute.” United Phosphorus, 43 F.Supp.2d at 911-912.

Defendants are subject to Illinois jurisdiction under the so-called “conspiracy theory.” “Under this theory, a court may assert jurisdiction over all of the co-conspirators, both resident and non-resident, based on their involvement in a conspiracy which occurred within the forum.” United Phosphorus, 43 F.Supp.2d at 912. “To satisfy this standard, plaintiffs must: (1) make a prima facie factual showing of a conspiracy (i.e., point to evidence showing the existence of the conspiracy and the defendant’s knowing participation in that conspiracy); (2) allege specific facts warranting the inference that the defendant was a member of the conspiracy; and (3) show that the defendant’s co-conspirator committed a tortious act pursuant to the conspiracy in the forum.” Id. “The evidence relating to the conspiracy may be direct or circumstantial.” Id.

“[I]f the plaintiff can satisfy the three requirements necessary under the conspiracy theory of jurisdiction, even a foreign defendant with no real contact with the forum state and no direct business relations tied to the forum state would be subject to the court’s jurisdiction.” Id.

Here, the Plaintiffs have made a prima facie factual showing in their verified Complaint of the existence of a conspiracy among Defendants and between the Defendants and over 1,100 Illinois residents to sell and buy votes in violation of the election laws of the State of Illinois and of the United States. “[T]o be liable as a co-conspirator you must be a voluntary participant in a common venture … you need not have agreed on the details of the conspiratorial scheme or even know who the other conspirators are. It is enough if you understand the general objectives of the scheme, accept them, and agree, either explicitly or implicitly, to do your part to further them.” United Phosphorus, 43 F.Supp.2d at 914. By and through Voteauction.com, Defendants have solicited and allowed Illinois residents to register to sell their votes at auction, and Illinois residents have registered with Defendants through Voteaction.com for the purpose of selling their votes at auction. These acts by Defendants and these Illinois residents constitute a conspiracy between them to illegally sell votes and to arrange for the purchase of such votes through auction.

As to the second prong of the conspiracy theory test, Plaintiffs’ verified Complaint makes a specific factual showing that the Defendants were members of (and, indeed, instigators of) the conspiracy to illegally sell and buy Illinois votes.

As regards the final element necessary to satisfy the conspiracy theory of jurisdiction, as alleged in the verified Complaint, Defendants and these Illinois residents have knowingly and intentionally committed violations of the election laws of this State and of the United States and have breached a duty to Plaintiffs and to all Illinois citizens not to subject them to the deprivation of the rights and privileges under the Constitution and laws of the State of Illinois and of the United States to fair, free and equal elections. Both Defendants and Defendants’ co-conspirators (those Illinois residents who have sold or agreed to sell their votes) have committed tortious acts within the State of Illinois.

Because Plaintiff’s Complaint makes a sufficient factual showing that there is a conspiracy, that Defendants are members of the conspiracy, and that Defendants’ co-conspirators have committed and will commit tortious acts in Illinois pursuant to the conspiracy, Defendants are therefore subject to the jurisdiction of Illinois courts pursuant to the “conspiracy theory” under Section 2-209(c) of Illinois’ long-arm statute.

#### II. DEFENDANTS’ CONDUCT IS ILLEGAL AND TORTIOUS

As noted earlier, the laws of the State of Illinois and of the United States prohibit the selling and buying of votes. Section 29-1 of The Election Code (10 ILCS 5/29-1) provides, “Any person who knowingly gives, lends or promises to give or lend any money or other valuable consideration to any other person to influence such other person to vote *** or to influence such other person to vote for or against any candidate or public question to be voted upon at any election shall be guilty of a Class 4 felony.” Thus, vote buying is illegal under Illinois law and anyone giving or promising to give money to an Illinois resident to influence him or her to vote or to vote for or against any candidate to be voted upon at the November 7, 2000 General Election is guilty of a Class 4 felony which is punishable by imprisonment for 1 to 3 years.

Section 29-3 of The Election Code (10 ILCS 5/29-3) prohibits vote selling, providing, “Any person who votes for or against any candidate or public question in consideration of any gift or loan of money or for any other valuable consideration *** shall be guilty of a Class 4 felony.” Any person in Illinois who has attempted to sell his or her vote at the November 7, 2000 General Election by registering with Voteauction.com to sell his or her vote, and any person who has attempted to buy the votes of Illinois residents for the November 7, 2000 General Election by registering with Voteauction.com to bid on such votes, also commits a Class 4 felony. See 10 ILCS 5/29-13; 720 ILCS 5/2-12; 720 ILCS 5/8-4

Defendants, by and through Voteauction.com, are guilty of soliciting others to sell or buy votes in Illinois and have committed a Class 4 felony. See 10 ILCS 5/29-13; 720 ILCS 5/2-12; 720 ILCS 5/8-1. They are also guilty of conspiring with others to illegally sell and buy votes in Illinois. (ILCS 5/29-13; 720 ILCS 5/2-12; 720 ILCS 5/8-2)

Illinois law also prohibits anyone from marking or tampering with an absentee ballot of another person or from taking an absentee ballot of another person so that an opportunity for fraudulent marking or tampering is created. (10 ILCS 5/19-6, 5/29-20) Thus, Defendants’ scheme to require those offering to sell their votes to submit their absentee ballots to Defendants so as to verify their voting selections violates Illinois law and violates the secrecy of the ballot and Defendants are guilty of conspiring to commit absentee vote fraud, of soliciting others to commit absentee vote fraud, and of attempted absentee vote fraud. See 10 ILCS 5/29-20.

Because the November 7, 2000 General Election is a “mixed election,” i.e., there are also Federal offices to be elected, there are a number of Federal election statutes that also apply to Defendants’ conduct. For example, Title 18, Section 597 of the United States Code (18 U.S.C. §597) makes it a crime to pay or offer to pay a person to vote or withhold his vote, or to vote for or against any candidate. It is also a crime to solicit, accept, or receive any payment in consideration for voting or withholding from voting. A similar prohibition is also found in Title 42, Section 1973i(c) of the United States Code (42 U.S.C. §1973i(c)). Thus, any person in Illinois who has offered to sell his or her vote at the November 7, 2000 General Election by registering with Voteauction.com to sell his or her vote, and any person who has offered to buy the votes of Illinois residents for the November 7, 2000 General Election by registering with Voteauction.com to bid on such votes, has committed a violation of Federal law.

Title 42, Section 1973i(c) of the United States Code (42 U.S.C. §1973i(c)) also provides that for Federal elections, “Whoever knowingly or willfully *** conspires with another individual for the purpose of *** illegal voting *** shall be fined not more than $10,000 or imprisoned not more than five years, or both.” Thus, Defendants and those Illinois residents who have agreed to sell their votes have committed a violation of Federal law in that they have conspired for the purpose of illegal voting.

There are also provisions in Federal and Illinois law that secure for Illinois residents the right to have fair, free and equal elections. Title 42, Section 1973gg10 of the United States Code (42 U.S.C. §1973gg-10) makes it a crime in any Federal election for a person to knowingly and willfully deprive, defraud, or attempt to deprive or defraud the residents of a State of a fair and impartially conducted election process by procuring or casting ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held. And Article 3, Section 3 of the Constitution of the State of Illinois (Art. 3, §3 Ill. Const.) guarantees Illinois citizens the right to “free and equal” elections. Under this provision, elections are free only when the voters are subjected to no intimidation or improper influence and when every voter is allowed to cast his or her own ballot as his or her own judgment and conscience dictate. People v. Hoffman, 116 Ill. 587, 597, 5 N.E. 596, 599 (1886). When the ballot box becomes the receptacle of fraudulent votes, the freedom and equality of elections are destroyed. Defendants’ conduct by and through Voteauction.com violates the Plaintiffs’ right and the right of all Illinois citizens to free and equal elections. Emery v. Hennessy, 331 Ill. 296, 300, 162 N.E. 835, 837 (1928).

There can be no dispute that Defendants and those Illinois residents who have agreed to sell their votes (and those, if any, who have agreed to buy votes) have knowingly and willfully violated the election laws of this State and of the United States. They have conspired with one another and have acted in concert with one another to buy and sell votes in violation of the express prohibitions of the statutes.

Defendants’ conduct is also tortious. Section 29-17 of The Election Code (10 ILCS 5/29-17) provides that “Any person who subjects, or causes to be subjected, a citizen of the State of Illinois or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution or laws of the United States or of the State of Illinois, relating to registration to vote, the conduct of elections, voting, or the nomination or election of candidates for public or political party office, shall be liable to the party injured or any person affected, in any action or proceeding for redress.” Thus, Section 29-17 imposes a duty not to subject Illinois citizens to any deprivation of any right or privilege they have relating to voting, the conduct of elections, and the election of candidates for public office and makes any person breaching that duty liable to those who have been injured by the breach.

Defendants also have a duty under Section 29-19 of The Election Code (10 ILCS 5/29-19) not to conspire with another for the purpose of encouraging illegal voting. If they do so, they shall be liable to the party injured or any other person affected. Defendants, individually and in concert with others, have knowingly and willfully conspired for the purpose of encouraging illegal voting.

Without question, Defendants have breached their duty to Plaintiffs and to Illinois citizens by (1) unlawfully subjecting them to the deprivation of their rights under Article 3, Section 3 of the Illinois Constitution to a free and equal election for the November 7, 2000 General Election and of their right under federal law to a fair and impartially conducted election and (2) conspiring to encourage illegal voting. This constitutes tortious conduct sufficient to subject Defendants to the jurisdiction of the courts of the State of Illinois. This conduct also makes Defendants liable to Plaintiffs and to all Illinois citizens for damages for the injuries they have sustained.

III. INJUNCTIVE RELIEF

For purposes of their motion for a temporary restraining order or preliminary injunction, Plaintiffs have adopted and incorporated by reference their verified Complaint, which makes specific factual allegations showing the Plaintiffs are entitled to injunctive relief and states a prima facie cause of action.

Plaintiffs have demonstrated a reasonable likelihood of prevailing on the merits of this claim. However, to be entitled to injunctive relieve, the Plaintiffs need only raise a fair question as to the existence of the right to an injunction leading the court to believe that the plaintiff would be entitled to the relief prayed for. Lawter Intern Inc. v. Carroll, 116 Ill.App.3d 717, 451 N.E.2d 1338 (First Dist. 1983).

Unless injunctive relief is granted, Defendants will continue to violate the election laws of the State of Illinois and of the United States and deprive the Plaintiffs and all citizens of the State of Illinois their rights and privileges under the Constitution of the United States and the State of Illinois and the laws passed pursuit thereof to a free and equal election. Defendants’ illegal conduct will allow the ballot box to become the receptacle of fraudulent votes, thus infecting the result of the November 7, 2000 General Election, including the election for President and Vice President of the United States. This Court has the power to enjoin conduct that is criminal in nature. See, e.g., City of Chicago v. Cecola, 75 Ill.2d 423, 389 N.E.2d 526 (1979); People v. Boston, 92 Ill.App.3d 962, 416 N.E.2d 333 (Fourth Dist. 1981)

This matter presents situation of great necessity and extreme urgency. The Board and its three commissioners will suffer immediate and irreparable injury in fulfilling their statutory duties to provide for the orderly and lawful administration of this election unless Defendants’ unlawful conduct is remedied forthwith. In addition, the three commissioners, as voters intending to vote at the November 7, 2000 General Election, and all citizens of this State will be deprived of their right under the Constitution and laws of the State of Illinois and of the United States to a fair, free and equal election.

Given the nature of these injuries to result from Defendants’ unlawful conduct, neither Plaintiffs nor the citizens of the State of Illinois will have an adequate remedy at law in which to redress Defendants’ unlawful conduct. Absent immediate relief, Plaintiffs and all voters will, in fact, be denied meaningful relief because the right to vote in this election will be rendered moot after the November 7, 2000 General Election and any remedy at law may be difficult to ascertain.

The threatened injury to the Plaintiffs and to the citizens of the State of Illinois will be immediate, certain and great if injunctive relief is denied while the loss or inconvenience to the Defendants will be comparatively small and insignificant if injunctive relief is granted.

The granting of injunctive relief in this case will not have an injurious effect on the public; indeed, the public interest demands that the Defendants and all those acting in concert with them be enjoined from continuing their illegal scheme.

Respectfully submitted,

BOARD OF ELECTION COMMISSIONERS

FOR THE CITY OF CHICAGO, LANGDON D. NEAL, RICHARD A. COWEN and THERESA M. PETRONE, Plaintiffs

By: ________________________________

Their Attorney

Atty No. 70383
James M. Scanlon
James M. Scanlon & Associates
70 West Madison Street, Suite 3600
Chicago, Illinois 60602
312-977-4881