WDC Files Lawsuit Challenging Accenture Contract: Complaint Text

Text of WDC complaint challenging Accenture contract to compile voter registration data for the state of Wisconsin. Wisconsin Democracy Campaign Files Lawsuit Challenging Accenture Contract

Complaint Text

January 3, 2005

STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY

MICHAEL MCCABE
210 North Bassett St.
Madison, WI 53703,

JOHN MATTHEWS
821 Williamson St.
Madison, WI 53703,

MARK POCAN
309 N. Baldwin St.
Madison, WI 53703,

BOB BEGLINGER
8540 Greenway Blvd., Apt. 215
Middleton, WI 53562,

PRACTICAL POLITICAL CONSULTING
d/b/a WISCONSIN VOTER LISTS
104 N. 1st Street, Suite No.3
Watertown, WI 53094,

MARA ZIMMERMAN
4368 Jordan Dr.
McFarland, WI 53558,

JOHN KESSLER
4368 Jordan Dr.
Mc Farland, WI 53558,

CAROL LOBES
5103 N. Autumn La. Case No.
McFarland, WI 53558,

JUDY ADRIAN 30707
6216 South Court
McFarland, WI 53558,

Plaintiffs,

v.

KEVIN KENNEDY, Executive Director
Wisconsin State Elections Board
17 West Main Street, Suite 310
Madison, WI 53701,

WISCONSIN STATE ELECTIONS BOARD
17 West Main Street, Suite 310
Madison, WI 53701, and

ACCENTURE LLP
100 S. Wacker
Chicago, IL 60606,

Defendants.

COMPLAINT

Plaintiffs Michael McCabe, John Matthews, Mark Pocan, Bob Beglinger, Wisconsin Voter Lists, Mara Zimmerman, John Kessler, Carol Lobes, and Judy Adrian (collectively, "Plaintiffs"), by their attorneys, Garvey & Stoddard, S.C., complain against Defendants as follows:

PARTIES

1. Michael McCabe is an adult resident of the State of Wisconsin whose business address is 210 North Bassett St. Madison, WI 53703. Mr. McCabe is the Executive Director of the Wisconsin Democracy Campaign, a non-partisan political watchdog group working for clean government and real democracy. Mr. McCabe and the Wisconsin Democracy Campaign have publicly criticized the Accenture contract described below. Mr. McCabe votes, pays taxes to the State of Wisconsin, and has an interest in efficient State government and full and fair elections.

2. John Matthews is an adult resident of the State of Wisconsin whose business address 821 Williamson Street, Madison, WI 53703. Mr. Matthews is the Executive Director of Madison Teachers, Inc., a union representing teachers and other education professionals in Madison, Wisconsin. Mr. Matthews pays taxes to the State of Wisconsin and has an interest in efficient State government and full and fair elections.

3. Mark Pocan is an adult resident of the State of Wisconsin, and a member of the Wisconsin State Assembly, representing the 78th Assembly District in Madison. His voting address is address is 309 N. Baldwin Street, Madison, WI 53703. Representative Pocan votes, pays taxes to the State of Wisconsin, and has an interest in efficient State government and full and fair elections. He is also interested, as a member of the Wisconsin Legislature, in ensuring that State agencies follow the law, properly exercise the powers given to them by the Legislature, and fairly and efficiently spend tax revenues.

4. Bob Beglinger is an adult resident of the State of Wisconsin whose address is 8540 Greenway Blvd., Apt. 215, Middleton, WI 53562. He is also President of the Board of AFT-Wisconsin, the Wisconsin chapter of the union American Federation of Teachers. AFT-Wisconsin represents numerous State employees, and as President of its Board, Mr. Beglinger has an interest in ensuring that State employees, and not private contractors, do the State’s work. Mr. Beglinger votes, pays taxes to the State of Wisconsin, and has an interest in efficient State government and full and fair elections.

5. Wisconsin Voter Lists is the Wisconsin branch of Practical Political Consulting ("Wisconsin Voter Lists"), a Michigan corporation that has been creating and maintaining computerized voter lists since 1974. Its address is 104 N. 1st Street, Suite No.3, Watertown, WI 53094, and its Wisconsin agent is Barry Ashenfelter. Wisconsin Voter Lists was interested in contracting with the Elections Board to compile a statewide voter registration list that would comply with the Help America Vote Act but was denied that opportunity as described below.

6. Mara Zimmerman is an adult resident of the State of Wisconsin residing at 4368 Jordan Dr., McFarland, WI 53558. Ms. Zimmerman votes, pays taxes to the State of Wisconsin, and has an interest in efficient State government and full and fair elections. Ms. Zimmerman is a member of a Madison, WI-based group called No Stolen Elections, which has objected to the Accenture contract described below.

7. John Kessler is an adult resident of the State of Wisconsin residing at 4368 Jordan Dr., McFarland, WI 53558. Mr. Kessler votes, pays taxes to the State of Wisconsin, and has an interest in efficient State government and full and fair elections. Mr. Kessler is a member of a Madison, WI-based group called No Stolen Elections, which has objected to the Accenture contract described below.

8. Carol Lobes is an adult resident of the State of Wisconsin residing at 5103 N. Autumn La, McFarland, WI 53558. Ms. Lobes votes, pays taxes to the State of Wisconsin, and has an interest in efficient State government and full and fair elections.

9. Judy Adrian is an adult resident of the State of Wisconsin residing at 6216 South Court, McFarland, WI 53558. Ms. Adrian votes, pays taxes to the State of Wisconsin, and has an interest in efficient State government and full and fair elections.

10. Kevin Kennedy is the Executive Director of the Wisconsin State Elections Board, whose business address is 17 West Main Street, Suite 310, Madison, WI 53701. Defendant Kennedy is employed by the Wisconsin State Elections Board pursuant to Wis. Stat. § 5.05(1)(a), and as such is also the chief elections officer for Wisconsin. Defendant Kennedy has held the Executive Director position since 1983. As Executive Director, Mr. Kennedy supervises, hires and fires, and is responsible for Elections Board staff.

11. The Wisconsin State Elections Board ("Elections Board") is responsible for administering Chapters 5-12 of the Wisconsin Statutes and other laws relating to elections and election campaigns. Its address is 17 West Main Street, Suite 310, Madison, WI 53701. The Elections Board is composed of nine citizen members appointed by the governor for two-year terms beginning on May 1 of odd-numbered years. In addition to the governor’s selection, one member is designated by each of the Chief Justice of the Wisconsin Supreme Court, the Speaker of the Assembly, the Senate Majority Leader, the Minority Leader in each house of the legislature, and the chief officer of each political party whose candidate for governor received at least ten percent of the vote cast in the most recent gubernatorial election.

12. Accenture LLP, f/k/a Anderson Consulting LLP ("Accenture"), is a foreign limited liability partnership whose principal address is 100 S. Wacker, Chicago, IL 60606. Its registered agent in the State of Wisconsin is CT Corporation System, 8025 Excelsior Drive, Suite 200, Madison, WI 53717. Accenture’s eDemocracy Services unit, whose President is Meg T. McLaughlin and whose address is 11951 Freedom Drive, Reston, VA 20190, signed the contract at issue in this Complaint. Accenture is named as an interested party per Wis. Stat. § 806.04(11). FACTS

13. On October 29, 2002, President Bush signed the Help America Vote Act ("HAVA" or "the Act"). HAVA established certain election requirements for all states regarding the conduct of federal elections, including the requirement that states develop and maintain a computerized statewide voter registration list.

14. Subsequently, the Wisconsin State Legislature incorporated HAVA requirements into the Wisconsin Statutes. Through Wis. Stat. §§ 5.05(5) and 6.36(1), the Legislature stated that the Elections Board was responsible for designing, maintaining, and compiling the statewide voter registration list.

15. Additionally, Wis. Stat. § 5.05(10) required the Elections Board to adopt, after a public hearing, a plan for implementation of HAVA (P.L. 107-252) that would allow Wisconsin to receive federal funding to carry out HAVA requirements, including compiling the statewide voter registration list.

16. The Elections Board may delegate its authority for performing nine specific activities to its Executive Director under Wis. Stat. § 5.05(1)(e). The Elections Board has exercised this authority and reviews the powers it has delegated to the Executive Director at its annual January meeting.

17. The Elections Board has not delegated authority to the Executive Director to carry out its HAVA duties, including compilation of a statewide voter registration list or signing contracts on behalf of the Elections Board for HAVA activities.

18. In early 2003, Defendant Kennedy appointed a State Plan Committee to assist in the HAVA planning process. The group met three times and provided direction for the development of the preliminary state plan to implement HAVA. That plan was ultimately drafted by Defendant Kennedy and Elections Board staff under his control.

19. On May 21, 2003, the Elections Board concluded its public hearing on the preliminary state plan to implement HAVA. The plan stated that federal HAVA monies would be used, in part, to hire a vendor for the statewide voter registration list project.

20. The Board never voted on or otherwise adopted the preliminary state plan to implement HAVA. Rather, Defendant Kennedy and Elections Board staff under his control simply began implementing their HAVA plan after the public hearing.

21. On May 6, 2004, Elections Board staff released a request for proposal ("RFP") for development of a statewide voter registration system. The deadline for responses was June 8, 2004.

22. In an update given to the Elections Board at its May 19, 2004, meeting, Training and Information Technology Director Barbara Hansen described development of the statewide voter registration list as "a high-profile State project."

23. On October 15, 2004, Elections Board staff issued a letter of intent to award the statewide voter registration system contract to Accenture.

24. At its October 20, 2004, meeting, the Elections Board was not informed that Accenture was the staff’s chosen contractor for developing the statewide voter registration list. Rather, staff issued a report to the Elections Board that stated, "[t]he procurement process is proceeding. A final vendor [for the voter registration system] has not yet been selected."

25. On November 12, 2004, without notice to the public, Defendant Kennedy formally signed a contract with Accenture to develop the statewide voter registration system. (Exhibit A.) Under the contract, the State would pay Accenture approximately $10 million to develop the system.

26. The Elections Board did not meet in November 2004.

27. At their December 1, 2004, Elections Board members questioned staff about the contract. One member asked Defendant Kennedy if the Elections Board had voted to approve the contract. Defendant Kennedy admitted that the Elections Board had not voted to approve the contract, but claimed that the Board had approved the initial issuance of the RFP.

28. The Elections Board did not approve initial issuance of the RFP.

29. Defendant Kennedy was quoted in the media as saying of the Accenture contract, "The board didn’t have to do anything to sign off on this. That’s what we have a staff for."

30. The Accenture contract has been highly controversial since it became public and was the subject of several rallies and protests in Madison and elsewhere. Some or all of the Plaintiffs named in this Complaint attended these rallies and protests.

31. No study was ever conducted comparing the costs of contracting the voter registration list work with using state employees for the same job. Yet outside contractors are only supposed to be utilized for services which can be performed more economically and efficiently by the contractors per Wis. Stat. § 16.705(1).

32. Plaintiff Wisconsin Voter Lists informed Defendant Kennedy on June 8, 2004, that it could develop a HAVA-compliant statewide voter registration list for $2 million, and that the RFP included functions unnecessary to secure federal HAVA funding for the State. Because Wisconsin Voter Lists could not provide these extra functions, it did not submit a bid under the RFP.

FIRST CAUSE OF ACTION, DECLARATORY JUDGMENT
AGAINST DEFENDANT KENNEDY AND ELECTIONS BOARD

33. Plaintiffs reallege and incorporate herein each preceding paragraph of this Complaint, and further allege as follows:

34. By statute, the Elections Board is responsible for and has the exclusive authority to design, maintain, and compile the HAVA statewide voter registration list.

35. The Elections Board has not delegated authority for designing, maintaining, or compiling the list to the Executive Director.

36. Because neither the Wisconsin Statutes nor the Elections Board, itself, authorized Defendant Kennedy to sign or otherwise approve the Accenture contract, Defendant Kennedy was without authority to sign the contract to develop the statewide voter registration list and acted ultra vires in doing so.

37. Plaintiffs have been injured by Defendant Kennedy’s actions as taxpayers, who must pay for the unauthorized $10 million Accenture contact and its associated costs, and as members of the voting public, who have been deprived of Elections Board oversight of a critical aspect of current elections law.

38. Plaintiff Mark Pocan is additionally injured because Defendant Kennedy has usurped powers the Legislature has given only to the Elections Board, and because the Elections Board has not properly exercised its statutory authority. Representative Pocan must also respond to and act upon constituent concerns regarding the unauthorized Accenture contract.

39. Plaintiff Wisconsin Voter Lists is additionally injured because it was denied the opportunity to submit a bid for the statewide voter registration list contract because the RFP included functions that were beyond the scope of HAVA requirements.

40. Plaintiff Beglinger is additionally injured because Defendant Kennedy has selected a private contractor to do work that could have been done by State employees, who he represents on the AFT-Wisconsin Board.

41. A declaratory judgment is necessary to settle and afford relief from uncertainty and insecurity with respect to rights, status, and/or other legal relations associated with Defendant Kennedy’s approval of the Accenture contract.

SECOND CAUSE OF ACTION: MANDAMUS ACTION
AGAINST DEFENDANT ELECTIONS BOARD

42. Plaintiffs reallege and incorporate herein each preceding paragraph of this Complaint, and further allege as follows:

43. Under Wis. Stat. § 5.05(10), the Elections Board has a positive and plain duty to adopt a state plan for implementing HAVA that will enable the State to receive federal funding for HAVA activities.

44. The Elections Board has not voted on or otherwise adopted a State plan for implementing HAVA, even though activities are already being undertaken to implement HAVA under the plan prepared by Elections Board staff.

45. The Elections Board has failed to carry out its duties under Wis. Stat. § 5.05(10).

46. Plaintiffs have been injured by the Elections Board’s failure to adopt a plan for implementing HAVA because doing so has deprived the public of Elections Board oversight of a critical aspect of current elections law. Plaintiffs are also injured as taxpayers, who must pay for the Accenture contract specified in the staff-prepared plan but not approved by the Elections Board.

47. Plaintiff Mark Pocan is additionally injured because Defendant Kennedy has usurped powers the Legislature has given only to the Elections Board, and because the Elections Board has not properly exercised its statutory authority. Representative Pocan must also respond to and act upon constituent concerns regarding the unauthorized Accenture contract.

WHEREFORE, Plaintiffs request the Court grant them the following relief:

1) A judgment declaring that Defendant Kennedy was without authority to sign the Accenture contract on behalf of the Elections Board, and that the contract is void;

2) A judgment of mandamus against the Elections Board directing it to adopt a plan for implementation of HAVA;

3) Award Plaintiffs their costs per Wis. Stat. § 806.04(10);

4) Award Plaintiffs such other supplemental relief as may be necessary under Wis. Stat. § 806.04(8); and 5) Such other relief as the Court deems just.

Dated this ___ day of December, 2004. GARVEY & STODDARD, S.C. Attorneys for Plaintiffs

______________________________

Edward R. Garvey
State Bar No. 1010028
Glenn M. Stoddard
State Bar No. 1020964
Christa Westerberg
State Bar No. 1040530

Mailing address:
Garvey & Stoddard, S.C.
634 W. Main Street, Suite 101
Madison, Wisconsin 53703
(608)256-1003 telephone
(608)256-0933 facsimile