Friday, December 07, 2007

A Concise History of Election-Integrity Investigations, Litigations, and Legislation in Arizona: September 2004 through November 2007

The 2004 Maricopa County Primary

In the 2004 Legislative District-20 (Maricopa County) Republican primary, a candidate for the state House of Representatives, Anton Orlich had a four-vote lead over his opponent John McComish. Under Arizona state law, a recount is mandated whenever the winning margin is less than 0.1%. In the present case, the recount was done with another (ES&S) IVC optical scanner identical with the two used for the (separate) original counts of the At-the-Precinct and Mail-In ballots. And, lo, 489 new votes were counted (an 18.3% increase!) – most of them (464) coming from the Mail-Ins – handing the election to McComish by a margin of 13 votes [1].

The Maricopa County Republican Committee (MCRC) was outraged that County Elections Director Karen Osborne (D) had illegally prepared the Mail-In ballots for a manual recount (which was not carried out due to the intervention of the AZ Secretary of State) [1]. The MCRC took the matter to court. In the interest of getting to the bottom of what had gone wrong with the county’s voting machines, the judge subpoenaed an ES&S technician, Tina Polich, who happened to be stationed in an office very near to Osborne’s in the county elections building. Ms. Polich failed to show up in court on the appointed date and later on gave several excuses [2]. It was brought out in subsequent testimony that Maricopa County Elections officials had lied to the judge about the true reason for her no-show: In fact, she had been told by someone in the Elections office to go home and “lay low” that day [3]. This led to Republican charges of a cover up and their demand for an investigation by the Maricopa County Attorney ...who eventually found insufficient evidence to justify a formal criminal investigation [3].

The problems with the voting machines were never resolved. Arizona Senate Government Accountability and Reform committee chairman Jack W. Harper (R) issued subpoenas to both the Maricopa County Recorders Office and the Maricopa County Treasurer’s Office directing them to provide information and access to ballots from the 2004 LD-20 Republican primary race for a review by the committee. These subpoenas were defied by Arizona Secretary of State Jan Brewer (R), Maricopa County Attorney Andrew Thomas (R), Maricopa County Recorder Helen Purcell (R), and Maricopa County Elections Director Karen Osborne (D). In the process it was discovered that, instead of being stored in the Maricopa County Treasurer's vault as required by state law, the 17,000 ballots in question were stashed in an unguarded, un-air-conditioned warehouse [4]. Then, just when it appeared that a court would force Maricopa election officials to release these ballots, the FBI unexpectedly swept in and confiscated them ...and many months later reported that it had found no evidence of criminal tampering in the 2004 Maricopa primary [5]. No one knows who summoned the FBI or why. But according to Pima County voting machine expert Dr. Tom Ryan, the FBI’s conclusions “appear to be based on a less-than-thorough investigation and questionable logic.”

Jack Harper went on to propose legislation to assure fair elections, but initially met with knee-jerk opposition from suspicious Democratic Senators. At a Senate session open to the public, Tucson election-integrity activist John R. Brakey placed himself conspicuously alongside Senator Harper and, when allowed an opportunity to speak, he arose to chide the Democrats opposing Harper’s initiative:

“Election integrity is not about right and left. It’s about right and wrong!”

In the end, Senator Harper’s bill failed ...but bipartisanship prevailed. Then-state-Representative Ted Downing (now Chairman of the Election Integrity Committee of the Arizona Democratic State Committee) formed an alliance with his friend Senator Karen Johnson, a Republican who had become deeply concerned about election integrity after the LD-20 problem. Together they put together a very respectable election-integrity bill, with the valuable advice of Tom Ryan. Then they successfully marketed it on both sides of the aisle. This bill, SB 1557, was passed by both houses of the AZ State Legislature with only 5 opposing votes out of 90! Most importantly, it included a 2% hand audit capable of detecting a high percentage of any instances of outcome-determining fraud [6].

Unfortunately, however, in the first audit mandated by SB 1557 carried out in Maricopa County, the rules were found to have been rewritten (by whom?) so as to subvert the law by effectively reducing the required 2% audit to a toothless 0.5% [7].

Origins of the Pima County Democratic Party’s Suit against the Pima County Elections Department

John Brakey has become one of the nation’s finest stolen-elections sleuths ever since he began amassing the evidence for poll-worker fraud in his home precinct (#324 of LD 27) in the wake of the 2004 General election [8]. More recently, John decided to teach himself the “geek Greek” of the Diebold GEMS central tabulator. To help him do this, he urged the State Democratic Party to bring in one of the best election geeks in the Country, Jim March. Jim is an experienced computer tech specialist with 17 years in the IT industry. In 2003 he heard of Bev Harris' work exposing problems with the same Diebold voting systems as are used in Pima County. Soon afterward he began helping Ms. Harris analyze the 40,000 files she had obtained from a Diebold website lacking any security. Jim became the lead plaintiff (along with Ms. Harris) in a California consumer protection suit against Diebold netting that state a $2.6 million refund, and he now sits on the board of directors of Black Box Voting [9], a national non-profit. He was brought to Pima County by the State Democratic Party to help monitor the primaries and General Elections and is currently a tech consultant on the public records lawsuits fought by the county as part of the aftermath.

By Freedom of Information Act (FOIA) requests, John Brakey obtained the computer logs of the Pima County tabulators for the past several years. He quickly discovered that ever since the arrival of Brad Nelson as the Pima County Director of Elections, someone at the Elections Department has been printing summary reports of Mail-In ballot counts up to a week or more before the election. This is strictly illegal under Arizona law: “...there shall be no preferential counting of ballots for the purpose of projecting the outcome of the election.” And, obviously, anyone in possession of such information would have highly accurate advance information, which could be used to trigger targeted “robo calls” (like the one used against Ted Downing in his 2006 primary run for the AZ Senate [10]) ...or to calibrate Trojan Horses placed in the vote-counting software, tailored to infallibly flip just the right numbers of votes to change the outcome of a close race on Election Day without arousing suspicion.

Although merely printing illegal summary reports of early balloting is not prima-facie evidence of election fraud, on 1 February 2007 the Pima County Democratic Party filed a (civil) public records lawsuit in Pima County Superior Court against the Pima County Board of Supervisors and the County Treasurer seeking the production of summary reports of early ballots that were printed without election observers present and were allegedly sealed in the Pima County Treasurer’s vault [11].

Then John Brakey spotted something else. In the 2006 General Election there was a ballot initiative to impose a half-cent sales tax to fund a 20-year, $2-billion(!) Regional Transportation Authority (RTA) plan. Contrary to expectation based on pre-polling, the RTA initiative ultimately appeared to have been approved by the voters. What John discovered was that, after illegally inspecting the first day’s Mail-In returns, Pima County Election Department computer operator Brian Crane backed up the election, and the very next morning he backed it up again, whereupon he immediately printed another summary report. John recognized instantly that Crane had it within his power to take home a copy of the first day’s backup, use it to gauge voter sentiment, and perchance to alter it using Microsoft Access (for example to insert a vote-flipping program in the event that the RTA tax was being rejected). In this case, the next morning’s back-up could have served the purpose of replacing the original ballot definition file with such an altered version. And in that event, the purpose of printing a new summary report would have been to assure that the manipulations he had just inserted had actually “stuck”.

Enter Attorney and Democratic activist William J. (Bill) Risner. As an “officer of the court” bound to report any evidence of possible criminal activity that comes to his attention, Bill immediately filed a criminal complaint with Arizona Attorney General, Terry Goddard (D). In knee-jerk response, the Pima County Board of Supervisors (BoS) went to court asking for a stay on civil case until the criminal case was settled. However, a judge ruled in favor of Bill Risner’s arguments that these particular civil and criminal cases have so little in common that they are not barred by law from proceeding in parallel. And another piece of good news is that the local media didn’t shy from reporting this story [11 – 16].

But the bad news is the bizarre way in which the Attorney General’s office chose to carry out its criminal investigation. AG Terry Goddard’s idea was for his office and the Pima County BoS to jointly investigate the Pima County Democratic Party’s complaint against the Pima Country Division of Elections. Given that the BoS (1) had never before audited the Department of Elections and (2) had steadfastly opposed all requests of local election-integrity activists to examine voting data, Bill Risner wrote the AG’s office that he was “flabbergasted ...that the Pima County Democratic Party could not get a copy of an investigative report on an examination of Pima County’s Elections Division’s computer data.” He went on to analyze the “roles” of the various parties to this complaint, namely, that of the AG’s office should be “prosecutor” or “investigative,” while surely that of the Pima County Division of Elections and the BoS should be “suspect.” Given those roles, he decried the “astonishing cozy relationship” between the AG’s office and the suspects.

While stating that there was at that point not yet any concrete evidence of criminal wrong doing, Bill Risner called attention in the same letter to the fact that a representative of the AG’s office had recently attended a court hearing where the BoS’s lawyer “...claimed that ‘any attempt’ by lawyers from either side to question ‘anybody involved with Pima County’s Division of Elections or the Pima County elections computer system runs a significant risk of impacting that witness’s constitutional rights and eliciting an assertion of the Fifth Amendment privilege.’”

So while the Attorney General was treating the suspects with deference, the suspects’ own lawyers tacitly admitted that the suspects may actually be entangled in a real crime.

Nevertheless, on September 14, 2007, the Arizona Attorney General released a report from iBeta Software Quality Assurance relevant to the issues of Bill Risner’s criminal complaint and claimed that this report showed no evidence of vote flipping or election tampering in the May 2006 Regional Transportation Election [11 – 16]. “We did not find any evidence that the computer technician at the center of this case manipulated this election,” stated Terry Goddard [14].

But Goddard had declined the Pima County Democratic party’s offer of critical evidence bearing on the case, and he neglected to inform his contracted investigator, iBeta, of the existence of this vastly more telling evidence.

The iBeta final report noted (for files they were given to analyze) that the time stamps on the voting data pertaining to the RTA race did not match their creation times according the Diebold audit log. However, being in the dark regarding John Brakey’s crucial evidence, iBeta was inclined to accept the hypothesis proffered by John Moffat, a member of the Pima County election staff, that these irregularities were caused by a July 2006 replacement of the central computers.

John Brakey points out that Moffat’s explanation is plainly absurd when viewed in the light of the evidence offered by the Pima County Democratic Party to the Attorney General (who refused to use it): “We took a ‘snapshot’ of the entire File Allocation Table of both servers as of early Dec 19th 2006 ...creating plain text files containing the filenames, file sizes, date/time stamps and directory locations of every file on both server disks.” Result: “As of Dec 19, 2006 the files with their date/time stamps perfectly match the RTA audit log.”

The Pima County Democratic Party’s Jim March, in a deposition included as Exhibit A on Bill Risner’s (civil) court filing of September 17, 2007, writes: “[W]hen I compare the audit logs and the file listings obtained by the Pima County Democratic Party in December 2006, I note they match perfectly, with no more than one minute’s variation between them. ... This suggests that rather than the timestamps being lost in mid-2006, they were intact as of December 2006 when the Pima County Democratic Party began investigating via public records, and the files were altered sometime before being shipped to iBeta. (Emphasis added.)

Still, some concerned Pima County citizens were willing to take the long view that the Attorney General might not have committed a whitewash because he could have been misled by the county. In a passionate e-mail reply to some of these folks, Bill Risner reminded them that “The ‘Case Opening Sheet’ from the AG lists the ‘Pima County Elections Division’ as the ‘SUSPECTS.’” He went on to ask “Can anyone recall any other investigation where the suspects choose which tests to run?” Bill summed it up: “This was not just a whitewash but an over the top whitewash.” (Emphasis added.)

In the same e-mail Bill listed the issues that disturb him the most: “Bryan Crane and Brad Nelson are still on the job. ... For me the retention of those persons at their jobs who could manipulate another election is an important issue.” “It is a huge issue if the RTA was hacked. It is a huge issue that the county claims the whole department has a risk of criminal prosecution. It is a huge issue that they are still hiding data based upon meritless excuses. Are we not interested in election integrity? Has there been an honest investigation? Can anyone make that statement? ... Is Goddard so out of touch that he has been unconcerned with this investigation and did not inquire about it?” Fill in your own answers but these are not small questions and they demand real answers.” (Emphasis added.)


[1] John Dougherty, “Election Eve Nightmare – Can the Maricopa County Elections Department ensure the accuracy of early voting? Hell No!” Phoenix New Times, 10/14/04;

[2] John Dougherty, “Pandora's Box – Is Arizona's Speaker of the House afraid of what might happen if the truth is learned about a local election?” Phoenix New Times, 10/27/05;

[3] John Dougherty, “Ballot Box Breakdowns – An independent voting-technology expert finds serious problems in the Maricopa County Elections Department” Phoenix New Times, 1/12/06;

[4] John Dougherty, “Ballot Boxing – GOP honchos keep hiding the truth about election foul-ups, as it's learned that local ballots may be stored illegally,” Phoenix New Times, 1/19/06;

[5] Howard Fischer, “FBI uncovers no evidence of tampering in 2004 election,” Capitol Media Services, Tucson, Arizona, 12/1/06;

[6] Kathy Dopp, “History of Confidence Election Auditing Development & Overview of Election Auditing Fundamentals,” National Election Data Archive, 10/22/07;

[7] Michael Shelby, “Arizona manual audit a farce,” Black Box Voting, 11/14/06;

[8] David L. Griscom, Ph.D., “Sleuthing Stolen Election 2004: John Brakey and the "Hack and Stack," OpEdNews, 3/17/07;

[9] Black Box Voting home page:

[10] Recording and press release: “Democrats Blast LD28 Republican ‘Robo’ Phone Calls,” Pima County Democratic Party, 9/10/06;

[11] Jim Nintzel, “Peep Show – Watchdogs worry that someone's been sneaking a peek at early-ballot results before Election Day,” Arizona Citizen, 2/15/07;

[12] Andrea Kelly, “State asked to review '06 RTA vote – Lawyer for Dems says transport tally was possibly altered,” Arizona Daily Star, 5/26/07;

[13] Mark Kimble, “Does the RTA vote really add up?” Tucson Citizen, 6/7/07;

[14] Garry Duffy, “Probe finds flaws in Pima elections system,” Tucson Citizen, 9/15/07;

[15] Andrea Kelly, “No sign of wrongdoing found in RTA vote,” Arizona Daily Star, 9/15/07;

[16] Editorial: “Our Opinion: Pima County must resolve vote-counting security issues,” Tucson Citizen, 9/17/07;

No comments: