Tuesday, September 21, 2010

Maricopa County Judge Favors Misleading Testimony of Election Officials Over Election Law: Rules Partial Victory for Electors

   In a one-day mini trial September 10th in the old Courthouse in Phoenix, Judge Robert Oberbillig granted partial victory to individual voters who filed suit August 16 in Maricopa County Superior Court  [Hess vs. Purcell] to compel the Maricopa Recorder Division of Elections to follow state law expressly as written to protect and empower voters.

   The biggest win is a reform of how Maricopa County conducts post-election hand-count audits.  Until now they have insisted on picking which precincts to count before telling anybody what the precinct detail results are.  This allowed them to game the audit: they could cheat however they want, and then once precincts were picked “un-cheat” those selected precincts.  The races would always look right despite rampant alteration of results.  The whole thrust of our case (still in progress!) is to deny them the right to cheat that they’ve insisted on.  Whether or not they are in fact cheating is not even at issue in court – but the degree to which they’ve insisted on having that ability in this and many other areas (unsigned results tapes, failure to seal away a results tapes copy from their own ready access, telling pollworkers to keep precinct results secret on election night and many more) should cause concern among all voters of all political stripes.
    The case was a Mandamus action, which asks a court to “mandate” that government officials follow statutory law. In most states a Mandamus action is designed to be a fast-track process for cases where the issues are relatively obvious. In Arizona, there is no discovery ahead of time, which makes the process fast and inexpensive for all concerned.
   The court’s ruling favored misleading testimony given by election officials – failing to realize their interest in closing off the public from an insider-controlled process that maintains the status quo, restricts observation and escapes accountability by insisting that the public just trust the officials.  In our opinion, the case was compromised by lack of time for preparation, as well as the judge’s lack of technical understanding that seemed to make him inclined to believe the election officials.
   At trial, plaintiffs clearly prevailed on several key points and were able to win recognition from the judge that observers should have  an “unobstructed” viewing of the central tabulator computer.  However, the ruling fell short of full transparency for observers at the central count facility. The complaint alleged that Maricopa County Elections Department has been violating and ignoring state law for years.  These Points “Interlock” To Make A Complete Election Fraud Recipe.
   After seven different Arizona election cases that we have been involved in since 2005 and more elsewhere, we’ve seen that almost all judges see the world from the viewpoint of other government officials.  They’re a team. The judge and the county recorder are on the same team. Democratic myth has judges interpreting the constitution and making government officials carry out their legal responsibilities. Judges sometimes see it as hassling one of "their guys".
   Our job is to know this and rethink why in most of those seven cases we’ve had to go back and file additional motions such as a “Motion to amend finding of fact or law or for a new trial” or “Motion for reconsideration”.  Sometimes the system needs a little pushing and prodding, all done by using and clarifying the facts. That’s what we intend to do.
   We summarize the explanation of our thinking on points won and lost listed below:
   We won the first flurry when the opposition surrendered point eight below.  The County basically admitted that they been doing the hand count audits wrong since 2006 by not publicly committing the precinct results as required by law.  This is on top of not having polltapes signed as required by law, a point that we won later in the trial.
1)      (WON) The judge agreed that the results tape need to be signed by pollworkers at the end of the voting day.
2)      (WON PART “A”, LOST “B” AND “C” SO FAR) This point involved observation of the election process itself, esp. at the central tabulator.  This point broke down into three issues:
A. We couldn’t see the monitors for the central tabulator system.  In one of our biggest wins in this case, the county is required to give us “unobstructed” viewing access to the monitors on computers used for vote tabulation.  Somebody’s head in the way specifically doesn’t cut it, at least based on what the judge said in court.  This will likely involve a second screen up that observers will be able to see at a normal distance, on a video signal splitter.  This is similar to what Pima county has already done and was mandated years ago by the California Secretary of State.
B. We can’t see the cabling in the Ballot Tabulation Center, and cannot bring our own laptops to probe for illicit use of WiFi or Blue-tooth data connections.  And per the judge we still can’t.  This was among the worst rulings and one we are strongly inclined to challenge.  One of the most frustrating parts: the judge said that observer laptops would be seen by other observers over wireless and be mistaken for “false positives”.  He didn’t understand that wireless laptops are normally set up as “receivers” as opposed to “transmitters” and that it’s only “transmitters” (routers or access points) we’d be looking for.  The judge made a major technology blunder and introduced it as new evidence.  This is despite the fact that a new WiFi network popped up running from a home-grade router after midnight on election night, traceable to within the election offices.  The county wouldn’t search it out themselves or allow our observers to do so with their own laptop.  Here is the legal issue: we have a legal right to observe the central tabulator system.  They’ve put that system on a local area network, but the county is banned from broader connections to the county’s net or the general internet.  That local net is part of the central tabulator system and if we can’t observe it, they can do whatever they want behind the scenes...and the scary part is, at least some hard evidence says they are – we saw a new wireless network based at the election processing center pop up after midnight on election eve with no explanation.
C. Per the county, no photography is allowed.  The judge is fine with that.  We’re not.  We may or may not be able to do anything about it - for now.
3)      (LOST)  We asked the court to outlaw internet connections, and the county claimed there were none.  We introduced a witness who worked for the agency as “troubleshooter” (supervising several precincts) from 2005-2008. As a Democratic Party Observer in 2008 General Election, he examined a laptop used to transmit election results from one of the 22 regional collection stations. Installed on the laptops was a program called "Axcess"  which is the software needed to function with a cellular modem on the Alltel network “Axcess”  which in turn is a straight shot to the internet.  The county claimed they don’t do that; the judge believed them over our guy.  We suspect that at least in 2008, at least some of the 22 regional memory pack upload sites scattered across the county had poor quality or missing landlines for dial-up modems, so they went cellular as plan B.  These regional upload centers are where pollworkers bring memory packs in to be uploaded to the central tabulator instead of driving them to downtown Phoenix.
We still have the opportunity to try and catch ‘em doing this in future elections and come back to this point.
(Amusingly, the results upload process in this last primary took a LOT longer (by several hours) than in previous years.  We suspect they realized we were looking for cellular modems and didn’t use ‘em, instead carting memory packs downtown in those locations with dysfunctional phone lines.  There’s no proof there of course but...it’s interesting.)
4)      (LOST) This was the uncertified software/BPS issue.  Basically, the judge is taking the former secretary of state’s office’s opinion (Jan Brewer) that everything is hunky dory despite strong evidence otherwise.  To be fair, we could have done this better with more time to prepare.  We suspect our best bet is to drop this for now and gather more evidence, including trying to get copies of the databases via another state such as California where there are stronger public records laws.
For those just tuning in, here’s what’s going on: Sequoia withheld a major portion of their software from outside scrutiny by the federally approved test labs.  That was just wrong, and one of four instances in which we can prove a voting system vendor withheld components from the labs.  The lab scrutiny concept is the “fig leaf of sanity” on what is fundamentally insane: counting our vote with privately owned and internally secret software.  Nobody in the elections business wants to admit the test lab process is being gamed.  To hide the gamesmanship, Sequoia also declared as secret the contents of the election’s key data files by claiming there’s “software” in them, which may or may not be true – if true, for a number of reasons any such “software” would be illegal on it’s face as it cannot be confirmed as authentic and is too easy to modify in the field, breaking the federal certification rules at least twice.
From Maricopa Pollworkers Manual
5)      (LOST) Maricopa County instructs the pollworkers to hide all details of the vote totals as they close out the polls. The judge was OK with that.  This was his most obvious legal blunder. Neighboring Pinal county puts the vote totals on the front entrance of the door.  Arizona revised statute 16-551 titled Early election board; violation; classification” and you clearly mandates that pollworkers call out the vote at the end of the day. Now, there IS a rule calling for secrecy of vote totals until after 8:00pm, but it applies only to the early and mail-in votes – it’s guessed it, it refers to the operation of the early and mail-in voting boards, – NOT the polling place procedures which are still controlled by A.R.S. §§ 16-601.  The judge decided to invent a new public policy based on the testimony of Karen Osborne: “don’t confuse the poor voters” with a precinct-vote-only total on election night.  What he missed is that this election night report is a security measure – it gives us data from before the vote totals enter a thoroughly riggable electronic system.  We WILL challenge this with the facts and law again.
6)      (LOST) We challenged their policy of not putting a copy of the results tape (also known as the tally totals, tally list) in the “official returns envelope”.  Several laws outright mandate this (ARS 16-615, 16-622 and 16-624) and the reason is clear: the official returns envelope is something the county election officials themselves can’t get at very easily, not without a lot of other eyeballs on the subject such as observers and/or a court order – see also the current statewide policy manual of May 2010 on page 203 for the “in case of challenge” concept.  Larry Bahill is a former election director Pima 14 years and helped write the laws when he was minority leader in the state house. On the stand, Bahill clearly expressed why these statutes exist. We've confirmed that Cochise and Apache county does it correctly and we are checking others counties. You have to ask yourself this: what good is the “official returns envelope” if there’s no copy of a signed “results tape” in the envelope to be opened in case of a conflict?  ARS 16-615, clearly shows the results tape also known as “tally list” going into “official returns envelope”.
7)      (LOST) This was a challenge to their practice of transporting critical materials with just one person, banned in the Secretary of State’s policy manual (see pages 144 through 146).  Also see ARS 16 608, 16-564, and many more in the election codes (title 16) that go into chain-of custody issues.   The judge simply ignored the problem for reasons we don’t understand at all.
8)      (WON before court started) Finally at point eight we win a big one.  Just before the trial started the county stipulated they were wrong, a shrewd move to quietly remove one of our bigger claims: no more picking precincts to hand count until after they release precinct-detail vote totals as per the ARS 16-602.  What they were doing was both crafty and disgusting: by learning which precincts would be counted before releasing details for each, they could rig the vote totals among all precincts at the central database and then once they learn what will be counted, un-rig those ones selectively (shifting any false totals assigned there to other, uncounted precincts).  This was the single most blatant violation along with the unsigned results tape and they gave up before trial started.  We have on video two different times that we protested on this point, on 11/05/08 and on 08/25/10
   There’s no way around it: in key areas the judge either ignored the law, introduced his own incorrect technical “knowledge” or made outright policy decisions contrary to the law as written.
   The scary part: this is the chief civil court judge in the Arizona Superior court, Maricopa County branch. However, he made us feel like we all did something good, he thanked us and then said too bad there weren’t any school children here watching and learning how democracy works.   Yep, Jim and I were born at night, but it wasn’t last night.  He did have us going for a while until we read the Judges minute entry – his final “official” written ruling. 
   Well, we will most likely challenge the lack of network connection observation (point 2B), the pollworker secrecy on vote totals (point 5) and the withholding of the copy of the results tapes from the official returns envelope (point 6).  Possibly others but those are the most legally clear-cut and vital in terms of the overall security of the election process. 
   Again we state:  These Points “Interlock” To Make A Complete Election Fraud Recipe.  If observers aren’t allowed to see the precinct data either on election night (point 5 above) or after wards (8), and are blocked from seeing what goes on at the central tabulator (2) when it gets there on systems connected to the internet (3) on unknown, untested and illegal software (4) and the one reliable record available of precinct results (results tapes) isn’t signed (1) OR put in a sealed bag for later review (6), then it’s not a proper election.  The only thing left to call it is “illegal” – and that’s what we will present to a judge.  Again, and again and again.. 
   We below know that elections are just too important. 
   We've all learned over many years that Election Integrity is not about "trust" or "credentials", it's about transparency and oversight and our *right*, as a citizen, to *know* that our favorite candidate -- or least favorite -- won or lost in *our* public elections. If you find yourself having to trust in someone -- anyone, whether it be an election officials, a Judge, a voting machine company, or an EI advocate -- rather than being able to see things for yourself, then something has gone terribly wrong. As it has been in AZ and in much of the nation.

   To get a good overview of the problems with elections in Arizona, it’s important to read the resolution with background information written by attorney Bill Risner and passed by the AZ Democratic Party Jan 23rd 2010:  This report tells it like it is from a seasoned attorney with 42 years of experience on how bad the election systems is, it’s a must read if you care about elections:  http://tinyurl.com/27mw9jn
John Brakey and Jim March

Wednesday, September 8, 2010

This Case Is About Forcing Maricopa County Election To Follow The Law – Nothing More, Nothing Less

Trial begins Friday, September 10th 2010 at 8:15 AM.  
So Folks, please be with us in court.


   So far the score is even: our request for a jury was canned, their motion for summary judgment has been ignored.

   We’re even on points, no knockouts; round three is the main event.

   This case is about forcing Maricopa County Election to follow the law – nothing more, nothing less.  As such, most of the issues are going to be of limited benefit outside of Arizona, although the basic concept of this sort of suit (Mandamus action) is possible across the nation.

   The one major except is the use of uncertified software - that points a finger through Maricopa County back to the state and national-level voting system certification processes.  Arizona bars the use of voting system software that isn't federally certified to the standards promoted under HAVA.  While those standards are weak, they still scared Sequoia into dodging them completely on a key part of their product line – a part that can subvert the outcome of elections and produce data that both Maricopa County and Sequoia want to bar us from having.  This part of the case is at the cutting edge of election law issues – the intersection of the rights of election software producers to maintain trade secrets versus the right of the people to know how our vote is counted.

   This part is complex, but in a nutshell: Sequoia created an entire section of their election system that they didn’t submit for testing like they should have – in direct violation of AZ law.  They then needed to hide the extent of the security breach that resulted.  To do THAT, they needed to make sure the data files altered by this illegal module don’t see the light of day and to make sure, they labeled the data files as “containing proprietary trade secret software”.  Right.  In the data.  So we couldn’t get it via public records.  Well that was a mistake, because there’s no possible way the data files could conform to the rules on “election software”, which isn’t supposed to change from election to election.  The data files do.  So it’s gonna be comical: if they still claim the data contains “software”, they admit to a class 5 felony for installing uncertified software (the data) on a certified system.  If they blanch at the idea of confessing to a felony and call the data “just data”, we get it via public records and per our insider tipster (did I mention him yet?) we get to prove the program that produced the data damn well should have been certified.  It’s the world’s dumbest catch-22 and they’ve already walked right into it.  At stake is yet more proof that the voting system vendors have been systematically “gaming” the voting system test process nationally – and that is the big enchilada in exposing the insanity of the US election system.

   Out of a total of four national voting system test labs ever approved, three have been thrown out for poor performance and let back in only with conditions.  The two worst labs (Wyle and Ciber) are based in Huntsville AL where we hope they do better working on military aerospace flight systems for the Redstone National Arsenal, their main business.  The one lab not thrown out (iBeta) obviously specializes in more important matters: they’re mainly a video game tester.  We wish we were kidding.  This is the fig leaf of sanity used to rationalize all electronic voting in the US: “don’t worry, the test labs are watching”.  This is what we’re about to strike a blow against.

   At the local level, Maricopa County has overreached.  They've designed a complete election process tuned for fraud.  Take a look at this one chain of destruction:

Soon after the hand 
count audit bill 
passed in late 2006
Maricopa stopped 
having pollworkers sign
these tapes above.
·   Pollworkers don't sign polltapes per illegal orders.
·   Also per illegal orders, pollworkers don't put one set of polltapes (signed or otherwise) into the “official returns envelope” also know as the conflict envelope, a signed and sealed clear envelope that election officials can't get into without major effort such as a court order or a special election team monitored by multiple political parties.
·   Pollworkers are illegally told not to allow observers to see the precinct totals after the polls close.
·   Ballot materials are transported by just one person instead of the two required by law from opposite parties.  You guessed it.  Illegal.
·   Operations at the central tabulator computer are barred from any functional observation of any sort.  Even when observers spotted obviously illegal activity, the county's response was to deny the use of cameras to document it and then tampered with the evidence.
Specifically, what we saw was a Sequoia employee running a Sequoia-owned laptop connected to the central tabulator.  The laptop in turn had a cellular modem plugged into it, allowing an easy cross-connection between the cellular internet connection and the central tabulator station.  Internet and outside connections to the central tabulator are flat banned.  The county's response to an immediate complaint was to deny the use of cameras to document it and then tampered with the evidence. This happened on 08/23/10, just one day before the election with over 230,000 ballots all ready counted.

   As a final insult, the county rigged the selection of precincts for the 2% hand audit, refusing to publicly commit the results as per the law or anybody else what the individual precinct results were beforehand.  They illegally released "combined results" only.  This allowed them to rig the rest of the precincts to whatever degree they want.  Once they get the list of precincts selected for a count, they could "un-hack" those in the central tabulator database of votes and shift any hacking in the selected precincts to the unselected keeping the previously reported "combined results" intact.  Arizona's hand-count law (new in late 2006) was designed to block this sort of thing.  Maricopa County subverted it. They purchased the Sequoia system soon after that law was passed and stopped having the polltapes signed.

   We're going to take it back.

   This is our fight for our rights.  Join us.  Popcorn is unfortunately not allowed but otherwise, this is going to be the best show in town.
   The links below are for reports prepared as part of the California Secretary of State’s “Top-to-Bottom Review” of state-certified voting systems.

   Their findings on the Sequoia voting system were very disturbing.  These reports include a source code review team; a red attack team, which performed security tests on the Sequoia system’s hardware and software. Those teams have submitted separate reports on their findings.

Link to reports:

Security Evaluation of the Sequoia Voting System Public Report

Review of the Documentation of the Sequoia Voting System:

Source Code Review of the Sequoia Voting System1:

(October 1, 2009 Revision)

Wednesday, September 1, 2010

Arizona, Maricopa County Elections Subverts the Hand Audit of Ballots Again

This encounter took place the day after the Arizona primary election of Aug. 24th. The Maricopa elections office is having representatives from the three recognized political parties (Democratic, Republican and Libertarian) pick which 2% of the precincts to hand count at Sheriff Joe Arpaio's training center.

It didn't go quite as planned. Arizona law (ARS 16-602 paragraph B1) says "don't pick until you've announced what the results are for each precinct". This is vital - otherwise, the county can learn which precincts are going to be hand counted and just avoid rigging those. As you'll see, this legal/security violation is one of many currently under litigation. Taken together, these violations are the county election department's way of make a claim to be able to rig our vote any time they want, to whatever degree they want.

The lawsuit is about taking that "right" away from them.

The plaintiffs include a mix of voters and candidates from across the state, all affected if the 56% of the AZ vote in Maricopa is tampered with. Lead attorney is Brad Roach (Republican) backed by consulting attorney Bill Risner (Democrat and veteran of many election lawsuits in Pima County AZ) and also consulting is Libertarian attorney (and LP state chair) Michael Kielsky. Investigators are John Brakey (a Democrat who's the cameraman in the above clips) from AUDIT-AZ based in Tucson, and Jim March (Libertarian with the goatee) with AUDIT-AZ and a member of the Board of Directors of BlackBoxVoting.org

This is not the 1st time. Video clip from November 2008.

Wednesday, August 18, 2010


Pre-election research over the last three weeks (based on the work of AUDIT AZ since 2006) discovered flagrant ILLEGAL violations of Arizona Election Laws [2]. The interlocking pattern of deliberate subversion of these security measures indicated below makes manipulation of vote counting easy, thus leaving elections vulnerable to undetectable fraud:
  1. Arizona Election Law requires pollworkers to sign poll tapes at the conclusion of the ballot count.[3] Maricopa Elections has removed the signature line and changed pollworker manual to remove instructions for pollworkers to sign the poll tapes printed by the precinct electronic voting machines.[4]
  2. Maricopa Elections Dept. has prevented properly credentialed party observers from observing the central tabulator systems.
  3. Maricopa Elections Dept. has been connecting to and distributing election data over the Internet, in violation of Arizona law.[5]
  4. Maricopa Elections Dept uses uncertified software on the certified voting systems. These are listed in AZ law specifically as felonies.[6]
  5. Maricopa County blocks the public from knowing the vote totals at the precinct, instructing pollworkers to withhold results and prevents any observers from photographing the machine totals.[7] This is in open violation of AZ law.  In contrast Pinal County posts the “results tape” on the front door of each polling location. [8]
  6. Maricopa County ordered their pollworkers for all recent elections not to place the polltapes produced by the electronic voting machines (“results tapes” that should, by law, be signed) into the sealed “official returns envelope”.  This sealed envelope is to be preserved in case of a challenge.
  7. Maricopa Elections Dept. orders their pollworkers to return critical ballot materials (the “memory cartridge” electronic ballot boxes) from the polling places at the end of election day with one person only.[9] AZ law requires two persons to be assigned this task, one from each party.[10]
  8. Maricopa Elections Dept reports election results, combining by mail-in, precinct and provisional voting. It is easier to tamper with election results either by the precinct or mail-in votes; tampering with both to make them more or less equivalent in terms of the percentage of fraud is difficult.  If a candidate or issue wins a large majority in one type of voting and loses in the other, it’s a strong indicator of election tampering.  Maricopa County combines all the data into one total to avoid raising any inquiries into discrepancies.
These Points “Interlock” To Make A Complete Election Fraud Recipe.  If observers aren’t allowed to see the precinct data either on election night (point 5 above) or afterwards (8), and are blocked from seeing what goes on at the central tabulator (2) when it gets there on systems connected to the internet (3) on unknown, untested and illegal software (4) and the one reliable record available of precinct results (polltape) isn’t signed (1) OR put in a sealed bag for later review (6), then it’s not a proper election.  The only thing left to call it is “illegal” – and that’s what we will present to a judge.

Arizona law has set the conditions for any full recount to be the most difficult in the nation: recounts are automatically generated only when there is a 1/10th of 1% or smaller difference in election totals between two candidates or issues.  Florida is the only other state that is close to this standard, and their required percentage spreads are less stringent.  A candidate challenge is impossible, even if the candidate pays for it. This is a recipe for un-auditable election fraud [11].

A pattern is emerging in AZ elections.  In the case of the Maricopa LD20 (Sept 2004) election,[12] Election Director Karen Osborne testified that an 18% error rate on optical scanning machines was within the accepted error rate for those machines!  This same election fiasco resulted in ballots being confiscated by the FBI and never properly investigated. Regarding the Pima County court case about the disputed RTA election, a court ordered examination of the stored poll tapes from the RTA election of May 2006 showed that 44% of them were missing or didn’t match the official results.[13]

The Maricopa County Elections Department is responsible for the counting 56% of the total votes of the state of Arizona. Thus, subversion of the elections in Maricopa could easily result in changing the election results for the entire state in a statewide election. Therefore, a group of concerned citizens from five AZ counties, as individuals in Arizona, have filed a request for an emergency hearing to ask the court to force remedies for these violations of the law before the upcoming election on the 24th of this month. This Special Action Relief request asks for an expedited hearing to assure the upcoming election will follow election law to assure accurate results in this and all future elections in the state of Arizona.  Other relevant links: [14] [15]

Our complaint cites each violation, referring either to Arizona law or the May 2010 edition of the state-standard election procedures manual.[16]

John R Brakey
Cell 520-339-2696 Email: AUDITAZ@cox.net  

Jim March
Email: 1.Jim.March@gmail.com

Pinal county posts their "results tape" on front door of polling location.

This is not the USSR where Joe Stalin said: It’s not who cast the vote that count; it’s who count the vote that counts!

  1.  Electors’ v Purcell - 11 Motion supplemented.pdf:  http://tinyurl.com/263cc8f
  2.  Report by John Brakey and Jim March, “Unlawful Actions of the Maricopa County Elections – A Partial Compendium of Sins.” August 17, 2010:  http://tinyurl.com/2ej5egk
  3.  AZ Secretary of State’s procedures manual see page 144 & 145. This publication is available at: http://www.azsos.gov/election/Electronic_Voting_System/2010/Manual.pdf
  4.  Maricopa County Elections Pollworkers Manual - see page 41: http://recorder.maricopa.gov/pdf/ebworker_trainingManual.pdf
  5.  “Election Management System Security” on page 87, items 6 and 7.  This publication is available at: http://www.azsos.gov/election/Electronic_Voting_System/2010/Manual.pdf
  6.  The Sequoia Ballot Preparation/Printing System (BPS) – Does It Need To Be Certified by Tom Ryan, Ph.D. Arizona Citizens for Fair Elections: http://tinyurl.com/25wsqn6  
  7.  Maricopa County Elections Pollworkers Manual see page 41: http://recorder.maricopa.gov/pdf/ebworker_trainingManual.pdf
  8.  Pinal county pollworker manual - see page 23: http://pinalcountyaz.gov/Departments/Elections/Documents/Downloads/Poll%20Worker%20Reference%20Manual.pdf
  9.  Maricopa County Elections Pollworkers Manual - see page 42: http://recorder.maricopa.gov/pdf/ebworker_trainingManual.pdf
  10.  AZ Secretary of State’s procedures manual - see page 144. http://www.azsos.gov/election/Electronic_Voting_System/2010/Manual.pdf
  11.  To get a good overview of the problems with elections in Arizona, it’s important to read the resolution with background information written by attorney Bill Risner and passed by the AZ Democratic Party Jan 23rd 2010:  This report tells it like it is from a seasoned attorney with 42 years of experience on how bad the election systems is, it’s a must read if you care about elections:  http://tinyurl.com/27mw9jn
  12.  District 20 Recount Scandal Factsheet from AUDIT AZ: http://tinyurl.com/2bea8sh
  13.  The BRAD BLOG! 'EXCLUSIVE: Poll Tapes, Other Evidence Discovered Missing in Long-Disputed, 'Fixed' Arizona Election' at: http://www.bradblog.com/?p=7946
  14.  ELECTORS v PURCELL-12 REQUEST FOR EXPEDITED HEARING;  http://tinyurl.com/2fkbbr4  
  15.  ELECTORS V PURCELL -13 ORDER TO SHOW CAUSE;  http://tinyurl.com/26ryqcg
  16.  AZ Secretary of State’s procedures manual: http://www.azsos.gov/election/Electronic_Voting_System/2010/Manual.pdf

Sunday, August 8, 2010

When It Comes To Election Integrity In Arizona There’s Nothing Like Having An “Elephant in the Room” Or At Least A "Big Donkey".

By John R Brakey.
     Sometimes I have to remind myself that the work for election integrity is not about the right or left: it’s about right, wrong, greed and corruption. 
     I’ve learned over the last 9 years that there are basically three types of oversight of election in our country; one is Candidate, the 2nd is Party and the 3rd is Public oversight. I’ve learned that the first two suck, because the issue becomes political and partisan. It's got to be about Truth and Justice over Politics!  Not that "our candidate is better then their candidates for Governor".

     After all, this wasn't the first time the "Big Donkey" Arizona Attorney General Terry Goddard cleared Pima County of wrong doing by a joint investigation by his office and the suspects or secretly confiscating the ballots and other evidence, breaking the chain of custody. See Letter Of July 14, 2008 To Terry Goddard With Exhibits From Attorney Bill Risner
      NOTE: this is not an exhaustive list of problems with elections in Pima County or the RTA race specifically. There are many more issues and it will one day take a book to outline everything.
    In the case of elections, complexity, specialization, corruption, and marginalization techniques are enemies of the people. Modern computerized elections operate through systematic secrecy that robs citizens of access to information, full participation, and transparency in the counting process. As a result we are blind to election irregularities and fraud.
  A year ago, April 21, 2009 our Arizona Attorney General Terry Goddard held a press conference in Tucson to announce the completion of the RTA ballot hand count examination by his office. I was present to hear his pronouncement that he could “find no evidence that there was tampering with the election.” At first I wanted to believe Terry Goddard, and so I thanked him - you can see that on video. Fortunately Mari Herreras of the Tucson Weekly was there and filed a records request practically on the spot.  After receiving the requested documents we learned that “the devil was in the details.”  Furthermore, the details of what we found alarmed us so much that we decided that the Attorney General’s finding must be reviewed and audited.  That’s why we went to well known election expert Ellen Theisen of Voters Unite. org. Her report can be found at this link: Significant Discrepancies In Comparison Of RTA Results
    My complete review of the video of AG Goddard's press conference statement has prompted me to explain in some detail why his investigation, despite its theatrical aspects, was critically incomplete.

     It is important to examine the two-billion-dollar Regional Transportation Authority (RTA) ballot initiative investigation by the Attorney General for what it teaches us about election security in the future. The conclusion we have learned is that every effort must be made to make sure that election cheating cannot occur in the first place. Once an election is rigged, the political system unites to prevent examination or challenge.
    The key defect and the glaring omission of the Goddard examination was his office's absolute refusal either to examine the ballots themselves to determine if they were the original ballots or to permit the political parties to conduct a simple, quick and non-destructive examination.
    At the April 21st press conference Jim March, the Libertarian Party designated observer at the RTA hand count, asked this question:
Jim March: “Was any attempt made to determine the authenticity of the paper ballots in your possession? In other words, did you check to see if they were printed on a Runbeck offset printer as opposed to a more modern laser printer, which both Pima and Maricopa County have in their possession?”
Terry Goddard: “No. Our criminal investigation can only focus on those items for which we believe we have reasonable suspicion and the substitution of thousands of ballots is not an item that had been raised that we felt came to that level. I've not seen any credible evidence that anybody is out to testify that there might have been a substitution of ballots. You can't go through a forensic analysis for something for which you have no reasonable suspicion that it might have happened.
I don't mean to belittle any possible suspicion, but in the context of a criminal investigation, we don't start by eliminating every possibility, we start by taking evidence and focusing on that for which we have probable cause or reasonable suspicion: in this case, that a crime might have been committed.
Raising a criminal suspicion is something we do only with a strong showing that we have something to go on. We did not have the opportunity to do the forensic discussion that was just described. Maybe in a perfect world, we would try to eliminate every possibility of tampering that could ever be out there, but that's not the world of criminal investigation. We have to start with the suspicion that we believe is justified before we go to the expense of the public to do what we have done today.”

     The Pima County Democratic Party first asked for the Attorney General's office to examine the RTA ballots in 2007. They refused to do so. As Attorney General Goddard explained at his press conference, “it took a while for me to get to that point in this investigation.” (SEE TIME LINE OF EVENTS BELOW)  While Goddard was getting to that point, the ballots sat in storage controlled by Pima County officials. If, as all of many threads of evidence suggest, the Pima County election computer operator rigged the RTA election at the request of his superiors, then County officials’ motive to substitute ballots would have been of the highest order.
    Could Pima County have printed new ballots? (Video of how it could have been done) Yes, and quite easily. Pima County owns a ballot printing machine. It is known as “ballot-on-demand” system. That machine can immediately print any ballot for any precinct of the RTA election, last fall's primary or general election or any other recent election.  It can do so because the “GEMS” election computer database retains the printing instructions known as “ballot definition files.”
    The original ballots were printed on an offset press by Runbeck Election Services in Glendale, Arizona. (click on pictures to enlarge and you can see how easy it is to tell the differences between offset or laser printed .)
    The unused RTA ballots were reportedly destroyed by Runbeck in June of 2006. If Pima County wanted to print new ballots, they could most easily print them using their own ballot printing machine. Pima County's machine uses a laser printer. That printer is simply a computer with GEMS instructions connected to an Okidata laser printer.
    In a personal experiment, Jim March used a microscope and noted that the offset printed ballots from Runbeck had “clean” margins on the printed material while laser printed material had observable “toner spray” on the margins. He showed, therefore, that by simply putting a ballot under a microscope one can determine if it was printed on an offset press or a laser printer.
    Jim March photographed samples of each and sent to the Attorney General's office copies of the photographs and a description of what to look for on March 31, 2009 . He requested that they look at the ballots as he had demonstrated. Jim brought a microscope with him to Phoenix and kept it available for such an examination in the observation room on the other side of the glass window to the counting area.
    The Pima County Democratic Party Chairman spoke on the telephone with Attorney General Goddard and asked for our observer to be able to use a hand lens. Goddard agreed, but his personnel at the scene refused.
    Bill Risner. attorney for the Pima County Democratic Party, made a written request that the Attorney General's investigators conduct a forensic examination of the ballots themselves or permit us to do so.  In a highly unusual and significant vote, the entire Executive Committee of the Pima County Democratic Party requested the Attorney General's office to conduct such an examination or permit us to use the microscope ourselves.
    The Attorney General refused in a letter from Criminal Division Chief Counsel Donald Conrad, the lawyer in charge of the investigation, to Pima County Democratic Party Chairman Jeffrey Rogers, dated April 10, 2009.
    Three days later, in a letter faxed on April 13, 2009, Bill Risner responded to Mr. Conrad on various matters including the requested ballot examination.
Bill Risner wrote to Donald Conrad:  Your April 10 letter contains a paragraph concerning examination of the ballots that I do not understand. It appears that we may not have made ourselves clear. You state that “several people have brought to our attention their concerns that false ballots were printed and included in the final count of votes in the RTA election.” You then conclude that your office won't examine the ballots unless proof is first provided that such a fraud did occur. In other words, you won't ask the questions unless the answer is first assured. That approach is backward to any investigative technique that I am familiar with.
More importantly, your answer relates to an allegation that we did not make. No one, to our knowledge, has suggested that false ballots were printed and included in the final count of the RTA election. As your office has learned, it is very easy for Pima County to cheat using either the GEMS computer system or the “cropscanner” memory card programming device that they purchased. If those easy methods were used for the RTA, the question arises as to the validity of the contents of the ballot boxes. (Video link to how cropscanner hack works)
     We know the Pima County Elections Department owns a ballot printing machine. We do not know the security of those ballots at Iron Mountain. Therefore, we made the elemental suggestion that a noninvasive and non-destructive examination of a sample of the ballots could be done using a microscope. Jim March, the Libertarian Party's named observer, had such a microscope at your facility all last week. From our viewpoint, such an examination would have been both simple and elemental.”
    Mr. Goddard's statement at the press conference that his office “did not have the opportunity to do the forensic discussion that was just described” is simply wrong. The opportunity was present during the entire ballot counting process. Likewise, the issue of “expense” to the public is non-existent since such an examination in their presence or by them would be at no cost. Mr. Goddard began his press conference by explaining that the ballots in the possession of his office were always under the supervision of two or more police officers and at least two different security devices. He explained that those precautions were necessary “if in fact we determined that a major difference was found between the hand count and the previously reported count, that we would be able to proceed to trial without damaging the evidence involved.”
    As the hand count demonstrated, there were only small differences between the reported count and the hand count. Therefore, his investigators knew from the first day that there would not be a major difference and that those precautions were unlikely to be necessary.
    The Democratic and Libertarian parties wanted a sample of the ballots examined under a microscope so that the public could be assured that the ballots cast were the ballots counted. It was a goal that the Attorney General shared in words if not deed.  As Mr. Goddard explained, it was “important to have as much transparency as we could, and I want to emphasize this, consistent with a thorough criminal investigation.”
    Mr. Goddard described the criminal investigation process as requiring “probable cause or reasonable suspicion” before any single piece of evidence in their possession could be examined. It's the same formulation as his chief criminal deputy who wouldn't examine the ballots unless proof was first provided that such a fraudulent substitution had occurred.
    The Attorney General wanted a witness to testify before they would look. He said “I've not seen any credible evidence that anybody is out to testify that there might have been a substitution of ballots.”
    YES, it is truly astonishing that the Attorney General would ignore a request from the Executive Committee of the largest political party in Pima County for his office to simply put a sample of the ballots under a microscope. If his office felt that they had enough suspicion in the first place for the investigation, they should have examined the ballots sufficiently to put these matters to rest.
    The existence of motive, opportunity and means to accomplish a ballot switch was irrelevant to his office without an eye witness or confession first.
    This quite intentional avoidance of basic forensic examination brings to mind the first examination by the Attorney General of the regular printing of actual vote tallies days or weeks in advance of election day by the Pima County Election Department. The Attorney General accepted the explanation of Bryan Crane that he printed those tallies in order to confirm that the “heads” that optically read the ballots were operating properly.
    That explanation contradicted his earlier sworn testimony that he had printed the tallies in order to write down a “cards cast number” and within “seconds” would shred the tallies on an office shredder. That “explanation” further contradicted the testimony of his assistant, Robbie Evans, Jr., see video.
    Prior to their interview of Mr. Crane, the Attorney General's office had been given the name of Mr. Crane's assistant of four years, Robbie Evans Jr., and were informed that he would explain that such tallies were regularly printed so that the election department would know who was losing and who was winning. The Attorney General's investigators chose not to speak to Mr. Evans.
    At the “database” trial, Mr. Evans testified under oath that the Pima County Election Division printed pre-election tallies so regularly that Pima County paid for a rubber stamp to be made to stamp them as “unofficial tallies.” He further testified that the Pima County Election Director regularly came in to obtain his own copy to take back to his office. Other copies were kept at a table in the computer room. His testimony cannot be reconciled with the unexamined explanation accepted by the Attorney General.
    The conclusion that we draw from our experience with the Attorney General's office is that they will go to extra-ordinary lengths not to effectively investigate and not to prosecute.

    A Superior Court judge ruled that the court “had no jurisdiction” to consider election fraud in the RTA even if it was accepted as a fact that it had been rigged. Of course, the Pima County Attorney's office has spent years and hundreds of attorney hours attempting to prevent election transparency.

    Arizona’s election director, Joseph Kanefield, testified in the database case that the fundamental security flaws that make the Diebold/GEMS data impossible to validate were “known by not only our office but election officers all over the country.”
    What has been proven to my satisfaction is that no election can be challenged after the fact.  At least no election that involves a lot of money, such as the $2 billion RTA road plan and tax increase.
    In view of the agreed-upon fact that our elections can easily be rigged using the secret computer software, we must make changes before an election to prevent fraud in the first place.
    We now know the only reason Goddard took the ballots is because Bill Risner had made a deal with Beth Ford attorney to get the Poll tapes and Risner  asked Goddard to send an agent to protect the Chain of Custody, very soon after the Ballot disappeared with an “Secret Order from a Secret Judge”. We have it on film.
From Page 8 and 9 - Conclusion
Comparing the number of ballots hand counted and the number canvassed revealed severe discrepancies that require further investigation. The extent of the discrepancies indicates that:
  •   The attorney general’s report contains significant errors, 
  •   The county’s canvass report and transmittal sheets contain significant errors, 
  •   And/or the ballots hand counted were not the same ballots that were canvassed.
The questions raised by these discrepancies could be answered by examining the election-night precinct poll tapes and poll worker reports from the RTA election. These documents are still available in the boxes in which the ballots are stored.
A precinct poll tape is printed by each optical scanner at the end of election day. It shows the number of ballots cast and the results for each contest on the ballot.
A poll worker report (informally known as a “yellow sheet”) is completed by poll workers in each precinct at the end of election day. It shows the number of voters who signed in and an accounting of the ballots.
A sample poll worker report and the top portion of a corresponding precinct poll tape are shown on the following page. (see report)
The attorney general did not examine poll tapes or poll worker reports as part of his criminal investigation, and as yet the Pima County Democratic Party has been unable to obtain them through open records requests.
Examining the poll tapes and poll worker reports would answer these questions:
  • How many ballots were scanned by each machine in each precinct?
  • How many “yes” selections, “no” selections, undervotes, and overvotes were recorded by each machine in each precinct? 
  • Did the number of ballots cast in each precinct match the number of voters that signed in?
Without definitive answers to these questions – answers that the poll tapes and poll worker reports could provide -- the discrepancies revealed in this report cannot be resolved.
In his April 21, 2009 press conference Attorney General Goddard said of the ballots: “We had to preserve this situation so that if, in fact, we were to determine that a major difference was found between the hand count and the previously reported count, that we’d be able to proceed to trial without damaging the evidence involved.”
This report establishes a “major difference” that requires an examination of the poll tapes and poll worker reports. Especially in light of the irregularities that convinced Attorney General Goddard that “there was reasonable suspicion that a crime might have been committed,” the possibility of ballot tampering remains an open issue.  End of excerpt.

Note:  Since the release of the Voters Unite . Org  report we were able to get  from the City of Tucson general election of November 2nd 2009 all the poll tapes and poll workers end of day reports for a total cost of $14.50. Meanwhile Pima County has spent additional $150,000 keeping us from the RTA poll tapes and the end of day poll worker reports. The current estimate is that the county has spent about 1.2 million dollars and counting, blocking us from getting to the bottom of all this.  This in itself is outrageous and points to their hiding something.  To know more about this go to “SEEKING JUSTICE - AUDITAZ” and read about what going on with the poll tapes now.

  • 2/13/09 A must read: AZ Daily Star “Goddard: Recount for 'curiosity' not allowed”  Goddard stated: "If they can bring us viable information we would continue to investigate it. They haven't. They've brought us what I can only describe as a wild story".
  • 2/18/09 Bill Risner informed the AG in a letter that he had reached agreement to finally get the Poll tapes.  “The Democratic Party expects to be able to access the poll tapes in the coming weeks. We, of course, need to get these before Beth Ford, the Pima County Treasurer, destroys the ballots. We are concerned about the retrieval process itself, however, because we want to make sure that the evidence is not contaminated. Since your office is conducting your own investigation, we invite you to participate in the poll tape retrieval. Your participation would serve to preserve the integrity of that evidence, should it ultimately be needed.” 
  • 2/19/09 the next day after sending letter to Terry Goddard Bill Risner is told by Attorney for the Treasurer’s office John Richardson that the AG Office is now interested and is going to seize the ballots.
  • 2/20/09 By Andrea Kelly Arizona Daily Star AG asks for Pima County's transportation election ballots” 
  • 2/23/09 Bill Risner Letter to AG Terry Goddard regard the secret order.pdf 
  • 2/23/09 in court AG office presents a secret court order to take the ballots. Link to video.
  • 2/25/09 the ballots are moved from a secure facility “Iron Mountain’ by AG office to a secret location. Video: Where are the Ballots?
  • 3/31/09 Bill Risner sent Jim March report to AG office on a simple way to verify the ballots and check them to be the original.   
  • 4/06/09 we can see at the hand count that the AG Office compromised chain of custody; the ballots were not securely handled; boxes were not secrecy-taped; the AG gave no accounting for the location of the ballots from 2/25/09 until they arrived at Maricopa Election Department about May 1st.  Bill Risner, Jeff Rogers and the Executive Committee’s Resolution of Pima DEMs asked to have polltapes separated and have ballots checked for being original 2006 ballots – this did not happen. Transparency requires that the public be advised of the ballot chain of custody, where the ballots during that time. After ballots are counted their packed back in the boxes, sealed, signed, proper chains of custody is done and that what should have been done when they took the ballots out of Iron Mountain a secure storage facility. 
  • 04/10/09 AG Goddard Office to PCDP Chair Jeff Rogers No Evidence to check- Bull .pdf 
  • 04/13/09 Bill Risner faxed letter to Donald Conrad of AG office that clearly spells out the problems. 
  • 04/17/09  Bill Risner letter to Donald Conrad about poll tapes, Pima Treasure "Beth Ford" says its OK to separate into one box.
  • 04/21/09 AG Terry Goddard hold a press conference basically said we did such a good job that we found 67 extra ballots. While this is imposable when in fact we learned later that he was missing four precincts worth of ballots.  See Ellen Theisen of Voters United . org Report
    This Is Not The First Time Terry Goddard Cleared Pima County of Wrong Doing - See Letter Of July 14, 2008 To Terry Goddard With Exhibits From Attorney Bill Risner.
    The databases pointed us to the need to inspect poll tapes. From that examination of the databases for the 2006 special election, we learned that 85 separate precinct memory cards were at least loaded once to as many as 6 times starting at 10:15 pm election night. No backup of the database was made election night Tuesday May 16th as always had been done. In fact no backup was made until Friday May 19th at 5:01 pm. Why you may ask? Well, that is simple: they didn’t want to leave any evidence of wrongdoing. To have a flip, then you have to have a flop, no backup made, no evidence of misdeeds, except the database shows the time when the reloads were done and how many times it was done.

    Importantly, the poll tapes will have date and time on them, how many votes were cast and are signed by the poll workers at the precinct – they are a solid record of election day results that is difficult to tamper with after the fact.
  • Will they match what's in the final database?
  • Will they have evidence of the “cropscanner” being used? 
  • Will they still be there? 
  • Have the poll tapes already been destroyed? 
  • Why has the county worked and spent so much money keeping this out of the public view? 
  • Why does the County agree to give us the poll tapes next August?
    Again, what are they hiding?
    Bill Risner and Jody Gibbs in this video explain what many don’t want to believe, but the facts are saying it too. Link to Video.
When AG office took boxes they did nothing to protect the “chain-of-custody”.
Transparency requires that the public be advised of the ballot “chain-of-custody”, where the ballots were during the 5 weeks be for the hand count. And should be sealed properly with “security tape” and signed by the AG's agents and that wasn't done. 
However the Chain-of Custody is not done correctly only after the AG hand count is done.
Boxes of ballots are also signed by all who handled them.
Placing the AG evidence seal on boxes after the fact – not at the time of pickup.
After ballots are counted they are packed back in the boxes, sealed, signed, proper chains of custody is done and that what should have been done when they took the ballots out of Iron Mountain a secure storage facility.
 Thomas Jefferson’s Powerful Words:
"It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism: (tyranny) free government is founded in jealousy and not in confidence; it is jealousy and not confidence which prescribes limited Constitutions to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which and no further our confidence may go."