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.