Bill Risner Assesses the Pima Investigation and Poses a Solution

In today's Tucson Citizen we get three views on the RTA election investigation and recount. Please take the time to read and comment.  We're not done investigating. 
--  John R Brakey, EDA Investigations Coordinator

Bill Risner, counsel for Pima County Democratic Party:

Full transparency is the answer in achieving solid results and public trust

"Our primary concern by far, however, is future elections."
http://www.tucsoncitizen.com/ss/fromcomments/115236.php [26]

=========================

AZ Attorney General Terry Goddard:
"Establishing election procedures that are secure, accurate and transparent is fundamental to maintaining public confidence in our democratic process."

Nearly identical recount by hand shakes allegations of wrongdoing [27]
http://www.tucsoncitizen.com/ss/opinion/115234 [27]

=========================

Chuck Huckelberry, Pima County Administrator:
"This remarkable accuracy is a testament to the integrity and diligence of Elections Director Brad Nelson and Computer Specialist Bryan Crane, as well as the elections staff."

Improvements in voting process, refuting fraud a win-win for county [28]
http://www.tucsoncitizen.com/ss/fromcomments/115235.php [28]

======================

Published Monday, April 27 in the Tucson Citizen

Full Transparency is the Answer in Achieving Solid Results and Public Trust

By Bill Risner

The Pima County Democratic Party is in unanimous agreement that the accurate counting of our votes is fundamental, critical and non-negotiable. Some 1,500 of our volunteers work at each election to ensure the honesty of those elections.

The recent RTA ballot count by the Attorney General's office was a by-product of that effort but, by no means, a central focus. The central problem is that we use a computer system that makes cheating easy and detection difficult. The RTA was endorsed by the Democratic Party. Our concerns had nothing to do with the plan. It had everything to do with the sworn affidavit in which the computer operator confessed to rigging the election on the instruction of his county bosses.

That reported confession combined with our analysis of the database that revealed multiple anomalies consistent with such rigging required an investigation, in our view, to settle a supremely important question. Local newspapers and the Republican and Libertarian parties joined in our request for a serious investigation.

Since the ballots had been in the custody of Pima County officials for the past two and a half years, the issue of whether those ballots were the original ballots was a necessary issue to resolve.

Pima County owns a ballot printing machine and the 'GEMS' election software still contains all the printing instructions for that election. The original ballots were printed on an offset press by the Runbeck Company and Pima County's ballot printing machine uses a laser printer. We asked the Attorney General to conduct a forensic examination itself, or to allow us to look at the ballots with a microscope to confirm that they were all offset-printed. The Attorney General refused both requests.

We noted that the simple non-destructive examination of sample ballots would serve our mutual goal of public confidence. Despite the presence of the microscope during the one-and-a-half weeks that the ballots were being counted, the Attorney General never permitted the examination of any ballots. We regret that he chose not to resolve that obvious issue since it was both important and easy to resolve.

However, our primary concern, by far, concerns future elections. The value of examining past election practices is to ensure that corrections and safeguards are in place for future elections. The entire election process is dependant on doing it right in the first place. The common problem shared by all citizens in Pima County is that it is easy to cheat using our computer system and very difficult to do anything about it. The 'easy-to-cheat' issue is agreed upon by all knowledgeable observers. Interestingly, those who know the most about computers are the least comfortable with them counting our votes using secret software instructions. Some sample quotes explain the problem.

--Pima County Attorney's Office Chief Civil Deputy, Chris Straub:
"Because it can be easily manipulated, the bottom line in this whole thing is we're only going to catch the stupid people, all right, because one could also alter the audit logs. One could do anything."

--iBeta report to the Arizona Attorney General:
"During testing it was discovered that the GEMS software exhibits fundamental security flaws that make definitive validation of data impossible due to the ease of data and log manipulation."

--David Jefferson, Ph.D.:
"The security mechanisms that are there are 'in general hopelessly inadequate to prevent manipulation of ballot records or vote totals by anyone with even a very short period of access to the system."

--Arizona Election Director Joseph Kanefield:
"This is no secret. These issues have been known by not only our office but election offices all over the country."

The 'easy-to-cheat' problem must be combined with the impossibility to challenge any election. State law requires that an election challenge be filed within five days of the approval of the canvass with specific details as to why the outcome would have been different. The paper ballots cannot be examined. The electronic database cannot be examined within that narrow time frame and can be easily altered in any event.

Finally, the courts have no jurisdiction after the five-day period. Therefore, it is impossible to challenge any crooked election. We know it is impossible and so do the election computer operators.

The answer is to use a graphic commercial scanner to scan all the ballots after they are counted and to make the totality of the ballots publicly available on the internet or other electronic means. Those ballots can then be counted by any person, candidate or political party using open-source free software.

--Bill Risner is a personal injury specialist trial attorney who has represented the Pima County Democratic Party in election matters.

EDA Elections Investigator John Brakey Acquitted on Trespassing Charge

Yesterday (4.16.09) in Pima County Superior Court, Judge Luis Castillo dismissed trespassing charges filed against election observer John Brakey by the Pima County Elections Director, Brad Nelson. In so ruling, Judge Castillo also said Nelson was "over-reaching" when he had Brakey arrested during the Pima County primary audit of 2008.

This video is part of the EDA TV videolog collection online at: http://eda-tv.blip.tv/ [29]
The URL for this particular video is:  http://blip.tv/file/2004617/ [30]

BACKGROUND:

While monitoring a handcount of ballots from the September 3rd Arizona primary, in his capacity as an official election observer for the Democratic and Libertarian parties, EDA Investigations Co-Coordinator John Brakey was arrested and ejected from the Pima County election headquarters on orders of Pima County Elections Director Brad Nelson.

 

Brakey had noticed that several of the incoming bags containing ballots from the precincts had unsecured or missing seals. The seal failures appeared to be the result of pollworkers not knowing how to properly lock them.

Brakey then wondered whether the serial numbers on the bag seals matched the serial numbers recorded by the precinct pollworkers when they sealed the ballots. One question led to another, and Brakey ended up in handcuffs.

Video: http://electiondefensealliance.org/2008/09/john_brakey_arrested [31]

 These clips are part of the Pima/RTA election investigation story soon to be released as Fatally Flawed [32], a feature documentary film produced by EDA in association with Sound and Fury Productions, Inc.

See the trailer here: http://eda-tv.blip.tv/#1987293 [33]

============

Update 4/17/09:  Letter from Attorney Bill Risner, John Brakey's legal counsel

Justice of the Peace Jose Luis Castillo entered a judgment of acquittal on the trespassing criminal charges against John Brakey yesterday afternoon.  No defense witnesses were necessary as the case was dismissed at the end of the prosecution case.  The judge specifically noted that Mr. Brakey's efforts were helpful to improving ballot auditing procedures.  Importantly he found that Brad Nelson had "overreached" in ordering Brakey arrested.

John Brakey was a Democratic Party observer when arrested.  I am proud that he stood his ground against the bully Brad Nelson.  Here is what happened, according to Brad Nelson's testimony.

Brakey had been an observer on two prior occasions and was able to ask questions of party auditors.

Nelson had conducted an orientation session of party auditors during which Brakey was "confrontational" when he raised his hand and asked if they could count a county race.
Nelson did not mention to the auditors during the orientation that auditors should look at the seal numbers on the yellow sheets or the bags.

Noting those seal numbers is important.

Brakey asked some auditors to check and note whether the yellow sheet seal record matched the bag seals.

Brakey's question was helpful and pertinent.

The information Brakey requested resulted in changes in the procedures in the future which was beneficial.

Brakey had informed Nelson of the benefit of recording that information prior to speaking to the individuals but Nelson did not say anything to any auditors.

Nelson had  a personal rule that a party observer could not ask any questions of any auditors.  It was not in any writing of his nor in the Secretary of State manual.
A statute allowed Nelson to kick out anyone who "disrupted" the count.

When Brakey spoke to party auditors no ballots were on any table.

Nelson concluded that Brakey was disrupting "the process" because as soon as the auditors were sworn in the process had begun, and especially when the bags were brought into the room, even though they were just sitting on the tables.

Nelson was responding to a "complaint" of Republican Party chair Judy White that Brakey had asked a question without Nelsons approval.

My conclusion is stronger than the judge's measured conclusion that Nelson had "overreached."  He needs to be fired.  He is not merely a serial liar.  He has serious personality control problems that disqualify him from working with political parties.  He is simply a power mad lunatic, at a minimum.

-- Bill Risner

 

Goddard's Election Investigation Highly Suspicious -- of the Observers

Pima County RTA Investigation: Who Are The Suspects?
By John R Brakey   Thursday, April 09, 2009
This week Arizona Attorney General Terry Goddard is supervising a recount of the (2006) RTA transit bond election as part of a criminal investigation to discover whether results from that election were rigged. The truth lies within 105 boxes of ballots. 

As election integrity activists, we verify and seek only the truth regardless of the outcome. We think of ourselves as partners with our elected officials in search of solutions that will subject future elections to proper public oversight in order to ensure their integrity. 

"One person, one vote" is the basis of our democracy.  We shouldn't have to wonder if our votes are being counted correctly; but it's also true that only through our active exercise of our rights will our democracy survive and flourish. Citizenship is every person's highest calling. The responsibility of citizenship, I've learned, is practiced with what I like to call the Four C's: Character, Capacity, Credibility, and Civility.

 
At times, it seems that to be an election observer, a little Courage is needed as well. For the privilege of doing our civic duty as citizen observers, monitoring the Maricopa election workers through a glass window as they hand count ballots from the 2006 RTA election, we must walk through a gauntlet of security checks, many times, daily.
We have to wonder why this level of surveillance is necessary in a public area?  What threat do we represent? A system that intimidates citizen participation is not what good government was meant to be.

We should not have to feel like we are the suspects. Let there be no doubt, that is how others and I were made to feel in the public viewing area.  Our bodies and belongings were thoroughly searched every time we entered the area.  We were constantly watched by two sheriff's deputies and an additional (armed) man from the attorney general's office. We experienced a constant, calculated insult as each of us was followed everywhere by a 'minder' from law enforcement, even to the bathroom.

Even though we viewed the count through a window that prevents any close-up look at the ballots and does not allow us to hear anything inside the counting area, we were not permitted to use cell phones or modems.  We have to wonder why.  When practicing good citizenship, one should not be treated as or made to feel like a suspect.
 
Republican Party recount observer Bob Hancock (left) and Democratic Party observer Ben Love (right) behold evidence of the AG's shoddy ballot custody (see closeup of improperly sealed ballot box below) while themselves being closely monitored by an unidentified officer (middle) from the attorney general's office -- one of five plainclothes AG officers armed with handguns tailing every election observer both inside and outside of the ballot counting room. Under Attorney General Goddard's procedures, official recount observers are prohibited from taking any notes (even pens and paper are banned) and in fact, are not even allowed to stand close enough to read the ballots, poll tapes, or any other evidence that they are supposedly there to witness and verify.
Yesterday (4.7.09) observers Hancock and Love were told by the attorney general's officer in charge of the recount, Special Agent Meg J. Hinchey of the Special Investigations Division, that the Pima ballots have been held in the Maricopa County Election Department since Attorney General Goddard secretly ordered them removed from Pima County in February. That announcement contradicts previous declarations by the AG's office and Maricopa Elections Department that the attorney general's office has been in possession of the ballots. Attorney General Goddard is the only one who really knows for sure where the Pima ballot evidence has been for the past two months, and he has yet to give any public accounting of the ballot chain of custody.

One of the greatest things the founders of our country did in setting up the functioning of our government was to establish the idea that the government acts as our servant. Each time we show up to observe our elections, we reinforce this principle. Emerging from the court case, Pima County Democratic Party v Board of Supervisors, was the unassailable fact (acknowledged by Attorney General Goddard) that we're voting on a "seriously flawed" voting system.
The Pima County Elections Department must account for the aberrant facts and anomalies [34] unique to the 2006 RTA  election. It is disappointing, at this late date, that no one from the attorney general's office has ever interviewed Jim March, Dr. Tom Ryan, or Mickey Duniho about our findings regarding the facts and anomalies pertinent to the RTA election.
It is our hope that the collective work of many concerned citizens exposing these problems will lead to their correction -- not by replacing the present fatally flawed Diebold system with another vendor's equally secretive computerized voting machines, but by making the electoral system fully transparent and accountable to the voters. 
The soon-to-be-released documentary film, Fatally Flawed [33], tells the story and points to solutions. Soon it will be all about solutions. As we pursue the truth in this matter, let's stay mindful of where the scrutiny and suspicion ought to stay focused.

John Brakey
[35]

Co-founder of AUDIT-AZ (Americans United for Democracy, Integrity, and Transparency in Elections, Arizona)

Election Defense Alliance Co-Coordinator for Investigations [36] 

Mobile: 520 339 2696

E-mail [37]
 
 
 
 
 
 
 

Recount Validates RTA Election Results, Goddard Says

From J. T. Waldron, director of "Fatally Flawed", a documentary co-production of Election Defense Alliance and Sound and Fury Productions, Inc. :

"Copies of the rough cut for "Fatally Flawed" have been circulating all last week.

The film includes an ending with the statement:
"After the count, Attorney General Terry Goddard announced that his office found no evidence of tampering of the RTA election."

Cynically, perhaps pragmatically, we didn't anticipate having to change the ending. This was a precarious time, actually, because it was very doubtful that [Pima County administrator] Chuck Huckleberry would have to go down. I just couldn't see it.

But I could not predict that Goddard would stonewall so blatantly on the poll tapes and forensic analysis of ballots.

Why would he not look at poll tapes and forensic data to evaluate the value of these ballots as evidence?

We do know that:
1. Goddard had the opportunity to perform these tasks.
2. Goddard was informed of the necessity to perform these tasks.
3. The choice by Goddard was to avoid these tasks.

There's more to this missing ballot saga that we are interested in finding out about soon."

About This Film

"Fatally Flawed," is a true detective story about a transit bond ballot measure passed under suspicious circumstances in Pima County, AZ in 2006.

Tell-tale evidence of insider election rigging was uncovered by the team of EDA Investigator John Brakey and Jim March of Blackbox Voting. Working with a coalition of election integrity activists and political parties, Brakey and March have doggedly pursued a 3-year investigation, resulting in a series of court actions focused on the public's right to examine the ballot evidence.

Persistent unanswered questions in the case led to a criminal investigation by the Arizona attorney general, involving a recount conducted under conditions that made meaningful public observation impossible.

There is more to this story than meets the public eye. The denouement of Fatally Flawed is in the making as of this moment.

Pima RTA Election: 31 Anomalies for Investigation

31 Facts and Anomalies Pertinent to the Pima County RTA Election

1.   On the day of the RTA election (Tuesday, May 16, 2006) there was a very high and unusual number of failures of Diebold precinct-based optical scan voting machines.  Pima County tried to cover up these machine failures. On election night, the Pima Election Department reported to the newsmedia that 35 precinct optical scanners had failed.  A county memo two weeks later stated that 75 machines had failed.  Now it appears from examination of the election database that 149 scanners failed.

2.   A Microsoft Access manual was seen and photographed in the vote tabulation room on election night by former Representative Ted Downing. Use of MS Access on an election computer was and is illegal. Downing described a Microsoft Access manual being referenced by election department technician Bryan Crane in blatant violation of election law. Downing then called Donna Branch-Gilby, at that time the Chair of the Pima County Democratic Party, and asked her to bring a camera.  Donna came with her husband, Bob Gilby, and took pictures of the Microsoft Access manual sitting open next to the central tabulator.

3.   Because of the problems and unusual procedures Downing had observed during the election night count, he requested that Pima Election Director Brad Nelson make a backup of the election database, put it in an envelope, sign it, and take it to the sheriff's office to be held in secure custody.  Nelson refused.

4.   The audit logs show that the database was NOT backed up on election night.  Election night backups had been performed in virtually every other Pima County election. The database was not backed up until three days later, on Friday May 19th at 5:00 pm, after all election results had been published.

5.   The Pima County Election Division purchased a 'crop scanner' computer-hacking tool ten months before the RTA election. This tool had no other purpose in the Election Division than to illegally alter the programming of precinct voting machines. The Cropscanner is a known hacking tool that can reprogram memory cards used in the precinct optical scanners.  See video from the HBO movie, Hacking Democracy: http://video.google.com/videoplay?docid=8186883351933387074
[38]
6.   After Downing and other observers left the county election center on election night (we know from the databases saved on the 19th) the re-uploading of memory cards was fast and furious after 10:19 pm and continuing until 3:15 am.  Sixty-seven memory cards were reloaded for a second time. The next morning (May 17th) at 9:14 am one more card was reloaded a second time. Then on Friday, May 19th, eight more cards  were reloaded. On Saturday, May 20th, 23 other memory cards were reloaded for the second time, overwriting the previous precinct results. Altogether,  93 out of the 368 precinct memory cards used in the election were reloaded to the voting system.  In the 2004 general election --involving a much more complicated ballot -- there were fewer than three memory card reloads.

7.   What does this all adds up to?  A very high failure rate of memory cards would be the only thing that could legitimately explain all these uploads.  Failure rates this high should have caused the county to blame Diebold - but they didn't.  Why?  Because it appears to be a self-inflicted problem and they knew it!  Something was going wrong.

8.   Audit logs show that Crane had a consistent pattern of always backing up databases after any work was completed and before shutting down GEMS. In view of this procedural pattern, it is highly unusual that he didn't backup the database on the morning of May 17th.

9.   Comparison of the database from May 19th and another database saved on Saturday May 20th reveals many discrepancies.  Among these, we see precincts where replacement memory card data were fed in that either added to the vote totals or, in some cases, subtracted ballots.  Ballot purging can't happen without a significant paper trail which is nowhere in evidence.  What we can't see clearly is what happened to the database between May 16th at 4:00 pm and May 19th at 5:00 pm.  The audit log only records when an operator enters the voting system through the GEMS front door. However, the backdoor is easily accessed using MS-Access.

10.   Pima County Administrator Charles Huckleberry has known about the back door to the Diebold voting system since 1996. That's when Huckleberry authorized Bryan Crane to use that back door to merge two databases by hand using MS-Access, thus bypassing all of Diebold's minimal security.  That operation was done to merge precinct punch card data with Global/Diebold optical scanning system votes processed in GEMS.  This information is from the archives of the Arizona Daily Star.  The operations Crane used to effect this database merger are not in the Diebold system manuals or in any certified voting system procedures.

11.   Former and current long-time Pima election department employees have stated that just before the RTA database was built, Election Department Director Brad Nelson expelled all employees from the tabulation center except Bryan Crane, Mary Martinson, and Tomas Kalesinskas.

12.   As insane as it sounds, it was a common practice for Bryan Crane to take the election databases home.

13.   Election Division staff printed unauthorized vote total summary reports after the first day of early ballot scanning and after Crane began an unusual procedure that led to the destruction of the original Early ballots vote tallies database from 'day one'. Crane then illegally printed two copies, ten minutes apart, of the election 'SUMMARY report,' a detailed outline of who's winning and losing.

14.   By law, these reports are NOT to be printed until one hour after the polls close on Election Day.  If the voting system needs to be checked, the proper procedure is to run a 'Cards Cast Report'. To summarize, Crane ran what looked like normal actions on 5/10/06 and made a 'snapshot backup' of the file when counting was done for the day.  On the morning of 5/11, he WROTE OVER the 5/10/06 database, destroying its integrity. He then printed two illegal copies of the 'who's winning and losing' summary report, ten minutes apart. 

15.   Diebold audit logs obtained by court order and examined by investigators Brakey and March show a pattern of printing illegal copies of election summary results going back as far as 2002.  The illegal peeking and printing was usually done during the first third of the election counting period.  Further counting was not done until printing became legal after close of polls at 8:00 pm on election night.

16.   Court testimony established that this illegal early-vote counting had been going on as far back as 1998, even before the audit log had that feature enabled.

17.   Bryan Crane told Pima County Judge Michael Miller that this was a normal practice and that every morning when running early ballots, he would prep a backup for that day.  Yet examination of the Diebold GEMS audit logs showed this had been done only a few other times since 2000. In actuality, Bryan Crane did backups just before lunch and before he went home at night. Watch this 13 minute video clip that shows Crane lying to Judge Miller!

http://video.google.com/videoplay?docid=7304338799617243809 [39]

18.   Again, before the second day of RTA early ballot scanning, Election Division staff erased the first day's database backup by overwriting it. This would have required responding to two warning messages, one from GEMS and one from Windows.  Then two election summary reports of who's "winning and losing" were printed with 13,618 ballots counted.

19.   This pattern of illegally taking home election database backups, then overwriting data and printing summary reports, is the model for hacking an election. First a false database is created or obtained.  Next, the false data is used to replace existing data.  Last, the winning and losing summary reports are printed to confirm that the hack was successful.

20.   Election systems expert Michael Shamos of Carnegie Mellon advised the AG investigator of possible RTA fraud and recommended handcounting the ballots, echoing advice from local election activists.

21.   The AG Investigator lied to Shamos in an e-mail, claiming that 'local naysayers' were onboard with not looking at ballots. The opposite was true, and the investigator knew it because he had engaged in a shouting argument with those local naysayers over the issue.

22.  Examination of RTA election database evidence conducted by the i-Beta laboratory under contract to the attormey general's office should have included looking for possible swapping of yes and no votes, but did not.

23.   County staff directed all aspects of the i-Beta testing.  They directed the supposedly independent examiners to look at irrelevant items and to disregard potentially important ones.

24.   A whistleblower has come forward stating in a sworn affidavit, that Bryan Crane told him privately that he had 'fixed' the RTA election under direction from his bosses.

25.   Democratic Party observers were prevented from investigating cables connected to the tabulation computer after the RTA election, with the excuse that this alarming security violation didn't matter because it had been a nonpartisan election.

26.   A record copy of the ballot layout files held by the Secretary of State for use by the Attorney General in any fraud investigation was never examined during the attorney general's RTA  investigation, even though it was potentially key evidence that could have indicated fraud. Instead, the AG's office returned this crucial evidence to the prime i suspects running the Pima County Elections Department -- who then "lost" it.

27.   Through their lawyers, the Pima County Board of Supervisors claimed there was a substantial risk that all election employees who had any role operating election computers would 'take the fifth' and refuse to answer questions, based on a fear of criminal prosecution.

28.   The Pima County Board of Supervisors has never requested an internal investigation of the Pima County Elections Department.

29.   Neither Brad Nelson nor Bryan Crane nor any Election Department employee has been reprimanded for any violations of rules or procedures.

30.   Jim Barry retired from his job as the County Administrator's assistant in early 2005 and was immediately hired by Pima County to do a precinct-by-precinct study of how Pima voters had voted in the preceding four bond elections, with "other duties" as assigned. Mr. Barry was paid $75,000 by the county for this contract, while at the same time collecting $12,000 from a pro-RTA group for helping them with the RTA campaign. See video: http://video.google.com/videoplay?docid=1282511168148207359 [40]

31.   The RTA passed by a surprisingly large margin (approximately 60/40). Sales tax increases for roads had lost badly in four previous elections, by an approximately inverse ratio. On the fifth attempt, the RTA measure's previous unfavorable ratings among voters were reversed by about 40 points.

======================================

The above evidence researched and submitted by:

John Brakey [41]
Co-founder of AUDIT-AZ (Americans United for Democracy, Integrity, and Transparency in Elections, Arizona)

Election Defense Alliance Co-Coordinator for Investigations [42]

Mission of EDA and AUDIT-AZ:

To restore public ownership and oversight of elections, work to ensure the fundamental right of every American citizen to vote, and to have each vote counted as intended in a secure, transparent, impartial, and independently audited election process.
.
Thomas Jefferson's Powerful Words:

Fatally Flawed: Uncovering Election Fraud in Pima, AZ

Source: http://www.fatallyflawedthemovie.com/pages/story.html [43]

Summary:

The following is an introduction to a series of election fraud investigations and ensuing court cases in Pima County, AZ, spearheaded by investigators John Brakey of EDA, Jim March of BlackBoxVoting.org, attorney Bill Risner, and a host of election activists including AUDIT-AZ and the Arizona Democratic and Libertarian parties. The events are being recorded on video in the development of an EDA-sponsored feature documentary film, "Fatally Flawed [44]."

Election Fraud: The Problems are Inside. The Solutions are Outside.

John Brakey became an elections investigator shortly after an eye-opening experience as an elections observer in 2004. In his home county in Arizona, pollworkers were "stacking the vote" by using a phony provisional list. When Brakey questioned the pollworkers about their procedure, the pollworkers suggested they "take a look in the back room." In this largely Hispanic district a few die-hard Republicans (re-registered as Democrats) apparently had in mind their own brand of democracy and were ready to "beat it into John Brakey."

Brakey later teamed up with Dr. David Griscom, (Adjunct Professor of Materials Science & Engineering, University of Arizona) to thoroughly analyze the inconsistencies within the 2004 elections in Pima County, Arizona. Lessons from 2004 prompted a greater awareness when it was needed most, in 2006.

After encountering considerable resistance to public scrutiny from the Elections Division of Pima County, Arizona, the Democratic Party had to sue the election asministrators of that county to examine critical public election data. The court ruled in favor of the Democratic Party and instructed the Pima County Elections Division to hand over the database files. These database files include computer databases from elections in between the years of 1996 and 2006.

A detailed analysis of the data files obtained in the 2007 public records suit provides substantial evidence of elections tampering by the Pima County Elections Department in the May 2006 election. That election included the RTA (Regional Transit Authority) Question 1 and 2 involving $ 2 billion dollars of taxpayer funding.

Sufficient, convictable evidence of foul play exists despite attempts by the Pima Elections Division to hide, alter, and suppress this evidence. The Pima Elections Division electronically manipulated existing database files, lost evidence containing an 'untainted' version of the database files, and illegally obtained possession of the database files during the legal process.

Suppression of evidence first occurred on the election evening of May 16th, when Ted Downing was serving as an election observer. Ted Downing contacted Donna Branch Gilby, the Democratic Party Chair, and she arrived with her husband, Bob Gilby. Through the glass of the tabulation center, they took a photograph of an instruction manual for Microsoft Access software.

The Access software can be used to manipulate election database files outside of the official GEMS tabulation software. At this time (between the hours of 8:00 PM and 9:00 PM), Downing and Gilby requested that a 'snapshot back-up' be taken of the data. Elections Director Brad Nelson refused. The time required to perform a 'snapshot back-up' is approximately two minutes. The last 'snapshot backup' was performed approximately 4 hours earlier, when the department finished scanning the mail-in ballots. Analysis of the electronic database shows a significant departure from the routine in how the elections data was handled in the previous five years.

This departure from the routine started on the same evening that Donna Branch Gilby and Ted Downing made known their suspicions about the integrity of the elections data. A huge number of precinct votes were processed on election night (after the election observers left the premises) and into the following morning. Contrary to routine practice and basic data security, no final daily backup was made after the votes were processed. In fact, no backup was ever made for the following three days. The number of precincts processed within this time period was as few as 118 and as many as 149 (out of 368). Additional mail-in and provisional votes trickled in throughout the week.

The most fundamental safeguard against compromising elections data is to create a back-up file on a routine basis or after a significant amount of processing takes place. Under normal circumstances, back-up data of the mid 2006 election would exist in these database files between the dates of May 16 and May 19th. This lack of any back-ups at the end of election night processing and in any of the three days that followed is caused by one of two reasons. The first reason is that Brian Crane, a Pima Elections IT staff worker, broke from a routine of at least 5 years and somehow forgot his habit of making back-ups of the data. Second, the backups were being created without an audit log trace and moved onto another drive. Analysis of the database logs confirms that Brian Crane had the means to make a database copy with no audit log trace.

An untraceable copy of the database was created by Crane on the 20th of May. That database copy remains on a hard drive entered as court evidence. If these database backups made outside the audit log trace were created between the 16th and the 19th of May, they would have to be removed from the drive at some point before the drive was acquired through a subpoena. The first public records request occurred much later in the year (September 14th), so the Pima County Elections Division was afforded sufficient time for any data manipulation.

The Arizona Secretary of State's office, however, had a copy of the RTA database that could not have been altered. By November of 2006, the Pima County Democratic Party had organized a whole crew to scrutinize the Pima County Elections. Around the same time, the Pima elections office requested that the Arizona Secretary of State return all of the elections data they held as back-up through the years.

All the back-up tapes from years of elections were shipped back to Pima County in a box. According to Pima County, the one tape in the box containing the unadulterated RTA database file was missing and never found. Pima County does have in possession, however, computer database files from elections within the years of 1996 and 2006. They may not be as pristine as the 'Secretary of State' tape that was lost, but enough information exists as proof of tampering.

Before it was analyzed by outside parties, this 'snapshot' of data was transferred to two identical drives and placed into a single box. This box was transported with security to the Pima County vault under a court order. The Democratic Party is grateful to have this data, because it risked a similar form of disappearance. Pima County employee John Moffat had removed the box of drives from the vault in violation of a court order. Fortunately, the Democratic Party's legal team quickly made this discovery and obtained the data without additional tampering.

The Pima County Elections Division has operated for years without any kind of public scrutiny or oversight. New demands for transparency appear to have prompted drastic measures involving the control and removal of evidence. In the days prior to this demand for transparency, tampering of the database files appeared to be absent any concern for outside searches into the databases. Arizona Attorney General Terry Goddard hired an outside organization called iBeta to analyze the RTA database log entries.

As the iBeta report put it: "The basis of the investigation is that there are log entries that point to tampering - but it is far easier to remove evidence of tampering from the logs than to actually tamper with the vote totals in the Microsoft Access database that the GEMS software uses. So it does not follow that someone with the knowledge to manipulate the GEMS data would neglect to alter the log file to remove the evidence of the manipulation."

The iBeta report is referring to a form of computer manipulation that requires the confirmation of two warning prompts. The changes appear to be deliberate and the unaltered log entries seem to be an oversight. Database logs also indicate the printing of summary reports that show the outcome of the elections before the elections were concluded. This activity is illegal and clearly intentional as each printing occurred ten minutes apart.

Here are the circumstances of this first round of data tampering:

1. On the morning of May 9th, 2006, the elections department performed an official logic and accuracy test.

2. On the morning of May 10th, 13,618 mail-in ballots were scanned in approximately four hours. Once the task was completed, Brian Crane made a backup copy labeled 'early day 1' at 12:27 PM. This 'backup snapshot' is now an additional file with the label 'early day 1' to denote the first day of scanning early (mail-in) votes. The disk now contains the main data file used continuously through the tabulation process and a 'backup snapshot'. No additional snapshots are recorded on this day.

3. On the morning of May 11th, Crane logs in 9:55 AM and, 31 seconds later and overwrites the previous day's 'backup snapshot'. Here is where he has to confirm with two warnings about the file overwrite. Not only is this act deliberate, but it is likely performed to change the results of the early vote totals tabulated in the previous day. Illegal summary reports were printed. They showed the current outcome of the election. These were time-stamped at 9:56 AM and 10:06 AM respectively, so they were deliberate actions occurring 10 minutes apart.

These events are significant because they show that:

1. Enough data was collected with the mail-in ballots to make a predictionif the election results.

2. There was sufficient time to manipulate the main database and change potential election results before the file overwrite. The 13,618 ballots were counted on that day by 12:27 PM. The overwrite didn't occur until the next morning.

3. An opportunity exists to verify that the changes to the database file were successfully implemented. A second printout was likely needed for someone other than Brian Crane.

A considerable amount of work was required to uncover the second round of data tampering. This is revealed in the recount of Oro Valley town council race, which also contained the ballot initiatives for RTA Questions 1 and 2. The Oro Valley race was subject to a recount as required by law because the margin of victory was 1/10th of 1% or less.

Ballot adjustments by the elections division is highlighted by the unusual amount of flash memory cards that somehow malfunctioned when transferring data. Pima County has 368 precincts and each precinct's election results are recorded on a flash memory card. After all the ballots are recorded on each card, the data is transmitted via phone modem to Pima County Elections' central tabulator.

In each precinct, as the memory cards are inserted into the computer, the computer reads the identifying signature on the memory cards before a successful transmission of data takes place. Once the transfer is completed, the cards are returned to the Pima County Elections division.

There are two indications in the database files that a significant number of cards malfunctioned when transferring data. The first was a very large number of precincts that were processed late on election night. The number of precincts processed within this time period (marked by the lack of any backup data) was as few as 118 and as many as 149 (out of 368). Precinct data delayed for this length of time is typically the result of modem transmission failures that require the physical transfer of the memory card to the central tabulator for upload.

The logs for the 2004 general election featured a far more complex ballot and a similar number of precincts (2004 had 358, 2006 RTA 368). This 2004 election experienced about 19 modem transmission failures or late uploads. The RTA modem or line failure rate appears to be unusually high.

The second indication was the very large number of cards that had to be uploaded to the computer more than once. During the RTA election cycle, 93 precincts worth of memory cards were uploaded at least twice -- in other words, something was 'wrong' with the first upload and it had to be repeated. One precinct (number 324) was reloaded as many as six times.

In stark contrast, the 2004 general election only had five memory card re-uploads. No complaint was made by the Pima County Elections Division to Diebold about these extraordinarily high failure rates of their cards. So if Diebold is not to blame for the massive data card failure, who is responsible?

In August of 2005, the Pima County elections office bought a 'crop scanner,' a device that provides the means for the Pima County Elections Division to alter memory cards. This device was able to connect the Diebold-supplied memory card to a standard PC and give that computer read/write access to the card. The data on the card created by and managed by Diebold software had no encryption and could be easily edited. This handheld crop-scanner device existed in the Pima elections office with no tracking or access controls from August 2005 through early 2007 when the Pima Democratic Party and their supporters uncovered it in a public records search.

Manipulation of data on individual precinct memory cards is a precarious proposition, especially with a large county like Pima. Of the 368 precincts, how many flash data cards would have to be manipulated to avoid detection? Which precincts should be manipulated to avoid detection? Answers to these questions are not cheap.

Prior to the May 2006 election, Pima County paid $75,000 to consultant (and former Pima County employee) James Barry. Barry was hired to study the four prior transportation bond measures (none had passed) and figure out on a precinct detail basis the necessary numbers to win an election initiative. The RTA campaign itself was appreciative of Barry's efforts and pitched in an additional $13,000 for his advice.

There is an additional hurdle when it comes to altering Diebold flash data cards. The movie "Hacking Democracy" contained a fine demonstration by computer security professional Harri Hursti, but manipulating data cards requires a certain level of expertise. Editing these flash data cards using a crop scanner without affecting the signature data and/or the successful transmission of data is a difficult task. The sheer number of data card failures in Pima County's May 2006 election suggests this kind of tampering was attempted, but not successfully.

The manipulated data required a lot more time and patience to finally load into Pima County's central tabulator on election evening and in the days of the Oro Valley recount. Detailed analysis of the Oro Valley recount turns indirect evidence of data card anomalies into direct evidence of election fraud. Additional back-ups of the database files resumed their appearances on May 19th and May 20th during the mandatory recount of the Oro Valley precincts.

In addition to the countywide ballot initiatives, Oro Valley had a city council race that required a recount. The Pima County Elections Division performed an illegal 'pre-recount analysis' before the official recount with no outside oversight, and subsequently manipulated the results to make the second result closely match the first result.

Out of 368 precinct memory cards, 93 were reloaded at least once. This includes all 22 precincts that make up Oro Valley. Of the 93 reloaded precinct memory cards, the bulk of the precincts in which the number of ballots changed were connected with Oro Valley. These data contain direct evidence of elections tampering because, in Oro Valley, some precinct totals are decreasing over time. The data were being manipulated to conform to a desired outcome.

On May 31st, 2006, the official recount of Oro Valley takes place and the results are within the margin of error. Dropping votes without the required disclosure or paperwork is a felony and this activity would never have been uncovered without the acquisition of the Pima County Elections databases.

From the night of the RTA election, the Pima County Elections Division found itself under intense public scrutiny. Some Pima County employees had a margin of success in suppressing, manipulating, and removing evidence. Fortunately for the citizens of Pima County, efforts by Pima County employees to conceal criminal activity have ultimately failed.

 

Judge Abets Coverup of Suspect Pima Election

'What actually happened in that courtroom Monday morning was beyond bizarre. The judge pointed to some obscure point of law, which he argued excused him from hearing further arguments and thus concluded that the suit should be heard by the Appellate Court . . .'

'. . . In the ensuing brief discussion it came out that Attorney General Goddard had just issued a secret order to take custody of the RTA ballots. Apparently, the secrecy was intended to keep only the plaintiffs in the dark, since the judge whimsically wondered out loud if this secret order was the same one he heard in the local news.'

For a video highlight of this day's events, see interview filmed by J.T. Waldron, here:

http://www.fatallyflawedthemovie.com/pages/risnerbud.html [45]

==================

Click the Read More link for full story.

The (Non) Results of Monday Morning's Superior Court Hearing in Pima County, AZ

By David Griscom

Evidence abounds that in all likelihood the 2006 RTA ballot initiative (committing Pima County, Arizona, voters to pay via sales taxes $2 billion for improvements in local streets) was rigged [see here and references therein [46] and/or my earlier OEN report [47]].

In 2007, Arizona Attorney General Terry Goddard finally responded to pressure from Tucson election-integrity activists by initiating an investigation ... to be jointly carried out between his office and the Pima County Election Department (listed in the complaint as the suspects!). Not surprisingly, the alleged perps ignored the devastating evidence of rigging offered them by activists John Brakey, Jim March, and Bill Risner and with the tacit support of the attorney general's office, rigged the investigation of themselves to produce (surprise!) no incriminating results [see my condensed history] [48].

But the Pima County Democratic Party represented by attorney Bill Risner continued to press the issue in the courts, adding more and more evidence that the RTA initiative passed only due to vote flipping carried out by the Pima County election-computer operator Brian Crane, and they demanded that the actual paper ballots be recounted to prove or disprove this conclusion.

It eventually became apparent that the only official in Arizona with the authority (and obligation) to order such a recount is AG Terry Goddard (a Democrat) ...who repeatedly insisted that there is insufficient evidence to justify such a recount and/or that voter "curiosity" is insufficient reason to let the voter know whether or not his/her vote had been stolen. Last week, the Pima Republican Party aligned itself behind the Democratic Party's lawsuit, which had already been joined by the Libertarian Party. And this Monday morning representatives of all three parties were in the courtroom of Pima County Superior Court Judge Charles Harrington to jointly press their demand that the RTA ballots be recounted.

What actually happened in that courtroom Monday morning was beyond bizarre. The judge pointed to some obscure point of law, which he argued excused him from hearing further arguments and thus concluded that the suit should be heard by the Appellate Court (see my last paragraph for a glimpse of what was actually going on beneath the surface!). In the ensuing brief discussion it came out that AG Goddard had just issued a secret order to take custody of the RTA ballots. Apparently, the secrecy was intended to keep only the plaintiffs in the dark, since the judge whimsically wondered out loud if this secret order was the same one he heard in the local news.

It seems that Goddard's plan is now to remove the ballots from a vault where they were totally secure and to transfer them to Maricopa County (where citizen poll watchers during the 2008 general election witnessed election officials routinely flouting election laws, especially regarding ballot chain of custody – and where the election department owns a ballot printer capable of spewing out brand new ballots matching any template used in the past). While Goddard has pledged that "...strict security measures will be taken to secure the ballots and the investigative process," he has yet to invite authorized representatives of the three major parties to witness the transportation and storage of these ballots. AND their protracted storage in Maricopa County is a clear and present invitation for someone there to tamper with them.

So Monday morning's court hearing before a full house of concerned citizens ended practically before it started. From the plaintiff's view point, the only good thing to transpire was the presence of the Tucson Channel 13 (KOLD) news team headed by veteran newscaster Bud Foster, who spent the better part of an hour interviewing Bill Risner outside the courthouse, before demanding that a Republican put on the microphone to assure balance in his newscast. Republican 2006 CD 8 congressional candidate Randy Graf promptly stepped forward and essentially seconded all of Risner's concerns about the integrity of Pima County elections.

Now here is a bit of the story behind the story that led to the bizarre null outcome of Monday mornings's hearing: It seems that Judge Harrington had previously thrown roadblocks in front of the objectives sought by the Democratic Party's lawsuit and had shown himself to be inclined toward never deciding the case. However, the Democratic Party also has an additional pending lawsuit requesting the poll tapes of the RTA election (an additional form of evidence as to whether or not the ballots we counted correctly), which is assigned to Judge Javier Chon-Lopez of the same Superior Court as Judge Charles Harrington. Having a different judge for this case was good for the Democrats (and their like-thinking Libertarian and Republican allies) since, according to Bill Risner, Harrington had unequivocally refused to consider "the constitutional provisions and case law submitted to him." Hence, it was absolutely clear that Harrington would never allow those pleadings to be filed.

Meanwhile, the dark forces working behind the scenes (read the AG's office) were maneuvering to have Harrington also hear the case presently assigned to Judge Chon-Lopez; in fact, they had filed a Motion to Consolidate the two cases before Harrington. It is for this reason alone that Bill Risner filed a notice of appeal before the hearing on Monday, i.e., in order to deprive Harrington of the opportunity to commit further mischief to the Democrats' case. The notice of appeal pertained to only a part of the Democratic Party's case, and so on Monday morning Bill explained to the judge that he could still go ahead and hear the other parts. Harrington, however, seeing the large crowd room, decided to use the Risner's appeal as a tendentious excuse to pass on a hot potato; thus, he claimed that he did not have jurisdiction to do anything and therefore was "compelled" to terminate the hearing.

******

David Grisccom is EDA Co-coordinator for Investigations, and a co-founder with John Brakey of AUDITAZ, a regional EDA election integrity affiliate organization.

Author's Bio: Ph.D. in Physics, Brown University, 1966. Fellow, American Physical Society. Fellow, American Association for the Advancement of Science. Fellow, American Ceramic Society. Research Physicist at Naval Research Laboratory (NRL), Washington, DC, 1967-2001. Fulbright-García Robles Fellow at Universidad Nacional Autónoma de México, 1997. Invited Professor of Research at Universités de Paris-6 & 7, Lyon-1, et St-Etienne (France) and Tokyo Institute of Technology, 2000-2004. Adjunct Professor of Materials Science and Engineering, University of Arizona, 2004-2005. Principal, impactGlass research international, 2005-present. David Griscom's personal website: http://www.impactglassresearchinternational.com/ [49]

 

 

Observers Shut Out of Pima Recount

Attorney General's "criminal investigation" procedures break ballot custody and make meaningful public observation impossible

RTA Recount Situation Report: 3:00 p.m. Monday April 6th
(aka: “The Official Chronicles Of The Bored To Tears, Part One”)
by Jim March

A total hand-recount of what are alleged to be the ballots voted in the 2006 Pima County Regional Transportation Authority (RTA) bond measure election is being conducted as I write.

Eight teams of three people each (all Maricopa Elections Division employees) are doing the “sort and stack” method to pile ballots in three piles for each ballot question. It's impossible to overstate how tightly the information flow is controlled here, or how “nontransparent” the process is.

The “short form” is that the preliminary counts are matching the official final totals from 2006, in broad strokes.

“Ballot forensics” is going to be a factor here, and the chain of custody of these ballots (read: could they be fake?) is open to serious question.

Background

For those just joining us: This bond measure of May 2006 involved $2 billion worth of transportation contracts, which in turn affected “housing boom” issues.  We now know there was a ton of fraud in the late lamented real estate boom; the question now is, was there also fraud in setting the preconditions for that boom, such as the RTA bond measure?

 

 

Long-distance photo taken through a window with optical zoom, by Jim March

AZ Attorney General Terry Goddard finally took a serious role by declaring the hand-count.  But the way he handled it violated every standard possible in election transparency, and continues to do so.

Goddard will tell you that he doesn't need to be transparent at all because this isn't an election-related recount.  He's partially right: this recount is connected to a criminal investigation aimed at the people who run elections in Pima County.

But the problem is, in order to treat these ballots the same way he would if, say, he raided the documents inside a crooked bank, he has to take sole control over the very engine of Democracy. He's set himself up to be the sole judge of what the people's will was in a real election. No one person can ever be allowed to take that control with zero oversight or observation. It leads to horrible dark places.

So What Has AG Goddard Done?

1. Over a month ago Goddard seized control over the ballots, taking them to points unknown and storing them in unknown conditions with zero oversight from any other government body, political parties or citizen observers. We still don't know where they “vacationed”.

2. They're now being counted by the Maricopa elections office in conditions designed to prevent observation –- most particularly preventing any independent counts of the vote totals.

These conditions include:

   a.  The AG's office told political parties to provide the names of three observers able to spent a week in Phoenix (120+ miles from Pima County) – and then the AG's office would pick the final participant. In the case of the Democrats, they picked a retiree in his '70s over a younger lawyer with elections law experience. Fortunately the retiree is a very competent gent, but he's not a lawyer. The Libertarians submitted just one name (mine) and the AG's office rejected me on “security” grounds citing the wrongful arrest I was subjected to in San Diego County CA in 2005 –- never mind that all charges were rapidly dropped, and that statewide changes to election observation procedures were instituted in direct response to my action. So Goddard's game is: Keep out as many knowledgeable observers as possible.

   b. The observers in the room aren't allowed any pens or pencils or any electronic note-taking gear. Mind you, this is a 100% hand count – electronic manipulation of people's brains is pretty unlikely.

   c.   Every kind of mobile communications device is barred from the main counting area. I was stripped of my cellular modem. They don't want rapid Internet news broadcasts of this event. (But they can't stop me from collecting news, leaving the area, and broadcasting from the parking lot).

   d.  Tables are aligned sideways to the viewing windows to make it hard to collect tallies with our various zoom lenses and spotting scopes.

The Microscope Fiasco

I have with me a good lab-grade microscope. I've previously proven that 2006-era paper ballots (printed on offset printers) can be distinguished from more recent 1200 dpi laser printed ballots under a microscope. The bureaucrat running this thing, Donald Conrad (criminal division counsel with the AZ AG's office) told me he would not discuss forensics of ballots at all, or allow the microscope to be used in any fashion by anyone.

Ballot forensics are going to matter because there a number of ways forged fake ballots could have been inserted into the stack post-election. The good news is that we have e-mail traffic between Pima Elections and the ballot printing shop ordering the extra ballots from the RTA election destroyed just over a month post-election -– long before significant controversy erupted. So it seems unlikely that either Pima Elections or Runbeck stashed away the 24,000-plus blank ballots that would be needed to swing the election.

A more likely approach to fake ballot generation is the high-end Okidata laser printer first demonstrated for “ballot on demand” purposes in 2007. This taught both Pima and Maricopa elections offices that they could build their own illicit ballot printing station for a bit over $6k, small enough to fit in a closet. Or just rent the regular “ballot on demand” system and subvert it to print extra ballots. Even the best laser printers scatter microscopic toner particles around their target printing areas. The effect is obvious under a good scope.

Conclusion

Will Goddard's office do any real forensics, along with other obvious checks such as measuring the age of the inks?  There's no way to know – Goddard has taken sole control over the investigation. He will thus personally decide how well democracy worked.

And that's a problem.

==========

Jim March has worked the Pima RTA case for three years with EDA Investigator John Brakey.  Jim is on the board of directors of BlackBoxVoting.org, is a member of the Arizona Libertarian Party election integrity committee, and...sigh...more. You get the idea : ). Email Jim at  this address [51] 

===========

Notes:

1. Diebold's election databases look secure, but once you open them in MS-Access all security vanishes. This is a known issue and MS-Access is NOT a certified election system product anywhere in the US. In short, this was BAD.

2. Easy enough: Although the computer Runbeck supplies controls access to ballots, it can be disconnected and the printer run independently from any PC with the ballot image PDF files on it.

Arizona Attorney General Implored to Count the Suspect Pima Ballots

The following letter, sent by attorney William J. Risner to Arizona Attorney General Terry Goddard, sets forth the facts in the suspect 2006 Pima County special transit bond election and the ensuing 3-year history of investigation and coverup. 

EDA investigators John Brakey and Jim March discovered evidence of election tampering while examining audit log records for that election.  Their discovery led to further investigation, a court case resulting in the largest release of electronic election data in U.S. history.  Risner has represented plaintiffs in the Pima RTA election case, including the Democratic Party of Pima County, who continue to press for a full and public resolution of the 2006 RTA election controversies.

===========

February 18, 2009

Dear Mr. Goddard:

An article in the Arizona Daily Star last week (February 13) reported that your office expected to complete its investigation of the May 16, 2006 RTA election in Pima County within the month. [1]

The presumed goal of your investigation was to learn if the RTA election was criminally “rigged” or “fixed” by Bryan Crane on the instructions of his Pima County “bosses” so as to defraud the public of an honest election. We assume that an alleged crime of that importance would have resulted in an intense inquiry focused on whether or not the crime occurred. As you are aware, the Pima County Democratic Party has been engaged in a similar inquiry. Our goal is different than your goal. Your job is to learn whether a crime occurred and, if so, to prosecute the offenders. Our party's responsibility is to ensure that ballots are properly handled and counted.[2]

In other words, we are assigned the task by state law to watch and monitor the actual voting and counting. You have repeatedly said that such election monitoring is not part of the responsibilities of your office. The Secretary of State has said that it has no jurisdiction to examine computer databases to see if any of the various county boards of supervisors or their election personnel are cheating. You both agree that the responsibility for such monitoring is with political parties. We do not entirely agree with your and the secretary of state's legal analysis, but we do accept it as well as accept our responsibility.

On October 2, 2008 I wrote a letter to John Evans at your Tucson office concerning the open criminal investigation you had assigned to them.[3] That letter offered to share the expert skills of persons assisting the Pima County Democratic Party's efforts to ensure that our elections will be honestly conducted. We have several knowledgeable persons who have been looking at the RTA election and could have assisted your office. We never received a response to our offer. It could be that our knowledge and expertise was not needed or desired by your office.

Frankly, we may have helpful information and we would like to share some of it in this letter. Our information mostly relates to facts. Candidly, however, your public remarks suggest that you not see your office's role or authority as we do. The Pima County Democratic Party has not requested a “recount” of the RTA election as that term is used in the statutes. We have suggested that the simple solution to determining whether an election has been criminally rigged is to examine the ballots themselves. That was our suggestion last year and the suggestion of the first national expert contacted by your office. Such an examination of the ballots is not as complicated as you might think. I would like to share some of my experience in a similar effort.

In 1997 an election was held by the City of Tucson for one-half of their council seats. Two citizens, John Kromko and Leo Pilachowski, noted results in some precincts that seemed impossible, in their view. As I recall, some precincts had unusually high under-votes, with perhaps as much as a 40% undervotes. They knew the computer-counted results were highly likely not to be correct, but they didn't know why.

We immediately filed a lawsuit requesting that the court take control of the ballots and the computer software. Upon learning of our intention to file a lawsuit, the City filed its own lawsuit requesting the court's assistance. At our initial court appearance, my clients and the City agreed that we would hand count one precinct that we selected and see what we could learn about the accuracy of the reported vote. The subsequent hand-count of that precinct resulted in a second order to hand count the entire city election. The full hand-count showed that there had not been any criminal manipulation or computer election-rigging. The problem concerned defective paper. The hand-count recorded some 9,000 votes that had not originally been counted. No election was reversed because the paper problem was random and not the result of criminal manipulation. All parties were satisfied that the integrity of that election had been confirmed by the hand-count.

That experience confirms that a ballot examination need not be a complicated matter and that it can benefit the public by providing assurance that ballots are accurately counted. Your press statement used the word “curious” in describing requests that your office subpoena and examine RTA ballots to see if the election had been rigged. We view such an examination as the most basic investigative tool available to your office. Curiosity is a good trait in any real investigation, but the goal remains as one to determine whether a crime occurred. The use of an investigative subpoena to acquire and examine documents for evidence of a crime is normal in any white collar crime investigation in your office. You need neither court approval nor probable cause for such a subpoena. Those are routine matters in your office, as you well know.

Since your office has chosen not to use a simple and routine tool to answer the question of whether the RTA was fixed, we may be able to assist your investigation by sharing the results of our investigation. The Democratic Party cannot issue a grand jury subpoena for the ballots like the Attorney General can. We must investigate the hard way by accumulating circumstantial evidence. We can report that, so far, all the circumstantial evidence is consistent with the election having been rigged. We would like to share with you our approach, our results, and where we are headed next.

For us, the question to be answered is whether the RTA was rigged. You alone can answer that question. The Democratic Party can show that it was probably rigged, but we cannot, at this point, be sure. The Democratic Party has alleged in court that there is substantial and credible evidence that it was rigged. We do not know if that is so and only a ballot count can definitively answer that question. Your investigation was prompted by the sworn declaration of Mr. Zbignew Osmolski that he had been told by Pima County's election computer operator, Bryan Crane, that he had “fixed” the election at the instruction of his Pima County bosses. His declaration constitutes direct evidence that a crime occurred. [4]

The Democratic Party has ended up examining the RTA election by an indirect route. In December of 2006 the Pima County Democratic Party requested a copy of the county's election electronic database, since it is a public record. We wanted a copy primarily as an exercise of our election-monitoring responsibilities. To our great surprise, Pima County required us to sue. A unanimous formal resolution of all the elected Democratic Party precinct committee members at the bi-annual organizing meeting was not sufficient to avoid a lawsuit.

Approximately one million dollars and more than one year later, Judge Michael Miller of the Pima County Superior Court ordered the County to provide us with a copy of the database. The singular most shocking aspect of that litigation was that Pima County's election division did not offer a factual defense. The election division relied on the testimony of John Moffatt, who claimed that his “number one fear” was that the Pima County Democratic Party might issue fake written reports after an election that would differ from the County's data and ballots, differ from the Republican Party's copy of the same data, and differ from the Libertarian Party and Green Party's data.[8]

The issuance of a faked report by the largest and oldest political party in Pima County is inconceivable. It would promptly be exposed as a fraud and the reputation of all persons who participated, as well as the party's reputation, would be ruined. Political parties simply do no operate that way. Persons who volunteer their unpaid time through political parties to improve our society don't operate that way. Judge Miller noted that such a false report would be a felony under Arizona law. In short, the defense was delusional or, more correctly, it confirmed that they did not have a factual defense.

Our only rational conclusion was that they had something to hide and we concluded that the “something” was the RTA election that had been zealously pushed by the county administration after having been overwhelmingly rejected by voters on four prior occasions. The evidence suggests to us that the County election department may have cheated, utilizing at least two techniques. One of those techniques is known as a “flip.” The computer could have been instructed to count “no” votes as “yes” votes.

Your office earlier hired the iBeta corporation to examine the database itself for evidence of a flip. In conducting that investigation, you permitted the suspects themselves to suggest the tests that should be utilized. The iBeta report shows that John Moffatt suggested most of the tests and that his explanations were accepted without question.[9] My letter to you of July 14, 2008 pointed out many failures of the iBeta examination that your office permitted the suspects to control.

A “flip” can be discovered by examining the ballot layout and imbedded counting instructions contained in an electronic copy that is sent by all Arizona jurisdictions to the Arizona Secretary of State's office. As part of our discovery process, we learned that the Secretary of State's office has never looked at such data that is sent to them.[5] We were not surprised to learn that they did not examine the submitted data, since copies are sent to them to use in fraud investigations and there had not been any. What did surprise us was that the Secretary of State had never returned such tapes to Pima County. They had simply remained on the shelf along with similar submissions from other counties.[6]

The first time that such tapes were returned was after the RTA election in November of 2006, and after the Democratic Party began asking the County for public records relating to elections. You might want to inquire of the Secretary of State's office what prompted them to return the RTA tape to Pima County. The first and only time the Secretary of State returned the computer data to Pima County required a box, as multiple election tapes from several years were returned, including the critical RTA tape.[10]

The box containing the RTA tape was personally handed by Pima County Election Division's boss, Brad Nelson, to its election division computer operator, Bryan Crane. All the other tapes were still in the opened box when the Democratic Party examined its contents, but the RTA tape disappeared after being placed in Mr. Crane's custody. Mr. Nelson is one of the “bosses” that may have told Bryan Crane to fix the election. The disappearance of that tape has foreclosed a definitive computer data comparison that could have revealed whether the election manipulation utilized a “flip.”

There are other ways in which a flip could be accomplished in GEMS, however, that do not involve the ballot definition tables. Votes can be flipped in the vote summary tables and discovering a flip there without examining ballots is close to impossible. A flip is a crude tool. It is simple to accomplish with GEMS, however. All a computer operator needs to do is to take a copy of the election database home and, utilizing his home computer, he can instruct the computer to read all “no” votes as “yes” votes. When that one change is reintroduced into the computer, GEMS will automatically flip all precinct counts and thereafter all “no” votes will be counted as “yes” votes. The machine will always behave as instructed. (How to flip documents) [11]

Such a crude tool is problematic in a bond election, because historical patterns will show that some precincts in Pima County always vote in favor of bonds, and some precincts regularly vote against bonds. Simply reversing the outcome of the election could be exposed by noting that the always-approving precincts rejected the bonds and the never-approving precincts passed them. Therefore, if a bond election is to be rigged, a more sophisticated approach would have to be utilized.

In our lawsuit discovery, we learned that Pima County administrator Chuck Huckelberry arranged for his special assistant, James Barry, to be awarded a $35,000.00 contract to create a database analysis of all recent Pima County bond elections by precinct. [12] That special contract started the day after Mr. Barry retired and was to be carried out as orally instructed by Mr. Huckelberry. The contract was extended and Mr. Barry ultimately was paid $75,000.00. During his pre-trial deposition, Mr. Barry said that he still had that data on his personal computer, but agreed that it was public information. We have since mailed two separate public records requests to both Pima County and Mr. Barry, neither of which have provided the requested public record data. Perhaps your office has had better luck obtaining that information during your investigation.

Detailed precinct information would be useful in programming the Diebold “memory cards” that record all the precinct-cast votes. Each precinct in Pima County counts ballots with a Diebold Corporation optical scan device. The cast ballots have their votes recorded on a memory card. At the close of the election, the optical scan device is turned off and the vote results are printed out for each precinct. The printed results are termed poll tapes,” as they contain the poll results and look somewhat like an adding machine tape.

The “poll tape” is then personally signed by three poll workers and the results of that precinct are publicly available. The electronic data in the memory card is downloaded into GEMS for the purpose of the eventual canvass. The poll tape is used to compare with the canvass as a check on accuracy. Unfortunately, the Diebold memory cards can be rigged to produce false results and those false results are then printed on the poll tape and downloaded into GEMS.

As you can see, the ability to falsely program a memory card is a very big problem and one that cannot be detected by simply comparing the poll tape numbers with the canvass numbers. The HBO documentary “Hacking Democracy” presented to the nation a videotaped segment where Finnish computer expert Harri Hursti demonstrated that a Diebold optical scan memory card could be programmed to produce false results, and those false results could then be downloaded into GEMS without detection.[13] In cooperation with a national election integrity group of concerned citizens known as Black Box Voting, Mr. Hursti and the group published a report on July 4, 2005 alerting all jurisdictions that use the Diebold memory cards that they could be maliciously programmed.[14]. In order to program the memory cards, Mr. Hursti purchased a “read-write” device sold by an agricultural supply company, Cropscanner, Inc. They sell the devices, known as “cropscanners,” to farmers who want to know when to irrigate their corn crops.

Less than two weeks after the publication of Harri Hursti's report, Bryan Crane and Pima County bought one of those programming machines.[15] The ordinary and approved programming of memory cards is done by GEMS itself. The cropscanner can also program the same memory cards, but it requires some practice. Harri Hursti programmed his test card by attributing “negative votes” to one candidate. He was able to do so because the memory cards contain interpretive code that can be modified using the “hack tool” Pima County bought. [16]

After Bryan Crane received the cropscanner Pima County purchased for him, he practiced with it to learn if he could program it to print out false results. He learned he could do so and that it was not particularly difficult. He has testified that anyone with good computer skills could do so. Bryan Crane testified that while he could program the card to produce false results, he could not get GEMS to accept those false results. As Mr. Crane relates his tale, he was able to disprove what Harri Hursti demonstrated in the movie for everyone to see and thereby disproved the report alerting the nation's election departments to the problem.

In fact, the Federal Election Commission (FEC) itself alerted the nation's election departments to this same problem. Crane's claim of disproving the defect was not published or passed on to anyone else, according to his testimony. He did not alert the FEC, Black Box Voting, Mr. Hursti, or anyone involved in the elections to his claimed results. The veracity of Mr. Crane's discovery can thus be questioned, but his practice with the hack tool cannot be doubted.

The Pima County Democratic Party made two separate requests of Beth Ford for access to the original RTA poll tapes that are now in her control and custody. When she refused to cooperate, we filed a lawsuit that is now pending before Judge Javier Chon-Lopez of the Pima County Superior Court. We want to examine the original signed poll tapes for several reasons. Harri Hursti noted that while the memory cards could be programmed, it was tricky and required skill. The original tapes can be examined for clues that they were maliciously programmed. Harri Hursti and Black Box Voting will assist the Democratic Party in examining those poll tapes for discrepancies that might otherwise escape notice yet would be evidence of false programming.

In addition to Pima County's purchase and Bryan Crane's practice, there is considerable circumstantial evidence that the memory cards may have been programmed by the cropscanner. The delicate requirements of false programming may result in the cards appearing defective and not operating properly at the polls. The existence of memory card “failures” is an indication of false programming because the normal GEMS programming is nearly always successful. For example, during the 2004 General Election (with a complicated ballot with Initiatives and a full slate of candidates) there were only four reported memory card “failures” in Pima County and only one memory card had to be loaded after election night.

For the RTA, however, there were massive reported memory card failures. As soon as the media, Ted Downing, and the Democratic Party County Chair Donna Branch-Gilby left the ballot-counting observation area (around 10:15 p.m.) fifty-three memory cards were reloaded. The deletion and reloading of that data continued until 3:14 a.m. The next morning at 9:47 a.m. one more precinct was deleted and reloaded. On May 19, 2006 eight more precincts were deleted and reloaded. On May 20, 2006 twenty-three more precinct results were deleted and reloaded. Since, contrary to normal practice, the election operator did not make a data backup on election night nor for the next two days, we can't see in the recorded data what they were doing.

However, on the 19 of May, we can see what they were doing by comparing the databases from the 19th and the 20th. We can see that they were altering the vote totals. If GEMS had been used to program the cards there should not have been so many failures. Frankly, whether an examination of the poll tapes would reveal their false programming is a long shot. We can be assured, however, that there are a number of errors that need to be understood. It is vitally important for the future to understand errors so they can be prevented. You can't prevent without knowing. Therefore, there is important value in examining the accuracy of the system. It is particularly important concerning Pima County's Diebold/Premier system.

Incidentally, the same software is used in eleven other Arizona counties. That software is well-known for being easy to rig, as your office learned. The iBeta report that your office and the “suspects” at Pima County jointly paid for said. [16] During testing it was discovered that the GEMS software exhibits fundamental security flaws that make definitive validation of the data impossible due to the use of data and log manipulation from outside the EMS software itself.

Judge Michael Miller noted the problems with GEMS, which is built on the base of a common consumer product known as Microsoft Access. The Microsoft Corporation itself specifically advises customers not to use that product for such jobs as complicated elections because the software's “jet engine” can become confused.

During last fall's General Election, a group of citizen election integrity voters in Humboldt County, California, working with that county's election department in a collaboration known as the Transparency Project, examined their election results and found that 197 paper ballots – representing a batch of votes – were deleted from the count because of an error within GEMS.[17] The Diebold/Premier company claimed it knew of the programming defect but had not told the California election officials. It was discovered by the citizens who had scanned all the ballots in cooperation with the county. Without their examination, the extra ballots would not have been otherwise discovered, as the GEMS system was factory-programmed to delete any sign that the ballots had ever been recorded.

Election officials in the state of Ohio recently discovered another Diebold programming error that resulted in lost paper ballots. The company at first denied, but later agreed, that the software “glitch” existed. The state of Ohio has now sued Diebold/Premier because of their defective product. [18] The existence of known GEMS errors creates a reason for the Democratic Party to examine closely the reported results from the RTA.

Our examination of the electronic database has pointed out that there are “errors” that must be examined and understood. At the present time there is an unusual “consensus” in this community that the RTA ballots should be counted through the supervision of your office. Included in those desiring that the ballots be counted may be Bryan Crane who, if innocent of wrong-doing, would want his name cleared. Deputy Pima County attorney Thomas Denker made such a plea to Judge Michael Miller in his closing argument in the database case. Here is what Denker said. [19] That in the process of doing these things that have already been done in this case, decent, honest, hard-working people, servants of the public, have had their name dragged through the mud and they've been insulted; they've been defamed; they've been slandered, and it is a disgrace what has happened to these people. They never get thanked. Mr. Crane, you saw him. You examined him for a long time, Your Honor. You saw what kind of man he is. You saw what kind of character he has. Did all of his testimony help us? No, but I think you can tell that he's an honest, decent, hard-working guy and he takes a lot of pride in his system and in what he does, and he doesn't get thanked. It's a shame that that's irrelevant to this case, because it probably means he's never going to have a chance to have his name cleared in public. So, I just want to say, speaking just for me, that at least today, I'd like it on the record that Pima County is lucky to have a man like him on our payroll. That's all I have.

Those are serious sentiments that the Democratic Party takes seriously. We are not comfortable with our conclusion that the election may have been rigged by Bryan Crane without his being able to clear his name. A ballot examination would serve that purpose. Your statement to the press reflected your awareness that the Pima County Board of Supervisors, the Regional Transportation Authority (RTA) and local political parties, with the singular exception of the Republican Party, want the RTA ballots examined. All of those groups want the ballots examined not because of “curiosity,” but because such an examination would resolve the criminal allegations. It is your job to resolve the criminal allegations. Therefore, all of those persons and groups are asking your office to do its job.

Our analysis of the RTA election database showed that a large number of precincts had their memory cards downloaded twice. The cards were downloaded on election day, and then a second time up to three days later. In order to do a second download the computer operator had to manually delete the original reported precinct vote totals from the database, then re-read the memory card. It is important to note that those double-downloads changed the number of ballots counted and the number of votes for every candidate and issue on the ballot. The fact that this was not discovered during the iBeta study shows they didn't even do the obvious comparisons.

Even if you just look at the summary reports for each day, you can see that the number of blank-voted ballots for a couple of the races decreases between successive databases. This is a red flag that wasn't investigated. One of the reasons that we want to examine the poll tapes is to compare the signed tapes with the original numbers with the subsequently downloaded results.

Several election computer experts, including Dr. Tom Ryan, Jim March, John Brakey and Michael Duniho have noted and questioned the RTA vote counting, as revealed in the databases. Dr. Ryan, Michael Duniho and Jim March are all currently members of the Pima County Election Integrity Commission that has formally requested the Pima County explain odd vote results such as vote totals going backward and ballots disappearing, which should be impossible.[20] The Commission has allowed Pima County sixty days to provide an explanation. We suppose they are working on it. John Moffatt had previously said he could not offer an explanation because Chuck Huckelberry did not want him to do so while your office's criminal investigation was pending. In other words, the county is taking the Fifth until the coast is clear.

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.

As you can see, the Democratic Party's attempt to learn the truth is complicated and expensive for our party. We must essentially beat around the bush when it is your job and sworn duty to resolve the question of criminality. You can look at the ballots and we cannot. You can easily answer the question while we can only suggest the likely answer. As Michael Shamos, a nationally known voting systems expert at Carnegie Mellon University,[21] wrote to John Evans of your office: “Ultimately, the proof of the pudding is in the ballots.[22]” His was the first expert opinion your office sought. All of our experts are in agreement with Mr. Shamos.

Actually, we believe we will eventually be able to examine the ballots after we appeal the trail court's refusal to exercise its equity jurisdiction. That ultimate result might be next year during your race for Governor. The public needs to know the answer sooner than next year, however. Your office's participation in these matters would also help to secure evidence that is now in a private warehouse that may not be secure. Pima County officials, the suspects in any crime, have already demonstrated their brazen disregard for evidence that was supposed to be secure.

After Judge Miller ruled that the Democratic Party could obtain from the Pima County Superior Court Clerk's office vault its copy of the database, John Moffatt simply walked into the clerk's office and picked up our hard drive and walked out with it.[23] It was a supreme exercise in hubris. The hard drive was in a sealed box the top of which was entirely covered by a court order that had been taped to the top of the box. The court order instructed the clerk of the court that the box could only be released pursuant to a specific court order in the future. Mr. Moffatt presented no court order and was not required to sign a receipt. They simply handed it to him on request and he carried the box out of the vault to Chuck Huckelberry's office.

In view of the importance of the ballots as the evidence of the possible crime, we request your office help secure that evidence. Since you have said in your press release that you will terminate your investigation next month and ours will continue until we learn the truth, please accept this letter as our formal public record request for your investigative files. You apparently won't need them and we will. It looks from the outside like you have investigated Mr. Osmolski but not the suspects. We may be wrong, but that is how it appears. In any event, your investigation may assist us in carrying out our responsibilities.

 

Sincerely,

William J. Risner

Risner & Graham

===================

URLs in this post:

[1] Arizona Daily Star, AZ, Feb 12, 2009 “Goddard: Recount for 'curiosity' not allowed”: http://www.azstarnet.com/metro/280076 [52]

[2] Bill Risner opening statement in trial that explains how political parties are responsibility is to ensure that election are properly handled and counted as defined in Arizona Constitution: http://video.google.com/videoplay?docid=-1489723674229394965 [53]

[3] On October 2, 2008 letter to John Evans at AG Tucson office concerning the open criminal investigation you had assigned to them: http://electiondefensealliance.org/files/Pt3_Criminal_Investigation_RTA.pdf

[4] Sworn declaration of Mr. Zbignew Osmolski: http://www.electiondefensealliance.org/files/Osmolski_Affidavit.pdf [54]

[5] John Moffatt Video from trial: http://video.google.com/videoplay?docid=9173871560399643488 [55]

[6] The iBeta report with notes from Jim March and John Brakey: http://www.electiondefensealliance.org/files/iBeta_report.pdf [56]

[7] Secretary of State's office Joseph Kanefield never looked at such data:

http://www.electiondefensealliance.org/files/Kanefield_deposition_to_sec... [57]

[8] Video 4/21/08 KOLD TV By Bud Foster: “Who Checks the Vote Counters?” NOT the Secretary of State! Not the Attorney General! Not the County!" http://ca.youtube.com/watch?v=fqlefIQVkrk [58]

[11] Chuck Huckelberry arranged $70,000 on James Barry's services alone in analyzing four prior bond and tax elections, by precinct. He also was paid $13,000 by the Yes for RTA Committee. 11 minutes: http://video.google.com/videoplay?docid=1282511168148207359 [40]

[12] HBO documentary “Hacking Democracy (the Pima County Way): http://video.google.com/videoplay?docid=8186883351933387074 [38]

[13] Black Box Voting Harri Hursti's report July 2005: http://www.blackboxvoting.org/BBVreport.pdf [61]

[14] Bryan Crane and Pima County purchased cropscanner: http://blog.tucsonweekly.com/wp-content/uploads/2008/08/RTAdocumentation... [62]

[15] Crop scanner “hacking tool” Pima County bought: http://blog.tucsonweekly.com/wp-content/uploads/2008/08/RTAdocumentation... [62]

[16] Ibeta report: http://video.google.com/videoplay?docid=8186883351933387074 [38]

[17] Humboldt County, California examined their election results: http://blog.wired.com/27bstroke6/2008/12/unique-election.html [63]

[18] Ohio Sues Diebold/Premiere Over Lost E-Voting Votes: http://www.techdirt.com/articles/20080812/0206421955.shtml [64]

[19] Here is what Denker said, video link: http://video.google.com/videoplay?docid=2202425419631997359 [65]

[20] Report by Tom Ryan, PhD, on RTA Anomalies, Submitted to Pima County Election Integrity Commission on 1/28/09: http://www.fatallyflawedthemovie.com/media/DrTomRyan.pdf [66]

[22] Letter from Michael Shamos, nationally known voting systems expert at Carnegie Mellon University, to John Evans of the AG's office: http://www.electiondefensealliance.org/files/emails_shamos_evans.pdf [67]

[24] Previous letter from attorney Bill Risner, July 14 2008, to Attorney General Terry Goddard explaining why he should investigate Pima County's 2006 RTA election: http://www.electiondefensealliance.org/files/Risner_letter_and_Docs_7_14... [68]

 

 

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Pt2_Flip_a_Diebold_Election.pdf [60]	752.82 KB
Pt3_Criminal_Investigation_RTA.pdf [69]	18.28 KB

Court Denies Relief in AZ Election Fraud Case

See http://electiondefensealliance.org/ballot_preservation_hearing [70] for a brief overview of issues in this RTA case.

For a summary history of the evolving RTA election fraud story, see:

http://electiondefensealliance.org/Fatally_flawed_summary

Pima, AZ RTA Ballots Move One Step Closer to Destruction

Judge Harrington Washes His Hands, Blocks Elections Oversight

In Brief: On January 29, 2009, a Superior Court judge in Pima County, AZ, denied prospective relief requested to guard against electoral fraud in future Pima County elections. The judge also refused to allow examination of the ballots from a 2006 election, sought as direct proof of fraud in that election. Without court protection, those ballots are scheduled to soon be destroyed. Should this ruling stand, the Pima County Elections Division has a green light to rig future elections with impunity.

By John Brakey and Jim March

To understand the current lawsuit, one has to realize that in this “motion to dismiss” (by the people who want to destroy the ballots) the judge must start with the presumption that everything stated by the opposition (Bill Risner and the Democratic Party) is true. In order to find against the Democratic Party, the judge has to do so EVEN IF the RTA election of 2006 was stolen by the people who are still running elections in Pima County. To rule for ballot destruction, he must determine that the court can do nothing to prevent future elections from being stolen.

Excerpt from Hearing Transcript, 01/14/09:

The following exchange is between Judge Harrington and Attorney Bill Risner.

Mr. Risner: Judge, we will offer prospective relief that we can be assured they won't do it again. We're not going to ask you to tell them not to do it again. We will specifically show you can simply order to make sure that they can't do it again. Our fact pattern here takes as a matter of fact that the RTA was rigged. That's our fact pattern. . . . So the issue simply is, is it a fact that using a computer with lousy security, a crook's running it and rigging elections? Does the court have the ability to give prospective relief? We say the answer is yes.

The Court: And it is the court's equitable jurisdiction that you . . . .

Mr. Risner: Yes it is. . . . [W]hen there are decisions made on policies or when people are elected, we must know that that was based on a majority vote that was accurately and honestly counted. . . . This court cannot enter an order telling the attorney general what to do, and we sure can't, but the court can enter prospective relief to absolutely . . . prevent this from happening to the future and you've got jurisdiction to do that. You're obligated to do that. It's your oath. It's your job. It's what courts are here for. You can't just wash your hands . . . .

The Court: Sir, do not, please, say that I'm washing my hands of this matter. . . . That is an insult to this court.

Click Read more for full story

See http://electiondefensealliance.org/ballot_preservation_hearing [70] for a brief overview of issues in this RTA case.

For a summary history of the evolving RTA election fraud story, see:

http://electiondefensealliance.org/Fatally_flawed_summary

Pima, AZ RTA Ballots Move One Step Closer to Destruction

Judge Harrington Washes His Hands, Blocks Elections Oversight

In Brief: On January 29, 2009, a Superior Court judge in Pima County, AZ, denied prospective relief requested to guard against electoral fraud in future Pima County elections. The judge also refused to allow examination of the ballots from a 2006 election, sought as direct proof of fraud in that election. Without court protection, those ballots are scheduled to soon be destroyed. Should this ruling stand, the Pima County Elections Division has a green light to rig future elections with impunity.

By John Brakey and Jim March

To understand the current lawsuit, one has to realize that in this “motion to dismiss” (by the people who want to destroy the ballots) the judge must start with the presumption that everything stated by the opposition (Bill Risner and the Democratic Party) is true. In order to find against the Democratic Party, the judge has to do so EVEN IF the RTA election of 2006 was stolen by the people who are still running elections in Pima County. To rule for ballot destruction, he must determine that the court can do nothing to prevent future elections from being stolen.

Excerpt from Hearing Transcript, 01/14/09:

The following exchange is between Judge Harrington and Attorney Bill Risner.

Mr. Risner: Judge, we will offer prospective relief that we can be assured they won't do it again. We're not going to ask you to tell them not to do it again. We will specifically show you can simply order to make sure that they can't do it again. Our fact pattern here takes as a matter of fact that the RTA was rigged. That's our fact pattern. . . . So the issue simply is, is it a fact that using a computer with lousy security, a crook's running it and rigging elections? Does the court have the ability to give prospective relief? We say the answer is yes.

The Court: And it is the court's equitable jurisdiction that you . . . .

Mr. Risner: Yes it is. . . . [W]hen there are decisions made on policies or when people are elected, we must know that that was based on a majority vote that was accurately and honestly counted. . . . This court cannot enter an order telling the attorney general what to do, and we sure can't, but the court can enter prospective relief to absolutely . . . prevent this from happening to the future and you've got jurisdiction to do that. You're obligated to do that. It's your oath. It's your job. It's what courts are here for. You can't just wash your hands . . . .

The Court: Sir, do not, please, say that I'm washing my hands of this matter. . . . That is an insult to this court.

Click Read more for full story

==================================

Protests to the contrary, the judge did wash his hands of this matter with his decision of January 29. Judge Harrington says laws can be broken, elections stolen, and nothing can be done about it.

The judge took another unusual step. After Attorney Bill Risner's initial filing, Risner filed supplemental case law and constitutional citations. The judge rejected these citations as “filed too late.” Whether it was late is disputable, but more importantly, courts in Arizona must always follow the state constitution which, as Mr. Risner points out, demands fair and honest elections. In this case, the judge is saying that the state law limiting challenges to a five-day post-election window bars reforms even in a situation where fraud is obvious (or in the case of this motion, assumed as fact).

One fact is clear. Contrary to the state's constitutional mandate, the legal structure isn't adequate to ensure fair elections. When laws conflict with constitutional mandates, it is the court's duty to override those laws. Judge Harrington, instead, overrode the constitution. (Since this isn't an election challenge, the law he affirmed, limiting challenges to a five-day post-election window, doesn't even apply.)

Due to failures of both the legislative branch and the executive branch to provide adequate remedy against election tampering by Pima County, Arizona, Attorney Bill Risner filed a motion for the courts to use their jurisdiction to provide prospective relief against future election tampering. Through this measure, the courts would request specific actions suggested by the state political parties to insure against any future election tampering by the Pima County Elections division.

Judge Harrington’s ruling is an insult to the Arizona Courts, the Arizona Constitution, and “We the people.” Judge Harrington places a great deal of emphasis on court jurisdiction at the expense of fulfilling the court's legitimate function. His concern is whether the courts can examine evidence in a civil matter when the result of the examination could uncover a criminal act of election fraud.

As Judge Harrington states, “To this Court, the cross-claim appears to be an elections challenge, because it asks this Court to determine, in colloquial terms, whether the election was ‘rigged.’” In fact, the Democratic Party requested that the court examine the ballots that are earmarked for destruction and, if foul play exists, provide prospective relief to prevent continued fraud by Pima County in future elections. This act is relevant to the predicament of the ballots in question as they are part of a civil case.

In this situation, the judge refused to examine evidence in a civil case for fear of discovering criminal activity that could wind up outside the court’s jurisdiction. Using this logic, no evidence should be examined in a civil case if that evidence is proof of criminal activity. Once criminal activity is discovered, the judge is obligated as an officer of the court to report that activity to the proper authorities.

This path has been followed on numerous occasions. Judge Harrington seemed to misunderstand the nature of the “prospective relief” requested by the Libertarian and Democratic Parties. He stated, “The Libertarian and Democratic parties argue that, because they are only seeking prospective relief in the form of an injunction against future unlawful conduct, and not seeking the statutory remedies of annulling or setting aside the election, that their action is not subject to the time limitation set forth in A.R.S. §§ 16-673. They argue that this Court has equitable powers to fashion an alternate remedy.”

Actually, Bill Risner was explicit about the nature of prospective relief sought. In court he informed the judge, “…[W]e will offer prospective relief that we can be assured they won’t do it again. We’re not going to ask you to tell them not to do it again. We will specifically show what you can simply order to make sure that they can’t do it again.” The judge ignored details surrounding prospective relief sought by Bill Risner and merely labeled it as an “injunction against future unlawful conduct.”

The judge also appeared willfully obtuse regarding the cited constitutional provisions. Later in the proceeding, the Democratic Party cited constitutional provisions in support of the court’s equity jurisdiction.

Excerpt from Democratic Party’s Supplemental Citation of Authorities, filed on January 6, 2009:

http://electiondefensealliance.org/files/Citation [71] of Authorities_010609.pdf

The defendant Democratic Party of Pima County hereby files supplemental authorities that have come to its attention since filing its Joint Opposition to Various Motions to Dismiss:

Ariz. Const., Art. 7, Sec. 12: There shall be enacted registration and other laws to secure the purity of elections and guard against abuses of the elective franchise.

Ariz. Const., Art. 7, Sec. 4: Electors shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at any election and in going thereto and returning from.

Ariz. Const., Art. 7, Sec. 5: No elector shall be obliged to perform military duty on the day of an election except in time of war or public danger.

Ariz. Const., Art. 2, Sec. 21: All elections shall be free and equal and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.

From The Arizona State Constitution, a Reference Guide by John D. Leshy, p. 10, The Dominant Themes of the Arizona Constitution: "Perhaps the most constant thread running through the Arizona Constitution is its emphasis on democracy, on popular control expressed primarily through the electoral process. The delegates' shared belief was that if its citizenry sufficiently controlled the government, social justice could be accomplished."

==========================

Remarkably, the judge refused to consider the constitutional and state case law citations because they were introduced later in the proceeding. There have been countless cases when judges allowed cited cases and provisions to be introduced at this stage of the litigation, but that's irrelevant. A judge is obligated to take into account all cited provisions in the constitution. The argument of the time constraint, raised by Ronna L. Fickbohm (opposing attorney acting for the Pima County Board of Supervisors), has no basis in this instance, since no challenge of election results is at issue. In this instance, it is ludicrous to assert that a (nonapplicable) late filing technicality precludes consideration of constitutional provisions directly bearing on the facts of the case.

Nevertheless, Judge Harrington ruled: “At the hearing on this motion, Pima County made an oral motion to strike the Democratic Party’s Supplemental Citation of Authorities, filed on January 6, 2009. The supplement contains no citations of “new” law that could not have been included in the Democratic and Libertarian Parties’ memorandum in opposition to the motion to dismiss, filed on December 12, 2008. Therefore, Pima County’s motion to strike is granted.”

The following statement is Judge Harrington’s worst offense and a dereliction of his duty: “While it is true that this Court has equitable powers under certain circumstances, that authority is tempered by the principle that equity may not be invoked when the complainant has a plain, speedy, and adequate remedy at law.”

Again, the basis for filing the cross complaint was the lack of a “plain, speedy, and adequate remedy at law.” The Arizona Legislature wrote the election code providing only a five-day window to challenge an election. The facts show that, with a computerized voting system, it is impossible to discover election tampering inside a five-day time frame.

Thus, the law may be “plain," but its time frame is too "speedy" and thus limits any possibility of an "adequate remedy at law.” The Arizona executive branch acted by having Attorney General Terry Goddard conduct a criminal investigation, during which the attorney general allowed the suspects (Pima County elections officials) to assist in developing exculpatory evidence on their own behalf.

Further, Attorney General Goddard refuses to make a proper examination of evidence provided by the complainants. Goddard is perpetuating the fiction that he has no authority to examine the ballots in the course of a criminal investigation. Therefore, the executive branch offers no “plain, speedy and adequate remedy at law.”

[Video] Arizona Attorney General Seems Complicit: http://www.youtube.com/watch?v=JQi54zXEW7A [72]

Judge Harrington later stated, “Because this Court cannot identify a cognizable legal claim that is not otherwise time-barred, the Cross-Claim fails to state a claim on which relief can be granted.”

The “cognizable legal claim” exists in the lack of “plain, speedy and adequate remedy at law.” Harrington refused to acknowledge the basic facts in this case and denied that the court had jurisdiction when, in fact, the court does have jurisdiction. His ruling amounts to a dereliction of duty. Should this ruling stand, Pima Elections Division has an open door to continue to rig future elections. The Judge essentially said ‘Pima County can fix elections again and again in the future.’ They can cheat any time with impunity. Although it was assumed as fact that the election was rigged, the court says ‘There’s nothing you can do about it.’ Sound familiar?

Then Judge Harrington had the nerve to chastise attorney Risner for suggesting that the courts should not wash their hands of their duty to provide prospective relief for election integrity. That, however, is precisely what the court did! We at AUDIT-AZ hereby metaphorically gift Judge Harrington with a huge stack of hand soap. From the database and facts gathered through our investigation, AUDIT-AZ can clearly see that the RTA election was stolen. AUDIT-AZ is very disappointed by this court decision. Below are links to this hearing and other related documentation.

---

Court Documents

Hearing Transcript 1/14/09 http://electiondefensealliance.org/files/Hearing_Transcript_011409.pdf [73] Judge Harrington's Ruling http://electiondefensealliance.org/files/Harrington [74] Ruling.pdf Supplemental Memorandum, Declaration of Experts and Exhibits 1/13/09 http://electiondefensealliance.org/files/Experts_Exhibits [75] _011309.pdf Supplemental Citation of Authorities Filed 1/06/09 http://electiondefensealliance.org/files/Citation [71] of Authorities_010609.pdf

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Videos

[Video] Complete Court Hearing http://video.google.com/videoplay?docid=-9162452062207751657 [76]

[Video] Risner's Argument: http://www.fatallyflawedthemovie.com/pages/risnerargue.html [77]

[Video] Richardson's Argument http://www.fatallyflawedthemovie.com/pages/richardson.html

[Video] Fickbohm's Argument http://www.fatallyflawedthemovie.com/pages/fickbohm.html

[Video] Arizona Attorney General Seems Complicit: http://www.youtube.com/watch?v=JQi54zXEW7A

[Video] KOLD TV news, Tucson 4/21/08 [2 min.]

“Who Checks the Vote Counters?"

It Is Not the Secretary of State! Not the Attorney General! Not the County!:

http://ca.youtube.com/watch?v=fqlefIQVkrk [58]

 

 

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Citation of Authorities_010609.pdf [79]	120.65 KB
Hearing_Transcript_011409.pdf [73]	1.7 MB
Experts_Exhibits _011309.pdf [80]	245.76 KB

Hearing on Ballot Preservation in Pima Election Fraud Case (Jan. 14 '09)

Source: http://www.tucsonweekly.com/gbase/Currents/Content?oid=oid:121108 [81] From the Tucson Weekly, Jan. 22, 2009

The Skinny

By Mari Herreras

Election Integrity Update

Some say that attorneys, like cactus, grow in Arizona.

A Wednesday, Jan. 14, court hearing regarding the 2006 Regional Transportation Authority election ballots proved that statement may just be true. At the front of Judge Charles Harrington's courtroom, there were certainly enough attorneys to represent everyone involved. Somehow, there was just enough space to make sure every attorney had a place to sit.

On one of end of the courtroom sat Pima County Treasurer Beth Ford with the attorney from the DeConcini McDonald Yetwin and Lacy law firm hired by Pima County to represent the public official. At the next table were attorneys from the Pima County Republican Party and the Regional Transportation Authority.

In the middle--which was kind of like center stage--sat Pima County Democratic Party attorney Bill Risner, with two attorneys from the Pima County Libertarian Party serving as co-counsel, and newly elected Pima County Democratic Party chair Jeff Rogers, who also happens to be, yes, an attorney. At the final end of the attorney spectrum sat Ronna Fickbohm, another private attorney from Gabroy, Rollman and Bossé hired to represent Pima County. She sat with John Moffatt, Pima County's strategic planning director.

The hearing was Risner's chance to convince Harrington that he has the legal authority to take control of the ballots. Fickbohm, however, was there to remind Harrington that he was there to follow the law--a law that she insists doesn't give the judge any legal authority to take control of the ballots to facilitate a recount. He is, instead, obligated to dismiss Risner's request, she claimed.

Legally, the ballots are required to be destroyed--which is what caused this clump of attorneys to grow on the fourth floor of the Pima County Courthouse in the first place. In June, Ford announced to all party officials that she had to destroy the 2006 RTA ballots as required by state law.

Fickbohm told Harrington that what Risner really wants is the opportunity to contest the results of an election he doesn't agree with; she reminded Harrington that Arizona law only allows an election to be contested within five days of the canvas by the Pima County Board of Supervisors.

Risner countered by telling Harrington he was not there to contest the election and reminded the court his party happened to endorse the RTA. He also added that he doesn't believe he needs the ballots to find out whether the RTA election was rigged--he already knows the election was rigged. He then went over evidence he feels is enough to show that something just wasn't right with that May 2006 election, such as an affidavit from a former Pima County employee who claims that a Pima County elections employee told him he fixed the RTA election, and other evidence that shows election equipment was manipulated to change results.

Risner said he wants to prevent any future shenanigans with ballots. "It's the next election," he said. "And we don't believe the court is powerless."

Just when it seemed that the hearing might get a bit boring, Risner told Harrington that the court can't wash its hands of Pima County's election problems and what happened with the RTA vote. That remark didn't sit so well with Harrington, who did not take Risner's words in the metaphorical, legal-community way Risner said he intended. He pointed to Risner and told him not to accuse his court of washing its hands, adding that he took this case and the future of elections in Pima County very seriously. A collective sigh of relief may have been heard by every attorney in the room. Harrington didn't rule on the matter; Risner and the other attorneys are slated to return to court in February to continue the battle for the ballots.

END

===========

John Brakey and Mike Hayes write:

Much happened Jan 14th in court. Links to video are below to see for yourself. The litigants are still litigating and Bill Risner is still fighting for truth, transparency, and justice. A new suit for additional public documents has been filed because the county refused to give us the poll tapes from the precincts. You would think that they have learned from the last suit. The county attorney is nowhere to be seen! But the county is paying for these big private attorneys.

The current suit over destruction of the ballots has been continued to Feb 23.

JOHN C. RICHARDSON is the plaintiff's attorney, representing Pima County Treasurer Beth Ford. RICHARDSON is with DeConcini McDonald Yetwin & Lacy, P.C., one of Arizona's largest law firms with offices in Tucson, Phoenix, Flagstaff, and Washington, D.C.

RICHARDSON made some interesting arguments. He said, let's assume it (the RTA election) is rigged and there is nothing you can do about it (because it is not possible to challenge an election more than five days after it is certified). Showing proof that it is rigged "pretty much destroys a sitting body."

That body would be the RTA, which would thus be proved to have no right to be sitting. He concludes that it is just inappropriate, under such circumstances, to do something that would have such a dramatic effect. I'm guessing, with proof the election was rigged, citizens would demand that a way be found to do something about correcting that.

RONNA L. FICKBOHM , the attorney representing the Pima County Board Of Supervisors, is with the law firm of Gabroy Rollman & Bosse. FICKBOHM stated that regardless of what happened in the RTA election, there is no present and clear risk to a future election. She says there is no way to fix (repair) a rigged RTA election and no evidence that it could happen again. I wonder if there is evidence it couldn't happen again. In any case, it was interesting to hear her admit, “Nobody is going to stand here and tell you that those elections were perfect." What constitutes a less than "perfect" election? One that was rigged, or one where the riggers didn't pull it off unnoticed?

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Court Videos: Attorney's Arguments

Complete Hearing:

http://video.google.com/videoplay?docid=-9162452062207751657

Risner's Argument:

http://www.fatallyflawedthemovie.com/pages/risnerargue.html

Richardson's Argument:

http://www.fatallyflawedthemovie.com/pages/richardson.html

Fickbohm's Argument:

http://www.fatallyflawedthemovie.com/pages/fickbohm.html

AZ Judge Orders Release of Past and Future E-Vote Databases

"IT IS HEREBY ORDERED granting Plaintiff's Motion for Disclosure of All Election Data Files, including future elections, which disclosure shall be made no later than the recording of the official canvass and the declaration of election results."
-- Judge Michael Miller, Arizona Superior Court, Pima County, May 23, 2008

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SIGNIFICANCE of RULING, IN BRIEF:

* All of Pima County's Diebold election database files going back to 1998 are to be released to the public.

* Database files in future elections are to be made available as soon as Pima County announces the official canvass results (no sooner than 6 days, or later than 20 days, following an election.)

* The ruling appears to require Pima County to be prepared to release the complete election database on CD/DVDs immediately coincident with the final canvass announcement.

* Release of final canvass results begins the 5-day period during which any election challenge must be initiated, as prescribed in Arizona state election law.

* The E-voting machine databases contain crucial direct evidence necessary to challenge suspect election results.

* The Pima County release order is the most far-reaching electronic voting database disclosure yet obtained in the nation. The only prior precedent was a one-time release of the 2004 election database for the state of Alaska, obtained by the Alaska Democratic Party.

* * * * * *
In-Depth LINKS
News Article and Case History [82]
The Court Ruling [83]
Pima County Democratic Party Press Release [84]
Citizen Responses to Ruling [85]

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NEWS from Arizona Star, http://www.azstarnet.com/allheadlines/240594 [86]

Pima County is Ordered to Release Data on Elections

By Andrea Kelly, Arizona Daily Star, May 24, 2008

TUCSON, AZ-- A Pima County Superior Court judge has ordered county officials to release a series of elections database records requested by the Democratic Party more than a year ago.

The judge's ruling also requires release of databases for all future elections.
The ruling comes after months of court hearings and decisions.

After the December trial, in which the Pima County Democratic Party and the county argued as to whether the records were public and, if so, whether their release posed a security risk, Judge Michael Miller ordered the release of databases for the primary and general elections in 2006.

That was only part of the party's request for electronic database records.

In January, the Pima County Board of Supervisors decided to also release the database records for the May 2006 Regional Transportation election.

Following that decision, the party asked for a new trial to consider the release of the rest of the records it requested, which included all of the Diebold GEMS and Microsoft database election files. It is those which the judge has released in his latest order.

The county Democratic Party says the decision sets a national precedent for open government and election integrity.

"Ultimately if you're going to have electronic voting and electronic election records, you need to have electronic oversight.
It's as simple as that," said Vince Rabago, chairman of the Pima County Democratic Party.

People from across the country interested in election integrity issues have contacted the party about this case, Rabago said.

The Pima County Board of Supervisors will likely discuss the ruling with attorneys at its next meeting June 3, said Daniel Jurkowitz, deputy Pima County attorney.

The previous release included about 300 computer database files, and fulfillment of the full order will bring that number to about 1,100, Jurkowitz said.

In court, the county said releasing the records could put the county elections department at risk of a security breach. But the Democratic Party argued that there was no specific risk, and that allowing more people to see the records reduced the possibility of fraud.

Richard Elías, chairman of the Pima County Board of Supervisors, said the ruling reflects the desires of the public.

"I think the people spoke through the Democratic Party, and the judge heard that and made a good decision," said Elías, a Democrat. "This is a good victory for all of us who want to see elections run more carefully."

He said the county elections process has changed dramatically in the last few years and has led to more security, and he hopes that continues.

Miller's ruling requires the release of data on future elections to occur when the election is officially canvassed. This is important because state law limits election-results challenges to the five days following the official canvas.

Republican Supervisor Ray Carroll said the Democratic Party's victory extends to any concerned citizen.

He said he would have released the records in the first place, and
has voted for releasing the records.

The judge has not yet ruled on a request that the county pay the Democratic Party's legal fees, which run into the hundreds of thousands of dollars. He took the issue under advisement after a hearing earlier this month.

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Arizonans Respond to Database Release Order

A Pima County Superior Court judge has ordered county officials to release a series of elections database records requested by the Democratic Party more than a year ago.

Reader response published in the Arizona Star
http://regulus2.azstarnet.com/comments/index.php?id=240594 [88]

1. Comment by Fulana M. FulanaM) — May 23,2008 @ 11:28PM

What a win! Finally, transparency, integrity and justice with respect to our vote. Excellent job attorney Risner and thanks to all the people who helped out from all sides of the political spectrum.

2. Comment by Amber B. — May 24,2008 @ 12:16AM

If the RTAtax actually failed, how do we get our refund checks??

3. Comment by Ted D.(Downing) — May 24,2008 @ 12:23AM

Arizonans of all political flavors, take pride in open government, open records and responsive elected officials and government employees. This suit was a victory for ALL voters, not just Democrats. Well done, Pima County Democrats.

4. Comment by Sam P. (brown) — May 24,2008 @ 2:37AM

If the RTA HAD actually passed, there wouldn't have been all this fuss.

It would have been, "You want the data? Sure, why not, we have nothing to hide."

5. Comment by shelby m.(Maggie2) — May 24,2008 @ 4:42AM

The Pima County Democrats had to be the ones to file this lawsuit, if the Republicans had they would had been seen as sour grapes because they lost.I don't see this as Democrats leading the way, or Republicans standing in the shadows not able to do anything about this, I see this as some Americans sensing something not adding up and these Americans did some thing about it.

Thank you to the judge and thank you to these Americans who did something about it. Makes me feel like Arizona isn't becoming part of Mexico where voter fraud is commonplace.

6. Comment by Wes S. (#1) — May 24,2008 @ 4:57AM

"I think the people spoke through the Democratic Party..."

Right. Then why didn't the Democrat-controlled Board just do it in the first place?

Republican Supervisor Ray Carroll said the Democratic Party's victory extends to any concerned citizen.

He said he would have released the records in the first place,and has voted for releasing the records.

7. Comment by John H. (#4523) — May 24,2008 @ 5:31AM

I am absolutely amazed Chuckleberry hasn't straightened this judge out, pointing out how it is his decision as to what gets released. We all know that since this is a county judge he must be beholden to King Chuckleberry.

Good job judge Michael Miller but beware of Chuckleberry, the King doesn't forget.

8. Comment by Roger W. (rawlaw) — May 24,2008 @ 5:33AM

Well No. 6, maybe you should ask Ann Day who was a consistent vote to not
disclose the election records. Had she followed Ray Carroll's lead, there would have been 3 votes to disclose the records and no need for a lawsuit.

Sharon Bronson and Ramon Valadez will have to answer to voters in their Democratic primary races.

9. Comment by shelby m. (Maggie2) — May 24,2008 @ 5:49AM

Maybe Ann Day will have to answer to voters too.

Thank you #6 for bringing us that informmation.

Einstein said if you keep doing what you have been doing, you will get the same results. I'm no genius but I think if we keep electing the same people for any political position we will keep getting the same results, you think?

10. Comment by ralfie 1. (ralfie12)

I don't know who would object to releasing rsults back to the 1950s. Give Tucsonans a good look at their government.

11. Comment by fernando s. (mando1) — May 24,2008 @ 6:23AM

so.... rid us of from these crooks. recall anyone????? i
remember thinking the rta would never pass, corruption?????

12. Comment by d.t. o. (obrien)— May 24,2008 @ 6:38AM

Maybe this judge could help Ray get the budget numbers he wanted. Ray is
absolutely the only one on this board with any real concern for transparency and the citizenry, and man it must be lonely and discouraging sometimes.

We are behind you Ray, keep fighting the good fight.

13. Comment by Norma R. (#1721) — May 24,2008 @ 7:18AM

Well, I recall being at the hearings and Richard Elias was also very helpful
to the cause of transparency. And lets not forget the years of work, the countless hours of work of the attorney, the tech savvy witnesses from all over the place and the brave witnesses from inside the County who dared tell the strange goings in from within that office. Someone taking ballots home for safekeeping, as if that is somehow safer than a safe? This was a tough battle with plenty of intimidation to go around.

14. Comment by Susan S. (#2667) — May 24,2008 @ 7:37AM

Congratulations to the Pima County Democratic Party for bringing this courageous
lawsuit. All voters should be wary of an elections division that blocked open access, despite reported iiregularities. Attorney Bill Risner is an elections integrity hero.

15. Comment by Jake S. (JakeS) — May 24,2008 @ 8:19AM

Good

Lets turn on the lights and she if any roaches run to the shadows...

16. Comment by Mike H. (#3533) — May 24,2008 @ 8:47AM

Imagine--elections actually decided by voters instead of the secret machinations of Chuck Huckelberry and his Pima County Elections Department.

17. Comment by Wayne B. (rain) — May 24,2008 @ 9:08AM

In court, the county said releasing the records could put the county elections department at risk of a security breach.

So the record denier's story is that they were the ones protecting election integrity. Why didn't the story contain more information about why they think releasing the records would compromise security?

Doesn't seem as simple as "election integrity vs imperialistic overlords" to me. What were the security concerns? The reporter either didn't find that out or wouldn't deem to tell us.

* * * * *

"Completely absent from his [Defendants' expert witness] declaration, however, was any indication that the release of the 2006 databases compromised the integrity of future elections. . . . At the most, the experts inferred in response to deposition questions that release of the 2006 databases had no impact."
--From the Under Advisement Ruling of Judge Miller [commentary by EDA editor].

Distilling Election Transparency From AZ Secretary's Strange Brew

She's some kind of demon messing in the glue.
If you don't watch out it'll stick to you.
To you.
What kind of fool are you?

-- "Strange Brew," Eric Clapton
_______________________

One day after the Pima County Board of Supervisors dropped their opposition to a court order resulting in the largest release of election database records in US history [82], Arizona Secretary of State Jan Brewer responded with a widely-distributed press release and 11-page letter excoriating Pima County's model reforms in election transparency and security.

John Brakey and Jim March, the investigators and organizers who led the three-year campaign to reform Pima County's election system, here respond with a press release and an extended point by point rebuttal distilling the clear distinctions between real election security and transparency, and the illusory kind that Brewer proffers.

Included Below:

* AZ Transparency Project Press Release June 12, 2008 in response to Sec. Brewer's statewide June 5 press release

* Full-length Report, "Brewing Trouble" [89] rebutting Sec. Brewer's 11-page letter [90] opposing Pima County election reforms

* Secretary Brewer's June 5 2008 Press Release [91]

* Sec. Brewer's "Security Letter " to Pima County [92]

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PRESS RELEASE
For Immediate Release June 12th 2008
Contacts:
John R. Brakey, AUDIT-AZ (520) 250-2360
Jim March, BlackBoxVoting.org, 916-370-0347

Brewing Up Election Trouble:
Local And Nationally Known Activists Respond To Secretary Of State Jan Brewer’s 11-Page Letter

On 6/6/08 Arizona Secretary of State (SOS) Jan Brewer wrote an 11 page letter outlining objections to the election integrity process in Pima County. The letter followed a June 4th vote by the Pima County Board of Supervisors not to appeal a court decision establishing that computerized election databases are public records that must be released to political parties according to state law after each election.

Beginning in 2004, Pima County citizen election integrity advocates working with and within the Pima County Democratic Party were able to cooperate with the county government to achieve significantly improved election transparency and security measures that make Pima County a model for fair elections in the state and nation. With the lawsuit over, that cooperation is now picking back up.

Brewer is intent on blocking this progress. Her press release and letter reprimanding county officials (see links at the end of this document) make clear her objections to any current and future security measures. The letter is filled with misstatements and inaccuracies that echo talking points by voting machine vendors.

Brewer maintains that most of the increased election security procedures created by Pima County in cooperation are superfluous, since the state’s “statutory and procedural security, educational and accountability requirements” assure fair and honest elections.

Her assertions don’t stand up to scrutiny.

• Brewer maintains that voting equipment is vigorously tested and certified at the federal and state levels. The state’s testing and certification process amounts to little more than an ineffective “kicking the tires” of the voting equipment. The state does no “red team” type security analysis, in which qualified security professionals take a complete voting system and, acting as both voters and elections staff in separate scenarios, attempt to subvert a test election. When “red team” testing was performed in California, every voting system failed miserably.

• Brewer objects to the disabling of modems that could allow outside tampering to anyone who knows the phone number.

• Brewer maintains that touch screen voting machines help disabled voters. Diebold and other providers of touch screen machines have long used the ploy of helping disabled voters to get their machines into polling places, while providing seriously substandard access. Brewer’s view of “accessibility” involves twisting disabled grandmothers into pretzels as shown.

• Brewer adamantly opposes the county’s proposal to graphically scan ballots and upload them to the Internet. Brewer vastly exaggerates the cost of this “security patch” which would cost under $150,000 in Pima County. This security measure was recommended by election integrity advocates working with the Pima Democrats as a check on Diebold products, declared “fatally flawed” along with every other Brewer-approved system in open court by Pima County’s own experts. Brewer has no trouble with spending $3 million to $6 million to replace the Diebold equipment with another vendor’s garbage, making her objections based on cost ring hollow.

The Need for Election Transparency

The concerns above and many more raised by Secretary of State Jan Brewer’s letter are discussed in greater detail in the document linked below, but the point is clear. Brewer’s thinking does not include the concept of election transparency, where every phase of the election is open to the legally proscribed oversight by Arizona’s political parties. She apparently believes the voters should trust the state and counties to conduct fair elections. The Pima County Democratic and Libertarian Parties and Pima County’s officials are working together to create a transparent secure system – those are not opposites, they are hand-in-hand partners to a truly Democratic process.

The continuing efforts by Secretary of State Jan Brewer to impede our progress and to keep the process of counting votes a hidden and mysterious process makes us question her commitment to fair elections in Arizona.

Read Our Full-length, Point-by-point Rebuttal, Brewing Trouble [89]

Secretary Brewer’s June 5 Press Release
http://www.azsos.gov/releases/2008/pressrelease14.htm [93]

Secretary Brewer’s June 5 11-page letter to Pima County:
http://www.azsos.gov/releases/2008/14_files/SECURITY_LETTER_PIMA_6-5-200... [92]

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Text of Secretary Brewer's June 5 Statewide Press Release [93]

_________________

PRESS RELEASE
For Immediate Release June 5, 2008
For more information, contact Kevin Tyne at (602) 542-0681

Sec. Brewer Raises Serious Doubts About Pima County Election Proposals Expresses Concern over New Proposals as Being Non-Uniform or Unworkable for Whole
PHOENIX -- Secretary of State Jan Brewer today sent a terse response letter to Pima County addressing her serious concerns about the county's recent election procedure report which was released this past April. She noted that over the past six years, her administration has established a rigorous end-to-end election process with procedures that are among the tightest and most secure in the nation.

“Although some of your recommendations make sense, most are problematic, unnecessary, and/or unjustifiable, and nearly all establish a protocol for Pima County that is vastly different and unworkable for every other county,” admonished Secretary Brewer, “It is simply bad policy for one county to push its agenda (which appears to be largely driven by local politics and not on reasoned analysis) on every other county.”

In her 11 page response letter to Pima County [92], Secretary of State Brewer also listed several major security vulnerabilities, including Pima's unilateral decision to discontinue the modem transmission of election results from polling places on election night. Secretary Brewer noted this specific practice provides no independent method for memorializing the results from a given precinct.

“Not only will discontinuing the modem transmission of results substantially delay the reporting of unofficial results on election night, it actually introduces a major security vulnerability into the election process,” stated Secretary Brewer, “Your supposed ‘security procedure' apparently does not even consider that something could happen to the machines and ballots in route to the election headquarters, in which case the results at that precinct would be lost forever.” Added Brewer, “Certainly the odds of some event happening during the transportation of the ballots are low, but they are no doubt far greater than the remote possibility of some hacker intercepting the results, which again would be quickly caught during the post-election audit.”

Secretary Brewer also took issue with Pima County 's proposal to discontinue the use of its accessible voting devices for disabled voters noting that this proposal “violate[s] federal and state law and would unnecessarily disenfranchise Pima County voters with disabilities.” Brewer further admonished Pima County for failing to use the federal funds available to the county to assist voters with disabilities and specifically noted a recent complaint from a disability group regarding Pima County 's failure to accommodate voters with disabilities. “I am disappointed that Pima County has not requested the maximum amount available to it and that $63,688.89 of the money that it has received has not been spent,” Brewer said.

Finally, Secretary Brewer was critical of Pima County officials for releasing all past election databases to the Pima County Democratic Party after they spent money and time fighting in court for over a year against the release. Secretary Brewer noted, “I am at a loss as to why Pima County would argue in court against the release of election databases and then turn around and immediately release more databases than ordered by the court… It is no surprise that the court reversed itself in the post-judgment proceedings and ordered the release of this information given the actions by the Board.”
The Secretary of State emphasized in her response to Pima County over two dozen specific security, educational and accountability requirements already implemented during her administration.

Said Brewer, “[T]he bulk of your recommendations seem to minimize the significance of our existing security protocol and imply that serious problems exist when nothing could be further from the truth.”

“I must reemphasize the point I made in my earlier letter to you about the importance of following the existing physical security protocol for election equipment in your county to prevent any unauthorized person from having access to electronic voting equipment and ballots. The procedures in Arizona go above and beyond what is necessary to secure an election and it is for this reason that we have never had an election security breach in our State.”
View the response letter here. [92]

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Read the Full Text of Secretary Brewer's 11-page Letter
Opposing Election Reforms Adopted in Pima County

http://www.electiondefensealliance.org/files/BREWER_Security_Letter_PIMA... [90]

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BREWING_TROUBLE.pdf [96]	1.39 MB
AZ_Transparency_Press_Release_061208.pdf [97]	166.19 KB

Hearing on Ballot Destruction in Pima, AZ Election Fraud Case

Staying Order Sought to Preserve Ballots Pending Appeal

August 28, 2009 The elusive Pima County ballots that absconded to Maricopa and continue to evade public hand-counting going on four years, return to a Tucson courtroom today for a ruling on their fate.

The Democratic Party, through their attorney Bill Risner, and the Libertarian Party, will ask the judge to stay his order concerning destruction of the RTA ballot evidence, until an appeal of his earlier decision in which he claimed that Arizona courts do not have jurisdiction to consider allegations of fraud in any election. The essential issue in today's hearing is the decision on the stay question. The jurisdictional question is extremely important, but will be moot if the ballots are destroyed.

UPDATE 09/01/09:

See Courtroom Video of Friday's Hearing, and Evidence the Attorney General Ignored [98]

======================================
Friday August 28th, 2:30 pm
Pima County Superior Court
110 West Congress,
4th floor, room 472
Judge Harrington presiding
======================================
The hearing topic is the Pima County Republican Party's Motion for Judgment on the Pleadings. The lawsuit, Beth Ford v. Democratic Party of Pima County,  also includes the Libertarian and Republican Parties. In this Declaratory Judgment action, Beth Ford, the Pima County treasurer and custodian of the RTA ballots, has asked the court for "direction" as to whether she is required to destroy the RTA ballots.

What’s At Stake

The real issue is whether our courts have any role in guaranteeing honest elections. Judge Harrington ruled that he is unable to consider whether an election was rigged. The procedural ruling said that the court did not have jurisdiction of the very subject. It was assumed for the decision that the election was fraudulent and the result "rigged" to give a false result.

Nonetheless, the Judge said Arizona's courts could not hear or consider such a case. He said that a voter has five days only to challenge an election after the election canvass is approved. It is impossible to challenge an election within five days because a challenge must allege specifics that prove the outcome was actually different. Meeting such a standard of proof within 5 days of an election is, practically speaking, never going to happen.

If proof is obtained -- as for instance in the RTA case,  a sworn statement that the computer operator had been ordered to rig the election and did so -- the court nonetheless avers that it is powerless to consider it.

That is an unacceptable situation in a democracy, whether in Arizona or anywhere in the world. We want to appeal. An appellate court needs to rule on this issue. We think it is clearly wrong. If correct, we want it in writing from an appellate court that our courts are powerless to consider fraudulent elections. That is the issue. If the ballots from the suspect 2006 RTA election are destroyed, then a court of appeals will not be able to even consider the case.

Prospective Relief

The Arizona Transparency coalition that has pursued this case is seeking “prospective relief” so that in the future, election officials on the inside cannot cheat as they have in the RTA election. However, history shows there are many ways to cheat and if more ways are found, the courthouse doors must be kept open to right the wrong. This case is as fundamental as it gets. Adding to this all the other Pima election problems previously exposed, documented, and yet not answered, leaves the public questioning whether votes are being secured and accurately counted in Pima County.
The previous case in Judge Miller’s court room proved that Pima Count’s voting system is “fatally flawed.” When counting and processing of the ballots is concealed from the public, the only solution is transparency, transparency, and more transparency at all times, not election theater.

A Solution in View

Yes, voting is a secret process; however, counting and verifying our votes must be a public process. That’s why the solution that the Arizona Transparency Project is working toward is graphic scanning of ballots [99] as done in Humboldt County, California.
If you're in the Tucson area, join us  for the premiere of Fatally Flawed, September 16th at 7:00 p.m. at the Loft Theater, 3233 E Speedway Blvd., Tucson.   Click for details [100]

View Fatally Flawed, the you-are-there documentary on this case, and see with your own eyes why the use of electronic voting machines is a “fatally flawed” approach to democracy.

Pima County Appeals Order to Turn Over Election Data

Case Update 12/28/07: County Appeals Court Order for Disclosure

[12.28.07] Posted with the Tucson Citizen, Tucson Weekly, and the Arizona Star.

Fellow Tucsonans, we're back where we started with Chuck Huckleberry's Pima County Board of Supervisors.

The County has appealed Judge Miller's decision ordering them to turn over the election data files.
[See downloadable PDF files Notice of Appeal [101] and Motion for Stay Pending Appeal [102]].

Facts are: [Pima County Administrator] Chuck Huckleberry has known about the "backdoor" into the GEMS voting system since 1996. That was when Huckleberry authorized Bryan Crane to use that backdoor to merge the two databases together. What Crane figured how to do, is not something described in the official user manual.

In 1996 Pima County used punch cards at precincts and vote by mail ballots were counted on optical scanners made by Global Election Systems (the firm that later became Diebold Election Systems in 2002).

How do you think Huckleberry became the most powerful bureaucrat in the state? "By being the man behind the curtain. Now it's time to pull the curtain back," as Supervisor Ray Carroll said in an interview for Arizona Illustrated several months ago.

From my reading of the request for a stay to Judge Miller's decision, as filed by attorneys for the board of supervisors, their plan is clear:
(1) Tie this case up in court;
(2) draw it out past the November '08 elections;
(3) get the current board of supervisors re-elected for 4 more years; and
(4) hope that we still live in the land of amnesia.

Excerpt from the Stay filed on December 21 2007:

"The County respectfully submits that such a stay is appropriate in light of the sensitive nature of the computer files that constitute the subject-mater of this case, as well as the fact that the County's desire to protect those computer files from disclosure would be prejudiced irreparably in the event such release were to occur prior to the conclusion of the County's appeal in the matter."

It's clear that if the databases were to be released that at least 3 out of 5 Supervisors would be prejudiced irreparably by the databases that very well could show election fraud. What other reason could there be? We've heard all the rest of the diversions over the last year and in Court. You would think that the supervisors would want to protect their integrity and give us the transparency that would end the debate. That's why we went to court and had a four-day trial.

Please write the Board of Supervisors, call them, and be there at the BOS meeting January 8th.

They had their day in court!
Tell them the "Mayhem and Chaos" defense lost and to "Get over it"!
Tell the BoS it's over!
Tell them, "We the People" all seem to agree that elections should be free, fair, accurate, trustworthy, and transparent!

I've yet to meet anybody who admits to being opposed to free, fair, accurate, and trustworthy, transparent elections.
At least till now!

Ray Carroll is the only supervisor who has consistently demonstrated that he truly stands for honest, transparent government and elections.
We might be able to persuade Supervisor Ann Day to support the stand of a fellow Republican supervisor.

Let's see how Board Chair Richard Elias decides to vote. He has always voted with us when we were on the losing side. But this time when his vote would be critical to upholding Judge Miller's order to allow the Democratic party to access the database, will he stand up for transparency, or obey the head cheese, King Huckleberry of Pima County?

Call or write the BOS. Let's hold them accountable. Join with us January 8th.

What we do does make a difference, especially if we maintain our civility.

Be the media and tell others.

--John R Brakey
AUDITAZ[at]cox[dot]net [103]

---

Featured Mini-Clips of Trial Testimony

Testimony of Bryan Crane on the RTA and iBeta Report -- 17 minutes
http://video.google.com/videoplay?docid=7304338799617243809 [39]

Link to the iBeta report on Pima election system vulnerabilities -- which doesn't quite say what county technology officer Bryan Crane claims it does.
http://www.electiondefensealliance.org/files/iBeta_Election_Forensic_Rep... [17]

The testimony of Jim Barry illustrates that the Pima County government had a deep, vested interest in the outcome of the RTA election. http://video.google.com/videoplay?docid=1282511168148207359 [40]

Testimony of County Administrator Chuck Huckleberry, the bureaucratic head cheese in Pima government.
http://video.google.com/videoplay?docid=-4175279576759012912

Attachment	Size
Motion_for_Stay_Pending_Appeal.pdf [104]	873.44 KB
Notice_of_Appeal.pdf [105]	539.5 KB

Pima Election Integrity Trial on Video

Pima County Election Integrity Trial Videos

Plaintiff Opening Statement by Attorney Bill Risner
http://video.google.com/videoplay?docid=-1489723674229394965 [53]

Testimony of Dr. Tom Ryan
http://video.google.com/videoplay?docid=-1218426879119486209 [106]

Trial Testimony of John R. Brakey
http://video.google.com/videoplay?docid=2429578955622955799 [107]

Testimony Expert Dr. Chris Gniady
http://video.google.com/videoplay?docid=2624937678137221831 [108]

Trial Testimony of Robbie Evans
http://video.google.com/videoplay?docid=3065842076090526996 [109]

Trial Testimony of Isabel Araiza
http://video.google.com/videoplay?docid=5509349780776531096 [110]

Trial Testimony of Brad R. Nelson
http://video.google.com/videoplay?docid=6207109568642429330 [111]

Trial Testimony of Chuck Huckleberry
http://video.google.com/videoplay?docid=-4175279576759012912 [112]

Trial Testimony of Bryan Crane
http://video.google.com/videoplay?docid=7304338799617243809 [39]

Trial Testimony of James Barry
http://video.google.com/videoplay?docid=1282511168148207359 [40]

Trial Testimony of Merle King Coming Soon. . .

Pima Rig Evidence Whitewashed by AZ Atty General

Bill Risner is asking the Arizona Attorney General to take one simple step to find out whether the 2006 RTA election was rigged: Count The Ballots.

Risner won the case for the Pima Democratic Party that gave them access to Diebold's GEMS databases. Now, based on evidence uncovered during that case, he's asking the Attorney General to take a closer look at the suspect 2006 RTA election.

Risner's 8-page letter, thoroughly annotated with evidence from the earlier case and from other sources, reaches the conclusion that the RTA election was rigged. He lays out the history of the Attorney General's earlier "investigation" of the election and demonstrates that the AG's office worked with the very county insiders suspected of committing election fraud while ignoring evidence supplied by Risner and others and shutting them out of the investigative process. Another term for an investigation like that is "whitewash."

The slipshod investigation didn't answer the basic question: was the election rigged? Only an honest counting of the ballots will resolve that question.

---

Risner & Graham
Attorneys at Law

100 North Stone, Suite 901
Tucson, Arizona 85701

July 14, 2008

Attorney General, Terry Goddard
Arizona Attorney General
1275 W. Washington
Phoenix, AZ 85701

Dear Mr. Goddard:

I sent you a short letter on July 9th, 2008, together with Mr. Zbigniew Osmolski’s Affidavit, [54]. I will be out of the County from July 15 through the end of the month. Accompanying this letter are various materials that may help you to better understand the nature of the allegations and more fully understand the past investigation by your office staff.

At the beginning of the database lawsuit, the Pima County Democratic Party, and I personally, had confidence in your Office’s integrity. Additionally, I was sensitive to political currents. That is why I informally told Jim Walsh what we were finding out in our lawsuit against the Pima County Board of Supervisors. It was a “heads up” conversation relating to him that we were acquiring evidence suggestive of criminal activity but not enough in my opinion at that point for your office to open an investigation and none was requested.

Later, attorneys for the Board of Supervisors forcefully suggested that I was obligated to make a criminal complaint if I believed crimes had occurred. At that point, I made an appointment with John Evans of your Office who agreed to open an investigation. The “suspects” were listed on your office form as the “Pima County Election Division [113].”

The Pima County Democratic Party offered technical expertise [114]. Your office chose not to accept our technical expertise and we did not complain then nor do we complain now about that decision as your office can investigate in the manner that you choose.

I subsequently had a conversation with Mr. Evans in which I asked him what our role was in the investigation. He said it was a “one way street in which he could not give me information but he could receive information from us.” I then gave him the names of two witnesses including Robbie Evans, Jr., who for four years was the computer assistant to Bryan Crane. I explained that Mr. Evans, Jr. would testify that Mr. Crane regularly printed unofficial tallies or summary reports of actual votes before election day. Your Office investigators chose not to interview that witness, even though they knew his testimony would contradict Mr. Cranes’ prior testimony. Instead your investigators accepted Mr. Crane’s fourth different under oath story without comparison with the prior explanations nor did they question any contradictory witnesses. [Video from trial testimony of Robbie Evans, Jr. [109], testimony of Chester Crowley [115] and trial testimony of Isabel Araiza [110] (20 years with Pima Election Department)]

During a subsequent conversation with Mr. Evans, I learned that your offices’ report from iBeta would be provided to the suspects, but a copy would not be provided to the Democratic Party, although Mr. Evans concluded the report would be a public record, he said he would require us to retain a copy from the County suspects. I have attached several of the letters [116] that I subsequently sent to John Evans.

I am sure you are now aware that your office joined with the suspects in a joint study, permitted the suspects to direct the investigation and gave them a copy of the investigative report before conducting any interviews [116]. [Aug 6-Sept 13, 2007] Before commenting on the iBeta report, I would like to review the background of the decision to proceed in that manner. Mr. Evans had initially contacted Michael Shamos, a nationally known voting systems expert at Carnegie Mellon University. Mr. Evans and Mr. Shamos’ e-mails are attached [67]. Mr. Shamos immediately recommended the ballots themselves be examined as he said: “Ultimately the proof of the pudding is in the ballots.” “My suggestion would be to re-tabulate from the original records. This should tell us very quickly whether the GEMS results were fudged. What is the difficulty with this approach?” Indeed!

Mr. Evans response was:

“As for the white wash, I would agree with you but the
party to the civil law suit that discovered this problem
is very much on board. They want the data base to be
looked at and they have approved the scope of the project.
The most vocal local naysayers have bought into this process.”

Mr. Evans was completely wrong. We had not “bought into this process.” He insisted on this process. Nevertheless, Michael Duniho, on behalf of the Democratic Party, strongly suggested that the ballots he examined. Mr. Duniho recalls a heated exchange with Mr. Evans.

Our deference to your office’s integrity at that point should not be characterized as being “on board” Mr. Evans’ flawed process.

Mr. Evans’ e-mail also contained this important reference to the “issue to be investigated.”

“Regarding your questions, the initial issue is about the
absentee ballots that were run before the joint summary
report. The next question is whether after the summary
report there was a flip of the fields. So the accuracy of
the absentee ballots is questioned and the accuracy of
the subsequent ballots may be an issue.”

The evidence to resolve that key question was already available to the Attorney General. A.R.S. § 16-445 required Pima County to send “at least ten days before the date of the “RTA election” a copy of the ballot layout. In other words, the position of how the computer would read “yes” and “no” votes was on file. If the computer had later been instructed to read those votes reversed or “flipped” so that “no” votes would count as “yes” votes the computer data could easily have been compared with the data on file with the Secretary of State.

A.R.S. § 16-445D [117] specifically provides that the data on
file “shall be used by the Secretary of State or
Attorney General to preclude fraud. . .”

In other words, the entire purpose of that data was for it to be examined in a fraud investigation by the Attorney General. Your office did conduct a fraud investigation where that evidence would have provided the answer, but it was neither used nor requested by your office.

Furthermore, your office actively attempted to obstruct the Democratic Party’s attempt to find that evidence, when the Democratic Party scheduled a deposition of the Secretary of State’s office. Your office filed a Motion for a Protective Order asking the trial court judge to prevent us from learning the whereabouts of that evidence. We ultimately prevailed over your office’s objection and learned it had been mailed back to Pima County where Brad Nelson personally handed the critical evidence to Bryan Crane, and it has not been seen since. The Arizona State Election Director, Joseph Kanefield, testified that the Secretary of State’s office was aware of the criminal investigation having been informed by your office.

As for the iBeta “investigation” jointly conducted by the suspects and your office [118], it is clear to us that the investigation was steered by the suspects down blind alleys. The statement of work written by iBeta contained no reference to either swapping ID codes or replacing a database with one modified on another computer. During the investigation, the suspects’ technical defense person, John Moffat, suggested the investigative contractor engineer look at the Preferences table in the database to see if the programming had changed, and also to back each batch of early ballots scanned out of the database to see if vote totals had been changed. But the simplest manipulation of the election database, swapping the codes that identified the Yes and No votes, would have been done in the Candidate tab and swapping the codes would not have changed any vote totals – it would have merely reassigned the votes. Needless to say, the investigative contractor engineer found no conclusive evidence of tampering – either because it did not know where to look or because he carefully avoided looking where tampering was likely to have occurred. [See version of the iBeta Report with notes by Mr. Brakey and Mr. March. [56]]

The iBeta report discusses five “tests.” Test 1 produces no useful information. Test 2 did turn up what appeared to be evidence of “tampering,” but the company accepted John Moffat’s explanation. Test 3 confirmed “five copies” of the test target file were identical. This was not a useful conclusion as the key issue was data that had been erased. Test 4 was a test “prepared” by John Moffat concerning the “Preference table.” I have previously noted the uselessness of that test. Test 5 was also “prepared” by John Moffat, and again, was a test not directed toward the allegations. That test was whether votes had been externally added which has never been an allegation. [Copy of the iBeta Report without added notes [17]]

John Moffat is paid $184,000 per year by the County for a 30 hour week. He works part-time, so he can continue to run a separate company he owns [55]. He reports directly to Charles Huckelberry on an “oral” basis only. Since competent evidence, such as the Osmolski Affidavit [54], quotes Bryan Crane as saying that he was told to fix the election by his bosses, it is clear that County management has a potential motive to obstruct an investigation. An assessment of John Moffat’s role in your investigation, and in the civil case, indicates that his role has been to prevent an examination of past election practices. At a recent meeting of the Pima County Board of Supervisors, John Brakey reported that John Moffat said he would cooperate with the Democratic Party in the future if we would agree not to look into the past. [Brakey and March confirm that this was suggested several times.]

A press report this week [119] quoted Bryan Crane as saying he had to look up on a map where the Boondocks Bar was located. However he got there, he was seen that evening by another available witness who knows Mr. Crane. Mr. Osmolski related his conversation with Mr. Crane to four separate people at the bar that evening.

The truthfulness of Mr. Crane’s confession can readily be determined by examining the ballots. As noted by Michael Shamos, the proof is in the ballots. The likelihood that the RTA election was fraudulent can also be inferred from the totality of the circumstantial evidence. The circumstantial evidence is strong. I have already mentioned that Mr. Crane received from Mr. Nelson the RTA pre-election tape sent to the Secretary of State’s office pursuant to A.R.S. §16-445. The box delivered by Mr. Nelson contained several tapes but only the May 16, 2006, RTA tape has disappeared. An inference can be drawn from the disappearance of computer data that has the specific ability to prove the crime by contradicting saved data. [Nelson trial testimony [111] and Tucson Citizen articles on Dec 6, 2007 [120] and Dec 15, 2007 [121]

The motive of the “bosses” could not be clearer. The proposal that a sales tax be approved for roads was defeated on some four prior occasions. The May, 2006, proposals were unanimously endorsed by all five supervisors. Supervisor Valadez was the RTA Chairman [122].

Months before the RTA election, the Board of Supervisors hired James Barry, a Special Assistant County Manager, to work under the direction of Chuck Hucklelberry, and develop a computer database of all previous County board elections by precinct to determine precinct by precinct voting patterns. Mr. Barry’s contract began the day after his retirement from the County. Mr. Barry was paid $75,000 for that work. At the same time, Mr. Barry received approximately $12,000 from the RTA Yes Committee for “consulting.” [Video, Barry trial testimony [40]]

The RTA was said to have passed by a surprisingly large margin. Yet the RTA Yes group was privately claiming in the weeks leading up to the election that their tracking polls showed the measure likely to lose.

A Microsoft access manual was seen and photographed in the vote tabulation room on election night [123]. Use of MS access on an election computer was and is illegal. [Electronic Voting System Manual, p. 89 [124] and ARS 16-442. Also, see Letter to Secretary of State Jan Brewer [125].]

The Chair of the Pima County Democratic Party requested days after the RTA election day for a party consultant to enter the tabulation room accompanied by Election Director Brad Nelson for the sole purpose of looking at the cables attached to the election computer. The request to enter the vacant room to see if another computer might have been connected to the election server was denied. This request occurred while all parties were present in a room next to the vacant room.

Chester Crowley, an election department employee, testified at trial [115] that the election computer had in the past been connected to Bryan Cranes’ computer in his office and he believed Mr. Crane had printed unofficial tallies on his office printer directly from the election computer.

Mr. Crane’s assistant for some four years, Robbie Evans, Jr., testified [109] that Mr. Crane regularly took home during elections a compact disc (CD) of election data. Isabel Araiza, perhaps the election division’s senior employee and the office manager prior to Brad Nelson being hired, testified [110] that she had discussed with Brad Nelson the security problem of Bryan Crane taking election data home with him during live elections. Mr. Nelson did not object to the practice and did not instruct Mr. Crane to cease that practice. The GEMS system has a well-known security defect [126] known as “the back door” whereby data can be changed using Microsoft Access without knowing or using a password. The GEMS audit log is not separate from the data itself. That means that election data can be changed and then the audit log itself can be amended to erase any history of the changes having been made.

The audit log for the RTA election shows evidence consistent with just that kind of manipulation [127] and inconsistent with the normal operation of the GEMS software. Since Bryan Crane operated the GEMS software for ten years before the RTA election his normal style is known.

The May 10, 2006, audit logs demonstrate the normal operation of the ballot counting. On that day, election employees counted more than 13,000 early ballots over a four hour period. The vote total data from those ballots was backed-up and labeled as Day 1 back-up. If a CD of the election data had been made, it would not have shown on the audit log. Testimony has confirmed that the making of a backup CD was his normal practice. [Araiza testimony [110]]

The number of persons who could observe inside the counting room was severely restricted in the months just prior to the RTA election. Brad Nelson radically changed prior procedures so as to prohibit employees that previously had access to the counting room from doing so during the RTA election. [Araiza testimony [110]]

Bryan Crane was quite familiar with the ability of the GEMS system to export data and manipulate it off line. He had done so in 1996 at the instructions of Chuck Huckelberry. During one of Mr. Crane’s depositions [128], I asked him about 1996 at which point the County Attorney’s Office stopped the deposition and attempted to reach the trial judge to prevent any questions about that off line activity. The deposition continued [128] only when I agreed to not ask any questions at that time about 1996.

The audit log of May 11, 2006, shows that thirty-three seconds after the election computer was opened that morning, Bryan Crane created a second “Day 1 backup” and erased the prior day’s data, replacing it with a new “Day 1 backup.” This action would be similar to your experienced secretary backing up a brief she was preparing for you before going home and then seconds after coming to work the next day again “backing-up” the brief when no additional charges had been made. Such an event is highly unlikely. Bryan Crane’s normal practices are known. The audit logs show that he backed up vote totals only after ballots were counted [127]. Precisely what one would expect.

At his deposition, Mr. Crane had no explanation for the new Day 1 backup nor for the two separate unofficial tallies did he print thereafter. At trial, he was questioned by Deputy Pima County Attorney Chris Straub [39] and explained that the writing over of the data had been a “slip of the finger on the mouse.” That explanation cannot be true, however. That is because the overwriting and destruction of the day one data required responding to two warning messages, one from GEMS and one from Windows [127]. A box would have appeared on his screen that said a day one backup already existed and did he really want to wipe out that file and create another one with the same name. Such a sequence from a ten-year veteran of that system is unlikely in the extreme.

What the audit log evidence is consistent with is the re-insertion of a new data with reversed data. If Mr. Crane had taken home a CD of the election data he could have examined that data at home and reversed the votes of no to yes. That simple change would then cause GEMS to automatically make multiple changes. For instance, the computer would automatically change all four hundred or so precinct totals to match the new reversed count. Additionally, the computer would count all future No votes as Yes votes as its instructions would have been changed. As previously noted, this sort of election fraud is precisely why the ballot data was filed pursuant to A.R.S. §16-445 for the use of your office in a fraud investigation.

At the end of each election day, the data was normally backed up on the computer. One would expect that such a backup would be made since if it is wise to back up each day’s counting of early ballots. It would certainly be wise to back up data from each precinct that came in after the close of the polls. And that is the normal pattern. Before the election staff goes home on election night the audit logs show that a backup is made of that data.

Except for the RTA. For the RTA, such a backup was not made. This failure is a very significant departure from normal practice and suggestive that vote total manipulation was occurring off line. The data was not backed up “until three days later,” after the results had been published.

In any sophisticated computer crime, the variance from normal patterns offers clues as to what has occurred. Those clues are referred to as “badges of fraud” in the case law.

In the database lawsuit filed by the Pima County Democratic Party, the Board of Supervisors’ lawyers filed a pleading stating that they could not adequately defend the lawsuit because of the substantial risk that every employee who operated the Pima County Election computer would assert his or her Fifth Amendment privilege not be incriminate themselves. Such a written confession by the County’s lawyers is unprecedented to my knowledge in this country.

Neither that admission nor any other admission of violation of rules, criminal laws or good practices has resulted in any inquiries by County management or even a reprimand of any election department employee. John Moffat testified [55] that he had been instructed by the County’s lawyers not to ask questions of Mr. Crane about violations of law relating to the printing of summary reports.

Joe Kanefield testified that he assumed the county had itself examined such allegations as would any organization or company. His assumption is the same as ours. Therefore, the total organizational failure to do so speaks volumes to the necessity of an outside review and clearly suggests that the management of the organization is complicit. In other words, it supports Mr. Crane’s statement to Mr. Osmolski that he fixed the RTA election on the instructions of his bosses.

Ten months prior to the RTA, the Pima County Election Division, at the request of Bryan Crane, purchased a “crop scanner,” [129] a read-write device that is a computer hacking tool. That tool has no other purpose than to illegally alter the programming of precinct voting machines. Actually, it does have a legal use, but I am certain the election division was not using it to know when to irrigate their crops.

The Pima County Democratic Party’s election integrity Committee has an unusual number of individuals with extensive computer and election computer expertise. Dr. Tom Ryan, PhD. is a retired computer engineer who has been studying computer election issues for several years. The Pima County Democratic Party adopted a report [130] he wrote in April 2003 concerning election computer problems. James March is a member of the Board of Directors of Black Box Voting, a National Organization of citizen election reform advocates. He was one of the first computer technicians to examine the Diebold GEMS software. He has been consulting with the Democratic Party on election security issues.

Michael Duniho (“Mickey”) has retired to Tucson from a career with the National Security Agency where he was one of fifty “master programmers.” He has spent innumerable hours learning election and ballot processing procedures. John Brakey, another computer, expert, is self-taught, but has an excellent grasp of the GEMS system and its potential use in fixing an election.

All those informed individuals are in agreement that sufficient questions exist to merit a hand count of the RTA ballots.

All of our freedoms in the Untied States are ultimately guaranteed at the ballot box. Anything less than an honest count of ballots is a crime that strikes at the heart of our Democratic system.

All of us who have been active on issues related to election security believe that the ballots for the RTA must be preserved and counted. Only you, as Arizona’s Attorney General, can take control of the ballots as potential evidence of a crime and count them.

Our community, your political party, and our core freedoms, will be protected only if you act to determine whether a major crime has occurred against the Democratic process. The issue is not the fallout of that crime but whether the crime has occurred.

Pima County management now asserts that they want the RTA ballots preserved, but they want a judge to tell the Pima County Treasurer what to do with the ballots. The ballots can be preserved and counted only if Arizona’s Attorney General does the job he is required to do.

The obligation to determine if a crime has occurred is not for the Democratic Party. The political party is not a prosecutorial agency. It has been involved in order to preserve its core role of election observation. The prosecutor’s role is yours. Whether or not a crime has occurred can be simply and definitively determined through an examination of the ballots. We ask for you to personally direct that the current investigation be conducted in such a manner as to arrive at an answer that the people of Pima County can accept.

Very truly yours,

RISNER & GRAHAM

LIST OF RELEVANT FILES, INCLUDING SOME NOT REFERRED TO IN RISNER'S LETTER.

• What We Believe Happened in the May 16, 2006, Regional Transportation Authority (RTA) bond election in Pima County, Arizona [131]
• Complete Risner letter and related documents [68]
• Mr. Zbgniew Osmolski's Affidavit [54]
• Attorney General Case Closing Sheet [113]
• Complete letters between Bill Risner and John Evans [132]
• Letter from Risner to Evans, 8/6/07-9/13/07 [116]
• Letters between Risner to Evans, 6/18/08 [133]
• Email Exchange between John Evans and Michael Shamos [67]
• Full Text of ARS 16-445 [117]
• Email Exchange between John Evans and John Moffatt [118]
• iBeta Report With Added Notes by Mr. Brakey and Mr. March [56]
• iBeta Report Without Added Notes [17]
• Photos of Microsoft Access manual in Vote Tabulation Room on Election Night [123]
• Letter from Karen Friar to Bill Risner [134]
• Joseph Kanefield Deposition to the Secretary of State [57]
• Crop Scanner Invoice [129]
• 18 Anamolies Related to the RTA Election [135]

Attachment	Size
18_RTA_Anamolies.pdf [136]	87.56 KB

Pima Trial Testimony Video Links

Supicious Signs of Hacking in the Pima County RTA Election

Jim March, a longtime associate and current boardmember of BlackBoxVoting.org, has been working pro bono with EDA investigator John Brakey for most of 2007, examining suspicious elections in Pima and Maricopa counties. The Pima trial is a direct result of their investigative findings.

The RTA Election Of 2006: Suspicions Outlined

by Jim March

1. The county ran the election and had a strong interest in the outcome, going so far as to pay consultant James Berry at least $75,000 in support of the bond measure. Berry also took money ($13,000) from the "official" pro-RTA bond people (basically developers).

Here's a link to the video of James Barry's court testimony, demonstrating that the Pima County government had a deep, vested, and motivated interest in the outcome of the RTA election.

http://video.google.com/videoplay?docid=1282511168148207359 [40]

2. The bond measure had failed four times previously and was losing in the pre-election polls. (There was no exit poll.)

3. On the evening of the election (5/16/06) Dr. Ted Downing (a legislator at the time) noted Bryan Crane reviewing an open MS-Access manual on the table next to the central tabulator station. John Brakey found op-scans breaking down at precincts and called Downing.

4. In the weeks that followed, in meetings with (among others) the Pima County Democratic Party chair (Donna Branch-Gilby), Brad Nelson refused to allow even basic oversight -- such as a visual inspection to make sure that additional PC stations weren't wired into the central tabulator via the network cable clearly visible snaking under a locked door. This refusal was interpreted at the time as Nelson's practical declaration that he had an unfettered right to manipulate elections, and nothing he's done since has alleviated that apparent stance. (It's true that since that event, John Moffatt has managed to push through some transparency measures -- but all the while Nelson and Crane have systematically sabotaged Moffatt's efforts.)

5. The actions of Bryan Crane on the morning of 5/11/06 have been rehashed ad nauseum. Yet the fact remains that the official story (at least the version in court on the witness stand) has Crane making two mistakes rapid-fire on the morning of the 11th: He over-writes the previous day's backup file (ignoring GEMS' warning about same) and then prints TWO copies of the summary report within 10 minutes of each other -- and again, for each summary report he has to confirm his selections manually. Either mistake would be remarkable. Both happening within minutes? It looks like hacking. Period. The appearance is that bad data from outside the shop was brought in, uploaded, then an over-write of the previous day's good data with the bad occurred. And then two summary reports were printed moments later -- to confirm a successful hack and/or in order to prove to parties unknown that the hack had occurred? In his court testimony, Crane lied about how he performs backups.

Testimony of Bryan Crane on the RTA and iBeta report (17 minutes): http://video.google.com/videoplay?docid=7304338799617243809 [39]

6. There is still a timestamp anomaly. Granted, the file "creation" and "last accessed" timestamps would have been re-written by the exchange of file servers in June of 2006 due to how Windows handles those timestamps. But our tests show that the "modified" time/date-stamp would not change due to a simple file copy operation. According to the iBeta report and associated E-mail traffic behind it (public records after the fact) the "early day 1" filename has a "last modified" date of 9:56 a.m. on the morning of May 11th, 2006. But according to E-mail traffic back and forth to John Moffatt, the timestamp was 10:56 a.m.

In December of 2006 the Democratic Party obtained a complete directory listing of both current servers. We show a timestamp for that file of 9:56 a.m. -- which in turn matches the time and date that the GEMS audit log says the "overwrite" of the morning of 5/11/06 happened.

We have confirmed that if a file is created and has a "last modified" date of, say, 3:00 p.m., and the file is shipped across time zones by ANY means, the timestamp doesn't "auto-correct" for the new time zone. Such functionality just isn't there -- the Windows file system has literally no place to record the timezone in which a file was created. So iBeta's Colorado location wouldn't have adjusted the file "last modified" time by an hour.

The implication is that somebody adjusted the file before it got to iBeta.

7. The "five files" situation. According to iBeta, they were unable to read any data off of the original pair of GEMS systems (the ones actually used on the RTA just before their retirement). From the other newer pair of systems they extracted five identical copies of the "early day 1" RTA file involved in the over-write of 5/11/06.

Our copy of the directory listings of Dec. '06 shows only two copies.

This bolsters the possibility that the RTA data files were modified prior to being shipped to iBeta. At a minimum, we can state that the files were being looked at and duplicated between Dec. '06 and their duplication for iBeta around June '07.

CONCLUSIONS:

The court has already been provided with a schedule of tests we believe should be performed on the complete data set for any given election -- most definitely including the RTA '06 Special Election. We feel that some of these tests would be particularly beneficial in this case, such as checking the internal timestamps on the MS-Access tables and looking at the "vote totals flow" throughout the mail-in vote processing.

ADDENDUM:

In April of 2007 the court wisely agreed to sequester copies of the MDB/GBF files at issue in this case in the court's vault. To that end the plaintiffs purchased a brand new external hard disk (Seagate FreeAgent 250gig) from Best Buy and brought it to county elections HQ in it's factory shrinkwrap. County staff unwrapped it, plugged it in, created two directories (one for each GEMS main and backup server) and copied all MDB and GBF files to it.

But they also grabbed something else.

At the plaintiffs' request, they created new copies of the file directory listings as .TXT files, similar to what was obtained in December of 2006 and already understood by the county elections office to be a public record. Those also went onto that Seagate disk and are in the court's vault right now.

We would dearly love to compare that directory listing to the Dec. '06 listing we have now. That alone may show a difference in the RTA-related files if somebody was doing "cleanup" after this situation began to publicly implode. We would then like to compare that listing to what iBeta received. We suspect the data sent to iBeta was already falsified, rendering their results null and void.

We don't know for sure if this directory listing analysis will flush out fraud. It might prove our theory that iBeta received the famous "garbage in" that led to "garbage out".

We would ask that our hard disk be plugged into a computer owned by the court, and the two .TXT directory listing files be copied to at least three CDs -- one for us, one for the court, one for the defense.

---

John Brakey [41] is co-founder of AUDIT-AZ (Americans United for Democracy, Integrity, and Transparency in Elections, Arizona) and Co-Coordinator of Investigations for Election Defense Alliance

5947 S Placita Picacho El Diablo
Tucson, AZ 85706
Ph: 520-578-5678
Cell: 520-250-2360
AUDITAZ[at]cox[dot]net [137]

The Mission of AUDIT-AZ and EDA: To restore public ownership and oversight of elections, work to ensure the fundamental right of every American citizen to vote, and to have each vote counted as intended in a secure, transparent, impartial, and independently audited election process.

"Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has." -- Margaret Mead