Pima County Circumvents It's Own Election Integrity Commission to Get a Waiver that Removes Proper Audit of County Elections

J.T. Waldron

A key document has surfaced in a recent lawsuit in Pima County, Arizona, that suggests much more activity affecting the reliability of elections took place in secret meetings with Arizona Secretary of State Ken Bennett. When the 2011 revision of the state elections manual added a sentence requiring presorting of early ballots by precinct, the County secretly went to the Secretary of State and got a waiver, without any disclosure to their own Election Integrity Commission. This activity certainly falls within the purview of the Commission and presorting had been frequently discussed by the Commission.

Although Bennett is familiar with Pima County's Election Integrity Commission, he may or may not be aware that the meetings took place without the knowledge of the other Commission members. Pima County employee John Moffatt and staunch county supporter Benny White were the two members of Pima County's Election Integrity Commission (EIC) that sought changes to the Secretary of State’s Election Procedures manual. One key substantive auditing provision, to sort early ballots by precinct, was removed without the knowledge of the rest of the EIC.

The letter from the Secretary of State, dated June 29th of 2012, acknowledges the request made by Pima County Elections Director Brad Nelson to avoid presorting early ballots by precincts and grants an exemption for the upcoming Fall election. At no point was this change mentioned at any of the commission meetings. Retired NSA analyst Mickey Duniho, Computer expert Tom Ryan, and Black Box Voting member Jim March are among the members of Pima County's EIC that strongly recommended presorting the early returns by precinct.

The process for revising the Secretary of State’s Election Procedures manual begun in 2011 when Ken Bennett formed a commission consisting of Pima County employee John Moffatt and Benny White. Although Brad Nelson is the recipient of the exemption, it is unknown whether he participated in that committee. During the time in 2011 when that committee was meeting, John Moffatt and Benny White regularly reported to the Pima County Election Integrity Committee about the changes that were being recommended. At no time did they mention the Secretary of State's intention of requiring presorting of early ballots by precinct. At almost every EIC meeting, however, Mickey Duniho and other members frequently discussed with the board the importance of presorting early ballots by precinct before conducting the hand count audit.

Citizens filed a lawsuit against Pima County and held a hearing earlier this week over presorting early ballots along with other auditing procedures provided by Arizona Statutes. They filed this lawsuit absent any knowledge that this provision was added by the Secretary of State and later exempted at the request of Pima County. Had it not been for the current lawsuit to get Pima County to follow existing election laws, we would have never discovered this activity taking place behind the backs of the rest of the Election Integrity Commission. Such trickery seems to involve far more work and effort than actually negotiating the logistics of presorting early ballots by precinct.

It appears that County Attorney Chris Straub has reported this change and the accompanying waiver to the court in this recent trial. This disclosure is likely required to avoid potential sanctions, even possible disbarment, for withholding information from the court that is pertinent to the case.

Those who knew that the Election Integrity Commission was being circumvented are obviously Benny White and John Moffatt. Brad Nelson and Chuck Huckelberry would also have a difficult time claiming ignorance over withholding information and secretly obtaining a waiver from Ken Bennett to avoid compliance with the new rule. Every EIC meeting has transcripts and are sufficient to show that Moffatt and White were falsely representing what took place with the Secretary of State.

Was Benny White's role in working with the Secretary of State to enhance the impression of the EIC's participation in the revision of the Secretary of State’s Election Procedures manual? Pima County has no doubts over Benny White's loyalty to those currently entrenched in Pima County's bureaucracy. In 2008, he provided false testimony and slandered John Brakey to the Pima County Board of Supervisors when Brakey was falsely arrested while serving as an elections observer (see below). Brakey has so far refrained from suing Pima County over his false arrest, which was requested by Brad Nelson. Despite what we had previously predicted, Benny White indeed testified in the hearing earlier this week. You could see the difficulty in getting a direct answer out of him as he's asked his position over presorting early ballots by precinct.



Discovery of this "runaround" by the county sheds new light on the dynamics of last week's emergency meeting proposed by Mickey Duniho. Here they are spending hours discussing the importance of presorting the early ballots. Benny White left early because he claims to have a conflict of interest with the upcoming court case. Absence makes withholding information a lot easier. Brad Nelson has the easy excuse of being busy during the election season (It's also the excuse Pima County uses for not complying with state election laws). Pima County employee John Moffatt is left to sit through the whole meeting discussing a subject that he knows has been "managed" behind their backs. It's his job.



Here is Benny White lying to the Pima County Board of Supervisors:



With all the scurrying behind the scenes, one has to wonder what part of the election do they plan to alter?

Local Daily Extolls the Virtues of Pima County in Apologetic Report of Lawsuit Aimed at Keeping Pima County from Breaking Laws

J.T. Waldron

When propaganda gets this obvious, we ultimately choose not to run away from it and prefer not to rely on the hopes that people will ignore it.

It is far more productive to give it its due and shed light on it.

The Arizona Daily Star's sunday edition contains the article with a peculiar title that is self evident as propaganda:

What is the main, bulkier part of the title? You guessed it:

Pima Sees Gains in Election Security

What was the actual current news to be reported in the story?

The lawsuit by citizens to compel Pima County to follow existing election laws.

What's the damage?

The Arizona Daily Star has over 364,000 readers for its Sunday edition, which is about a third of the population of Pima County being falsely assured about "Elections Security". Another story that is being convoluted with this story about the lawsuit involves local election integrity commission member Mickey Duniho's analysis of a nationwide study showing consistent Republican favored margins in larger precincts for both primary and general elections since 2008.   This story had adequate, neutral treatment when it was reported by the same author on the previous Friday, the least favorable day for the 238,000 readers that would elect to check it out. Although the story has little to do with the lawsuit filed last Wednesday to compel Pima County to comply with existing election laws, it serves to confuse the simple lawsuit requiring official returns to be placed in the official returns envelop and legally proper numbers for the hand-count audits.

The only conceivable connection that Dunaho's emergency Election Integrity Commission meeting has with the lawsuit filed last Wednesday is that the anomalies he confirms could be resolved with the proper hand count audits requested in that lawsuit. So could a lot of other ways of cheating be discovered with proper hand count audits.

We put additional police in the streets to prevent all kinds of crimes. Not just one.

Incidentally, this is the only time that the plaintiffs in last Wednesday's lawsuit are mentioned.  Duniho is referred to as "a plaintiff in the lawsuit" but the author fails to mention the twelve others including Green Party Candidate Dave Croteau, Republican Candidate Bill Beard, Libertarian Elections Specialist Jim March and Paul Hilts, the chair of the Pima County Democratic Party Elections Committee.

The title, "Pima sees gains in election security" suggests to its readers, "nothing to see here. All is well." Quick browsers will think that is the point of the article.

The competing "gains in election security" were sprung from the records lawsuit involving the Regional Transportation Authority (RTA) election and they were procedures that would not have been implemented without the public and legal scrutiny surrounding RTA election shenanigans.

While the additional measures are helpful, they are at best mere obstacles for Pima County to maneuver around should they wish to cheat in elections in the future. They are nice measures, but should be seen as window dressing until the core essential steps to counter black box voting machine fraud are implemented. In fact, Pima County's legal team is referring to these measures to block further scrutiny of the RTA ballots now in storage at the Iron Mountain facilities.

While spending 2.5 million dollars on procedures that are outside of the specific measures needed to resolve the lawsuits surrounding a two billion dollar bond election, Pima County could save a great deal of money by complying with the appellate court decision for prospective relief. By removing themselves as an obstacle to prospective relief through the courts, Pima County could assure the public that those "security measure" expenditures were also helping prevent future legal costs involving election transparency. They are refusing to do so at this time because compliance also means allowing a proper audit and forensic exam of the RTA ballots. They know the plaintiff will finally resolve in the courts that the RTA election was rigged. That is why they are choosing not to save time and money by letting this simple procedure forge ahead.

Additional elements designed to vindicate Pima County by the Arizona Daily Star seem to surround an exchange towards the end of the meeting between Pima County employee John Moffatt and Mickey Duniho. First, the idea that Moffatt continues to work for the county and is inextricably entwined within the Election Integrity Commission is an insult to the public. In court he admitted to being responsible for the convoluted logic that ultimately cost Pima County over one million dollars in legal fees to resist public records requests. Moffatt was also named in the IBeta report providing many ineffectual tests that were certain to be meaningless in the first Attorney General investigation of the RTA election. He was also found with his hand in the "evidence cookie jar" in violation of a court order when it was time to divvy up the data after the Democratic Party won the records case.

The video of the EIC meeting shows at the end John Moffatt's essential skill - groveling. Moffatt delivers a pathetic attempt at chastising those who would suggest that Pima County's elections division is capable of fraud. It was disturbing to see at this point that no-one was laughing. It's difficult to imagine the sense of being browbeaten when listening to this delivery up close and in person, but Mickey Duniho seems far more conciliatory for what he knows about Pima County. In fact, he was there when Moffatt violated the court order at the Pima County vault. Frankly, Moffatt should have been handed his ass for even suggesting that accusations of fraud in the Pima County Elections Division are inappropriate.

True to form, this relatively small exchange at the commission meeting affects a large chunk of what made this Sunday's article. Somehow the article extracts a statement from Mickey Duniho, "My feeling is that today elections in Pima County are processed in a very good manner. I don't see any major things that I want to change." The rest of the meeting, however, had Duniho stating that we have no reliance on the integrity of the elections because there is not a sufficient audit of the ballots after they are run through the black box voting machines. In his presentation at the beginning of the meeting, he states "The way we are doing it now where we do a hand-count by batch does not confirm the integrity of the elections." Fair reporting would mention the contradiction and get clarification from Duniho.

Why would the writer omit the fact that the window dressings mean nothing if you have the same crooks running the elections and they are still reserving the right to cheat by violating state laws?

Why does the establishment press insist on letting Pima County get away with rigging elections?

If reporter Carli Brosseau buys John Moffatt's spiel, does she get a chance to line up at Pima County's trough should things go south in the real world?

There is a real cost for preserving this illusion of election theater and I don't think the Star will be willing to pay for it.

Possible RTA election fraud focus of lawsuit

Arizona Daily Independent

This week Pima County administrator Chuck Huckleberry claimed that a law forward by State Representative Terry Proud and signed by the Governor, HB2408, was retaliatory. The law calls for an audit of the Pima County Bonding disbursements. Huckleberry and an editorial in the newspaper, the Arizona Daily Star, argued that if Proud wanted the information, all she had to do was ask for it.

However, for over 4 years, various interests have asked Huckleberry for information regarding the Regional Transportation Authority (RTA) election on May 16, 2006. At the time of the election, questions arose regarding the election results almost immediately. They persist in the form of a lawsuit in Arizona Superior Court.

The stated goal of a lawsuit filed in Arizona Superior Court by Tucson attorney Bill Risner on behalf of the Libertarian Party is “to protect the “purity of elections” in the future, starting with the 2012 elections. The lawsuit is based on two facts; “At the present time it is easy to cheat using our election computers and impossible to challenge a rigged election.”

The lawsuit alleges that “Pima County, through the direction and control of its county administrator C.H. “Chuck” Huckelberry, has systematically subverted critical controls required to protect the purity of elections. The elimination of those controls has permitted county management to take advantage of the ability to cheat presented by defects in our computerized election system.”

The central allegation in the suit is that “county management fraudulently rigged the Regional Transportation Authority election.”

The Pima County Democratic Party had previously taken on the issue. It was through the Discovery process in that effort, that the current suit bases its allegations. In papers filed with the court, lawyers claim that from “three other lawsuits involving the Pima County Democratic Party and Pima County,” a path was provided “for future discovery that must be followed in this lawsuit.”

The Libertarian Party argues that “The ease of cheating when matched with the impossibility of challenging any specific election requires court intervention in order to protect the purity of elections and ensure that we will have free elections.” They cite three Arizona Constitution sections as the basis of their claim, including Arizona Constitution Art. 2 § 21, which requires all elections to be “free and equal

Lawsuit highlights:

It Is Easy To Cheat With Pima County’s Computerized Election System

The most important legal and factual building block of this lawsuit is the agreed upon fact that it is very easy to cheat with our election computer software. The ease of cheating may be counterintuitive, especially among those least familiar with computers, but it is a fact. The ease of cheating may be a surprise even to those who are familiar with computers but whose familiarity was derived from securely developed programs. Our election computer system has quite simply been built to cheat and, at least for that goal, it has succeeded.

Arizona Election Fraud: Pima County Loses Bid to Stop Ballot Custody Depositions

J.T. Waldron

Citizen's Agains Rigged Elections
Left to Right:  John Kromko, Gayle Hart, Dick Kaiser, Gigi Nitka, Ralph Ellinwood Esq,
two dudes. Sherry Mann, John R Brakey, Mary DeCamp,  Arlene Leaf, Ben Love,
Bill Risner Esq., New member, "the connect The Dots Lady"  Andrea Witte,  New member,
Raymond Graap, Jim March, Radio show host Jack Fitzgerald
Photo by Lee Stanley

The Libertarian party may depose employees at the Iron Mountain storage facility in an effort to determine who in Pima County had access to the ballots for the Regional Transportation Authority (RTA) election since 2006.

Previous depositions indicate that Pima County employees were able to access the RTA ballots since they were delivered after the election in 2006. The depositions were part of the hearings that ultimately led to the Libertarian party's successful pursuit of  prospective relief for rigged elections. This court case was first triggered by the Pima County Treasurer's pursuit of a declaratory judgement over the ballots for the 2006 RTA election. 

Originally, Pima County attorneys advised County Treasurer Beth Ford to sue the political parties (those charged with monitoring elections in Arizona) to "get a decision on what to do with the RTA ballots". The original idea was to provide an opportunity for Pima County to destroy the ballots before true auditing or a forensic examination of the ballots could take place. This idea backfired when the Libertarian party made a successful counterclaim for prospective relief from the courts.

A favorable ruling for prospective relief means the courts can intervene when there is a failure of existing laws as well as a failure to enforce existing laws designed to keep elections transparent and accurate.

Fighting Tooth and Nail over Rudimentary Disclosure

Pima County has taken elaborate, evasive measures that exceed what is legally customary when requests are made for public records, discovery, depositions and other seemingly innocuous items that could provide a clearer picture of election security.




RTA Ballot Custody Still a Major Concern

The county's most recent efforts at blocking disclosure involved the request by the Libertarian party to depose employees of Iron Mountain, the storage facility that held the ballots since 2006. 

What reason did the county provide?  Concern over the costs of the depositions.  An ironic position given the exorbitant private attorneys hired by Pima County to litigate the case initiated by their Treasurer's office.  Previously, Pima County attorneys handled the electronic records lawsuit over the RTA's database files.  In addition to cost, Pima County's private attorney Ronna Fichbohm claims that the Libertarian party hasn't shown good cause for the need to find out what happened to the ballots.

Pima County employee John Moffatt, however, was all the cause needed to justify this line of inquiry.  During the RTA records hearing, Moffatt had managed to take possession of a box in the county vault that had a court order specifically instructing that both parties be present when the box is released.  This box contained two hard drives: one intended for the county and the other for the Democratic party.  In violation of the court order, John Moffatt obtained possession of both hard drives before the Democratic party was aware they were available. 

The Democratic party had publicly announced its intention of using software developed to pick up certain anomalies in the electronic database files soon to be released through a court ruling.  Apparently, the county wanted a little 'extra lead time' with both hard drives while they were still in the process of developing their own software aimed at detecting what the Democratic party might detect.

The following clip shows the precise moment when John Moffatt was caught with his hand in the evidence cookie jar.  Notice the free pass provided by AZ Daily Star's obedient reporter, Erica Meltzer:

Unfortunately, it's not just the county that disrupts the chain of custody of crucial evidence.  The very same RTA ballots were removed from Iron Mountain's facility in February of 2009 by Arizona Attorney General Terry Goddard for his criminal investigation of the RTA election.   While his appearance of upholding the law was initially appreciated, Terry Goddard played the unfortunate role of demonstrating why prospective relief is needed through the courts. In addition to the refusal to conduct a proper audit or a forensic investigation of the ballots, the chain of custody seems to be completely unaccounted for during the ballots' 5-6 week hiatus with Goddard's staff. 

 John Brakey, Co-founder of AUDIT-AZ and CARE (Citizens Against Rigged Elections) was on location at Maricopa's Elections Division as the ballots were rolled out in a cart to be counted.

" The boxes were an absolute mess, Boxes were already opened, tape looked like it was removed and reused.  I kept asking myself and others 'How could the Attorney General take evidence without securing it?'"

Around this time, John Brakey gained notoriety for being falsely arrested through the request of Pima Elections Director Brad Nelson.  Brakey discovered mislabeling of ballots earmarked for a hand-count audit and was promptly arrested when he brought the discrepancy to the attention of the Pima Elections Division.  Charges were dismissed once it was made clear in the courts that Brakey did not disrupt the process.

This court case is set to continue this Friday, because Pima County is delaying the hearing to determine if the courts should obtain custody of the ballots during the case.  Those familiar with this case know the answer to that question.  The following initial disclosure statement is a great comprehensive statement of facts: http://tinyurl.com/LPFiling

All are invited to attend this historic hearing.

Friday, January 20th, 2012- 11:00 AM
Judge Kyle Bryson’s Courtroom
Fifth Floor, Pima Superior Court: 110 W. Congress
Tucson, Arizona USA