Battle Over Ballots

Tucson Weekly
Mari Herreras

Almost five years after the RTA election, a group of activists keeps fighting for election integrity

Bill Risner: "We want an order to keep them from cheating
in the future. This court does have jurisdiction to see
that the Constitution is followed in Arizona."

Tucson attorney Bill Risner stood before a Pima County Superior Court judge earlier this month and asked the court to take another look at the 2006 Regional Transportation Authority election.

Risner said there was enough apparent foul play involved for the court to change how ballots are counted in the county.

Yes, folks: The election-integrity battle rages on.

In the May 2006 RTA election, voters approved a 20-year, $2.1 billion transportation plan funded by a half-cent increase in the sales tax, with 60 percent of voters supporting the plan, and 58 percent supporting the half-cent sales tax.

Risner and other critics questioned the results when the plan passed, citing conflicting polls and precinct reports, and pointing out that the growth lobby had a lot to gain in a $2.1 billion plan to pay for roads and improvements.

Among other things, activists asked the state Attorney General's Office to look at anomalies detected in computer software that the county used to track votes. The anomalies issue led to a successful public-records lawsuit in 2010 that gave the Pima County Democratic Party access to the computer database for the RTA election.

The next legal challenge: asking the court to allow the public to look at the RTA ballots and other elections materials still in storage. Before that hearing ended, then-Attorney General Terry Goddard had the ballots inspected and counted, and determined there was no foul play. Critics, however, contended that a forensic analysis of the ballots should be done, and that key election reports were missing.

Arizona Election Fraud: Attorney Bill Risner's Argument Reaffirms the Need for Election Integrity

Fatally Flawed
J.T. Waldron

In Tucson, Arizona, today's hearing had two remarkable features.  First, the lack of substance  behind Pima County's motion to dismiss and, second, Bill Risner's argument reaffirming the purpose and significance this court case has for future elections.   Here's is Bill Risner's argument on behalf of the trial itself:



The whole point of the appeal won by the Libertarian party was that courts do have jurisdiction to issue orders to ensure fair, transparent elections when the legislative branch and the executive branch fail to do so. In an obvious stall tactic, Pima County decided to make the same arguments that were lost in the appellate court decision.

"You don't have subject matter jurisdiction for that" argued Pima County's private attorney Ronna Fickbohm in reference to ballot scans, a remedy proposed by the Libertarian party. Currently practiced in Humbolt County, California, ballot scanning is the measure making optical scans of the ballots available for public perusal.  Fickbohm continued to argue against the appellate court decision by insisting that proposed remedies can only be handled by the legislature.  The Libertarian party already established the failure of the legislative branch to offer a timely remedy and won the appeal based on that argument.

Additional points made by Pima County seemed to involve technicalities where none really existed.  Ronna Fickbohm  makes the argument that the plaintiff doesn't "say there's an ongoing problem of election fraud in the future." The judge may not appreciate this argument given the fact that removing Pima County's ability to cheat was the basic, implicit underpinning of the case for prospective relief.

Finally, Pima County attempted to rewrite recent history by suggesting that previous statements recorded in their last records trial are taken out of context and never meant to indicate that their software system was a security issue.

Here is Pima County Attorney Chris Straub (replaced by the pricier private counsel, Ronna Fickbohm) clearly making the argument on behalf of the plaintiff. You can decide whether it's taken out of context:



Here is today's entire hearing:



Video shot and edited by John Brakey

Arizona Election Fraud: Pima County Continues to Delay Forensic Exam of RTA Ballots

Editor's Note:  This crucial court case is currently experiencing a media blackout among local Tucson press.  This includes the Arizona Daily Star and the Tucson Weekly.  This case is a textbook example of a battle waged by the growth lobby against the will of the population.   The reason why the county is using such extreme measures to stop this trial is that the plaintiff, the Libertarian Party, may conduct discovery which includes a forensic exam of the RTA ballots to demonstrate to the courts that the 2006 RTA election calling for a two billion dollar twenty-year sales tax hike was rigged.   This is the prerequisite for the courts to grant prospective relief for rigged elections.

If they felt they would be exonerated, Pima County would welcome the scrutiny.  Instead, it appears that Pima County Administrator Chuck Huckelberry is pushing his attorneys to use all conceivable tactics to delay and obstruct the procedure, which would ultimately benefit the nation as a precedent-setting court case aimed at improving election integrity.

John Brakey
AUDITAZ

Video of Court Hearing:   http://youtu.be/yGALqZGvaRs

THE INITIAL DISCLOSURE STATEMENT FILED BY PLAINTIFF ON 1/12/12 IS A GREAT COMPREHENSIVE STATEMENT OF FACTS: http://tinyurl.com/LPFiling

PROTECTING THE PURITY OF ELECTIONS
 
IN THE SUPERIOR COURT OF
THE STATE OF ARIZONA IN AND FOR
THE COUNTY OF PIMA
CASE NO. C20085016
HEARING ON JAN 30, 2012  2:30 PM
COURT ROOM OF THE HON. KYLE BRYSON
RAW FOOTAGE RUNS 37 MIN

Defendant Pima County's Attorney Ronna Fickbohm, files and gets "emergency hearing" based on false certification to request the court to stop deposition of Pima Co’s Election Director Brad Nelson. UPDATE: DEPOSITIONS GET GREEN LIGHT FROM JUDGE TO GO FORWARD. 

Plaintiff's attorneys, Bill Risner and Ralph E. Ellinwood file Motion to Strike and Sanction Pima County for misleading the Court, filed:1.27.12:   http://tinyurl.com/7krbr4c  

Plaintiff also filed a motion in response to Defendant Motion for Protective Order filed 1.30.12:  http://tinyurl.com/83qk3mq

Pima County is doing everything possible to stop this case from going forward including filing motion based on deception.  http://tinyurl.com/7krbr4c  

The case is as fundamental as it gets. What we're seeking "prospective relief" so they cannot cheat in the future. ANDREA WITTE "THE CONNECT THE DOTS LADY" has connected the dots into a 10-Point Quick Summary of The Fact pattern in this gripping saga of power and deceit. And we propose a remedy that is easy, inexpensive and doable. Link to Flyer: http://tinyurl.com/7amy6ff

Since our saga began over five years ago, more and more people across America are becoming aware of the serious security flaws in computerized voting systems. They are systems designed to cheat, and they are everywhere. As the political scene heats up with the Presidential election, all eyes will be on Tucson as ground zero for exposing these flaws in open court and proposing reasonable checks and balances in the system. We must protect the purity of elections and public confidence in election results — a cornerstone of our democracy. That's what this case is ultimately about.  http://fatallyflawedelections.blogspot.com/ 

BACKGROUND: AUDIT-AZ, the Pima County Libertarian Party and other interested citizens of multiple parties for years have been investigating election processes in Pima County. In previous actions, the Democratic Party took the lead in winning public records lawsuits and revealing the extent of the problems, including poor security practices on "designed to cheat" systems, election results that consistently did not add up, missing or falsified paper, and election officials and staff who continuously flout the law.

AUDIT-AZ will be running the pool camera and if you can't make it to court you can watch the proceeding on our AUDITAZ's Channel on YouTube the next day: http://www.youtube.com/user/AUDITAZ/featured

Arizona Election Fraud: Pima County's Desperate Arguments Against the Court's Protection of Evidence

 J.T. Waldron

Whether they are denying statements made in a hearing four days ago or they are claiming that the Libertarian party's motivation for prospective relief  is to "make a movie", Pima County appears to be in a state of panic.   After the Arizona Libertarian Party won their appeal for prospective relief for rigged elections, last week's initial hearings were prolonged by the county's absurd arguments against rudimentary measures to protect evidence and to learn how evidence was previously handled.

The evidence in question rests in cardboard boxes at an Iron Mountain storage facility, which is holding poll tapes, summary reports, ballots and other paperwork involving the 2006 Regional Transportation Authority (RTA) election.

Pima County's private attorney Ronna Fickbohm claimed last Friday, "Pima County has never said, 'we object to simply asking Beth Ford to get a certified statement from Iron Mountain listing who's accessed the records since the day they came to them and show it to you.'"   Fickbohm contradicts her own testimony from the previous Monday.   Bill Risner, an attorney working with the Libertarian party,  promptly reminded Judge Kyle Bryson last Friday, "At the last hearing, where we were talking about deposing Iron Mountain and Ronna Fickbohm was arguing, Pima County was arguing against that.   Her argument  talked about how 'in front of Judge Borek, she was successfully able on behalf of Pima County to prevent us from obtaining information about what happened to those boxes. '"

Pima County's other private lawyer assigned to represent Treasurer Beth Ford, John Richardson, introduced a procedure making Beth Ford an inextricable part of the process designed  to protect the ballots.  Rather than making ballot custody an impartial process by removing all parties and leaving any orders to the judge, both Richardson and Fickbohm presented arguments about how such a court order could potentially implicate Beth Ford by suggesting there is good cause to protect the ballots. 

As Bill Risner states last Friday, "The good cause is that it's important evidence that needs to be protected. That's the good cause...it was stunning what was done with this court's vault, which simply heightens the need for it to be clear to Iron Mountain...much better than a complicated order that relies on Ford's communication ... They repeatedly say that 'Gee, Ford's done this really great job', but if she did such a great job, how come Iron Mountain says 'No one ever told us'."

On May 18th, 2007, Pima County Administrator Chuck Huckelberry (who sets the county treasurer's budget) issued a memorandum instructing his legal team about the need to secure all evidence involving the 2006 RTA election.   Later testimony confirmed, however, that no actual action or enforcement was implemented.  According to testimony by an Iron Mountain employee, no specific instructions concerning the handling of the ballots were delivered to Iron Mountain.   Pima County's private attorney Ronna Fickbohm goes to great lengths to dispute Bill Risner's reference to the memo as a press release.  She says, "It wasn't a press release.  It wasn't directed to Mr. Risner somehow Mr. Risner got a hold of it.  It doesn't matter.  It wasn't a big secret." 

Fickbohm is correct in stating that it wasn't a big secret because that 'memo' was released to the local press at the end of the day.  Reading the memo, the public's last impression comes from the final sentence, "We need to take action to ensure that all documentation, ballots, electronic files and other information sources  are secured so they cannot be altered, tampered with or destroyed as I am sure an accurate independent review of this material will verify that the allegations made by Mr. Risner are absolutely untrue."  This document can formally be labelled a memo, but it was clearly an exercise in public relations. 

Initially, Pima County's refusal to disclose electronic public records for the RTA election sparked a lawsuit by the Democratic party.  Pima County spent over one million dollars in their failed attempt to prevent public disclosure of election data, which eventually was released to the Democratic party. 

This release, however, was marred by Pima County employee John Moffatt's violation of the court order requesting the transfer of the data to both parties at the same time.  Moffatt managed to gain possession of the data from the county vault prior to the Democratic party finding out about the order.   This acquisition occurred with no signature or paper trail. 

In the following trial for prospective relief, Arizona Attorney General Terry Goddard grabbed the boxes of ballots the moment it was established that the Democratic party would gain access to the poll tapes that are included in the boxes.  The Democratic party had experts ready to examine them for fraud.  In addition to grabbing the poll tapes, Goddard's apparent purpose was to count the ballots in an attempt to vindicate Pima County. At this point, the Democratic Party abandoned their legal pursuit of prospective relief, but continued to fight for access to the poll tapes.

The Libertarian Party remained and succeeded in obtaining a precedent-setting ruling on behalf of prospective relief for elections so the court can intervene once there is a failure of existing laws and law enforcement (Goddard's investigation) to protect election integrity.   

In the previous records case, Pima County admitted that software security is so bad, altering the outcome of an election is easy.  In fact, the county is estopped from arguing otherwise in this current case for prospective relief.  The county may eventually find itself in a similar position if they continue to make statements inferring that the RTA election was not rigged.

The Libertarian party intends to get a forensic examination of the RTA ballots to determine whether the cardboard boxes have been 'stuffed' with ballots generated by an ink-jet ballot-on-demand printer owned by Pima County.  Terry Goddard refused such an examination despite the fact he was aware of the incident with John Moffatt and the Pima County vault.  Another peculiar omission in Goddard's very public recount of the ballots behind glass was his refusal to incorporate basic auditing procedures.  No sufficient audit took place because there was no comparison of the ballot totals to the precinct totals or poll tapes.

The Democratic party battled on for another year of litigation to gain access to the poll tapes.  Over one third of the tapes were missing.  Another 10% of the the poll tapes do not match the precincts they were supposed to match.   The missing and errant poll tapes correspond to the precincts that had problems with memory card uploads.  Problems with memory card uploads indicate attempts to reprogram the cards using an industrial farmer's crop scanner, a device that the Pima County Elections Division possessed during the RTA election. 

"What this is really about, Judge, is the creation of new film footage for their commercial enterprise." said Ronna Fickbohm to Judge Bryson last Friday,   "If you go online and Google fatallyflawedthemovie.com you will see a documentary that Mr. Brakey had asked you to film today put together starring Mr. Risner that was commercially available over the internet for twenty bucks a pop and it was even screened at the Loft."

John Brakey of CARE and AUDITAZ was operating the camera for the press pool footage of last Friday's hearing embedded at the end of this article. 

Edited together with no narration or talking head interviews, the completed documentary, "Fatally Flawed"  enables its audience to relive the experience of those who cared about the integrity of elections in Pima County.   It has proven to be an important tool for the public interest to help educate viewers about what transpired between Pima County and election integrity advocates in pursuit of election transparency.   It also contains important video evidence, like the footage of John Moffatt's county court shenanigans.   This type of documentation makes the revision of past events much more difficult.

In addition to what's in the movie, there is footage of an array of tables behind glass at Goddard's recount.

Continuous running footage of one table's entire process of counting the RTA ballots shows identically sized cardboard boxes filled to the top edge with approximately 1600 ballots.  Additional footage shows another table's complete count filling the same-sized box to the same level with approximately 1000 ballots.   One of the crucial specifications in any print job is the paper thickness, especially when ballots are involved.  This could be a troublesome dilemma for any last minute attempts at 'correcting the situation' by accessing the boxes a second time and replacing ballots for the purpose of passing a forensic exam.   A successful switch would require ballots of the same quantity of different sizes to fit in the same number of equal sized boxes in exactly the same way they were filmed during Goddard's recount.

Referring to the boxes of evidence, Bill Risner tells Judge Bryson, "Whatever's in them needs to be protected.  We certainly can't trust Pima County.  The games in terms of that sort of stuff need to stop... It's hard to have faith, really, in any storage in view of what Pima County did to the vault of this court.  That is out of my comprehension that someone can simply walk in and walk out, but they did it and that was a demonstration of incredible authority and power within the system.  Demonstration of who's in control.  Phenomenal. "

Pima County's desperate measures will not distract from the Libertarian party's primary goal behind this litigation - to ensure fair transparent elections for the future and prevent cheating by Pima County in upcoming elections.  This case for prospective relief through the courts is a major milestone that could help with election transparency across the nation.  Hopefully, Pima County will abandon or exhaust all delaying tactics and approach a timely outcome within this election year.  There is far too much at stake.

Pima County: A Rigged Two Billion Dollar RTA Election Is a "Discrete Incident of Past Wrongdoing"

Suspects had access to ballots three years before recount.

Recently, the Libertarian Party earned a victory for election integrity activists when it won an appeal to reverse a previous judge's ruling.   Now the Libertarian Party is able to proceed with the case for prospective relief against rigged elections through the courts.  In Arizona, the courts are the last available means to prevent election fraud from reoccurring in the future since the legislative and executive branches have failed to provide adequate remedies.   As customary, Pima County, the losing team, was granted the opportunity to make a "Motion to Reconsider".   Pima County's position in this matter has been whittled down to desperate measures as their legal team attempts to denigrate the severe nature of election fraud.

Pima County oversees the elections for that county and enjoined itself in a lawsuit originally designed to determine the predicament of the 2006 RTA ballots, currently in the possession of the County Treasurer's office.  The ballots have been preserved because of previous litigation that ultimately uncovered a significant amount of evidence suggesting that the two billion dollar bond transportation measure was rigged.

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 now, before true auditing or forensic examination of the ballots could take place.  This idea backfired because two parties in the suit, the Democratic party and the Libertarian party, argued for prospective relief from the courts in a trial that was interrupted with then-Attorney General Terry Goddard's woefully inadequate audit of the ballots.   In addition to prospective relief, they wanted to see the  poll tapes, which are vital auditing tallies at each of the precincts on the night of the RTA election.  Terry Goddard had refused to examine them but saw fit to confiscate them along with the ballots.  He then locked them up again with Pima County, causing the other two parties to spend a year in litigation before gaining access.  Once they finally got to see the poll tapes, over one third were missing.

As we have stated, Pima County decided to make a "Motion for Reconsideration" of the appellate court's decision in the case.  With this pleading, Pima County's reasoning has crossed over into a surreal realm.  The document is truly bizarre.  The first sign of a bad argument is the run-on sentence, favored by legal desperadoes everywhere, and such occurs at the outset of this twelve page motion.   Amidst the tap dancing and sleight-of-hand involved with this lush document of legal yoga (replete with mispellings) is one gem to behold:  the unashamed and dismissive reference to the rigging of a two-billion dollar bond measure.  Pima County sidestepped the use of their own attorneys in favor of Ronna Fickbohm, a pricey private lawyer tapping taxpayer's funds to help taxpayers lose their representation at the polls. She attempts to accomplish this feat by boring  the judiciary senseless and wrangling the english language into unnatural positions, all while keeping a straight face.  She describes the rigging of the RTA election in this diminutive way:

"To the extent this Court disagrees with the trial court's interpretation and liberally construes Appellant's pleading as setting forth a claim for injunctive relief, the question is easy: has Appellant alleged anything more than a discrete incident of past wrongdoing and its desire to maybe have the trial court enjoin a repeat of that?..." 

She is not only presenting to the court the idea that such an offense is a "discrete incident", she continues to try to convince the court that because it only happened one time in the past, there's no evidence that it could happen again.

"[Appellant] nowhere even attempted to argue that the alleged single incident of believed historic wrongdoing presented a current and ongoing harm or risk of harm such that a trial court's order enjoining ongoing conduct is required."

Bill Risner, an attorney who has been assisting the Libertarian Party since the Democratic Party pulled out of this case, had an amusing rebuttal:

"Let's see.  Same County Manager supervising the Election Director. Check.  Same Election Director. Check.  Same computer operator. Check.  Same computer system. Check.  Same cropscanner. Check.  Same hand's off County Supervisors. Check.  etc.  Yep.  Nothing to worry about."

He continues: "As for the Libertarian Party, she is correct that they have a 'desire to maybe have the trial court enjoin a repeat of that?'  Actually many of us have such a desire.  Some are even offended by the rigging of any election."

We don't believe the court will be that impressed with this motion, but what of the ballots, now?  We have come to learn through previous testimony by an employee at the Iron Mountain facility that no specific instructions concerning the handling of the ballots were delivered to the Iron Mountain staff by Pima County.  Back then, a lot of posturing took place with a stern memo presented by County Administrator Chuck Huckelberry about the need to secure the ballots and ensure their security while litigation over this election proceeded, but later testimony confirmed that no actual action or enforcement was implemented to protect the ballots.  It appeared to have mattered more to Huckelberry that the public got to read the stern memo and forget about whether anything was actually done about it.  After all, the memo was a stern one.  Does anyone truly believe that what follows from a written directive is a mere crap shoot with no certainty over its enforcement?  How would anything get done in Pima County?

There have been recent calls by those involved with the Libertarian Party's legal team requesting that Pima County Treasurer Beth Ford finally make the ballots secure, but how will they know for sure?  How do they know that some other Huckelberry flunky like John Moffatt won't be caught again with his scaly hand in the evidence cookie jar.  After all, that is precisely what happened last time with the electronic evidence from that same election in the Pima County vault. 

Meanwhile, we watch the Libertarian Party in their epic struggle to get prospective relief from the courts.   Despite Ronna Fickbohm's supercilious and silly characterization of the harm committed by Pima County as a mere "discrete incident of past wrongdoing", we see it for what it is: a vicious affront to the public's right to election integrity.

Alissa Johnson
J.T. Waldron