Friday, September 28, 2012

Brief history of Pima County’s election reform struggle

Arizona Daily Independent
Bill Risner

Bill Risner
This timeline is designed to give people new to the issue an understanding of why we think there’s problems, what we’ve done about it so far and why we need to keep going after eight years of hard effort. A few items refer to happenings outside of Pima County but directly related to the issues here.

I’ve attempted to set out a time line and story from my viewpoint. Several persons have been key to a joint effort to achieve an honest count of votes. The effort has been long, costly and difficult. It was initially centered in the Pima County (Tucson) Democratic Party. Eventually heavy pressure from major contributors and the party’s candidate for governor caused the Democratic Party to drop out of the struggle.

November 1996. At this election part of the ballots in Pima County were counted on optical scanners using GEMS software and another part of the county used punch cards. The data from the different systems needed to be “merged” so the company sent an expert to Tucson to teach the county computer operator how to use Microsoft Access to accomplish that task outside the constraints of the software. Thus, the county learned that data could be manipulated outside the software constraints and re-inserted without leaving any fingerprints. All the “fingerprints” could be simply erased before re-insertion.

This “off-line” work could be done on any computer that used Microsoft Access, a common program. Testimony established that Pima County’s election computer operator regularly took home with him copies of election data where such data manipulation could easily be accomplished.

First Phase: Study, Reform and Cooperation

November 2000. The Florida ballot counting highlighted the necessity of looking for cheating. Bill Risner had obtained a complete recount of punch card ballots in a City of Tucson election 1990 and offered his experience and help to Gore’s lawyers in Florida. The offer was among many and was not accepted.

Bill Risner, a Tucson personal injury lawyer, had handled various election cases on and off throughout the previous thirty years. He had twice been hired by the county government as a special election lawyer. He was functionally the county Democratic Party lawyer in election law matters.

Bill asked to be appointed as the Democratic Party’s observer at the next election. He knew the party historically had not looked for cheating and wanted to observe the entire ballot handling process to see where one could cheat. Everything looked good at the 2002 election up until the actual tabulation where all that could be seen was a couple of blinking lights in a black box containing a computer. Bill knew nothing about election software or computers.

2003: Pima County Democratic Party chair Paul Eckerstrom at the request of a concerned Democrat created an election integrity committee and appointed Bill Risner and Tom Ryan to the committee.

Dr. Tom Ryan, Ph.D., was at or near retirement from a career as a computer specialist. He knew computers and was interested in the role they played in the election process. Tom lead the investigation of the computer system and wrote a report on the vulnerabilities of our computerized system. The County Democratic Party adopted his report as its policy.

2004: Tom Ryan identified the “early ballot” processing as a critical point because it constituted one-half of the ballots and had no auditing of accuracy at any point.

October 2004: Tom Ryan and Bill Risner, on behalf of the Democratic Party, met with Pima County’s Election Director Brad Nelson to ask for changes in the early ballot vote counting so as to have auditable results. Nelson later reported that the software “doesn’t permit it.”

November 2004: John Brakey worked at Precinct 324 as a poll observer. John suspected cheating among a couple of poll workers and conducted a personal investigation that proved it. After official disinterest in his proof, he started a group called AuditAZ. He has remained a driving force in pushing for fair and honest elections.

November 2005: Bill Risner and Tom Ryan obtained the City of Tucson’s agreement to audit its early ballot counting at the city election. The same auditing that Brad Nelson said couldn’t be done. The city and county use the same software.

May 16, 2006: A Special Election was held in Pima County to approve a one-half cent sales tax to generate $2 billion to pay for a 20 year road plan favored by “growth lobby” business interests and the county board of supervisors. The same sales tax had been defeated in four prior elections. The four prior losses were by a 60% – 40% margin. This victory was reported as a 60% – 40% approval. None of the election activists claimed the election was fraudulent.

But, they did object to the lack of monitoring and the questionable use of a Microsoft Access manual by the election operator during counting, as it violated election procedures. Local Democratic activists consulted by telephone with Jim March of Black Box Voting during the count that evening. Pima County refused to permit any political party to monitor that bond election.

Later, the county party brought Jim March from California to Tucson for expert consulting. He eventually joined the local election activist team. Jim is a Libertarian and a board member of Black Box Voting. He is applying his computer skills full time to election computer issues and was an invaluable addition to the citizen team. Jim consults with election activists nationwide.

Summer 2006: The Democratic Party election team was joined by Michael Duniho (“Mickey”), a retired National Security Agency (NSA) master programmer who had been a Republican Party election monitor for many years in Maryland before retiring to Tucson. Mickey became the local Democratic Party point person in recommending and achieving many procedural and equipment security changes for the fall general election.

November 2006: At this point the Democratic Party “team” included four people with extensive computer election expertise: Tom Ryan, Michael Duniho, Jim March and John Brakey and one lawyer with election law expertise. After the general election they used Arizona’s public record laws to request computer audit logs from the election. The county provided the audit logs that revealed that the county illegally printed summaries showing actual vote counts of “early ballots” more than a week before election day.

A public record request was made for the entire county electronic database of past elections. The county refused to provide that database. The citizen computer experts knew there was not a valid reason for the refusal and the county gave none.

Second Phase – Lawsuits and Discovery that a major election had been rigged.

January 2007: The Pima County bi-annual organizing convention of the Pima County Democratic Party unanimously passed a resolution requesting the Democratic dominated county board of supervisors to turn over the database and not force their own political party to sue them.

The board of supervisors still refused.

Bill Risner, hoping to avoid a more complicated lawsuit over the database, sued the county board on behalf of the Democratic Party to obtain the illegally printed vote summaries made before election day and videotaped discovery depositions of the county election director and computer operator.

April 17, 2007: The “summary report” lawsuit depositions revealed further illegalities and a lawsuit was then filed by the Democratic Party against the county board seeking the entire electronic database.

The County furiously defended that lawsuit. Its lawyers initially sought a “stay” in the lawsuit discovery because they claimed no one in the election department could testify because they all might assert their Fifth Amendment Right to avoid self-incrimination.

This “Database” lawsuit was defended by the County using all their resources. I estimate that the county spent more than $1 million in defending that public record request.

That lawsuit represented a new phase in the struggle, because it was abundantly clear that the County was hiding something very big and it could only be that it had fraudulently rigged the May 16, 2006 RTA election. The depositions and other discovery solidified our conclusion.

During the pendency of that case, the initial lawsuit was concluded when the county agreed to open the ballot boxes from the November 2006 general election where they claimed all the “summary reports” could be located. The subsequent examination confirmed the illegal printing as alleged by the Democratic Party.

At the four-day Superior Court trial in the database case, the county’s defense was that the Democratic Party could print fake results in the future if they learned the font and page layout used by the GEMS software and thus could create “chaos and mayhem” by “spoofing” the actual results. That absurd claim and thus lack of any defense re-confirmed that the county would fight to the last taxpayer dollar to prevent discovery of its election secrets.

January 27, 2008: Tucson Resident Zbigniew Osmolski went with friends to the Boondock’s Lounge where he had a candid conversation with Bryan Crane, who confessed that he “fixed” the RTA election on the instruction of his bosses and he did what he was told to do. Crane expressed his concern about being indicted and said he’d like to talk but couldn’t trust anyone. Affidavit of Zbigniew Osmolski:

May 23, 2008: The court ordered the County to turn over its database and to pay $234,347.20 to the Democratic Party’s lawyer as fees and costs.

An additional $19,161.05 in fees and costs was ordered to be paid by the county for the “summary report” case.

July 24, 2008 – Meanwhile, the ballots from the RTA election were in storage under the control of the Pima County Treasurer. The ballots are the definitive evidence of the fraudulent RTA election. The County wanted to destroy the ballots. A lawsuit was filed by the Pima County Treasurer for “guidance” by the court as to whether she was required to destroy the ballots.

The Libertarian Party and the Democratic Party filed a counterclaim alleging that substantial evidence existed to show that the RTA election was fraudulent and, therefore, the court should take control of the ballots and have them examined. That evidence included a confession by the county computer operator that he had rigged the election at the instruction of his bosses.

December 23, 2008: The optical scanners used at precincts print a “results tape showing the votes cast at each precinct at the closing of the polls on election day. Those scanners can be programmed by a machine called a “cropscanner” to print fake results. Pima County purchased such a machine two weeks after being alerted by a Black Box Voting Organization national alert on July 4, 2005. Invoice for the cropscanner Pima County Elections:

Strong evidence was uncovered that Pima County may have used its newly purchased hack tool to rig the RTA results. The Democratic Party filed a third lawsuit – a public record lawsuit requesting to examine the poll tapes because the tapes might have clues showing they had been fraudulently programmed. After lengthy litigation, the tapes were produced and some 44% of the poll tapes were found to be “missing” or didn’t match the final database.

January 27, 2009: Superior Court Judge Charles Harrington ruled that the Arizona Courts lacked subject matter jurisdiction to consider evidence of a fraudulent election for the purpose of an injunction to prevent cheating in the future. He dismissed the case without requiring the County to answer the allegations because he found the Democratic and the Libertarian parties did not state a claim.

November 17, 2009: The Libertarian Party filed an appeal to the Arizona Court of Appeals of that ruling. The Democratic Party was pressured by Democratic elected officials and contributors to not appeal as the case could embarrass its candidates. The Libertarian Party asked Bill Risner to join its lawyer in continuing the case the Democratic Party now wanted killed.

October 28, 2010: In a Memorandum Decision, the Arizona Court of Appeals reversed Judge Harrington and ruled that the Libertarian Party had stated a claim and that they could pursue their claim that the RTA was fraudulent and obtain injunctive relief.

November 12, 2010: Pima County requested the appellate court to reconsider its ruling, claiming the Libertarian Party had alleged nothing more than “a discrete incident of past wrongdoing.” Its request was denied.

November 29, 2010: Pima County petitioned the Arizona Supreme Court for review. Review was denied. The case was sent back to Pima County.

May 4, 2012: The County Board of Supervisors requested that the case again be dismissed because they claimed they had not cheated in any subsequent election after the $2 billion road plan and tax increase and that the Libertarian Party had not specifically alleged they had a “good faith belief” that they would cheat again. Pima County Superior Court Judge Kyle Bryson dismissed the Libertarian case a second time, claiming that the most the court could do would be to issue an order that Pima County just “obey the law” and that it could not consider actual procedural changes. Therefore, he ruled that the Libertarian Party had not stated a claim that any court could consider.

July 11, 2012: The Libertarian Party requested Judge Bryson to reconsider his ruling.

August 13, 2012: Judge Bryson confirmed his ruling.

September 10, 2012: Libertarian Party filed its notice of appeal to the Arizona Court of Appeals. The local election activists fully understand that the stolen election in 2006 will not be reversed. That is not the issue. Their goal is to prevent cheating in the future. There are many steps the court could order to prevent cheating. Court intervention is needed because the county administration will not agree to changes that would prevent them from cheating. However, the county court won’t permit evidence to be presented.

We recognize that the same system used here is used in thousands of jurisdictions across the nation. Our goal is to help protect democracy at our home and hope that it helps others in our state and country.

The following are some additional links to related information:

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