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Wednesday, September 22, 2010

Maricopa Judge Favors Misleading Testimony of Election Officials Over Election Law: Rules Partial Victory for Electors

In a one-day mini trial September 10th in the old Courthouse in Phoenix, Judge Oberbillig granted only partial victory to individual voters who filed suit August 16 in Maricopa County [Hess vs. Purcell] to compel the Maricopa Elections Recorder and Division of Elections to follow state law expressly written to protect and empower voters.

The biggest win is a reform of how Maricopa County conducts post-election hand audits. Until now they have insisted on picking which precincts to count before telling anybody what the precinct detail results are. This allowed them to game the audit: they could cheat however they want, and then once precincts were picked “un-cheat” those selected precincts. The races would always look right despite rampant alteration of results. The whole thrust of our case (still in progress!) is to deny them the right to cheat that they’ve insisted on. Whether or not they are in fact cheating is not even at issue in court – but the degree to which they’ve insisted on having that ability in this and many other areas (unsigned results tapes, failure to seal away a results tapes copy from their own ready access, telling pollworkers to keep precinct results secret on election night and many more) should cause concern among all voters of all political stripes.

The case was a Mandamus action, which asks a court to “mandate” that government officials follow statutory law. In most states a Mandamus action is designed to be a fast-track process for cases where the issues are relatively obvious. In Arizona, there is no discovery ahead of time, which makes the process fast and inexpensive for all concerned.

The court’s ruling favored misleading testimony given by election officials – failing to realize their interest in closing off the public from an insider-controlled process that maintains the status quo, restricts observation and escapes accountability by insisting that the public just trust the officials. In our opinion, the case was compromised by lack of time for preparation, as well as the judge’s lack of technical understanding that seemed to make him inclined to believe the election officials.

At trial, plaintiffs clearly prevailed several key points and were able to win recognition from the judge that observers should have “unobstructed” viewing of the central tabulator. However, the ruling fell short of full transparency for observers at the central count facility. The complaint alleged that Maricopa Elections office has been violating and ignoring state law for years. These Points “Interlock” To Make A Complete Election Fraud Recipe.

After seven different Arizona election cases that we have been involved in since 2005 and more elsewhere, we’ve seen that almost all judges see the world from the viewpoint of other government officials. They’re a team. The judge and the county recorder are on the same team. Democratic myth has judges interpreting the constitution and making government officials carry out their legal responsibilities. Judges sometimes see it as hassling one of "their guys".
Our job is to know this and rethink why in most of those seven cases we’ve had to go back and file additional motions such as a “Motion to amend finding of fact or law or for a new trial” or “Motion for reconsideration”. Sometimes the system needs a little pushing and prodding, all done by using and clarifying the facts. That’s what we intend to do.

We summarize the explanation of our thinking on points won and lost listed below:

We won the first flurry when the opposition surrendered point eight below. The County basically admitted that they been doing the hand count audits wrong since 2006 by not publicly committing the precinct results as required by law. This is on top of not having polltapes signed as required by law, a point that we won later in the trial.
1) (WON) The judge agreed that the results tape need to be signed by pollworkers at the end of the voting day.

2) (WON PART “A”, LOST “B” AND “C” SO FAR) This point involved observation of the election process itself, esp. at the central tabulator. This point broke down into three issues:

A. We couldn’t see the monitors for the central tabulator system. In one of our biggest wins in this case, the county is required to give us “unobstructed” viewing access to the monitors on computers used for vote tabulation. Somebody’s head in the way specifically doesn’t cut it, at least based on what the judge said in court. This will likely involve a second screen up that observers will be able to see at a normal distance, on a video signal splitter. This is similar to what Pima county has already done and was mandated years ago by the California Secretary of State.

B. We can’t see the cabling in there, and cannot bring our own laptops to probe for illicit use of WiFi or Blue-tooth data connections. And per the judge we still can’t. This was among the worst rulings and one we are strongly inclined to challenge. One of the most frustrating parts: the judge said that observer laptops would be seen by other observers over wireless and be mistaken for “false positives”. He didn’t understand that wireless laptops are normally set up as “receivers” as opposed to “transmitters” and that it’s only “transmitters” (routers or access points) we’d be looking for. The judge made a major technology blunder and introduced it as new evidence. This is despite the fact that a new WiFi network popped up running from a home-grade router after midnight on election night, traceable to within the election offices. The county wouldn’t search it out themselves or allow our observers to do so with their own laptop. Here is the legal issue: we have a legal right to observe the central tabulator system. They’ve put that system on a local area network, but the county is banned from broader connections to the county’s net or the general internet. That local net is part of the central tabulator system and if we can’t observe it, they can do whatever they want behind the scenes...and the scary part is, at least some hard evidence says they are – we saw a new wireless network based at the election processing center pop up after midnight on election eve with no explanation.

C. Per the county, no photography is allowed. The judge is fine with that. We’re not. We may or may not be able to do anything about it - for now.

3) (LOST) We asked the court to outlaw internet connections, and the county claimed there were none. We have a witness who worked for the agencyas an advanced pollworker (“troubleshooter” covering several precincts) in 2008 who examined one of the regional collection station laptops and saw the software on it needed to function with a cellular modem on the Alltel network “Axcess” which in turn is a straight shot to the internet. The county claimed they don’t do that; the judge believed them over our guy.

We suspect that at least in 2008, at least some of the 22 regional memory pack upload sites scattered across the county had poor quality or missing landlines for dial-up modems, so they went cellular as plan B. These regional upload centers are where pollworkers bring memory packs in to be uploaded to the central tabulator instead of driving them to downtown Phoenix.

We still have the opportunity to try and catch ‘em doing this in future elections and come back to this point. (Amusingly, the results upload process in this last primary took a LOT longer (by several hours) than in previous years. We suspect they realized we were looking for cellular modems and didn’t use ‘em, instead carting memory packs downtown in those locations with dysfunctional phone lines. There’s no proof there of course but...it’s interesting.)

4) (LOST) This was the uncertified software/BPS issue. Basically, the judge is taking the former secretary of state’s office’s opinion (Jan Brewer) that everything is hunky dory despite strong evidence otherwise. To be fair, we could have done this better with more time to prepare. We suspect our best bet is to drop this for now and gather more evidence, including trying to get copies of the databases via another state such as California where there are stronger public records laws.

For those just tuning in, here’s what’s going on: Sequoia withheld a major portion of their software from outside scrutiny by the federally approved test labs. That was just wrong, and one of four instances in which we can prove a voting system vendor withheld components from the labs. The lab scrutiny concept is the “fig leaf of sanity” on what is fundamentally insane: counting our vote with privately owned and internally secret software. Nobody in the elections business wants to admit the test lab process is being gamed. To hide the gamesmanship, Sequoia also declared as secret the contents of the election’s key data files by claiming there’s “software” in them, which may or may not be true – if true, for a number of reasons any such “software” would be illegal on it’s face as it cannot be confirmed as authentic and is too easy to modify in the field, breaking the federal certification rules at least twice.

5) (LOST) Maricopa County instructs the pollworkers to hide all details of the vote totals as they close out the polls. The judge was OK with that. This was his most obvious legal blunder. Neighboring Pinal county puts the vote totals on the front entrance of the door. Arizona revised statute 16-551 titled Early election board; violation; classification” and you clearly mandates that pollworkers call out the vote at the end of the day. Now, there IS a rule calling for secrecy of vote totals until after 8:00pm, but it applies only to the early and mail-in votes – it’s guessed it, it refers to the operation of the early and mail-in voting boards, – NOT the polling place procedures which are still controlled by A.R.S. §§ 16-601. The judge decided to invent a new public policy based on the testimony of Karen Osborne: “don’t confuse the poor voters” with a precinct-vote-only total on election night. What he missed is that this election night report is a security measure – it gives us data from before the vote totals enter a thoroughly riggable electronic system. We WILL challenge this with the facts and law again.
6) (LOST) We challenged their policy of not putting a copy of the results tape (also known as the tally totals, tally list) in the “official returns envelope”. Several laws outright mandate this (ARS 16-615, 16-622 and 16-624) and the reason is clear: the official returns envelope is something the county election officials themselves can’t get at very easily, not without a lot of other eyeballs on the subject such as observers and/or a court order – see also the current statewide policy manual of May 2010 on page 203 for the “in case of challenge” concept. Larry Bahill is a former election director Pima 14 years and helped write the laws when he was minority leader in the state house. On the stand, Bahill clearly expressed why these statutes exist. We've confirmed that Cochise and Apache county does it correctly and we are checking others counties. You have to ask yourself this: what good is the “official returns envelope” if there’s no copy of a signed “results tape” in the envelope to be opened in case of a conflict? ARS 16-615, clearly shows the results tape also known as “tally list” going into “official returns envelope”.

7) (LOST) This was a challenge to their practice of transporting critical materials with just one person, banned in the Secretary of State’s policy manual (see pages 144 through 146). Also see ARS 16 608, 16-564, and many more in the election codes (title 16) that go into chain-of custody issues. The judge simply ignored the problem for reasons we don’t understand at all.

8) (WON before court started) Finally at point eight we win a big one. Just before the trial started the county stipulated they were wrong, a shrewd move to quietly remove one of our bigger claims: no more picking precincts to hand count until after they release precinct-detail vote totals as per the ARS 16-602. What they were doing was both crafty and disgusting: by learning which precincts would be counted before releasing details for each, they could rig the vote totals among all precincts at the central database and then once they learn what will be counted, un-rig those ones selectively (shifting any false totals assigned there to other, uncounted precincts). This was the single most blatant violation along with the unsigned results tape and they gave up before trial started. We have on video two different times that we protested on this point, on 11/05/08 and on 08/25/10.

There’s no way around it: in key areas the judge either ignored the law, introduced his own incorrect technical “knowledge” or made outright policy decisions contrary to the law as written.

The scary part: this is the chief civil court judge in the Arizona Superior court, Maricopa County branch. However, he made us feel like we all did something good, he thanked us and then said too bad there weren’t any school children here watching and learning how democracy works. Yep, Jim and I were born at night, but it wasn’t last night. He did have us going for a while until we read the Judges minute entry – his final “official” written ruling.

Well, we will most likely challenge the lack of network connection observation (point 2B), the pollworker secrecy on vote totals (point 5) and the withholding of the copy of the results tapes from the official returns envelope (point 6). Possibly others but those are the most legally clear-cut and vital in terms of the overall security of the election process.
Again we state: These Points “Interlock” To Make A Complete Election Fraud Recipe. If observers aren’t allowed to see the precinct data either on election night (point 5 above) or after wards (8), and are blocked from seeing what goes on at the central tabulator (2) when it gets there on systems connected to the internet (3) on unknown, untested and illegal software (4) and the one reliable record available of precinct results (results tapes) isn’t signed (1) OR put in a sealed bag for later review (6), then it’s not a proper election. The only thing left to call it is “illegal” – and that’s what we will present to a judge. Again, and again and again..

We below know that elections are just too important.

We've all learned over many years that Election Integrity is not about "trust" or "credentials", it's about transparency and oversight and our *right*, as a citizen, to *know* that our favorite candidate -- or least favorite -- won or lost in *our* public elections. If you find yourself having to trust in someone -- anyone, whether it be an election officials, a Judge, a voting machine company, or an EI advocate -- rather than being able to see things for yourself, then something has gone terribly wrong. As it has been in AZ and in much of the nation.

To get a good overview of the problems with elections in Arizona, it’s important to read the resolution with background information written by attorney Bill Risner and passed by the AZ Democratic Party Jan 23rd 2010: This report tells it like it is from a seasoned attorney with 42 years of experience on how bad the election systems is, it’s a must read if you care about elections: http://tinyurl.com/27mw9jn

John Brakey and Jim March

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