According to Pima County Superior Court documents, the next battle in the Pima County Democratic Party's public-records fight will take place on Friday, Sept. 24, when the court will tackle an issue related to the fact that 112 poll tapes were discovered missing after the party was finally allowed to go through the 2006 Regional Transportation Authority election's ballot boxes.
Poll tapes are computer-generated reports printed out at each precinct after an election that show the precinct's election results. They are then placed with the ballots before going to the Pima County Elections Division.
Elections-integrity activist John Brakey says not only are 112 poll tapes missing; there are also 50 poll tapes that do not match the results in the RTA election electronic database.
"That means 44 percent of the poll tapes are essentially missing," Brakey says.
Pima County Democratic Party attorney Bill Risner says the point of the Sept. 24 hearing is to get Superior Court Judge Ted Borek to allow Risner to get a deposition from the Iron Mountain storage facility, where the RTA election ballots and poll tapes have been stored.
"This company is well-organized in what they do. All of the boxes have Iron Mountain numbers with bar codes. You just can't walk into the warehouse and ask for the boxes. Iron Mountain records the date, time and who made the request. They have it; they've testified they have it. All we are asking for is to see what they have," Risner says.
"I don't know if we are going to get to why (poll tapes are missing); we have to infer why."
This ongoing litigation is part of a successful public-records lawsuit filed by the Pima County Democratic Party that sought access from Pima County Treasurer Beth Ford to the RTA ballot boxes at the Iron Mountain storage facility, in order to copy the poll tapes. In 2008, Ford took the Democratic and Libertarian parties to court in an effort to get a judgment from Pima County Superior Court Judge Charles Harrington that would allow her to destroy the RTA ballots as required by law.
Risner went to court to keep the ballots from being destroyed. Although Risner lost, the Pima County Libertarian Party has continued the case in appeal.
The poll-tape questions come at the tail end of a four-year legal dispute between the Democratic Party and Pima County regarding the May 2006 RTA election, and problems the party discovered in how elections are conducted in the county. Three years ago, the Dems successfully sued to gain access to election electronic database information.
Risner says the interest in the poll tapes regards the fact that Pima County confirmed two years ago that its Elections Division had purchased a crop scanner, an agriculture tool proven to be useful in tampering with election-system results.
"There are 'fingerprints' on the poll tapes ... that can show (if) these are fake results (produced by a crop scanner)," Risner explained. However, the poll tapes copied by election-integrity activists did not have any crop-scanner "fingerprints."
Ronna L Fickbohm, an attorney for Pima County, wrote via e-mail regarding the poll tapes.
"Unfortunately, given the timing of the request for the records (the years of delay between when the records were generated and when the request was made), the only remaining copies that possibly still existed were whatever copies had been placed in the sealed boxes containing ballots from the May 2006 election," she wrote.
Fickbohm, an attorney with Slosser, Hudgins, Struse & Freund, was hired two years ago to represent Pima County in the public-records lawsuit. The county also hired a separate private attorney to represent Pima County Treasurer Beth Ford: John Richardson, with DeConcini McDonald Yetwin and Lacy.
The state Attorney General Office's concluded a year-long investigation in April 2009 after counting the RTA ballots. At a press conference, Attorney General Terry Goddard announced that based on the ballot hand-count, no apparent tampering occurred during the RTA election. Election-integrity activists, however, complained loudly that Goddard should have done a forensic analysis of the ballots and the poll tapes.
Goddard, now running for governor, explained during that press conference that his office's examination did not need to include the poll tapes. The last time the ballots were reportedly taken out of Pima County's custody occurred when the AG's office transported the boxes to Phoenix for the count.
Fickbohm wrote that the county only fought the Democratic Party's request to access the ballot boxes because the county wanted to keep the ballots secure, and because of a concern about the high cost of retrieving the information.
"(The county's) concern was that, because the remaining copies of the records sought were located in boxes containing ballots, the ballots be kept secure and the taxpayers not have to pay charges that should be paid by the person or entity making the public-record request," Fickbohm wrote.
Risner filed a motion for attorney's fees in July, and although Borek denied the request after an Aug. 3 hearing, Risner filed a motion for reconsideration on Aug. 24. Risner has requested $51,906.65 in fees, because he won the public-records lawsuit for the poll tapes, and according to state law, he is entitled to attorneys' fees, he says.
Risner told the Weekly via e-mail in July that the state statute relating to public records "permits a sanction of up to $5,000 for those who unnecessarily delay cases or raise bullshit defenses. Therefore, I have requested a sanction under that statute. The county and county treasurer (have) separately asked that I be sanctioned for ethical violations for my audacity in requesting fees in the first place."
Fickbohm wrote to the Weekly that both requests—for attorneys' fees and the Iron Mountain deposition—are inappropriate.