Tuesday, April 22, 2008

Election Persuasion Deux

Posted By on Tue, Apr 22, 2008 at 4:52 PM

Superior Court Judge Michael Miller told attorneys Bill Risner and Chris Straub two hours--and he meant two hours. Court convened yesterday at 9:30 a.m., and ended at 11:30 a.m.

Risner argued on behalf of the Pima County Democratic Party for the release of election electronic-database files that go back to 1998. "When it comes down to it, they haven’t pointed out any risk, but we’ve pointed out many problems,” Risner told Miller. “... Today we have a secret machine in a room with secret codes. It’s our obligation to check. … That’s what we are asking for … and the facts are on our side.”

Pima County attorney Straub continued to toe the official county line that parts of the database files are considered confidential, and if released, they could cause major security issues, from system hacking to counterfeit ballots. The county hoped to prove to Miller that databases for future elections should never be disclosed, because their release could jeopardize future elections throughout the state and even the country. “Where’s the beef?” Straub asked the court.

Straub referred to the files released to the parties in January, and the inference that the 2006 Regional Transportation Authority election was flipped--what he referred to during the hearing as Risner's red herring.

"This is not a happy situation for anybody,” Straub told Miller. “There’s no question this system is flawed.”

Straub added that until the county can come up with a completely transparent system without security risks, part of the database must remain confidential.

"Until we get there, we are dealing with the real world,” he said.

After the hearing, Risner said he feels confident that Miller will rule in the the Democrats' favor.

“We have the facts and the law on our side. Our judge is smart, albeit cautious and with a tendency to defer to bureaucrats. Therefore, I am positive about his decision,” Risner said.

While this entire argument began more than a year ago as a public-records request, it led to a lawsuit and a four-day trial in December 2007. On Dec. 18, Miller ruled mostly in the Dems' favors that political parties have a role in monitoring the integrity of elections, and as such, Pima County should release the 2006 primary and general election files, as well as the Regional Transportation Authority election files.

The files, however, didn’t get released right away. Instead, three days after Miller’s Dec. 18 ruling, Pima County filed an appeal, saying a final decision to appeal or release the records had to come from the board of supervisors at a Jan. 8 meeting.

That’s the meeting later immortalized by Supervisor Ray Carroll’s description of it as a “yuppie riot,” with a packed meeting room of citizenry demanding the files be turned over. The files were turned over, and actually, the supervisors went beyond Miller's ruling, which only mandated that the county turn over one file from each election. Election-integrity activists convinced the supervisors there was little harm in turning over everything from 2006.

On Feb. 13, Risner and Straub appeared before Miller again, with Risner asking for a hearing to request all remaining database files. On Feb. 25, the two went before Miller again to begin a separate court battle to hear Risner's request for attorney’s fees, which remains ongoing. That issue is set for a one-hour hearing on May 5 at 2 p.m.

To prepare for the April 21 hearing, Risner presented Miller with a battery of depositions taken earlier this month of Pima County's Dr. John Moffatt, as well as Thomas P. Ryan, a voting systems expert that took part in a California Secretary of State review of its electronic voting systems, and Tucson’s own Thomas W. Ryan, a Pima County Democrat involved with voting-integrity issues since 2000.

Moffatt, who sat at the defense table with Straub and Pima County attorney Thomas Denker, said it is hard for him to judge how the hearing went.

"Since I am not an attorney, nor accustomed to the court processes, I have no clue as to feeling confident or not,” Moffatt says. “Both sides clearly agree on the need to ensure the integrity of the electoral process.  Where I feel we differ is in the general release of programs and voter data from many elections to insure that integrity. There are other, safer ways to accomplish this goal.”

Moffatt says the Democratic Party referenced studies supporting the need for ballot-related auditing, rather than database auditing.

"We have, and will continue to make improvements in the process as exhibited in the report generated by the county administrator (Chuck Huckelberry) on April 3,” Moffatt says. “One of those recommendations was to allow an open audit process to take place within the Elections Counting Center, which would address the plaintiff’s need to analyze the databases for any changes made during an election, but prevent the critical programming information and people’s votes from being distributed freely over the Internet.”

While it seems like the fight is over, Risner continues to duke it out regarding his $279,907.17 request for attorney’s fees. The May 5 hearing will decide what Risner receives and look at any new arguments on both sides.

According to the memo issued April 3 by Huckelberry , the county continues to contend the Demos and Risner are not entitled to reimbursement of fees.

"In addition, we have submitted specific objections to approximately $127,000 of the claimed fees (approximately $117,500 in attorneys' fees and approximately $9,500 in ‘paralegal’ fees),” Huckelberry wrote. “Out of the $127,000 that we have objected to, the Democratic Party has conceded that $37,282.50 in fees were not valid--Mr. Risner simply tried to pass them off as having been earned in this case, when, in fact, they actually were incurred in other matters.”

Risner said he is bringing a new argument to the May 5 hearing.

"I'm not only claiming that the Democratic Party should receive its attorney fees but also its ‘expenses.’ Since we won, we do get our ‘assessable costs’ returned to us. Those costs are only a part of the party's out of pocket expenses.

Risner said according to the Arizona Revised Statutes, specifically ARS 12-349, the party is allowed reasonable attorney fees, expenses and “double damages” not to exceed $5,000 against a party, including a county if it defends a claim without substantial justification, to delay or unreasonably expand the proceedings.

"I'm arguing that is what they are doing. So from my perspective, the May 5 hearing won't be about whether my secretary could have done something faster or I could have taken better notes but, instead, about them not telling the judge the truth about the Secretary of State's real opinion."

Risner is referring to the deposition of Joseph Kanefield, state election director of the Arizona Secretary of State’s office, requested by the county. Part of the county’s defense has been that the state laws at heart prevent the county from releasing election database files referring to ARS 16-445A.

In Kanefield’s deposition, however, it seems the Secretary of State’s office agreed with the Democratic Party.

“The secretary's true opinion was the same as the Democratic Party's, namely that the law applied to the secretary (of state) and not the counties,” Risner says.

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