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.

This article appears in Apr 17-23, 2008.

6 replies on “Election Persuasion Deux”

  1. DEMOCRACY DEPENDS ON WHAT “WE THE PEOPLE” DO!

    Joseph Stalin said, “Those who cast the votes DECIDE NOTHING. Those who count the votes DECIDE EVERYTHING.”
    Below is a video link from the HBO movie “Hacking Democracy” that is 15 minutes long: http://www.livevideo.com/video/56A9F628EE3E45DF901B9F4944D9B314/hacking-a-dieblold-voting-mach.aspx
    Pima County election department has exact same Diebold optical scanners system, as well as 11 other counties in Arizona that in the video.
    Please note the memory card program equipment that was use to program the hack into the memory cards in the video clip is also owned by Pima County. Pima Election Department bought the memory card program equipment in July of 2005.
    In the RTA election of May 16, 2006 more then 70 optical scanners failed Election-day at various precincts.
    Election day I was out inspecting precincts and once I found that a large number of optical scanner were failing to work at the precincts I called Rep. Ted Downing, (Chair of State Party Election Integrity committee) also (at that time) the Chair of our county party “Donna Branch Gilby”. Both went to the election department to see what the problem was and that when they found the Microsoft -Access manual right next to the central tabulator.
    Donna and Ted took pictures of this. Both were told that they had no oversight rights because this was a nonpartisan election thus stopping us from actually finding out if MS-access was on the system and if the central tabulator networked to other computers in the office. By the time we got to check the computer several months later the program was gone. However, we did find MS-Access on the Maricopa Election Department and that system count 58% of the vote state wide.
    The Diebold-GEMS software is build on MS-Access program. It’s illegally by state law to have software that has not been approved and or certified by the SOS office such as MS- Access. This is because MS Access easily backdoors the database and one could change anything they want by passing the GEMS Audit log.
    To make it worse the normal backup that was always done [every] election night was not done until Friday at 4pm.
    Additional Facts: In the case of the RTA after processing 13,000 early ballots 6 days out the election department the first thing the next morning backup over that database destroying that file called “early ballots day 1” and replaced it with a new day 1 backup, then illegally printed (5 days before the election) 2 election summary reports 10 minutes apart. These reports by law are not exposed to be printed until one hour after the poll close.
    Fact: Since then, Huckelberry’s Election Department has been ILLEGALLY printing election summary reports of early ballots (WHO’S WINNING AND LOSING) way before Election Day.
    Fact: It was established in court case that the computer operator Bryan Crane was taking databases home with him.
    Fact: County Manger Chuck Huckelberry has known about the back door to our voting system since 1996. That’s when Huckleberry authorized Bryan Crane to use that “back door” to merge two databases. What Crane did wasn’t in the manuals.
    Fact: Huckelberry and the country ridiculous delusional defense for keeping the databases secret is a lie and that releasing them would result in “Mayhem and Chaos” – lost!
    NY Times article 1/6/08 Can You Count On These Machines? “One might expect computer scientists to be fans of computer-based vote-counting devices, but it turns out that the more you know about computers; the more likely you are to be terrified that they’re running elections.”
    I’ve learned, after three years of investigating Pima County Government, that it’s NOT JUST voting that makes democracy, its TRANSPARENCY IN COUNTING VOTES and we still have a long way to go getting it right in Pima County.
    Casting secret ballots is essential in our democracy. Counting them in secret is contrary to everything our Founding Fathers fought for.
    Vigilant Patriots, practicing the rights of citizenship in a democracy with civility, can make the Difference!
    Please, if you want to know more and what to do call me and or come to our Election Integrity meeting tonight at Pima county Democratic headquarters. All are welcome.
    Address: 4639 E. 1st St. Tucson (1 block S. of Speedway &Swan)

    John Brakey, co-founder of AUDIT-AZ (Americans United for Democracy, Integrity, and Transparency in Elections, Arizona) & Co-Coordinator Investigations for Election Defense Alliance http://www.electiondefensealliance.org/about_john_brakey
    5947 S Placita Picacho El Diablo
    Tucson, AZ 85706
    520-578-5678
    Cell 520-250-2360
    John’s AUDITAZ@cox.net

    EDA & AUDIT-AZ’s Mission: to restore public ownership and oversight of elections, work to ensure the fundamental right of every American citizen to vote, and to have each vote counted as intended in a secure, transparent, impartial, and independently audited election process.

    “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” Margaret Mead

  2. We were in court Monday and what came out… well you have to see and hear for yourself.

    Who Checks The Vote Counters?
    NOT the Secretary of State!
    NOT the Attorney General!
    NOT the County!
    Must see TV! Go here, 2 minutes long: http://ca.youtube.com/watch?v=fqlefIQVkrk

    The rest of the videos are below and are rated by stars on which ones you should see first.

    Best way to find more vides I have is to use these key words once your in “Google video” [John R Brakey Audit-AZ] [Election Integrity use last names, Vote Counters, Delusional also [Arizona Election Wars]

    Part 1: Delusional Defense of Pima County 2_25_08 Hearing Election Integrity Court Trial – 53 min 4 star http://video.google.com/videoplay?docid=5286383365525526183

    Part 2: Delusional Defense of Pima County 3_18_08 Hearing Election Integrity Court Trial 69 min 2.5 Star http://video.google.com/videoplay?docid=5503944387394057198

    Part 3: Who Checks The Vote Counters 4_21_08 Judge Miller Pima Election Integrity Court Trial 6 min 3 Star http://video.google.com/videoplay?docid=8139809132296162484

    Part 4: Who Checks The Vote Counters 4_21_08 Bill Risner Opening Pima Election Integrity Court Trial 29 Min 5 Star http://video.google.com/videoplay?docid=5503944387394057198

    Part 5: Delusional Defense of Pima County 4_21_08 County Attorney Chris Straub Opening Pima Election Integrity Court Trial 49 min 3.5 star http://video.google.com/videoplay?docid=3257397164607084204

    At one point, Judge Miller redirected his question to Pima Co Attorney Chris Straub who had to concede that he did not know the answer, and suggested that the judge might order Pima Co to examine this issue and report back to the Court (another attempt to delay the proceedings) Judge Miller’s question was the sole purpose of this hearing for which the Co Attorney appeared wholly unprepared.

    Pima Co relied upon its previously stated security “concerns” at trial, and failed to identify any new or additional security threats to the Pima Co Elections learned of in the past four months.

    Straub unwittingly conceded to the Court at one point that the Democratic Party has not released the .mdb data bases “into the wild” and has been “behaving responsibly,” refuting County’s own oft-stated position at trial that the Party would irresponsibly release the .mdb data files “into the wild” and cause “mayhem and chaos”.

    One subject of new learned today was that SoS Jan Brewer, acting upon the recommendations of Co Administrator Huckelberry that the SOS should amend her Elections Manual to conform to Pima County’s interpretation of “computer programs” argued at trial, did in fact act upon this request and amended the Elections Manual to change this definition. In other words, Pima Co appealed to the SoS to use her executive rule making authority to overrule the judiciary, i.e., Judge Miller’s order finding that the .mdb data files are not “computer programs.”

    This raises ethical issues of interference with the judiciary, i..e., an executive officer attempting to overrule a judge of the Superior Court by executive fiat in ongoing litigation to which the SoS is not a party (despite Pima Co requesting her office to intervene), and a violation of constitutional separation of powers. It certainly appears unseemly for Pima Co to appeal to SoS Jan Brewer to change the rules of the game after Pima Co has already lost this argument at trial.

    While the amended definition is entitled to consideration by the court, it is not conclusive and binding upon the court (since it occurred post-trial and was not considered in evidence at trial). Based upon the evidence presented today, Judge Miller should amend his Dec 19, 07 Order and release of all of the .mdb files requested by the Party, and clarify his order that the “public records” status of these electronic data base files are subject to a public records request and timely for all future elections

    Part 6: Bill Risner 4_21_08 Rebuttal Pima County Delusional Defense Election Integrity Court Trial 21 min 5 Star http://video.google.com/videoplay?docid=4264299007668468062

    On January 8, 2008, a crucial hearing open to the public was intended to be a brief, small concession by some working within the Pima County Board of Supervisors. At stake was the decision to appeal the courts ruling in favor of the Democratic Party, or relinquish the data awarded by the judge in the trial. Republican Supervisor Ray Carroll seemed to understand the over whelming public outcry for all the records of 2006. Ray Carroll and an outraged public yielded the largest elections data release in the county to date. To see video go here:http://blip.tv/file/625454/

  6. Mr. Boegle – Thanks for keeping us posted. I’ve enjoyed the past Pima County coverage and enjoy it here, too. Mr. Brakey, you need he said, she said. Don’t you realize every time the county opens its mouth it digs a hole for itself, too. Mr. Brakey, keep your messages clear and to the point.

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