Count the Votes

What's a voter to do in Pima County--wear a foil hat and pray Attorney General Terry Goddard puts an end to the RTA election distrust?

Mike Hayes thinks some of his dearest friends are convinced that he's gone off the deep end and is just a few short steps away from heading into public one day with a foil hat atop his head.

Hayes blames the Pima County Elections Division for his transformation from neighborhood activist into elections-integrity activist.

"Most of my friends now get kind of glazy eyed when they hear me start to rant about this stuff, and at least one of my friends during one of my rants interrupted me and said, 'Let's talk about something else. We don't want to talk about this stuff all the time.' It was so clear that I'd lost him," Hayes says.

"I've put on the aluminum-foil hat, as far as he is concerned, and (I think) the aliens are here and that the black helicopters are circling the house."

At first Hayes smiles while saying these words, but a look of frustration slowly crawls over his face, with a furrowed brow and slightly pursed lips. Jokes about foil hats aside, Hayes says he's frustrated that he can't get more people to take up the elections-integrity cause, and he doesn't understand why more people aren't suspicious and angry about all of the revelations regarding elections that have come forth since the Pima County Democratic Party filed a successful lawsuit against the Pima County Board of Supervisors last year.

"Most still don't understand the serious problems of what is going on in the Elections Division, so no one is demanding changes yet," Hayes says.

After the September election, focus on the Elections Division heated up again--with most of the attention going to Elections Division Director Brad Nelson. During a hand-count audit of ballots, elections-integrity activist John Brakey noticed broken seals on seven out of nine pre-selected bags, along with improper paperwork. As Brakey, there as a Democratic Party audit observer, began to go from table to table to ask ballot counters to look closely at bags and paperwork, it was reported that Nelson told Brakey to stop talking to counters. Brakey didn't and Nelson had him arrested.

At the time the Weekly asked Nelson why have Brakey arrested when he knew it could continue to fan the flames on election-integrity issues; why not work with him? Nelson said he didn't want Brakey arrested and that as director of the Elections Division he is in charge of making sure the count isn't disrupted, so Brakey had to leave.

Too bad he didn't figure out a way to work with Brakey and take the broken seals more seriously at the time. The result is an even more charged election-integrity crew asking that Brad Nelson leave or be fired, and that the Board of Supervisors finally take its job more seriously as the legal body in charge of elections in Pima County.

Now Nelson calls the issues with the recent election mistakes and part of a learning curve the county faces when dealing with new poll workers, new ballot bags and a growing number of voters using early ballots.

"We've learned from the process that one of the things that will make it easier--simple stuff like a checklist of what goes in the bag for instance, and putting one person in charge of the ballot bags will make sure the bags are sealed properly and the correct paper work is in the bag," Nelson says.

Regarding the four-day delay in issuing final vote counts, Nelson says part of the problem is that more and more voters request early ballots--190,000 have been sent out so far for the Nov. 4 election. Many of those voters wait to send them in at the last minute, and still others go in to vote at their precinct not knowing they'll have to use a provisional ballot because their name is now on an early ballot list.

"We could have all those early ballots come in on Election Day, which could be a big problem," Nelson says. "On Oct. 17 we will start getting early ballots. I would imagine in how this tidal wave comes in at the end, we might be counting seven days in advance to have something meaningful to give the public when the polls close."

And while Nelson says he understands he's the focus of the problems with elections issues in Pima County, his boss, County Administrator Chuck Huckelberry, doesn't like the idea of what he describes as scapegoating an employee--it's not his management style and why he doesn't plan on dismissing Nelson anytime soon. Nelson confirms that he has no plans to leave his job.

If changes aren't made in the Elections Division, however, it is going to be difficult to convince people like Hayes that all is well in Electionsville.

Hayes admits he's not as rabid as some elections-integrity activists, but the more he looks at what's come out the past two years, the more his doubts grow and linger. Hayes' interest in elections didn't begin until January, when some election-integrity activists, including Democratic Party attorney Bill Risner, started coming forth with suspicions that the May 2006 Regional Transportation Authority election may have been flipped.

Hayes--with some of the other most vocal participants on the election-integrity side--has opposed the RTA all along, as the proposed half-cent Pima County sales-tax increase made its way to Pima County voters. The tax is funding road improvements and mass-transit program boosts, with $2.1 billion expected to be collected and spent over a 20-year period.

Hayes' dislike centers on the $166 million plan to widen Grant Road to six lanes between Oracle and Swan roads, which he and other area residents see destroying the southern part of their midtown neighborhood. Hayes says he suspects the plan has already had a hand in a decrease in home values and an increase in neighborhood rentals.

At first, the RTA's prospects didn't seem too bright, considering several other transportation-tax-increase efforts had overwhelmingly failed on previous ballots. But the RTA differed from previous campaigns, because supporters made a long and concerted effort to build community support and to raise a lot of money. In May 2006, voters approved the RTA, with the plan itself receiving 60 percent approval from voters, and the tax getting 57.6 percent approval.

When it became clear that the RTA was going to pass, Hayes and others opposed to the RTA were surprised, because they insist that polls showed a decrease in support right before the election. (One political observer has told the Weekly that the RTA campaign may have leaked a false poll that showed support for the tax lagging in a final effort to raise more money for pro-RTA advertising.)

Consultant Pete Zimmerman, who ran a campaign promoting the RTA, shared with the Weekly the results of tracking polls that show the RTA proposition winning handily throughout the campaign--although support did drop a bit as the RTA election Election Day approached. (See The Skinny, July 24, 2008.)

Hayes today says that he'd like to see those poll results himself. However, back in May 2006, Hayes says, he didn't suspect that the election could have been rigged, even after the results didn't match what RTA opponents had heard about the polls.

"My reaction (to the polls showing support for the RTA was dropping) was, 'How wonderful that at least the RTA people are going have some problems,' because I'm not fond of them, obviously," Hayes says. "But I still didn't think (election fraud) could be an accurate depiction of what had gone on until I began to follow the story.

"I don't know if I remember what it was exactly that caught my interest the most. I think it changed when I attended one of the pre-trial hearings."

During one of these early hearings--after the Pima County Democratic Party filed suit against the county to get those election databases--Pima County Attorney Chris Straub entered a motion to Superior Court Judge Michael Miller to not go forward or to delay the trial--because the county couldn't present a defense, "because potentially everyone who worked with the elections department or had anything to do with the elections division would have to plead the Fifth Amendment."

Like other election integrity activists, Hayes was shocked.

"To me, this was basically an admission that people would have to state that they committed criminal activities. That was about the time I met (election-integrity activist) John Brakey, who immediately began to flood me with (information). That afternoon, we went to his house, and he showed me how easy it is with the county's current GEMS software to flip an election using Microsoft Access."

Hayes now says he wonders more than ever why those in charge of Pima County elections--in particular Elections Division Director Brad Nelson and employee Bryan Crane--still have their jobs.

The Pima County Democratic Party first decided to sue the county in 2007, after the county denied a public-records request to get copies of the electronic database files. The goal of the lawsuit was to assert all political parties' rights to be involved as election observers, to make sure votes are counted properly rather than just relying on the printout tape from the computers. In this day of electronic voting, the Democrats asserted, they needed the database files to make sure they were doing their job as watchdogs, as mandated by the state. The county fought the request, claiming the databases were not public records and that releasing the files could give potential election hackers valuable information.

In the end, Judge Miller agreed with the Democrats--first half-heartedly giving the party only part of the database files in January 2008. However, Miller said the party could get the remaining files the Dems were requesting, going back to 1998, if they could prove there were no security issues.

In May 2008, the party was awarded the remaining files.

As the lawsuit moved forward--including depositions of county employees and expert testimony from a slew of election experts from both sides--Hayes says he became even more convinced that something just wasn't right in Pima County elections.

And in July of this year, the election-integrity activists came forward with something they considered to be a smoking gun.

In an affidavit, former county employee Zbigniew Osmolski claimed that he talked with Elections Division employee Bryan Crane at the Boondocks Bar the night of Jan. 27, 2008, when Crane admitted to him that he helped rig the RTA election at the direction of his boss, Brad Nelson.

Another affidavit was produced in September from another former Pima County employee, Nol Day, who says he walked into an Elections Division employee break room after the November 2006 election and saw employees counting ballots in an unsecure area, before those ballots were to be sent over to an audit being supervised by political party observers. It seemed to Day--judging from the surprised looks on the faces of his co-workers--that he'd found himself in the wrong place at the wrong time.

The Arizona Attorney General's Office investigated the Democratic Party's first assertion, that the RTA election was possibly flipped. The office concluded, in somewhat of a contradictory fashion, that the county's GEMS software was not secure, open to fraud, but that no criminal activity had taken place in the RTA election.

Risner, Brakey, Hayes and others point to discrepancies in that investigation; they claim investigators didn't interview key witnesses Risner provided, and seemed to ignore contradictory testimony provided by Crane. They also were upset that the AG's office allowed the county to partially pay for a computer analysis of the RTA election and the county's GEMS software, by Colorado-based iBeta, which was used in the AG's investigation--considered an odd conflict of interest since this was an investigation of criminal activity within Pima County's Elections Division. Risner also claims the county was allowed to direct parts of the investigation, and the iBeta report was given to the county before an AG representative even interviewed county employees.

In July, Risner wrote to Attorney General Terry Goddard and asked his office to conduct another investigation, because of Osmolski's affidavit as well as problems that became apparent to election-integrity activists regarding the first AG investigation.

While Risner included a copy of Osmolski's affidavit in his July letter, it wasn't the first time the AG's office heard about the alleged Osmolski-Crane conversation. Risner said in his letter to Goddard that he was approached by Osmolski and another witness regarding the conversation in January, and immediately told an AG associate, fully expecting the office to open a criminal investigation.

When the county instead told Risner to file a criminal complaint if he believed crimes had occurred, Risner met with Assistant Attorney General John Evans in Tucson, who agreed to open that first investigation into the Pima County Elections Division--although Osmolski was not interviewed.

Risner's July letter to Goddard admits that most of the evidence regarding fraud is circumstantial--but claims that the strong circumstantial evidence and missing evidence point toward fraud and warrant another investigation.

Other evidence proposed by Risner that has election integrity activists up in arms, circumstantial or not, includes:

• A photograph taken by an election observer of a Microsoft Access manual in the vote tabulation room on RTA election night. Because Access can be used to change votes in the GEMS software, it is illegal to use the software on election computers.

• Donna Branch-Gilby, the chair of the Pima County Democratic Party during the RTA election, requested permission for a party consultant--accompanied by Nelson--to enter the tabulation room to look at cables attached to the election computer that led to another room. The request was denied--leading Branch-Gilby and others to wonder what the county was hiding in a room they were told was vacant.

• An election department employee testified that Crane regularly took home a CD of election data during elections. Isabel Araiza, a senior Elections Division employee, during the trial testified that she told Nelson there were security problems with Crane taking election data home with him--but Nelson never objected, and the practice didn't stop until it came to light during the lawsuit.

• GEMS audit logs analyzed by the Pima County Democratic Party, as well as iBeta, show the potential for suspicious behavior.

"The May 10, 2006, audit logs demonstrate the normal operation of the ballot counting," Risner wrote to Goddard. "On that day, election employees counted more than 13,000 early ballots over a four hour period. The vote total data from those ballots was backed-up and labeled as Day 1 backup. If a CD of the election data had been made, it would not have shown on the audit log."

During the trial, Crane testified he made a mistake with his mouse and didn't mean to back up the data--but Risner and others contend that for Crane to overwrite the Day 1 data, he would have had to respond to two warning messages, one from GEMS and one from Windows.

• The fact that Crane, through the Elections Division, purchased a crop scanner, an agriculture analysis tool that has been proven to be a potential hacking devise. In his deposition, Crane said he purchased the scanner to see if those allegations--that it could be used to change an election outcome--were true, and that, yes, he discovered it worked.

The Weekly called the Attorney General's Office to find out if the state is willing to conduct a second investigation. Although an AG media rep said she could not legally confirm or deny that any investigation was taking place, Scott Egan, an aide to Pima County Supervisor Ray Carroll, says he was recently interviewed by an AG representative regarding testimony he gave to Risner on the Boondocks affair.

Crane has said that he wasn't at Boondocks on the night he allegedly spoke to Osmolski, and that he had to look up the bar on the Internet to know where it was located.

But Egan--who says he is a friend of Osmolski's--says Crane was indeed there that night. Egan told the Weekly that Osmolski, in a panic, went up to Egan to tell him the story Crane had just told him. They agreed to leave together and called Risner as soon as they got to Osmolski's house, but only after Egan drove by the patio where Crane was sitting outside and saw the elections employee having a smoke.

"I know what Bryan looks like, and that was Bryan that night at the Boondocks," Eagan says. "I now wish I'd went up to him so he'd know I saw him there."

Osmolski says he was also interviewed by the AG's office. But so far, nobody has contacted Nol Day, the person who claims he saw ballots being counted in an unsecure area in November 2006.

The county has said that Day was a seasonal Elections Division employee hired to help out with Native American voter outreach. Day says he was told by Nelson that he would be allowed to interview for a permanent position and that he was doing a good job--but that he was never offered an interview opportunity after the November 2006 incident.

Nelson, in a recent memo to Huckelberry, says Day didn't know what he was seeing and has his dates mixed up. Day counters that he keeps a journal and knows what he saw.

"It's true also to say I'm 'guessing' a crime was committed. I'm not a lawyer. Whether or not a crime or even an ethics violation occurred is for the courts to decide," Day says.

"I can only say what (coworker) Charlene (Begay) and I saw that day: stacks of ballots spread out across a table with ballot bags lying next to the stacks. ...I never saw ballots out of their ballot bags for any reason on any other occasion.Everything that has to do with the ballots is supposed to be done with a public witness present and the audit itself was taking place in a different warehouse location. Whatever they say they were doing, which they have not explained yet, Charlene and I will swear in court that there were no representatives from the public present."

Day says he went to Pima County Supervisors Sharon Bronson and Richard Elías to tell them what he saw, and was told they were aware and would look into it.

When asked if they remember talking to Day, Bronson and Elías both recently said that they have no recollection of any such conversation. Bronson says if someone had come forward with that kind of information, she would have taken it seriously. Elías says he'd like to think he would have done the same.

Like Day, Osmolski says he has experienced what he considers to be payback from the county. In 2002, the engineer was let go for insubordination, because he would not agree to a breathalyzer test. However, his termination came after Osmolski corroborated evidence provided by Brooks Keenan, then the head of the county Department of Transportation, who accused the county of doling out procurements and construction contracts to friends of county officials and supervisors Dan Eckstrom and Raúl Grijalva.

County records show that Osmolski was fired for drinking on the job and inappropriate conduct with female employees. Osmolski, however, says that information from the county is a continued tactic to smear him for sticking by his friend Keenan. Before being fired, Osmolski says, he had 21 years with the county, excellent reviews from seven different supervisors and a body of work of which he was proud. When Osmolski sued the county to get his job back, he says, he produced nine witnesses who said they never smelled alcohol on his breath at work or witnessed him drinking on the job. Osmolski says he lost the lawsuit on a technicality and later successfully sued his attorney for the mistake. But he didn't get his job back, and has yet to work again in Tucson. The native of Poland says engineering firms refuse to hire him, because they are worried they could lose lucrative county contracts.

He also stands behind his testimony that he did see and talk to Bryan Crane in January.

"On the patio, I made a joke with everyone. ... One guy was standing on the other side with a fedora and a fake pony tail. I said, 'Who are you, Doc Holliday?' 'I'm Bryan,' he said. And I said, 'I'm Billy from Brazil,'" recalls Osmolski, who often travels to Brazil and is fluent in Portuguese.

He says he asked Crane where he worked and was told the Pima County elections department.

"I asked him, 'Are you the one who fixed the RTA?' and he said, 'Well yes I did.' And that's how it started. I went back and talked to him again and asked him, 'Did you fix it yourself or on the direction from others?' 'I did what I was told.' 'By whom?' 'My boss.' 'Meaning the election director.' 'Yeah, Brad Nelson.'

"I didn't want to go too deeply to raise his suspicions. But he expressed enormous worry he would be indicted."

Osmolski's revelations in July came on the heels of an announcement by Pima County Treasurer Beth Ford that by state law, she was required to destroy the RTA ballots in her custody.

Right away, the Democrats asked Goddard to order a recount of the RTA ballots. Pretty much everybody else involved supported the call for a recount; RTA officials even said they'd be happy to pay for the recount--as long as the Democratic Party agreed to pay the RTA back if a recount proves the election was won fair and square.

In November, Ford and her attorneys--being paid for by the county--will join RTA attorneys, Libertarian Party attorneys and Risner--still representing the Democratic Party--for a hearing to further determine the fight over those ballots.

At a town hall meeting with Goddard at the city council Ward 2 office on Thursday, Oct. 16, a handful of election integrity activists interrupted a meeting on safety and fraud prevention to ask Goddard publicly to recount the ballots. Goddard told the room it was impossible for him to recount the RTA ballots without a court order; and he says he stands by the integrity of the last investigation and the iBeta report (even though election-integrity activists say the report doesn't clear the Elections Division).

Risner said recount is the wrong word and technically not what he is asking Goddard to do.

"The Attorney General's Office could issue a subpoena and determine within a week that those ballots were accurately counted," Risner says. "The public could be assured that the county was actually accurate, and that the bond issue passed, and that Pima County can put up future bond elections ... and that criminals are not running Pima County.

"So it's a general, agreed matter that the public can be served by solving the issues, and the AG's office can solve it. The reason they won't is because they believe it was rigged--that's the problem, because they don't want to open up the box and deal with the truth."

The county, of course, doesn't see it that way. County Administrator Chuck Huckelberry has continued to stand by Nelson and the work of the Elections Division.

Huckelberry says Pima County now runs one of the most transparent election operations in the country, based on the changes the county has made following the Dems' lawsuit and complaints following the September primary election. The county launched an investigation after elections-integrity activists complained that preselected bags used in the hand-count audit after the primary were delivered with major chain-of-custody issues, including broken seals, improper seals and improper paperwork. In a 22-page report after the investigation, the county admitted mistakes and promised to work more closely with poll workers on proper protocol.

When asked if Nelson or elections employee Bryan Crane should be let go, Huckelberry replies, "I have never managed by making scapegoats out of my employees. My view is I don't do that and I never will; that's as simple as that. I'm not going to drag someone out and shoot them just because someone wants me to."

The Weekly also asked Huckelberry what he thinks about the AG's office opening another investigation and the affidavits produced by Risner that may have supported a new look-see. Huckelberry says with affidavits he understands there is such a thing as false swearing--also known as perjury.

"We hope the law is followed," Huckelberry says about Risner's affidavits from Osmolski and Day. "And that the appropriate penalties are given."

When Risner is told that Huckelberry might be interested in perjury charges, Risner shrugs his shoulders and points out that Huckelberry can't issue perjury charges--those would have to come from the county attorney or attorney general. He pauses, smiles, and says he thinks the AG's office could look at lobbing perjury charges against Pima County and he thinks the testimony--circumstantial or not--could prove someone has gotten away with a vote or two in Pima County.

At the town hall meeting with Goddard last week, Hayes stood on the edge of the fray that followed with elections-integrity activists surrounding the attorney general and Risner quietly explaining to Goddard that counting RTA ballots could be part of his investigation (no court order needed). Hayes raised his voice and asked Goddard to do the right thing.

"Who do we go to if not you?" Hayes asked him. "Mr. Goddard, the people of Arizona need to know they can trust their elections."

Hayes told the Weekly it's no longer about the RTA plan he disagreed with before the May 2006 election, and if a recount proves it legally passed, he'd be ready to move on.

But Hayes says he also worries it might be too late. The damage done by the lawsuit and the lack of response from the attorney general and the Pima County Board of Supervisors makes Hayes think he'll always distrust the county and the elections process.

"I'll never look at elections the same way," he says.