Battle Over Ballots

Almost five years after the RTA election, a group of activists keeps fighting for election integrity

Bill Risner: "We want an order to keep them from cheating in the future. This court does have jurisdiction to see that the Constitution is followed in Arizona."

Tucson attorney Bill Risner stood before a Pima County Superior Court judge earlier this month and asked the court to take another look at the 2006 Regional Transportation Authority election.

Risner said there was enough apparent foul play involved for the court to change how ballots are counted in the county.

Yes, folks: The election-integrity battle rages on.

In the May 2006 RTA election, voters approved a 20-year, $2.1 billion transportation plan funded by a half-cent increase in the sales tax, with 60 percent of voters supporting the plan, and 58 percent supporting the half-cent sales tax.

Risner and other critics questioned the results when the plan passed, citing conflicting polls and precinct reports, and pointing out that the growth lobby had a lot to gain in a $2.1 billion plan to pay for roads and improvements.

Among other things, activists asked the state Attorney General's Office to look at anomalies detected in computer software that the county used to track votes. The anomalies issue led to a successful public-records lawsuit in 2010 that gave the Pima County Democratic Party access to the computer database for the RTA election.

The next legal challenge: asking the court to allow the public to look at the RTA ballots and other elections materials still in storage. Before that hearing ended, then-Attorney General Terry Goddard had the ballots inspected and counted, and determined there was no foul play. Critics, however, contended that a forensic analysis of the ballots should be done, and that key election reports were missing.

Later in 2010, Pima County Superior Court Judge Charles Harrington ruled that he had no jurisdiction to release the ballots or rule on how votes are counted in Pima County. However, the Libertarian Party successfully appealed Harrington's ruling last year, with the Arizona Court of Appeals declaring that courts do have jurisdiction to issue orders for fair and transparent elections if the legislative branch fails to intervene.

In his latest complaint, Risner recapped evidence discussed at previous hearings, which includes the fact that an elections employee took copies of balloting data home during elections; an elections employee illegally printed early election results during elections; and that the county purchased a computer tool called a crop scanner, prior to the RTA election, that can be used to change election results. (See "Count the Votes," Oct. 23, 2008, and numerous stories the Tucson Weekly has written on the subject since 2007.)

"This is a problem for every single person in Arizona," Risner told Pima County Superior Judge Kyle Bryson on March 5, responding to the county's argument to dismiss a 76-page complaint Risner filed Jan. 12 along with Tucson attorney Ralph Ellinwood.

"This is a problem for a society that has determined to resolve issues" by electing candidates through a process of who gets the most votes, Risner said. This case, he said, is about "protecting the purity of elections" so county residents know their votes are counted honestly.

Ronna Fickbohm, a private attorney representing the county, filed that motion to dismiss on Jan. 24. Risner is asking the court for a jury trial, and to depose many of the same witnesses called in previous hearings, including members of the Pima County Board of Supervisors, county elections director Brad Nelson, and elections employee Bryan Crane.

Risner told Judge Bryson that the Court of Appeals decision was clear: His court can rule on whether tampering occurred, and how tampering can be prevented in future elections.

"We want an order to keep them from cheating in the future," Risner said. "This court does have jurisdiction to see that the Constitution is followed in Arizona."

Risner argued that Bryson also has the power to prevent the county from continuing to use a system that produced allegedly fraudulent results.

One suggestion outlined in Risner's complaint is that the county should find an alternative to the current Diebold optical-scanning system used to count votes. The Diebold system involves placing vote totals on memory cards that can be easily manipulated, Risner said. He wants each ballot to be graphically scanned and available to the public.

"We do want the court to require a procedure that will prevent a repeat," Risner said.

When Fickbohm made her motion to dismiss, she used an argument similar to one the county has made in the past: This issue can't be fixed in court or by re-examining the 2006 RTA ballots, and that the Legislature is the proper body to resolve the issue.

"The remedy is to go to the Legislature," Fickbohm said, adding that the five days allowed under Arizona law to review election ballots "just isn't enough. We need more than five days."

As for Risner's request for a forensic examination of the 2006 ballots, Fickbohm said that would be illegal under state law. Obtaining the ballots requires "legislative permission," she said.

"So that's the first problem," Fickbohm argued.

The second problem, she said, is Risner's request to allow the graphic scanning of the ballots. "This is the Legislature's realm ... (to allow) the rapid scanning of ballots and release them to the public," she said, adding that federal approval may also be required.

A ruling from Bryson is expected soon.

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