Tuesday, April 3, 2012

Possible RTA election fraud focus of lawsuit

Arizona Daily Independent

This week Pima County administrator Chuck Huckleberry claimed that a law forward by State Representative Terry Proud and signed by the Governor, HB2408, was retaliatory. The law calls for an audit of the Pima County Bonding disbursements. Huckleberry and an editorial in the newspaper, the Arizona Daily Star, argued that if Proud wanted the information, all she had to do was ask for it.

However, for over 4 years, various interests have asked Huckleberry for information regarding the Regional Transportation Authority (RTA) election on May 16, 2006. At the time of the election, questions arose regarding the election results almost immediately. They persist in the form of a lawsuit in Arizona Superior Court.

The stated goal of a lawsuit filed in Arizona Superior Court by Tucson attorney Bill Risner on behalf of the Libertarian Party is “to protect the “purity of elections” in the future, starting with the 2012 elections. The lawsuit is based on two facts; “At the present time it is easy to cheat using our election computers and impossible to challenge a rigged election.”

The lawsuit alleges that “Pima County, through the direction and control of its county administrator C.H. “Chuck” Huckelberry, has systematically subverted critical controls required to protect the purity of elections. The elimination of those controls has permitted county management to take advantage of the ability to cheat presented by defects in our computerized election system.”

The central allegation in the suit is that “county management fraudulently rigged the Regional Transportation Authority election.”

The Pima County Democratic Party had previously taken on the issue. It was through the Discovery process in that effort, that the current suit bases its allegations. In papers filed with the court, lawyers claim that from “three other lawsuits involving the Pima County Democratic Party and Pima County,” a path was provided “for future discovery that must be followed in this lawsuit.”

The Libertarian Party argues that “The ease of cheating when matched with the impossibility of challenging any specific election requires court intervention in order to protect the purity of elections and ensure that we will have free elections.” They cite three Arizona Constitution sections as the basis of their claim, including Arizona Constitution Art. 2 § 21, which requires all elections to be “free and equal

Lawsuit highlights:

It Is Easy To Cheat With Pima County’s Computerized Election System

The most important legal and factual building block of this lawsuit is the agreed upon fact that it is very easy to cheat with our election computer software. The ease of cheating may be counterintuitive, especially among those least familiar with computers, but it is a fact. The ease of cheating may be a surprise even to those who are familiar with computers but whose familiarity was derived from securely developed programs. Our election computer system has quite simply been built to cheat and, at least for that goal, it has succeeded.

Pima County Agrees It Is Easy To Cheat

In a prior public record lawsuit between the Pima County Democratic Party and Pima County (Case No. C2007-2073) the county resisted the disclosure of its past election database on the grounds that the software was so totally insecure that it was against the public interest to permit political parties to obtain that data. A secondary defense of Pima County was that the election security of other Arizona counties was much worse than theirs, which they argued would heighten the harm of disclosure. Pima County argued that the data should not be released because the software was not capable of being secure. Christopher Straub, the Deputy Pima County Attorney defending the Board of Supervisors, in his opening statement, explained the county’s legal assertion that the Diebold/Premier GEMS software used by the county was not secure.

“The databases themselves are not secured. We know that and we agree that they can be altered using Microsoft Access.” (Opening statement, Trial Transcript, Dec. 4, 2007, Christopher Straub)

“Because it can be easily manipulated, the bottom line is in this whole thing is we're only going to catch stupid people, all right, because one could also alter the audit logs. One could do anything.” (Opening Statement, Trial Transcript 39: 21-24)

“Judge, this case is not about what should happen with respect to the machines that we have or anything because those same experts will tell you right now there is no commercially available machine that is certified, no commercially available machine and software that is certified for use in Arizona that does not have some of these computer security flaws.” (Opening Statement, Trial Transcript 43: 22-25, 44: 1-2)

In view of the clear admissions by Pima County through its lawyers in C20072073, thecounty is estopped from arguing otherwise in this case.

The Arizona Attorney General Agrees It Is Easy To Cheat

After the Pima County Democratic Party alleged that crimes had been committed by Pima County employees, the Arizona Attorney General combined with the “suspects,” the Pima County Board of Supervisors, to jointly hire a company named iBeta to examine a portion of the RTA database. Although this was a criminal investigation, the iBeta company primarily examined selected portions of the database through “tests” suggested by the suspects themselves.

After its examination of the software, the company reported that “the GEMS software exhibits fundamental security flaws that make definitive validation of data impossible due to the ease of data and log manipulation.”

iBETA did discover evidence of cheating but discounted the evidence because it is so easy to cheat they concluded that evidence inferring cheating was unlikely to have resulted from cheating because most criminals would have been more careful in covering up their tracks. In essence they agreed with Christopher Straub that “we’re only going to catch stupid people” and they assumed county management would not have chosen an incompetent criminal.

The Arizona Secretary of State Agrees It Is Easy To Cheat and State Law Prohibits Them from Checking County Computers To Find Out If Counties Are Cheating

During the “database lawsuit” the Office of the Arizona Secretary of State was deposed pursuant to Rule 30 (b)(6) of the Rules of Civil Procedure. The Office produced Joseph Kanefield, then Arizona’s Election Director, to testify on behalf of the Office of the Secretary of State. The State Election Director confirmed that the insecurity of election software “is no secret” and is known all over the country.

During Mr. Kanefield's deposition he was asked about a statement in the iBeta report released by the Attorney General which had been given to the Secretary of State and was a deposition exhibit.

Q. BY MR. RISNER: On page 3, there's an “Executive Summary” and there's a statement that says, “During testing it was discovered that the GEMS software exhibits fundamental security flaws that make definitive validation of data impossible due to the ease of data and log manipulation.”

Would you agree that that's an accurate statement about the GEMS software? ....(Kanefield 58: 19-25; 59:1, Exhibit 1, attached)

Mr. Kanefield responded: ...Yes, we did get this report. And we've seen many other reports that have come to similar conclusions about not just the equipment manufactured by Premier – formerly known as Diebold – but other companies.

...So this is no secret. These issues have been known by not only our office but election offices all over the country. (Kanefield, Exhibit 1, 59: 25, 60: 1-4 and 15-17)

If the vulnerability of our state’s computerized election system is known to the Arizona Secretary of State one might assume that they have examined one or more of our county election databases or, at least, that they could do so if they wanted to do so. Such an assumption would be wrong.

On April 11, 2008, the Pima County Democratic Party and the Pima County Board of Supervisors took the previously mentioned deposition of the Office of the Secretary of State. The Secretary of State chose Joseph Kanefield, the “State Election Director,” to testify under oath on behalf of the Office concerning some fourteen topics and to provide official answers on behalf of the Secretary of State. Mr. Kanefield is an attorney who previously handled election matters within the Attorney General’s office.

Mr. Kanefield was asked by Mr. Risner:

Q. First, can we clearly establish that your office never has gone in and examined a database to see if there’s been any fraud or manipulation?

A. Our office doesn’t have the authority, under law, to do such an examination... (Deposition transcript, 65:22-25 to 66:1)

Q. Are you aware of any county in Arizona that has ever conducted a post election examination of the database for evidence of fraud or manipulation?

A. I am not aware, other than what’s occurred in Pima County. But that doesn’t mean it hasn’t happened. It’s just that I’m not aware.

Q. Okay. So the result, then, is that the Secretary of State, because it has no authority to, does not examine and has never examined an election database after an election in any county in Arizona, correct?

A. That is correct. (Deposition Transcript, 67:3-15)

The reference to “what’s occurred in Pima County” was to the lawsuit filed by the Democratic Party that resulted in his deposition. In other words, neither the Secretary of State nor any County Board of Supervisors had ever examined any computer database in Arizona.

The most surprising part of the answer is the official position of the Office of the Arizona Secretary that it “has no authority” of law to examine any computer election database in Arizona. That lack of authority was the asserted reason why they had never looked. The law does not allow them to look.

The Pima County Democratic Party requested, prior to the 2006 general election, for Pima County to make numerous changes in the physical security of its election computer.

Those physical changes have made it impossible for the election computer to be hacked into by “outsiders” and collectively constitute major security improvements. Since then, however, the major security risk has consistently been identified by election security analysts as coming from “insiders,” such as vendors and election department personnel: the physical protection of the computer is only part of the necessary security for any election.

Another surprising point of testimony from the Secretary of State's office was that it had “no responsibility” to examine even the elemental issue of the physical security of election computers. In other words, when the Secretary of State sends a representative to each county for the so-called logic and accuracy test before elections, they are unable to examine the actual physical security of the election computers. They are unable to do so because the Secretary of State claims it is not one of their legislatively required tasks.

Q. By Mr. Risner: Does the Secretary of State, county by county, examine the physical security of its election computers?

A. Mr. Kanefield: Well, we're not tasked with that responsibility of actually physically examining and auditing the security . . . . (Deposition Transcript, 79:16-21)

Multiple Expert Examinations Confirm the Irredeemable Flaws in Our Election Computer Software

The Democratic Party has disclosed an affidavit from David Jefferson, a nationally known and recognized expert on computers and election systems. This declaration is part of the court file in C20072073.

As a preamble, it is my professional opinion that the GEMS election management system (and also similar products from competing vendors) are full of security vulnerabilities of all kinds.

The security mechanisms that are there are generally incorrectly implemented, or seriously incomplete, or easily circumvented, and in general hopelessly inadequate to prevent manipulation of ballot records or vote totals by anyone with even a very short period of access to the system. The opinion is based on two very thorough reviews of those systems published this year. The first was done by world class computer scientists led by computer science Prof. David Wagner of U.C. Berkeley and Prof. Matt Bishop of U.C. Davis and published a few months ago by California Secretary of State Debra Bowen in her “Top to Bottom Review” of California voting systems.

The other was a similar thorough review under the name EVEREST by an equally distinguished scientific panel under the auspices of Ohio Secretary of State Jennifer Brunner and led by Penn State computer science Prof. Patrick McDaniel. Several other less comprehensive and less authoritative reports reached similar conclusions earlier.

The Executive Summary of the Source Code Review of the Diebold Voting System prepared for the California Secretary of State as part of a “top-to-bottom” review succinctly states conclusions that confirm the opinions of the experts that are advising the Libertarian Party.

Our analysis shows that the technological controls in the Diebold software do not provide sufficient security to guarantee a trustworthy election. The software contains serious design flaws that have led directly to specific vulnerabilities that attackers could exploit to affect election outcomes. These vulnerabilities include:

• Vulnerability to malicious software

The Diebold software contains vulnerabilities that could allow an attacker to install malicious software on voting machines or on the election management system. Malicious software could cause votes to be recorded incorrectly or to be miscounted, possibly altering election results. It could also prevent voting machines from accepting votes, potentially causing long lines or disenfranchising voters.

• Susceptibility to viruses

The Diebold system is susceptible to computer viruses that propagate from voting machine to voting machine and between voting machines and the election management system. A virus could allow an attacker who only had access to a few machines or memory cards, or possibly to only one, to spread malicious software to most, if not all, of a county's voting machines. Thus, large-scale election fraud in the Diebold system does not necessarily require physical access to a large number of voting machines.

• Vulnerability to malicious insiders

The Diebold system lacks adequate controls to ensure that county workers with access to the
GEMS central election management system do not exceed their authority. Anyone with access to a county's GEMS server could tamper with ballot definitions or election results and could also introduce malicious software into the GEMS server itself or into the county's voting machines.

Computerized Election Cheating Can Almost Never Be Challenged Under Arizona Law

Arizona statutes that permit election challenges, A.R.S. § 16-671 et seq. require an elector to file a challenge “within five days after the completion of the canvass...” Furthermore, the election contest requires a court pleading setting forth “the particular grounds of the contest.” The permissible grounds set out in A.R.S. § 16-673, as a practical matter, can never be known within a five-day period, if at all.

The iBeta report released by the Attorney General said they found evidence of manipulation in the RTA database but they discounted it because it is so easy to cover one's tracks using GEMS. Joseph Kanefield confirmed our reading of their conclusion.

Q. BY MR. RISNER: I understand what he's saying is – this guy – or iBeta is saying, look, it's so easy to erase the tracks of what you've done that we think even though we find evidence that might – one might conclude there was tampering, there probably wasn't, because anybody that had sufficient skill to tamper with it would have covered his tracks.

Isn't that kind of what he's saying?

MS. SHIPMAN: Objection, form, beyond the scope.

MR. KANEFIELD: I – yeah, I think that's what he's saying. (Exhibit 1, Kanefield depo, 62: 6-17)

Thomas W. Ryan, Ph.D. has examined the RTA electronic database. Dr. Ryan has spent the past seven years examining election integrity issues on behalf of the Democratic Party. He concludes in his filed declaration that:

It is well established that the GEMS databases are vulnerable to software errors and can be manipulated using simple software applications or scripts.

Detection of fraudulent manipulation or software errors in a GEMS database would most likely be difficult, if not impossible, depending on the nature of the manipulation or error.

Detection of errors, if possible, would require a thorough analysis of the sequence of database “snapshots”, looking for anomalous data either within a single database or, more likely, among the various snapshots.

Software tools are under development to detect logical inconsistencies but these tools are not yet fully automated and will probably never address all possible forms of manipulation or bugs.

Unless the manipulation or software errors are blatantly obvious, it will take several weeks to fully analyze the database set for an election.

Discovery of manipulation or other errors in election databases would almost certainly take longer than the five day contest period allowed under A.R.S. 16-673.

Michael a Duniho is a “master computer scientist” who retired to Tucson from a career with the National Security Agency. He has worked with the Democratic Party's Election Integrity Committee since 2006 and was appointed by Supervisor Ray Carroll to the Pima County Election Integrity Commission where he serves along with Dr. Thomas Ryan, another appointed member.

Mr. Duniho confirms in his declaration that manipulation of GEMS is generally undetectable:

It is important to understand that manipulation of the GEMS database is generally undetectable without comparing the database data with actual ballots and poll records. Such a comparison takes not a few days but rather a year or more of intense forensic analysis to compare every computer information record with every paper information record.

The only way to confirm the integrity of a computer-counted election is to compare actual ballots with the data in the databases. In 2006, the Arizona legislature enacted changes to election law requiring a statistical hand count audit of elections in Arizona, and we have applied that new law to better confirm election integrity in Pima County.

Because the GEMS system has no capability for publishing vote totals by early ballot scanning batch after the election is complete, the current process for hand counting randomly arriving early ballots is a jury-rigged effort that compares a batch of early ballots with a couple of vote total summary reports printed before and after the batch of ballots is scanned (4% of the early ballots are selected for possible audit and then 1% are actually hand counted). A computer operator bent on fraud always knows which early ballots will be hand counted before they are scanned and could easily manipulate the vote totals for the 96% of the early ballots that are guaranteed not to be hand counted.

Chuck Huckelberry Personally Runs the Pima County Election Division

The legal responsibility for conducting elections lies with the various county Boards of Supervisors who conduct elections with the help of political parties. The election division of Pima County has a single computer operator, a small permanent staff, and thousands of citizens selected from political party lists who work at elections on a part-time or volunteer basis.

Until 1993 the Pima County Board of Supervisors relied on the Clerk of the Board of Supervisors to be in charge of the election division staff. That line of authority changed when Chuck Huckelberry became Pima County Administrator, as he explained in court testimony.

Under Huckelberry’s Direction the Election Department Has Systematically Dismantled Election Procedures that Prevent Fraud

Once in possession of the Crop Scanner, Bryan Crane practiced with it and has testified that it was not difficult to get it to print false results. In fact, he said that anyone with good computer knowledge should be able to similarly program a Diebold memory card to print fraudulent results.

The “not difficult” programming of the Epson memory card used in the Diebold scanner is accomplished because the memory card accepts “negative numbers.” If the programmer wishes to shift 20 votes, for example in a particular precinct, he would program 10 negative votes which would switch 10 votes for one candidate to another and thereby achieve a 20 vote swing.

If such a device was used for a bond election, a sophisticated user would study prior bond election patterns. Such a study would reveal that some precincts always voted for bond elections and some precincts tended to vote against them. Some areas might vote for roads and some might not be favorable for such items on a bond list. A computer analysis would teach how many votes needed to be switched.

An analysis of prior bond elections made by Jim Barry for the RTA is precisely the type of analysis that would be required. Such an analysis would be aided by the fact that the one- half cent tax increase had been rejected in four prior elections.

Jim Barry retired from his job as a special assistant to the Pima County Administrator in early 2005 and was given a “special contract” to begin the next day to do a computer analysis of all individual precinct results in prior bond elections and “other duties” as assigned by County Administrator Chuck Huckelberry. Mr. Barry collected $75,000.00 from the county for the contract and its extensions, while at the same time collecting $12,000.00 from the RTA political committee for “consulting.” Both Barry and Pima County have refused to turn over Mr. Barry’s precinct data as a public record, although Barry acknowledged that his data was a public record.

Mr. Barry described his previous work polling for two other half-cent elections and his subsequent special work as directed by Huckelberry for the RTA.

Q: In 2006, the RTA election involved a half cent sales increase, is that correct?

A: Um-Hum. Um-hum. Yes. Yes. Yes.
Q: Had you been involved in any of the prior elections where a half cent sales increase had been submitted to the public?

A: I would have done some polling work in the ‘86 and the 1990. County-wide, not in the cities.

Q: Okay. And by “polling work,” what do you mean?

A: The committees that were running them contracted with– with Jan Lesher’s firm, and, at the time, a friend of mine, Tom Wilson, worked for her. And there was polling, benchmark polling and then some tracking polling, that we would have done during those two campaigns. And I did it with Lesher for several of the county’s – for a number of the county bond elections before– before 1997. So, ‘86- I’m sorry, just the “86 bond election.

Q: And this would be on behalf of Pima County?

A: No, it would have been on behalf of the committees that were formed to advocate for the passage of the – of the propositions.

Q: Okay. So –

A: I did it in the evening, on my off hours. To clarify, this was extra work. It wasn’t my county work that I was doing, performing, when I was working with the firm that was doing the polling.

Q: So you would work both for the county, and you would you be paid by one of the political committees, the political committee advocating the bonds?

A: Yes. Yes.

Q: Was there any special permission needed for your involvement directly into that election process, as a county employee?

A: As I remember, there wasn’t. There were policies about outside employment, but it was just so we were regular. It was for a couple of month period, so that, as I remember, I didn’t need any special permission, but I could be wrong on that.

Q: So were you given a special contract by Pima County to work on the RTA election?

A: After retirement?

Q: Yes.

A: I had a contract with the county that called for certain tasks, mostly to do with following up on the bond program. And it was a catchall phrase: work as directed by the county administrator.

And he asked me to do some analysis of precinct voting patterns in Pima County, which I did for him.

Q: What was the point of that?

A: Uhm–It was to look – to look at where–where voter turn-out was the highest, where it was at the lowest, and looking at the county’s 2004 bond elections, where– where was the support the strongest, where was it the weakest. (Barry deposition, 11/14/07; 6:20-25;7:1.25;8:1-24)

Further discovery may clarify the special work performed by Jim Barry.

The Board of Supervisor’s Election Division Regularly Violates Arizona Election Law, and then Lies about It When Caught

The Board of Supervisors have never investigated the conduct of their election division even when they knew that division was rife with criminality. The Pima County Board of Supervisors made a request of this Superior Court to delay the Democratic Party’s database lawsuit when they claimed every employee in their election division might invoke their Fifth Amendment privilege against self-incrimination. The following quote is from the Board’s Reply in Support of Motion For A Stay of Proceedings (C2007-2073) filed June 6, 2007:

Indeed, during the Attorney General’s investigation, any attempt by counsel for other side to elicit testimony from anybody involved with Pima County’s Division of Elections or the Pima County elections computer system runs a significant risk of impacting that witness’s constitutional rights and eliciting as assertion of the Fifth-Amendment privilege. In Afro-Lecon v. United States, cited with approval by the Ott court, supra, the impact of necessary witnesses invoking Fifth-Amendment rights was deemed a critical consideration in the granting of a stay of a civil proceeding. The Afro-Lecon court quoted United States v. Kordel, 397 U.S. 1 (1970) (also cited by Ott, supra) for the proposition that:

[W]here no one can answer the interrogatories... without subjecting himself to a “real and appreciable” risk of self-incrimination... the appropriate remedy would be a protective order under Rule 30(b) [of the Federal Rules of Civil Procedure], postponing civil discovery until the determination of the criminal action. 820 F.2d 198 at 1206. Therefore, it is clear that a stay is appropriate in this case under the standards cited and promulgated by the Court in Ott.

At no time subsequent has the Board of Supervisors questioned its own election division employees about the astonishing claim of potential criminality that they high-lighted in their own court filed pleading. The italicized emphasis on the word “anybody” was made by the Board of Supervisors in their original pleading.

There is one area of the law where the evidence is complete regarding illegal conduct by the Pima County Elections Division. A.R.S. § 16-621(A) makes it a felony to print actual vote tallies before the polls are closed in order to see who is winning or losing and by what margin.

Since Pima County starts scanning early ballots many days before election day, that kind of information would be very valuable to any candidate or campaign and extremely valuable for some campaigns. It’s just for that reason that such printing is a felony under Arizona law.

The Pima County Election Division has regularly violated state law as a policy matter for a number of years since Brad Nelson has been the county election director by printing election tallies days or weeks before election day. Those tallies reported actual vote totals of “early ballots” received and counted by the election division.

Robbie Evans, Junior, an election division career employee was Bryan Crane’s assistant election computer operator for four and a half years before he was transferred to the warehouse. He testified in court on December 5, 2007 in (C2007-2073) that vote tallies were regularly printed before election day. Those printings were so common that the election division bought a rubber stamp to be used on the illegally printed tallies, also called “summary reports,” that was used to stamp the words “unofficial/unaudited” on those printed tallies.

Mr. Evans testified about the direct involvement of Election Director Brad Nelson:

The next year, in 2005, the City of Tucson agreed, when asked by the same individuals, to print the sub-totals for its election using the same GEMS software. The secure and lawful process agreed upon with the City was to print a sub-total of all votes counted and then to process a batch of ballots. Then another sub-total would be printed which would show the votes counted in the sample batch of ballots. The two “sub-totals” or summary reports were printed upside down and only in the presence of political party observers so that no one could read or know the numbers. The “summary reports” were then placed in an envelope together with the ballots counted, which envelope was then sealed only to be opened after the polls had closed as part of an audit process to confirm the counting accuracy of the machine. That process preserved the secrecy of the vote totals and permitted an audit after the polls had closed of the accuracy of the machine.

After that 2005 city election local Pima County election activists, through the leadership of Ted Downing, were able to get the Arizona legislature to mandate a secure early ballot batch process similar to what was done on the 2005 Tucson City election. That statute, A.R.S. § 16-602(G), provides that the audit batches of early ballots are to be counted and the summary reports printed only in the presence of political party observers. That law was effective for the elections in the fall of 2006.

During the scanning of early ballots in that first election since the new legal requirement became law, the Democratic Party-appointed observers carefully noted on a log sheet the time and date of each audit batch that was scanned and thus resulted in the printing of two summary reports before and after. A subsequent examination of the election computers’ audit log after the election revealed that some “unknown” election division employee had secretly printed a summary report which revealed actual vote totals. The printing occurred when political party observers were not present.

Upon discovering from the audit log that a secret report had been printed the Democratic Party then requested to view digitally recorded images captured by camera and stored on a dedicated computer to learn which person had printed the unlawful summary report. The Election Division, through John Moffatt, refused to permit any such examination that would have revealed which employee had printed the report until more than 20 days had elapsed whereupon they announced that such a viewing would be impossible since the computer only kept 20 days of data. Therefore, the identity of the computer operator could not be determined solely because of the delay by the Election Division which obviously knew of the capability of their own video recording system.

Since all of the summary reports printed as part of the audit process had been retained together with the corresponding early ballot batches, the Democratic Party demanded the election division to produce for inspection all of those summary reports. The Election Division denied that any reports had been printed except as part of the early batch process when observers were present. Furthermore, they claimed that all of the printed reports were now locked inside sealed boxes in the custody of Beth Ford, the County Treasurer, with ballots and they could not produce them except with a court order.

The Democratic Party then sued Pima County and Beth Ford, the custodian of the boxes, in Pima County Cause No. C2007-0516 for an order opening the sealed boxes and requiring the production of the summary reports. An order was secured, the boxes were opened and the summary report identified as having been unlawfully printed was indeed not present in the boxes, but all of the reports printed in the presence of observers were in the boxes. The Democratic Party through that lawsuit proved the illegal printing of pre-election day vote tallies during the 2006 General Election. That illegal printing was accomplished even though a camera recorded access to the computer at all times and political observers kept accurate records of all printing pursuant to law in their presence. The printing was an example of the persistence of illegal conduct even in the presence of two monitoring systems designed to prevent such cheating.

During their subsequent database lawsuit the Democratic Party learned that the practice of printing pre-election tallies had been of long-standing and that Brad Nelson, Pima County’s Election Director, had lied knowingly to the party’s representative Tom Ryan in 2004 when he reported that such printing could not be done using GEM’s software.

“The Bosses” Permitted Bryan Crane to Take Home with Him CD’s of Election Results during Elections

A previous section discussed the “back door” that permits the GEMS database to be changed on any home computer, such as the home computer of Bryan Crane’s, that has on it Microsoft Access. Ample testimony from several employees confirms that Bryan Crane regularly took home with him copies of the election database. Isabel Araiza is the election division’s senior employee. She supervised the division prior to Huckelberry selecting Brad Nelson to be director. After Brad Nelson became director she complained about Bryan Crane taking the election CD’s home with him every night. She told Nelson “that that was never a practice in the past” and that “it was a concern” to her. She said “I didn’t feel that was right” but “the practice was left.”

In 1999 the county had installed a fire proof safe in the election computer room for secure storage of back up CD’s. Bryan Crane’s excuse for continuing to take the CD’s home with him after Brad Nelson was hired in 2002 was “in case of fire.”

Brad Nelson asked to be a member of the Election Center Research and Technology Committee but claims that the committee never met. Nelson claims he joined this National Committee so he could have more exposure to what was going on in the election area. ( Nelson Deposition, 2/28/2007, 61:6-25; 62:1-11)

Huckelberry is fully aware of Brad Nelson’s computer ignorance.

Mr. Risner Q: Mr. Huckelberry, you mentioned that the quality of the administration had improved and is more than adequate in the Election Department. Is that what you had said?

Huckelberry A: I said that the quality of management is improved and it is more than adequate. I would say that’s probably an accurate statement.

Mr. Risner Q: Okay. And do you understand that all our votes are counted on a computer system, correct?

Huckelberry A: Yes.

Mr. Risner Q: And do you understand that our county election administrator has only a rudimentary knowledge of how that system works?

Mr. Risner Q: Yes.

Brad Nelson relies on Bryan Crane for computer expertise. Bryan Crane started using the GEMS software in 1996 when he was taught to use the “back door.” Nonetheless, eleven years later he testified that he did not know any GEMS software security issues.
Huckelberry purports to rely on Dr. John Moffatt, PhD., for his computer advice. He was asked at deposition about what the security implications would be if the Democratic Party obtained the database after an election.

The Board of Supervisors Bad Faith Response about the RTA Election

The American people learned through the Watergate scandal that one can learn a lot about who was behind a crime from the coverup. Therefore, the actions and inactions of County Administrator Charles Huckelberry and the Pima County Board of Supervisors is of evidentiary interest in the face of allegations of criminality in the Pima County Election Division.

A. The “Poll Tape” Litigation”

The Pima County Democratic Party made a routine request to examine the RTA Election Results Reports or poll tapes at a time when they were in the possession of Beth Ford, Pima County Treasurer. Beth Ford refused to permit access. The Democratic Party then sued and Beth Ford defended the lawsuit on the claimed basis that such tally lists are “the functional equivalent of ballots.” Pima County claimed that “in general ‘poll tapes’ are the functional equivalent of ballots and therefore not subject to Arizona’s public record laws.”

Those arguments are pure nonsense, as revealed by A.R.S. § 16-616 and the prior discussion in this disclosure statement concerning poll tapes and might be characterized as delusional, except that Pima County’s Election Division was completely aware of the function and publicly available nature of the poll tapes, which are key audit documents that they use to reconcile numbers for all elections. The arguments did, however, delay for many months the physical production of the poll tapes at which time 44% were determined to be missing.

B. The “Database Litigation”

In December of 2006 a written request was made by the Democratic Party pursuant to Arizona’s Public Records statute (A.R.S. § 39-121 et seq.) for a copy of Pima County’s computer election database. The county refused, but ultimately agreed to meet with technical representatives of the Democratic Party so they could offer a reason for their refusal. At that meeting, Pima County’s technical representative, John Moffatt, said that the database could not be released because Bryan Crane used a unique system of coding candidates (eg. “20" or “30") that, if known, might reveal his personal pattern of choices of random numbers for a future election. Michael Duniho then handed John Moffatt a printed list of the codes used by Bryan Crane that Mr. Duniho had printed off the Arizona Secretary of State’s public website. John Moffatt stated that, in spite of Pima County having publicly published those less than revealing numbers, Pima County would not permit an examination of its computer data from past elections. Moffatt could not think of any reason to articulate but announced, nonetheless, that his decision was final even if he did not have any reason. The Pima County Democratic Party was then required to sue pursuant to public record laws. The Board of Supervisors furiously defended the lawsuit for the past election data over many months and many hundreds of thousands of dollars of attorney fees and expenses.

At the eventual trial, Dr. John Moffatt, PhD testified that the “number one reason” that Pima County did not want the Democratic Party to receive a copy of the election database after the election canvass had been finally approved was that the Pima County Democratic Party might themselves print a report of its own with different numbers simply to sow confusion. Dr. Moffatt was fearful that such a fake report might successfully stir the public because the party would be able to use the same font and page layout as the official statement of votes cast report.

Dr. John Moffatt’s testimony on behalf of the Pima County Board of Supervisors is so astonishing that the full background of his testimony and the lawsuit must be examined. The plaintiff was the Pima County Democratic Party that had approved the filing of the lawsuit by unanimous vote of both the entire County Central Committee and its County Executive Committee. The defendants were the entire Pima County Board of Supervisors of whom three out of five were members of the Democratic Party.

County Administrator Chuck Huckelberry testified at deposition that the decision to refuse to provide the database to the Democratic Party was a collective decision of Election Director Brad Nelson, himself, Dr. John Moffatt and the Pima County Attorney. As for the Board of Supervisors, he claimed they had “no role.”

Dr. Moffatt’s “number one fear” was that the Democratic Party might decide to print and release a fake set of numbers to the public. As noted by Judge Miller such an event would be a felony, but let us read Dr. Moffatt’s explanation from the trial transcript.

There are two views that might explain the fierce and expensive resistence of the Board of Supervisors (Except for Supervisor Ray Carroll).

The first view is that they had something very important to hide in the existing database. The something being the RTA election fraud.

The second view is that the board and Huckelberry may have rationally believed that the precedent of providing an election database to political parties would prevent the election division from rigging a future election because of the very reason that Dr. Moffatt stated. Namely that a political party might reveal different numbers based upon their analysis of the database.

That view would attribute rational conduct to both the board of supervisors and to Chuck Huckelberry. It also focuses on the central issue that this lawsuit seeks to prevent, which is the county’s unfettered ability to cheat in any future election. Sufficient information permitting the discovery that they cheated could fairly be labeled as a “number one concern.”

The possibility that a political party might fake numbers for the sole reason of creating mayhem is patently absurd. The possibility that a political party might discover that the board of supervisors has cheated is not absurd. After all, the Board of Supervisors themselves informed this court that they believed everyone in the entire Election Division might remain silent on questions of illegality as they “plead the Fifth.”

Available Evidence All Points to a Fraudulent “RTA” Election

Tucson resident Zbigniew Osmolski swore in an affidavit that he had spoken with Pima County’s election computer operator Bryan Crane on January 27, 2008 and Mr. Crane told him that he “fixed” the RTA election on the instruction of his bosses and he did what he was told to do. Mr. Crane expressed his concern about being indicted.

The Pima County Board of Supervisors conducts all state and county elections in Pima County. All five board members endorsed the RTA tax increase that had been rejected on four previous occasions when put to public vote. Supervisor Ramon Valadez was also the Chairman of the RTA.

Bryan Crane was the “one guy” employee of the Election Division operating the election computer for the RTA election on May 16, 2006.

The Pima County Division of Elections uses Diebold System Inc.’s Global Election Management System (“GEMS”) software to process elections including the May 16, 2006, Regional Transportation Authority (“RTA”) election.

GEMS creates a database for each election. The format is based on the format used by Microsoft Access, a general database program. Each database ends with the letters “mdb,” which stands for “Microsoft Data Base.”

The GEMS-created mdb files circa 2006 and prior up through approximately early 2008 can be opened without a password suing Microsoft Access. Data in the file can be manipulated. Password protection can be overwritten. It is even possible to extract the existing password from a main election data file, store it elsewhere, change the password so as to allow

The Pima County Election Division purchased a “Crop Scanner” computerhacking tool ten (10) months before the RTA election. This tool has no other purpose in the Election Division than to illegally alter the programming of precinct voting machines. The machine was ordered by the Election Division less than two weeks after being alerted by Black Box Voting Org. that such a machine could be used to program Diebold optical scan machine “memory cards” to print false results. Each precinct uses a separate memory card. Those cards are programmed by the central election computer GEMS program. The “Crop Scanner” machine is a “read-write” device that can program the same Epson memory cards as GEMS does. Its only known use is to program those cards by corn farmers so they know when moisture levels will require field irrigation. Hence, it is called a “Crop Scanner” and is sold by an agricultural supply company in Minnesota.

Bryan Crane testified that he practiced before the RTA election.

The use of a “Crop Scanner” to program memory cards for optical ballot scanners requires skill and patience; otherwise the memory cards “fail.” During the 2008 primary election, where the memory cards were programmed by GEMS, pursuant to the normal function of GEMS, there were no card failures. During the RTA election that used a simple ballot, the Election Division reported to the media on election night that 35 precinct optical scanners had failed. A memorandum from the Election Division two weeks later stated that 75 scanners had failed. The database appears to show that 149 scanners may have failed.

No other election has ever had as many card failures. The Nov. 2, 2004 general election only had a total of 4 memory cards reloaded and that was a far more complicated election. The RTA only had 4 items compared to the 2004 general election that had 115 items.

If memory cards are downloaded a second time, GEMS permanently erases the original data from the first download. The RTA database shows that 85 precinct memory cards were downloaded a second time. Approximately 70 other memory cards failed to upload by phone line and had to be loaded the first time at the central computing room. The activity of reloading memory cards a second time started at 10:13 p.m. After Rep. Ted Downing, the media and others had left, 53 memory cards were reloaded. Then, the next morning, Wednesday, one more memory card, and on Friday, eight more memory cards were loaded.

The first backup of the database was finally performed at 5:01 p.m. Finally, on Saturday the 20th, 23
more memory cards were reloaded.

A Microsoft Access manual was seen and photographed in the vote tabulation room on RTA election night as it was being used by Bryan Crane. Use of Microsoft Access on an election computer was and is illegal. The GEMS Software is built by Diebold on a Microsoft Access base.

A Microsoft Access manual was seen and photographed in the vote tabulation room on election night by former Representative Ted Downing. Use of MS Access on an election computer was and is illegal. Downing described a Microsoft Access manual being referenced by Election Department technician Bryan Crane. Downing then called Donna Branch-Gilby, at that time the Chair of the Pima County Democratic Party, and asked her to bring a camera. Donna came with her husband, Bob Gilby who took pictures of the open MSAccess manual sitting next to the central tabulator. Downing requested that Brad Nelson make a backup of the election database, put it an envelope, sign it, and get it to the sheriff’s office to hold. This request was due to the problems he witnessed. Nelson refused.

The “missing” poll tapes from the RTA election strongly correlate with entries in the database showing that those memory cards were reloaded in the days after election day during the period when backups of the data were not created contrary to normal practice.

Over 13,600 ballots were counted on May 10, 2006, the first day of early ballot processing. That data was then “backed up” before the computer was shut down.

Testimony revealed that Bryan Crane’s regular practice was to take home a CD backup copy of the election data during elections. Brad Nelson was aware of his practice of taking a CD backup copy of the election home with him. On his home computer utilizing the common Microsoft Access program Bryan Crane could open the database and make alterations in the data file and then erase from the audit log evidence that the data had been altered. The failure of Diebold to separate the vote data from the audit file is a known defect. That defect was described by Christopher Straub, Deputy Pima County Attorney, in his trial opening statement when he told the court in C2007-2073 (the “database case”) that “we know” “the databases” “can be altered using Microsoft Access” “because one could also alter the audit logs.”

That highly unusual and suspect procedure led to the destruction of the original vote tallies and database of an identical name. Crane then illegally printed two copies, ten minutes apart, of the election “summary report,” a detailed report of actual vote totals. By law, these reports are not to be printed until one hour after the polls close on Election Day. To summarize, Crane ran what looked like normal actions on 5/10/06 and made a “snapshot backup” of the file when counting was done for the day. On the morning of 5/11, he wrote over the database from the day before, which destroyed and replaced the original data. He then printed two copies of the new vote totals only ten minutes apart.

At that time, Bryan Crane had been using GEMS for ten (10) years. The overwriting of the prior ballot results was not known to have been done in any prior election.

Bryan Crane could not explain at deposition why he erased the original vote count or why he illegally printed two detailed summary reports of the vote totals as recorded by the computer.

Prior to the RTA election, the Arizona Secretary of State had been sent, as required by law a tape showing the ballot layout and the instructions to the machine on how votes were to be counted. The purpose of sending that tape to the Secretary of State is for it to be used in a fraud investigation. That tape could have been used by the Libertarian Party to compare the actual instructions used in the RTA vote counting. That tape was never examined by the Secretary of State or the Attorney General. Instead, it was mailed back to Pima County where Election Director Brad Nelson personally delivered it to Bryan Crane. Once in Bryan Crane’s possession the tape disappeared and has never been seen or examined by anyone outside of the Elections Division. The mailing back of the tape had never been done before by the Secretary of State for any election jurisdiction in Arizona.

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