Close Congressional Race Between Barber and McSally Presents an Opportunity to Verify with a More Transparent Optical Ballot Scanning System

J.T. Waldron

The Arizona U.S. Congressional race between Democrat Ron Barber and Republican Martha McSally was alleged by the Pima County Elections Department to be such a close contest that they require a recount to determine the winner. Martha McSally's slim margin of 161 votes over incumbent Ron Barber falls within Arizona's "one tenth of one percent" rule that requires a recount after the state canvass. Despite one provision of the law calling for a different program, recounts are typically performed with the same machines that may have an estimated margin of error of over 0.13% or 250 votes. The most convenient, compliant means for confirming an election this close is through optical scanning of ballots as demonstrated in Humbolt County and with the more refined "Clear Ballot" system.  Clear Ballot takes photographic scans of each of the ballots, reads the ballots and separates them into precincts with a level of speed, accuracy and flexibility that has never been matched by any of the current voting systems.

Mickey Duniho, a former NSA analyst and member of Pima County's Election Integrity Commission, describes the problem with Diebold scanners used by Pima County:

Using Pima County’s 2012 Presidential Primary percentage as a guide, today’s scanners may have missed as many as 250 intended votes, almost double the number separating Barber and McSally in the original count. If you rescan the same ballots with the same scanners, you are liable to get different totals with every scan simply because of the technological imprecision of the scanners.

What was the cause of this 250 vote margin of error in 2012? In Pima County's elections system, voters use a black felt tip pen to fill in the ovals on a paper ballot to indicate their preferences. Diebold scanners recognize an actual mark inside an oval only if it contains what that particular scanner determines as a sufficient mark. Crosses, checks, center dots and any other effort by the voter to mark an oval may be interpreted as blank if the voter misses a portion of the white inside the oval.

Diebold's count is further hampered by stray marks or smudges errantly interpreted as another mark when the stray ink hits another oval. Pima County's Diebold machines are calibrated on a regular basis to provide some control over how these marks are interpreted. Unfortunately, the percentage of blank votes appears to be increasing over each election since 2004. Close elections like the Barber/McSally race turns this margin of error into a 'margin of disenfranchisement'.

Bev Harris, author of Black Box Voting, recalls the birth of our current electoral quagmire:

Vendors and lobbyists leveraged the Florida fiasco to persuade well-meaning legislators to enact a sweeping election reform bill, the Help America Vote Act (HAVA), creating a gold rush to purchase new voting systems, under tight deadlines, using federal money. Vendors did not disclose to lawmakers that their optical-scan systems and touch screens had a history of glitches, bugs and miscounts, and because their computer code was kept secret and proprietary, even U.S. senators and representatives could not know about security flaws or learn just how broken the “certification and testing” system really is.

Once this federal mandate was implemented, nationwide oversight has been abandoned as all the seats in the U.S. Election Assistance Commission remain vacant. Victoria Collier, the editor of votescam.org, describes the current electoral landscape as "a vast patchwork of electoral fiefdoms where laws, procedures and private-vendor technology change from state to state; even from county to county."

In the fiefdom of Pima County, effective verification is consistently undermined. In 2006, Arizona's hand count audit law saw its proposed sample size reduced to a mere one percent of early ballots thanks in part to the lobbying efforts of Pima County Elections Director Brad Nelson. In 2010, Nelson circumvented Pima County's Election Integrity Commission (PCEIC) by requesting that the Secretary of State waive his requirement for Pima County to presort early ballots by precinct before they are audited. Millions of taxpayer dollars were spent by the county in an effort to prevent election transparency. The video below explains some of the concerns that PCEIC members Mickey Duniho and Jim March had about lack of substantive auditing procedures for Pima County's elections.



Ironically, a hand count audit contradicting the official tally has no bearing on the election.

According to the tallies provided by opensecrets.org and the New York Times, over sixteen million dollars have been spent on the Barber/McSally race exceeding the cost of $70.00 per vote.
Incumbent Ron Barber's campaign asked the Pima County Board of Supervisors (PCBOS) to delay canvassing over concerns of rejected ballots, poll workers sending voters to errant polling places and at least 132 ballots thrown out due to mistakes by election officials. Pima's board supervisors have rejected far worse conditions in the past so Barber's team shouldn't be too surprised at their refusal to postpone this election's approval.

Both candidates should recognize why the winner of their nationally publicized, highly contested bid for Congress cannot be determined with certainty by the Pima County Elections Department.

Arizona Secretary of State Ken Bennett has the unique opportunity to preside over the inevitable advancement in elections technology by confirming the result of this congressional race. We would like to name Bennett among forward thinkers like Secretary of State Jim Condos in Vermont who is now using the new scanning technology developed by Clear Ballot. Condos, who recognizes that random audits are "an integral part of performing checks and balances of our voting system" provides substance to his claim "as Vermont's Chief Election Officer, I take this duty very seriously".

Arizona Revised Statute Section 16-664(A) seems to provide for Bennett to follow suite:

In the event of a court-ordered recount of votes that were cast and tabulated on electronic voting equipment for a state primary, state general or state special election, the secretary of state shall order the ballots recounted on an automatic tabulating system to be furnished and programmed under the supervision of the secretary of state.

Subsection (C) allows Bennett to use a different program:

The programs to be used in the recount of votes pursuant to this section shall differ from the programs prescribed by section 16-445 and used in the initial tabulation of the votes.

In 2009, Clear Ballot founder Larry Moore visited Tucson to talk about the level of transparency graphic ballot scanning could bring to the elections process. Here he met Arizona Secretary of State Ken Bennett, who attended his presentation at a meeting with the PCEIC. The video below shows Moore providing a brief presentation of what he learned from Humbolt County before his departing flight.

While Pima County was skirting a proper hand count audit in 2012, Larry Moore introduced his brand of election verification technology to a welcoming district in Florida. Here is a presentation by a local Fox affiliate.


Ushering in the new year with mid-term elections, Moore's development of Clear Ballot and its presentation finds larger audiences through talks like "TEDx".

For the first time in Arizona, a congressional race seems numerically impossible to resolve through our deficient tabulation systems. Ron Barber, Martha McSally and the Secretary of State have an opportunity to ensure the legitimacy of this recount by introducing a technology capable of the transparency so thoroughly eroded since the 2000 presidential election.