A thorough case study of the pursuit of justice once an election has been compromised. Arizona is the most corrupt state in the nation. Pima County has the added distinction of the highest paid county administrator in the nation. What could go wrong? Fatally Flawed can answer that.
Pima County has not only fought over the plain meaning of various election and public records laws, it has actively intervened in drafting of election laws.
Specifically, in 2006, former Representative Ted Downing and former Senator Karen Johnson authored SB 1557 in the State legislature to mandate random auditing and hand counting of ballots. Pima County Election Director Brad Nelson told Downing that including county races in the bill would be a "deal breaker". Nelson said that he and the Maricopa County Election Director would oppose the entire bill if the County elections were covered by the mandatory hand count. Because of that threat, SB 1557 was passed into what became A.R.S. §16-602 and County races were not included.
Whether they are denying statements made in a hearing four days ago or they are claiming that the Libertarian party's motivation for prospective relief is to "make a movie", Pima County appears to be in a state of panic. After the Arizona Libertarian Party won their appeal for prospective relief for rigged elections, last week's initial hearings were prolonged by the county's absurd arguments against rudimentary measures to protect evidence and to learn how evidence was previously handled.
The evidence in question rests in cardboard boxes at an Iron Mountain storage facility, which is holding poll tapes, summary reports, ballots and other paperwork involving the 2006 Regional Transportation Authority (RTA) election.
Pima County's private attorney Ronna Fickbohm claimed last Friday, "Pima County has never said, 'we object to simply asking Beth Ford to get a certified statement from Iron Mountain listing who's accessed the records since the day they came to them and show it to you.'" Fickbohm contradicts her own testimony from the previous Monday. Bill Risner, an attorney working with the Libertarian party, promptly reminded Judge Kyle Bryson last Friday, "At the last hearing, where we were talking about deposing Iron Mountain and Ronna Fickbohm was arguing, Pima County was arguing against that. Her argument talked about how 'in front of Judge Borek, she was successfully able on behalf of Pima County to prevent us from obtaining information about what happened to those boxes. '"
Pima County's other private lawyer assigned to represent Treasurer Beth Ford, John Richardson, introduced a procedure making Beth Ford an inextricable part of the process designed to protect the ballots. Rather than making ballot custody an impartial process by removing all parties and leaving any orders to the judge, both Richardson and Fickbohm presented arguments about how such a court order could potentially implicate Beth Ford by suggesting there is good cause to protect the ballots.
As Bill Risner states last Friday, "The good cause is that it's important evidence that needs to be protected. That's the good cause...it was stunning what was done with this court's vault, which simply heightens the need for it to be clear to Iron Mountain...much better than a complicated order that relies on Ford's communication ... They repeatedly say that 'Gee, Ford's done this really great job', but if she did such a great job, how come Iron Mountain says 'No one ever told us'."
On May 18th, 2007, Pima County Administrator Chuck Huckelberry (who sets the county treasurer's budget) issued a memorandum instructing his legal team about the need to secure all evidence involving the 2006 RTA election. Later testimony confirmed, however, that no actual action or enforcement was implemented. According to testimony by an Iron Mountain employee, no specific instructions concerning the handling of the ballots were delivered to Iron Mountain. Pima County's private attorney Ronna Fickbohm goes to great lengths to dispute Bill Risner's reference to the memo as a press release. She says, "It wasn't a press release. It wasn't directed to Mr. Risner somehow Mr. Risner got a hold of it. It doesn't matter. It wasn't a big secret."
Fickbohm is correct in stating that it wasn't a big secret because that 'memo' was released to the local press at the end of the day. Reading the memo, the public's last impression comes from the final sentence, "We need to take action to ensure that all documentation, ballots, electronic files and other information sources are secured so they cannot be altered, tampered with or destroyed as I am sure an accurate independent review of this material will verify that the allegations made by Mr. Risner are absolutely untrue." This document can formally be labelled a memo, but it was clearly an exercise in public relations.
Initially, Pima County's refusal to disclose electronic public records for the RTA election sparked a lawsuit by the Democratic party. Pima County spent over one million dollars in their failed attempt to prevent public disclosure of election data, which eventually was released to the Democratic party.
This release, however, was marred by Pima County employee John Moffatt's violation of the court order requesting the transfer of the data to both parties at the same time. Moffatt managed to gain possession of the data from the county vault prior to the Democratic party finding out about the order. This acquisition occurred with no signature or paper trail.
In the following trial for prospective relief, Arizona Attorney General Terry Goddard grabbed the boxes of ballots the moment it was established that the Democratic party would gain access to the poll tapes that are included in the boxes. The Democratic party had experts ready to examine them for fraud. In addition to grabbing the poll tapes, Goddard's apparent purpose was to count the ballots in an attempt to vindicate Pima County. At this point, the Democratic Party abandoned their legal pursuit of prospective relief, but continued to fight for access to the poll tapes.
The Libertarian Party remained and succeeded in obtaining a precedent-setting ruling on behalf of prospective relief for elections so the court can intervene once there is a failure of existing laws and law enforcement (Goddard's investigation) to protect election integrity.
In the previous records case, Pima County admitted that software security is so bad, altering the outcome of an election is easy. In fact, the county is estopped from arguing otherwise in this current case for prospective relief. The county may eventually find itself in a similar position if they continue to make statements inferring that the RTA election was not rigged.
The Libertarian party intends to get a forensic examination of the RTA ballots to determine whether the cardboard boxes have been 'stuffed' with ballots generated by an ink-jet ballot-on-demand printer owned by Pima County. Terry Goddard refused such an examination despite the fact he was aware of the incident with John Moffatt and the Pima County vault. Another peculiar omission in Goddard's very public recount of the ballots behind glass was his refusal to incorporate basic auditing procedures. No sufficient audit took place because there was no comparison of the ballot totals to the precinct totals or poll tapes.
The Democratic party battled on for another year of litigation to gain access to the poll tapes. Over one third of the tapes were missing. Another 10% of the the poll tapes do not match the precincts they were supposed to match. The missing and errant poll tapes correspond to the precincts that had problems with memory card uploads. Problems with memory card uploads indicate attempts to reprogram the cards using an industrial farmer's crop scanner, a device that the Pima County Elections Division possessed during the RTA election.
"What this is really about, Judge, is the creation of new film footage for their commercial enterprise." said Ronna Fickbohm to Judge Bryson last Friday, "If you go online and Google fatallyflawedthemovie.com you will see a documentary that Mr. Brakey had asked you to film today put together starring Mr. Risner that was commercially available over the internet for twenty bucks a pop and it was even screened at the Loft."
John Brakey of CARE and AUDITAZ was operating the camera for the press pool footage of last Friday's hearing embedded at the end of this article.
Edited together with no narration or talking head interviews, the completed documentary, "Fatally Flawed" enables its audience to relive the experience of those who cared about the integrity of elections in Pima County. It has proven to be an important tool for the public interest to help educate viewers about what transpired between Pima County and election integrity advocates in pursuit of election transparency. It also contains important video evidence, like the footage of John Moffatt's county court shenanigans. This type of documentation makes the revision of past events much more difficult.
In addition to what's in the movie, there is footage of an array of tables behind glass at Goddard's recount.
Continuous running footage of one table's entire process of counting the RTA ballots shows identically sized cardboard boxes filled to the top edge with approximately 1600 ballots. Additional footage shows another table's complete count filling the same-sized box to the same level with approximately 1000 ballots. One of the crucial specifications in any print job is the paper thickness, especially when ballots are involved. This could be a troublesome dilemma for any last minute attempts at 'correcting the situation' by accessing the boxes a second time and replacing ballots for the purpose of passing a forensic exam. A successful switch would require ballots of the same quantity of different sizes to fit in the same number of equal sized boxes in exactly the same way they were filmed during Goddard's recount.
Referring to the boxes of evidence, Bill Risner tells Judge Bryson, "Whatever's in them needs to be protected. We certainly can't trust Pima County. The games in terms of that sort of stuff need to stop... It's hard to have faith, really, in any storage in view of what Pima County did to the vault of this court. That is out of my comprehension that someone can simply walk in and walk out, but they did it and that was a demonstration of incredible authority and power within the system. Demonstration of who's in control. Phenomenal. "
Pima County's desperate measures will not distract from the Libertarian party's primary goal behind this litigation - to ensure fair transparent elections for the future and prevent cheating by Pima County in upcoming elections. This case for prospective relief through the courts is a major milestone that could help with election transparency across the nation. Hopefully, Pima County will abandon or exhaust all delaying tactics and approach a timely outcome within this election year. There is far too much at stake.
Citizen's Agains Rigged Elections
Left to Right: John Kromko, Gayle Hart, Dick Kaiser, Gigi Nitka, Ralph Ellinwood Esq,
two dudes. Sherry Mann, John R Brakey, Mary DeCamp, Arlene Leaf, Ben Love,
Bill Risner Esq., New member, "the connect The Dots Lady" Andrea Witte, New member,
Raymond Graap, Jim March, Radio show host Jack Fitzgerald
Photo by Lee Stanley
The Libertarian party may depose employees at the Iron Mountain storage facility in an effort to determine who in Pima County had access to the ballots for the Regional Transportation Authority (RTA) election since 2006.
Previous depositions indicate that Pima County employees were able to access the RTA ballots since they were delivered after the election in 2006. The depositions were part of the hearings that ultimately led to the Libertarian party's successful pursuit of prospective relief for rigged elections. This court case was first triggered by the Pima County Treasurer's pursuit of a declaratory judgement over the ballots for the 2006 RTA election.
Originally, Pima County attorneys advised County Treasurer Beth Ford to sue the political parties (those charged with monitoring elections in Arizona) to "get a decision on what to do with the RTA ballots". The original idea was to provide an opportunity for Pima County to destroy the ballots before true auditing or a forensic examination of the ballots could take place. This idea backfired when the Libertarian party made a successful counterclaim for prospective relief from the courts.
A favorable ruling for prospective relief means the courts can intervene when there is a failure of existing laws as well as a failure to enforce existing laws designed to keep elections transparent and accurate.
Fighting Tooth and Nail over Rudimentary Disclosure
Pima County has taken elaborate, evasive measures that exceed what is legally customary when requests are made for public records, discovery, depositions and other seemingly innocuous items that could provide a clearer picture of election security.
RTA Ballot Custody Still a Major Concern
The county's most recent efforts at blocking disclosure involved the request by the Libertarian party to depose employees of Iron Mountain, the storage facility that held the ballots since 2006.
What reason did the county provide? Concern over the costs of the depositions. An ironic position given the exorbitant private attorneys hired by Pima County to litigate the case initiated by their Treasurer's office. Previously, Pima County attorneys handled the electronic records lawsuit over the RTA's database files. In addition to cost, Pima County's private attorney Ronna Fichbohm claims that the Libertarian party hasn't shown good cause for the need to find out what happened to the ballots.
Pima County employee John Moffatt, however, was all the cause needed to justify this line of inquiry. During the RTA records hearing, Moffatt had managed to take possession of a box in the county vault that had a court order specifically instructing that both parties be present when the box is released. This box contained two hard drives: one intended for the county and the other for the Democratic party. In violation of the court order, John Moffatt obtained possession of both hard drives before the Democratic party was aware they were available.
The Democratic party had publicly announced its intention of using software developed to pick up certain anomalies in the electronic database files soon to be released through a court ruling. Apparently, the county wanted a little 'extra lead time' with both hard drives while they were still in the process of developing their own software aimed at detecting what the Democratic party might detect.
The following clip shows the precise moment when John Moffatt was caught with his hand in the evidence cookie jar. Notice the free pass provided by AZ Daily Star's obedient reporter, Erica Meltzer:
Unfortunately, it's not just the county that disrupts the chain of custody of crucial evidence. The very same RTA ballots were removed from Iron Mountain's facility in February of 2009 by Arizona Attorney General Terry Goddard for his criminal investigation of the RTA election. While his appearance of upholding the law was initially appreciated, Terry Goddard played the unfortunate role of demonstrating why prospective relief is needed through the courts. In addition to the refusal to conduct a proper audit or a forensic investigation of the ballots, the chain of custody seems to be completely unaccounted for during the ballots' 5-6 week hiatus with Goddard's staff.
John Brakey, Co-founder of AUDIT-AZ and CARE (Citizens Against Rigged Elections) was on location at Maricopa's Elections Division as the ballots were rolled out in a cart to be counted.
" The boxes were an absolute mess, Boxes were already opened, tape looked like it was removed and reused. I kept asking myself and others 'How could the Attorney General take evidence without securing it?'"
Around this time, John Brakey gained notoriety for being falsely arrested through the request of Pima Elections Director Brad Nelson. Brakey discovered mislabeling of ballots earmarked for a hand-count audit and was promptly arrested when he brought the discrepancy to the attention of the Pima Elections Division. Charges were dismissed once it was made clear in the courts that Brakey did not disrupt the process.
This court case is set to continue this Friday, because Pima County is delaying the hearing to determine if the courts should obtain custody of the ballots during the case. Those familiar with this case know the answer to that question. The following initial disclosure statement is a great comprehensive statement of facts: http://tinyurl.com/LPFiling
All are invited to attend this historic hearing.
Friday, January 20th, 2012- 11:00 AM
Judge Kyle Bryson’s Courtroom
Fifth Floor, Pima Superior Court: 110 W. Congress
Tucson, Arizona USA
