RTA election fraud suit under advisement

Arizona Daily Independent
Lori Hunnicutt

Pima County Superior Court Judge Kyle Bryson has taken under advisement the matter of whether Pima County’s alleged voter fraud in the Regional Transportation Authority (RTA) election on May 16, 2006 will be heard in Court. The Arizona Court of Appeals overturned a previous decision by Judge Harrington that his court did not have jurisdiction and remanded the case. Judge Bryson was assigned the case late last year.

A packed courtroom listened as attorney Bill Risner respectfully told the Judge Bryson that the previous judge had made a mistake, and “now is your chance to fix it.” The judge will most likely decide whether to fix the mistake or not within the next 30 days. Plaintiffs do not expect a ruling before the current Primary Election is over.

At the time of the RTA bond election, questions arose regarding the election results almost immediately. They persist in this lawsuit in Arizona Superior Court.

County races, including large bond elections are currently exempted from a hand count of the votes, which increases the concern about election fraud.

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. According to attorney Bill Risner, 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” Huckleberry, 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.”

Plaintiffs say that 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. In the suit, it is alleged that “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.”

Both conservative and liberal activists hold that the goal of the lawsuit is to make elections a transparent process by removing Pima County’s ability to cheat undetected. They have fought for over six years of litigation for the courts to decide they indeed have jurisdiction to ensure clean elections.

Arizona Election Fraud: Pima County's Desperate Arguments Against the Court's Protection of Evidence

 J.T. Waldron

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.