Ballots from ‘Fixed’ Arizona Election Finally to be Counted in Criminal Investigation by State AG

– Special Report by Brad Friedman, The BRAD BLOG

The 400 previously rejected absentee ballots in the Coleman/Franken U.S. Senate race in Minnesota won’t be the only ballots being carefully counted next week. Neither will the more than 5,000 being counted in the NY-20 U.S. House special election where (fewer than) 25 votes, out of 150,000 cast, currently separate the winner from the loser.

A hand count of thousands of paper ballots that could trump all of the above, at least in regards to national importance, will quietly occur next week in a highly-secured Maricopa County, AZ, facility, as part of a years-long criminal investigation. Ironically, coming as late as it does, three years after the election, the results of the count, no matter what they may be, will not affect the actual outcome of that election — even if it is found that the results were originally rigged by elections officials.

After almost three years; hundreds of legal documents; scores of hours in courtrooms; precedent-setting legal findings forcing the public release of Diebold computer databases supposedly recording how citizens voted in their own elections; allegations of potential hacking and fraud believed to have been possibly carried out by election official insiders; indications of tampering described as the result of “human error” by a report commissioned by the state AG, as part of a criminal investigation subsequently described by critics as a “whitewash”; arrests of local election integrity advocates; and lord knows how many articles documenting it at all here at The BRAD BLOG over those years, the paper ballots from the curious 2006 Regional Transit Authority (RTA) election in Pima County (Tucson), AZ, will finally be counted, beginning next Monday, as part of a criminal investigation being carried out by the state’s Attorney General.

The hand-count of all 120,821 ballots from that special election will be carried out not in Pima, but under the supervision of “certified professionals who work for the Maricopa County (Phoenix) Elections Department,” according to a 2-page letter [PDF] sent by the AG’s office to the chairman of the Democratic Party of Pima County. The “strictly-monitored” count will either settle, once and for all, the matter of whether that election was conducted fraudulently by election insiders manipulating the vulnerable electronic Diebold tabulation system — or it won’t…

‘This is a criminal investigation, not an elections process’…

As described in the AG office’s March 23, 2009, letter to the Democratic chair, the hand-count count will be conducted “in a secured facility under the supervision of police officers employed by this office” along with one representative each from the Republican, Democratic, Green, and Libertarian parties under strict rules which disallow, for some reason, even the taking of notes by those party representatives.

“If you desire to send a representative to the ballot examination, please identify three candidates,” the AG’s letter instructs, “from whom we will select one person per party to be a witness to the ballot examination.”

The letter from Donald E. Conrad, Chief Counsel for the Criminal Division in the office of AG Terry Goddard to Pima’s Democratic Pary chair Jeff Rogers, explains that background checks will be conducted on the party’s choice as a representative who “will be subject to…both a physical search and by a metal detector.”

Any such observers will need to be available to go to Phoenix, 120 miles away from Tucson, for five days next week, on their own dime. Similar letters were sent to the other three local political party heads.

“I must emphasize that this is a criminal investigation, not an elections process controlled by applicable Arizona election laws,” Conrad wrote. “Attendance and the procedures undertaken at this examination will be strictly monitored and overseen by the Office of the Attorney General.”

“Their choice of our observer is nothing but an attempt to keep [local election integrity activist bulldogs] John Brakey or Jim March from observing,” wrote the attorney for the plaintiff, Pima County Democrats, Bill Risner, in a recent email. “Why should they select our observer?”

Brakey, a Democrat, and March, a Libertarian, have become local heroes for their years-long dogged pursuit of transparency and accountability in Pima County’s elections and, in particular, the ’06 RTA election which allowed for the county to issue two billion dollars in transportation bonds over the next 10 years.

Brakey has long been a thorn in Pima election officials’ sides, as seen in just one instance in the video at right — which we’ve come to describe as “Election Official Gone Wild” — featuring Pima’s Republican Election Director Brad Nelson freaking out after a simple question asked by Brakey at a public meeting in 2006.

After we’d posted the video here originally, it caused enough of a local stir that Nelson would be forced to grudgingly apologize for the embarrassing outburst, when a local television news outlet covered the ensuing brouhaha.

But the hot-tempered Nelson managed to hold enough of a grudge about that, and the continuing allegations concerning his office’s handling of the RTA election, that he managed to order Brakey arrested in 2008 during a post-election hand-count of ballots, when the election watchdog noticed that security seals were missing and/or broken on a number of ballot bags selected for counting.

For his part, the mild-mannered Libertarian March, a founding board member of BlackBoxVoting.org, went about helping to create a fraud-busting software tool to analyze Diebold databases for red flags that may suggest possible tampering, after the Democrats had won their case against the county, seeking the release of databases from the RTA election. Their victory in court led to the largest such collection of Diebold databases ever released to the public.

March now says, in his usual understated way, that he’s “kinda pissed” after having been been cut out of the possibility of observing next week’s hand-count on behalf of the Libertarian Party all together by the dubious restrictions set out by Goddard’s man Conrad as to who is allowed to observe inside the examination room.

“This guy Conrad set up the requirements to try and exclude any critics of his department: parties were told to submit three names, and the AZ AG’s office would pick one out of those three. The Pima LP [Libertarian Party] had only one person both qualified and able to spend a week in Maricopa 120 miles away: me. So when Pima LP wouldn’t play their sick game, they found a different way to exclude me,” March told us in email today.

A 2-page letter [PDF] sent yesterday (4/2/09) from Conrad to the Pima LP chair David Nolan, says March, the only candidate submitted by the Libertarians, “is not an acceptable nominee” due to his having been “previously arrested for disobeying restrictions on access to areas of a voting facility in California.”

The arrest of March referenced by Conrad was during an election count in San Diego in the summer of 2005. March was arrested on one felony count, after county officials claimed he was violating observation rules. All charges against March, however, were dropped one week later.

Subsequent to the arrest, the CA Secretary of State mandated that election monitors be given the access that March, correctly, believed he’d already had the right to under the law.

“The county was violating the law as to observation of the counting,” March says. Not only did he win “big time” in the case, “but the reforms that came from that, directly sprang from my actions,” he told us today. “There’s a reason San Diego dropped all charges — they were at at fault.”

Nonetheless, Conrad’s letter yesterday to the Libertarian Party chair incorrectly characterized the incident, and used it to his assert a veto of March as an observer. “My decision is based on his demonstrated willingness to violate the laws that govern behavior at a voting facility,” writes Conrad, despite the fact that March was never found to have violated any such laws.

The chair of the Pima Republican Party, Bob Westerman, was similarly dubious of the AG’s requirement, complaining to the Tucson Weekly late last month after receiving Conrad’s letter: “I find it a little odd that we have to submit three names, and that they pick the one out of three. I don’t see how it would matter who it is? It is an extra step I don’t understand. And for me as a chairman it makes it tough to find three people qualified, but can also spend five days in Phoenix. I have basically a week now to find these people and they in turn have less than two weeks to make plans to be there.”

Now You See ‘Em, Now Ya Don’t…

In late February, while we happened to be in Phoenix for a local fundraising event, we’d received the surprise news that “the AG hauled the boxes [of RTA ballots] away” on February 24th. They had been securely stored for much of the duration of the contentious court case by the Pima County Treasurer in the local Iron Mountain secure storage facility. The Treasurer, Beth Ford, had recently been seeking court direction on whether the ballots should finally be destroyed all together.

At the time, there was no public explanation for Goddard’s actions, which was taken without either notice to, or the supervision of, the Pima plaintiffs in the long-running court case. Though it was suspected the ballots were secretly transferred from Tucson up to Phoenix, nobody knew for certain. Phoenix activists picked up the ball a few days later, and demanded information from Goddard. They were able to learn that, indeed, the ballots had been transferred to Phoenix. There were still no details about the chain of custody during that transfer, and the ensuing storage in Maricopa.

(You can watch Brakey and March trying to chase down the whereabouts of the ballots in Phoenix, after they were seized by Goddard, in this video.)

Though the Attorney General is also a Democrat, he has long refused entreaties from members of almost all of the local parties, until now, to count the actual paper ballots as part of a criminal investigation. (A video of several local election integrity advocates confronting AG Goddard in 2006, asking him to count the ballots, can be seen at right.)

While the Democrats had originally supported the RTA initiative in 2006, which passed despite pre-election polls suggesting that it likely would not, they joined with a number of local Republicans, Libertarians and Greens during the process of the lawsuit, seeking to determine if the election may have been defrauded. While the Pima plaintiffs are generally happy to see that Goddard is finally moving the ball forward to count the RTA ballots, their concerns remain, as it’s fair to say that the plaintiffs in Pima still don’t much trust Goddard — or his motives.

Since former Democratic Governor Janet Napalitano was tapped by President Obama to head the Dept. of Homeland Security, the state’s former Republican Secretary of State Jan Brewer has become the Governor. Goddard plans to run for the Democratic Party nomination to unseat her in the state’s upcoming election.

March — seen in the photo above, outside of Goddard’s Phoenix office, holding a sign that says “DUDE, GOOD LUCK WITH THAT WHOLE ‘GOVERNOR’ THING” — contends that there has been plenty of opportunity over the years to game the RTA election’s paper ballots, when they were out of the secure chain of custody at various times, including during the more-than-month-long interim following Goddard’s secret removal and transfer of the ballots from Tucson to Phoenix.

“The paper ballots were originally stored at the Pima elections office, then were transported to the Iron Mountain private document storage facility, back to Pima elections as part of litigation over access to other documents in the same boxes, then back to Iron Mountain, then were grabbed by the AZ AG’s office and taken to points unknown with no oversight, and then under some circumstance we don’t have details on, will go to the Maricopa elections office for counting,” wrote March in a document he shared with The BRAD BLOG, adding “There are (or have been) opportunities for tampering at several points along the line.”

The attorney Risner is similarly suspect of Goddard and company.

“The AG’s office seized the ballot boxes in response to my letter on behalf of the Pima County Democratic Party that we would soon be obtaining copies of the poll tapes from the ballot boxes and we wanted them to participate to the extent that potential evidence was not contaminated,” he recently said.

Risner had made a public records request for the poll tapes from the election, which would have been printed on election night, at the polling place, describing the results of optically-scanned ballots before those numbers were sent to the central Diebold tabulator. But before the records request could be performed, Goddard swept up the tapes which had been stored along with the ballots themselves.

“The AG’s [office] accepted our suggestion and secretly seized the ballot boxes and has not communicated with me further,” Risner said.

“The examination of the ballots is really no different than the examination of evidence in any case. Security is important,” Risner explained, though he’s highly critical of the way Goddard’s handled the entire process. “Keeping the process secret is not important,” he said.

He went on to note the “very important” history of the AG’s prior investigation into the allegations, some years earlier. “It is a fact that the AG’s office teamed up with the ‘Suspects’ [the Pima County election officials] in an early part of this investigation,” he said, pointing out that he’d never seen similar collusion between a prosecutor and an alleged perpetrator before.

In addition to relying on instructions from the Pima County election officials — the “suspects” — themselves, as to how to evaluate the Diebold databases and audit logs during the earlier investigation, rather than relying on the Democratic Party plaintiff’s suggestions, Risner says the AG’s office has been less than cooperative for years. “The AG’s office refused to provide public records…to the Pima County Democratic Party and ordered the county (the suspects) not to provide us with a copy…That conduct was outrageous and clearly in violation of the law,” contends Risner.

What It All May Mean…

An editorial in the Tucson Citizen this week avers that next week’s hand-count will “either put to rest allegations of ballot tampering – or it will breathe new life into those allegations, casting an irrefutable pall over operations of the Pima County Division of Elections.”

While questions remain as to whether the long-overdue count will, indeed, “put to rest” such allegations, if fraud is, in fact, found, it could well rock the nation — trumping both the MN Senate battle and the more recent NY-20 U.S. House battle, both facing hand-counts as well next week — as to the way that the U.S. currently tabulates, in secret, the vast majority of its votes.

A finding that fraud was committed in the 2006 RTA election would be the first officially confirmed case of an election being electronically tampered with, at the tabulator level, in the modern e-voting age. In the face of the lack of hard confirmation of such tampering (due, in no small part, to the fact that the e-voting industry has spent millions keeping any such evidence out of the hands of independent investigators) the e-voting industry and their fellow-denialists have desperately contended that there is no hard evidence that any election has ever been electronically manipulated in such a way.

The Tucson Weekly editorial goes on to optimistically opine that while it’s “unfortunate the hand count is being done in Phoenix…Pima County voters soon will have the satisfaction of knowing – without a doubt – whether their votes were accurately counted.”

Whether such a “doubt” still remains after next week is anybody’s guess. Given Goddard’s more-than-month-long disappearance of ballots from the secure, transparent chain of custody, he’d better hope that his office finds the election was defrauded. Any other finding will likely continue speculation by critics of both Goddard and the Pima County Department of Elections.

AG Goddard’s sudden, surprise interest, along with his strange behavior in the entire affair, was summed up in one simple, if perhaps understandably cynical, turn of phrase from the Democrats’ attorney Bill Risner in an email today: “It’s quite the interesting show from someone who is running for Governor in the Democratic Party primary.”

There may be no observers permitted into the counting room at all from the Libertarian Party, and none of the observers will be allowed to video tape, or even take notes, as per the instructions from AG Goddard’s office, but Conrad said in his initial letter to the party chairs that “Maricopa Elections also has arranged to have live streaming video of the examination available to the public on the internet.”

Following complaints from the election integrity advocates that previous video feeds of ballot counting had disallowed the viewing of anything but the people doing the counting, rather than what they were counting, Conrad noted in his letter yesterday to the Libertarians that “Eight cameras will stream live video of the examination proceedings to the internet”.

Beginning on Monday, that live video feed will be available here.

UPDATE 4/6/09: The counting is now underway, and the eight camera live feed, promised by the AG, is utterly useless. Only two of the eight cameras actually show any counting at all, and both of them are too far away to see anything useful. Details here…