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I’m not a lawyer, and though I’m computer literate, I’m not a tech guy, so I'm not an expert. But I have gotten deeply involved in the Democrats’ fight to increase the transparency of our elections and the suit to gain access to past election databases from Pima County. I sat next to Mike Bryan through the four days of the trial, recording the play-by-play testimony while he did the summaries and commentaries. Here are my impressions of the four days.
It became clear to me early in the trial that the decision in this suit was going to hinge on the kind of man Judge Miller is—not so much his political leanings as his intellect and temperament.
The arguments by the two sides certainly have a political component to them —are you more willing to accept the dangers caused by openness in government or the dangers inherent in allowing the government to operate in secret?—but as important, each side’s argument would appeal to a judge with a certain way of viewing the law.
Pima County’s argument for not releasing the databases is based on a very literalist view—that portions of the databases can be called “programming,” and therefore you can’t release them, because the law forbids releasing programming from the elections software. The argument, in essence, is that these are the rules, and you have to take them literally, even if they don’t make any sense, because, well, they’re the rules. (“I know you ran out of the store to administer CPR to someone who was about to choke to death in the parking lot, but you had a carton of milk in your hand, so technically, you were shoplifting.”)
The Democratic Party’s argument —that the bits of “programming” in the database are not an intrinsic part of the software and don’t give away any secrets—says you have to look at the intent of the law to understand it. (“Sure, leaving the store with merchandise you haven’t paid for is the literal definition of shoplifting, but we need to look at the larger picture here. His motivation was to save someone’s life, not steal a carton of milk.”)
If the judge is the kind of man who says, “I’m sorry, rules are rules. There’s nothing I can do, my hands are tied,” he will rule for the county and say the Democrats should not be given the GEMS database, because it contains some material that can be called a “computer program.”
If he’s the kind of man who says, “The intent of the law is more important than the strictest interpretation of a few words in the law,” then he will rule for the Democratic Party, because the information in the database that is “programming code” does not reveal anything that can be considered confidential about the election software and therefore poses no risk of someone’s using it to hack into an election and manipulate the results.
As I watched Judge Miller, I was encouraged by the fact that he has an expansive mind, the mind of a student hungry to learn more about the topic in front of him. Generally, someone who is hungry for deeper understanding of issues is less likely to have a rigid approach to things, and that favors the Democrat’s arguments.
I don’t think he began the case with a deep understanding of technology, but as I listened to the questions he asked, first in the hearings, then in the trial, I saw a growing knowledge and a growing curiosity about the technical issues concerning computers, software, code, etc.
He was not just doing his homework. He was understanding the material he was studying. I could hear him thinking, “No one’s going to bamboozle me with technical mumbo-jumbo in my courtroom. I’m going to educate myself so I can make a decision based on understanding, not based on who is the better bamboozler.” That means, listening to the County’s lawyers repeating, “It’s a program! It’s a program!” over and over won’t have much effect on him.
The Democratic Party has the better argument in this case. Once an election is over, it simply wants to see the records of the counting of the ballots. If this were a paper-and-pencil count, all they would be asking for is the pieces of paper that were used to make a running total of the votes, so they could see that the final numbers reflected the votes cast.
Wanting to scrutinize the vote count is so obviously within the oversight duties of political parties in Arizona elections, that part of the Democrats’ request isn’t even an issue. The primary argument the County has is that this is not about the right of the party to view the ongoing vote count. It is about the strict reading of Arizona law that forbids the party from seeing the method used to count the vote—the programming code the computer uses to make the count.
The County’s secondary point is the “If I told you that, I’d have to kill you” argument—that something about revealing the information to the Democratic Party would create an inherent danger to the state which would be far greater than the good created by increased transparency. And that “something” is the revealing of the programming code, which would give malevolent forces all over cyberspace the ability to hack into elections that use the GEMS software.
The best argument against the strictest interpretation of the term “programming” came from Mickey Duniho, one of the experts who is part of the Election Integrity Committee, during his questioning by the judge.
Duniho said, in essence, the line between what is data and what is programming has become so blurred in today’s computer world that it is almost irrelevant. Most databases are full of little bits and pieces that can be called “programming.” The important question is, do those bits and pieces reveal anything about the underlying software that makes it more vulnerable? In the case of the databases generated by the GEMS software, Duniho concluded, the answer is No.
(Mickey, this is my layman’s translation of your testimony. Forgive me if I messed it up a little.)
When Judge Miller questioned Bryan Crane, the election division’s computer technician, about the dangers posed by allowing the Democratic Party to have the databases, it sounded like the judge had accepted Duniho’s interpretation of the term, “programming.” The judge asked Crane to explain how the “programming” information in the database could be used to hack into an election and manipulate the results.
The scenarios created by Crane were ludicrous—bad actors creating their own memory cards, secretly breaking the tamper-revealing seals on the machines and slipping in the counterfeit cards, or creating false ballots, somehow duping voters into using them, and stuffing the ballot box with counterfeit ballots. If the trial ended at that moment, I’m reasonably certain the judge would have ruled in favor of the Democratic Party.
Toward the end of the trial, the County seemed to realize their only shot was to hammer home their “If I told you, I’d have to kill you” argument.
Their star witness, an “expert” from Kennesaw State University in Georgia, painted a lurid picture of what would happen if the database were released “into the wild.” (He loved that term, used it over and over.)
He painted a picture of hackers all over the world getting hold of the database and creating chaos in elections around the country. It was a variant of the oft-repeated Bush administration theme that if we reveal any of our secrets, the terrorists will use them against us.
By the time Bill Risner, the attorney for the Democratic Party, finished with cross examination of the “expert,” though, the threat of releasing the database was shown to be about as real as Iraq’s weapons of destruction, and the “expert” looked like a professor with one clever lecture and nothing else to say.
The judge said he’ll give his decision next week. I’m betting he’ll decide to release the databases to the Democrats. Though the judge has a great poker face and never gave away his feelings, his line of questioning tells me he saw the weaknesses in the County’s arguments and understood the value of letting the election observers—the political parties—perform their duties and do everything they can to assure that every vote is counted, and counted accurately.