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The testimony of Brad Nelson, the Director of Pima County's election department, is important as much for what he doesn't know and refuses to say as for what he says and what he knows. The plaintiffs purpose is to paint for the judge a portrait of a manager out of touch with the fundamental work of his organization, ignorant of even the rudiments of computer technology, who fails to keep abreast of current information regarding election security, and relies entirely on the competence, judgment, and probity of his employees, even when they demonstrably should not enjoy his confidence. Such a manager can easily fail to take necessary steps to protect the integrity of the people's elections without someone providing oversight over the inner workings of his organization, which he manifestly doesn't understand and thus cannot be trusted to oversee himself.
Keep in mind that the improvements to security and integrity bruited by Nelson before the court, and later by the Pima County Administrator Chuck Huckleberry, came primarily not from the bureaucracy charged with the task of securing our elections, but from the very same committed activists working through the Democratic Party who are behind this suit.
Both Nelson and Huckleberry plant their flag on hand count audits as the best way to assure integrity, not oversight of the database; yet Dr. Ryan, the mind behind the hand count audit laws, is on the other side of this controversy saying unequivocally that the audit alone is not enough. The very same physical and procedural security measures the insiders now say are sufficient to prevent intrusion into their computer systems were suggested to them by Mickey Duniho, who says that now 100% of the threat is from the inside, and must be guarded against.
Nelson's testimony strongly indicates that he was not only ignorant of security vulnerabilities in the GEMS system his organization uses, but seems to have actively avoided learning about them at times. When given opportunities to adjust practices to enhance integrity, such as a voluntary hand count audit prior to the 2006 passage of that law, he declined, and mischaracterized the capabilities of the systems he oversees to justify his refusal.
Nelson seems to have been woefully ignorant of deficiencies in basic security procedures in his own office such as handling of data backups and vote totals in summary reports, and even claimed ignorance as to the existence of a fire-proof safe in the office. He remains unwilling to look behind the statements of his employees, regardless of their self-contradictions or credibility. He has not conducted an internal investigation of a single allegation of wrong-doing. This is likely unacceptable behavior in a manager of a McDonalds. not to mention one charged with managing a task that requires the utmost public confidence and the highest standards of integrity.
When questioned about a box of tapes containing election databases from prior elections, Nelson became highly evasive. He claimed he had no knowledge of whether a particular tape containing RTA election database, which the Secretary of State's office affirmed they did send, was ever received, even suggesting that it was never sent. Frankly, I would say that the County Attorney actively assisted the witness in trying to muddy the waters on this point, giving their imprimatur to the idea that the tape was never sent during cross exam. I was frankly disappointed to see such a amateurish ploy in a bench trial by a county attorney. Such antics might impress juries on occassion, but never a judge. Perhaps the presence of camera got the better of him, after all. This cavalier handing of the very data that is requested by the plaintiffs is a severe indictment of the seriousness with which Nelson's organization actually regards the data that it now claims is too sensitive to release to the political parties.
Blake Moorlock and Garry Duffy produced an excellent piece in the Citizen on the issue of the missing RTA backup tape.
In a notable departure from his customary disinterest in security matters, Nelson claimed that he authorized the purchase of a crop scanner (a device used for reading and writing solid state memory cards, which can then be used to hack election scanners) after reading of an exploit on BlackBoxVoting.org. He authorized Bryan Crane to use the device to test the exploit, and finding security concerns, changed some procedures.
As a special bonus for those who are paying close attention, no, Nelson is never asked directly to confirm or deny a non-platonic relationship with Mary Martinson by either party.
Video footage of Brad Nelson's testimony:
After the flip is a summary of Brad Nelson's testimony. Thanks to Dave Safier, without whom this project would be impracticable. Please recall that this is not a transcript but a summary and condensation of testimony...
Summary of testimony by Brad Nelson
Direct Examination by Bill Risner, attorney for the Pima County Democratic Party.
Brad Nelson has been the Director of Pima County Elections since April, 2002. Previously, he was Elections Director in Mojave County, AZ. He has been President of the Election Officials of Arizona for 6 years, 2001-2007.
Nelson has only a rudimentary knowledge of the GEMS software. He relies on Bryan Crane, the division’s computer technician, to understand GEMS.
Twelve Arizona counties use Diebold software, including Pima County. However, during the educational meetings of the Election Officials, they did not have discussions of Diebold security problems. The twelve counties also have a Diebold users group. The group has discussed computer security, but Nelson doesn’t remember any discussions of software security.
The Arizona Secretary of State has not said anything relating to the security of GEMS.
Prior to mid-2006, the Pima County Board of Supervisors never checked into election computer security. At that time, John Moffatt, manager of strategic technical planning, began checking security.
Nelson had not discussed computer security with Chuck Huckelberry, county administrator. The Board of Supervisors never gave him directions about computer security.
Diebold hasn’t discussed software security with Nelson.
The Pima County Democratic Party has been helpful in increasing security, and it has not interfered with operations.
In a meeting with Nelson, Tom Ryan and Bill Risner from the Democratic Party asked if early ballots could be segregated into precincts. Nelson said that would be difficult. Nelson doesn’t recall Ryan asking about “batch vote” counting. Nelson doesn’t recall saying he would check with his computer technician to see if it was possible. Nelson doesn’t recall calling Ryan a few weeks later and saying “batch voting” couldn’t be done.
When asked if he later learned he could print vote subtotals, Nelson said he always knew that.
A Logic and Accuracy test if run prior to counting ballots. In the 2006 elections, about 5,000-10,000 early ballots were waiting when the counting began.
When asked if the law allows printing of summary reports to know vote counts before elections, Nelson answered, he believes the statute says it doesn’t allow for preferential counting of ballots.
Nelson learned that Crane printed two summary reports on May 11, 2006, prior to the close of the RTA election, from the Democrats’ questions and requests. He asked Crane why he was printing the reports, though he can’t remember when he asked.
Risner reminded Nelson that, in an earlier deposition, Nelson said he did not inquire about summary reports printed prior to the elections. Nelson looked at the deposition but did not recall making that statement.
Asked why Crane printed the summary reports, Nelson thinks Crane answered that it would have been more appropriate to have printed out a card summary reports instead. Crane said the summary report was printed after a backup was over-written, to make sure the count was still correct.
Nelson has heard that Microsoft Access can be used to get into GEMS databases without a password.
Nelson believed in Feb, 2007, when a deposition was taken, that you couldn’t use MS Access to get into a GEMS database in Pima County without a password. Now he knows you can. He knows you can get into a database on a home computer using MS Access on a CD copy of a database.
Nelson recalls Isabel Araiza telling him that Crane took tapes home with him. Crane said he was taking office documentation home: poll workers’ names, etc.
There may be a safe in the Elections Division where the tapes could be stored, but Nelson isn’t aware of it.
Nelson learned that the Secretary of State had sent a box of tapes of prior Pima County Elections to the County Recorder. That was the first time the Secretary of State had ever returned anything to the county. The box was then delivered to Nelson’s office. The box was already open. No one in the office catalogued the contents, but they saw tapes were in it and sent it to Crane’s office. Crane’s office also did not catalogue the contents. The box does not now contain the tape from the May, 2006, RTA election. According to the Secretary of State, that tape should have been in there. All other tapes of elections from 2001 until the present in both Pima County and Tucson City were there.
A crop scanner was purchased by Pima County around July, 2005. Nelson bought it to test what he had read on BlackBox Voting: that it could be used to hack memory cards. He ordered the scanner two weeks after the report in BlackBox Voting. Crane tested what he read in the report and found some of the uses described were valid. The crop scanner stayed in Crane’s work area.
Diebold said safeguards at local level could stop people having access to memory cards where they could be hacked. Because of this, the county stopped the practice of “sleepovers,” where inspectors took machines home with them before elections.
Cross Examination by Deputy Pima County Attorney Thomas "Tad" Denker.
Nelson has been in election administration for 32 years. Elections are very complex, and mistakes are made. Crane’s reputation among his coworkers is stellar. He is hard working and takes his job seriously.
When vans carry boxes of ballots from the Recorder’s office to the Elections Division, two people are in the van for chain-of-custody reasons. It isn’t necessary that they be from different parties.
In all-mail elections, results can be released at 7pm, while with elections with polling booths, the release time is 8pm.
It’s not illegal to print summary reports before an election, but it’s illegal to distribute them.
During the RTA election, Crane did two backups per day of the database. It wasn’t necessary, but it was good policy.
The Division of Elections has two computer systems: the vote counting and the administrative computer. They have separate backups.
Nelson purchased the crop scanner because he takes elections seriously.
When Risner said a tape was “missing” from the box from the Secretary of State’s office, that implies the tape was there. Nelson knows of no one taking anything out of the box.
In the precincts, ballots with write-ins are automatically placed in a separate compartment from the other ballots. Sometimes the system doesn’t work, and some write-ins are put with the others. In those cases, the ballot bags are opened to find the stray write-in ballots.
It would be unreasonable to call a political party observer to watch these bags being opened in these cases, because it happens quickly, and there may be bags having to be opened throughout the day.
Nelson has no evidence that votes have ever been intentionally or unintentionally altered.
When Nelson and Martinson went to the movies, they drove there separately and drove home separately.
Redirect by Bill Risner
Nelson helped Martinson put in a patio and a safe in her house.
State law forbids counting of ballots for the purpose of projecting the outcome of the elections. Nelson doesn’t believe that refers to printing summary reports before the polls close.
According to Risner, GEMS manual says summary reports should not be printed until the polls are closed. Nelson didn’t know that, but he imagined it is true.
Political parties should be notified when bags are going to be opened so they can send observers. One Democratic observer told Nelson he could call her any time, day or night, if he needed an observer.
On election day [2006?] a seal was broken in the elections division
early in the morning without calling observers beforehand, in violation
of the rules they had established. Nelson agreed he could have called
any number of party observers.
Court's indulgence from Thomas "Tad" Denker.
Seal was broken because a machine in a precinct wasn’t working. Brad broke the seal to create a new memory card so ballots wouldn’t pile up in the polling station waiting to be scanned.
Court's indulgence from Bill Risner.
A slot is available to put ballots in which cannot be scanned. That means Nelson could have supplied the memory card later in the day.