Blog For Arizona

Sidelight in the Election Integrity saga: Brakey innocent. Nelson "over-reached."

by David Safier
The big election integrity story is happening in Maricopa County as we await AG Terry Goddard's statement about the counting of the RTA ballots. But today, we had a small part of the story play out in a downtown Tucson courtroom.

I spent most of my day sitting outside Judge José Luis Castillo's courtroom waiting to testify in the misdemeanor trial of John Brakey. In September, 2008, Brakey was hauled out of Pima County election headquarters in handcuffs during an audit of the primary elections. I was one of the auditors, which is why his lawyer, Bill Risner, asked me to be a witness.

I never got the chance to tesify. Judge Castillo declared Brakey innocent based on what he heard from the lawyers and from the testimony of Elections Director Brad Nelson, the person who ordered that Brakey be removed. The judge said Nelson "over-reached" in ejecting Brakey. Trial over.

I posted about my experiences at the September audit the day it happened, if you want to read the whole story. The short version is this. I was one of many Democrats, Republicans and Libertarians who went to election headquarters a few days after the election to count ballots from randomly selected precincts. If our results were the same as those the computer generated, the election was determined to be valid. If there were significant differences in the counts, more precincts would be hand counted, until it could be determined whether or not the computer's election results were accurate.

My group of auditors (myself and two Republicans) was handed a bag of ballots closed by a tamper proof seal with a serial number on it. We broke the seal and looked inside for a sheet that was supposed to have the same serial number on it. We found the sheet, but the number was different. I asked Nelson why the numbers weren't the same. He shrugged his shoulders. Maybe the seal was broken election night and they had to replace it, he suggested. Maybe the workers at the polling booth forgot to put on a seal. It didn't seem to bother him much.

The problem is, if the seal numbers don't match, there's no way of knowing the bag wasn't opened and the contents tampered with. It's that old "chain of custody" issue with evidence you see in cop shows all the time, and this chain was badly broken. It's one of the problems election integrity activists complain mightily about, as well they should. You can't assure the validity of an election unless you know the ballots you're counting are the same ones that were put in the bag at the polls on election night.

John Brakey was one of two people serving as party observers that day. He observed the seal problem at my table. I didn't know it at the time, but mine wasn't the only one. He saw a number of other tables with similar chain of custody problems. So he asked auditors at other tables, "Did the number on your seal match the number inside the bag?" Nelson told Brakey he couldn't ask the auditors questions. Brakey said he could, and he was going to continue. So Nelson had an officer cuff Brakey and take him off the premises. Brakey was charged with a misdemeanor.

Bill Risner, Brakey's lawyer, told me the reasons the judge declared Brakey innocent without hearing more testimony (As a witness, I couldn't be inside the courtroom, so I couldn't hear what was going on myself.) The judge said there are no written rules saying a party observer can't ask questions of the auditors, so Brakey was well within his rights. And he also noted the questions Brakey asked were important. It turned out about half the precinct bags opened that day had problems with their seals, which might never have been discovered without Brakey's persistence.

Why did Nelson see red when Brakey insisted on asking questions? Maybe it was because the problems with the seals made Nelson look bad. It's Nelson's job to assure that the ballots are secure, and he clearly botched that job. Or it's possible Nelson was involved in election tampering of some kind, and he didn't like people inspecting his work too closely. Local election integrity people suspect Nelson has been involved in tampering with past elections, the RTA election included.

Nelson has every reason to dislike Brakey, who makes the life of an election director difficult, especially one like Nelson who would rather act on the fly than set up careful, consistent procedures. Brakey is something of a bull in a china shop. When he sees a problem -- and he sees plenty in Pima County elections -- he charges in without worrying what Emily Post might think. But an election system isn't a Wedgewood teacup. It has to be robust enough to withstand rough scrutiny. The nationally recognized election integrity committee here in Pima County has done tremendous work by scrutinizing our local elections from every conceivable angle. Regardless of the findings in the RTA ballot count, our elections are among the most secure and transparent in the country due to their work. And Brakey is an integral part of that effort.

Brad Nelson comes out looking bad almost every time his work is called into question. And today, in a court of law, Nelson came out looking bad once again.

UPDATE: In a comment to this post, AzBlueMeanie has once again demonstrated an understanding of the political wheels-within-wheels that is far beyond anything I know. If you want to learn more backstory, read the comment. And be sure to make it to the last paragraph where The Meanie says the AG's report "is going to raise even more questions about the Pima County Elections Division."

ANOTHER UPDATE: Brad Friedman, on his nationally respected BradBlog which covers election integrity issues across the county, wrote a good post about Brakey's court date. And if you want more information about what has been going on at the RTA ballot count in Maricopa County, including a concern that "thousands of ballots may be missing," read this Friedman posted Wednesday.

Mea Culpa

by David Safier
If you read my post earlier today, Bradblog covers RTA ballot counting, I misstated Brad Friedman's position on the RTA election, and he called me on it in an email. I claimed he suspected "hanky panky" in the RTA vote counting, while he said no such thing.

I have corrected the post. My sincere apologies.

BradBlog covers RTA ballot counting

by David Safier
If you haven't gotten enough info already about the upcoming counting of the RTA ballots, or you want to hear the story from an Election Integrity perspective, Brad Friedman of BradBlog just posted an exhaustive discussion of recent events, from Goddard's taking the ballots to Phoenix to the politics of choosing observers, and everything in between.

Friedman, whose well known and nationally respected BradBlog is Election Integrity Central, has been covering the Pima County election integrity efforts from the beginning (My summaries of court proceedings a little more than a year ago were my first posts on BfA and were carried on BradBlog as well). He also believes that the RTA ballot count will reveal some kind of hanky panky. [See CORRECTION below.] He begins the post by mentioning the Franken/Coleman ballot fights in Minnesota and the ridiculously close results in last Tuesday's NY-20 U.S. Rep election, then says,

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.

As a friend and supporter of the election integrity battles, but an agnostic on the question of fraud in the RTA election, I hope the E.I. folks are preparing statements in the event the ballot count affirms the earlier election results. Not "someone got in there and rigged the ballots." But something that talks about the major improvements Pima County has made in the way it conducts and counts its elections, due to the tireless efforts of the E.I. folks. The rest of the state and the country have lots to learn from the reforms we've made right here, regardless of the results of the ballot counting.

And if the Goddard investigation reveals fraud, we'll be in for quite a ride.

CORRECTION: Note to self: be careful when you make an unwarranted assumption about a post by Brad Friedman. He sent me an email telling me I was wrong to say he believes there was "some kind of hanky panky" in the RTA election.

He's right. He said nothing of the kind in his post.

I'll let him talk for himself. Here's part of what he wrote in his email.

My personal position largely would seem to match your stated "agnostic" position on the matter. I have no idea whether there was "hanky panky" or not, as I've not personally seen either the databases nor the ballots. I strongly support the folks in Pima County (and everywhere, for that matter) having the right to find out if their elections were accurately counted, and applaud the efforts of the activists in Pima big time for their tireless efforts towards that end. I also roundly condemn those who have stopped them -- and/or attempted to stop them -- from finding transparency in their elections, so they can know whether there has been "hanky panky" or not in any election. Democracy demands no less.

Humblest, sincerest apologies, Brad. I'll be more careful next time, I promise.

RTA ballots to be counted April 6

by David Safier

I just got word from John Brakey that the ballots from the disputed RTA election are supposed to be counted April 6.

If true, this is big news. The count/don't count controversy has been raging for quite awhile now -- and the word "raging" is no exaggeration. If a definitive answer about the outcome of the election comes from counting the ballots (Amazingly, they have never been hand counted. The results we have came out of a computer that tallies the scanned ballots using a program that everyone admits can be easily manipulated to give false results), it would bring this controversy toward its conclusion. Either the vote count was rigged and the ballot measure was actually defeated as many people in the election integrity community believe, or the count was legit.

But Brakey and others waging the election integrity battle are concerned about the process. A court proceeding about the fate of the ballots ended abruptly when Attorney General Terry Goddard said he would take charge of the ballots. Days later, he carted them off from the Pima County Treasurer's office to Maricopa County.

With so much suspicion surrounding the ballots, the question is, why didn't Goddard involve members of the political parties in moving the ballots? It would have been easy to have the entire process monitored by Democrats, Republicans and Libertarians so all three parties were satisfied that the chain of custody was intact and the ballots were stored securely. But he didn't.

He could have left the ballots where they were in Pima County and conducted the hand count here, where there are plenty of trained counters and observers from the three parties who count ballots from selected precincts after each election. But he didn't.

Brakey and others who have been looking into this have no idea where the ballots are stored or who will be involved in the counting. They say they can't get any answers from the AG's office. Why Goddard has opted against transparency is beyond me. His actions have increased suspicion among those who have fought for this moment long and hard and want everything to be done in a way that is above suspicion.

As I said in an earlier post, I'm an agnostic about the RTA election. There are lots of indicators that could point to election fraud, but there is nothing like definitive proof. But I'm a true believer in transparent election processes that make it nearly impossible for bad actors to cook election results that go against the will of the voters. I don't understand why Goddard isn't trying to earn the trust and cooperation of those who have worked on this for years, to assure them this last phase of the process is being conducted with the greatest possible care and transparency.

UPDATE: An email from someone who has been following this whole thing closely urged me to be cautious about casting suspicion on Goddard's actions. This person says that the same source who told the election integrity folks that the ballots would be counted April 6 also said the hand count would be done in the presence of party observers. This person also wrote, "The AG is documenting chain of custody, as it is required to do, to preserve the admissibility of the evidence in any subsequent criminal proceeding."

I admit my ignorance about legal issues and how criminal proceedings are handled. My only concern here is with getting out the information and presenting my concerns.

The whole RTA controversy operates on at least two levels: reality -- whether the RTA count was fair or rigged -- and perception -- whether people feel the investigation is being conducted fairly and the conclusions reached in the investigation are valid. Before the AG stepped in, perception was on the side of the election integrity folks. The papers and the Pima County Supes were calling for the ballots to be counted. Now that the AG has stepped in and a conclusion to this affair seems to be in sight, the perception has shifted. The election integrity folks are looking to many like conspiracy theorists who believe everyone in a position of power is in on the plot to bury the truth about the election. I want to see as much transparency as is legally permissible so the conclusions that come out of the investigation, whatever they may be, can be accepted as valid.

Election Integrity Tucson: strange day at the courthouse

by David Safier

I'm an agnostic hanger-on to the election integrity movement here in Tucson. I follow what's going on closely but don't attend meetings. When things happen that merit national attention, I'm often the one who puts the information on BradBlog, the most widely read national blog on election integrity. (I wrote a post there a few weeks ago detailing the latest happenings in court, which gives background for what went on over the last few days.) And I attend the court hearings when I can.

But I have no idea whether or not there has been election fraud in Pima County that has led to falsified election results. No idea. All I know is that the vote counting process we use here is deeply flawed and prone to manipulation by people who might want to rig an election. It's even worse in other places, and we're at the forefront of creating secure and transparent elections, but there are still security holes here big enough to drive a truck through.

The latest battles are over the 2006 RTA election. Put simply, the Pima County Democratic and Libertarian parties want the ballots saved and counted to see if the election was fair or rigged. The Republicans seem like they're ready to come aboard with those who want the ballots counted. The Pima County Supes? It's hard to know what they want.

The apparent upshot of what has happened over the past week and what happened in court today is that Attorney General Terry Goddard plans to take possession of the ballots. Right now they're in the custody of Beth Ford, the Pima County Treasurer. The assumption is, Goddard wants to ship them up to Phoenix.

This is a combination of possible good news and possible very bad news. The possible good news is, Goddard is probably the only person in the state who can order the ballots to be counted, and he's been reluctant to jump in and do something. If this is a first step in the direction of a fair counting of the ballots, this whole mess could be resolved. The possible very bad news is that the delicate chain of custody of the ballots may be broken, which could make their value as evidence, or even their integrity, come into question. If Goddard's intentions are less than honorable and/or the transfer process is sloppy, this move could mean we will be further away from an honest, transparent ballot counting process. The other possible bad news is, the Democratic Party wants to view the poll tapes,which are in the sealed boxes with the ballots. The party is currently in court to get the tapes. Goddard's move may stymie those efforts.

I attended today's hearing and hung around while Bill Risner, the Pima Dem's lawyer, spoke with KOLD News. Here are some reasonably accurate quotes of Risner's comments during the interview:

"The Attorney General is preventing us from continuing our investigation by moving the ballots to Maricopa. It means we won't get to see the poll tapes. . . . The Attorney General has frustrated our investigation at every turn." [Risner believes the poll tapes, which are in the sealed boxes with the ballots, will reveal information that will point to manipulation of the numbers during the vote counting process.]

"There is a considerable effort to keep us from finding out if there has been a crime." [Obviously, election fraud is a very serious crime.]

"Everyone agrees the software used in Pima County elections makes it easy to cheat. We found out that the County used procedures that indicate the possibility that the counting [of the RTA votes] was fixed. . . . Everything we've looked at confirms the possibility that the election was rigged. [Counting] the ballots is the only definitive answer to the question.

Randy Graf, a Republican who ran for House of Representatives against Gabrielle Giffords when she first won the seat, is also involved in the election integrity effort, working together with Democrats and Libertarians. Here are a few comments he made during his interview with KOLD:

"I was working with Republicans a year ago to get the party to be more aggressive on this issue."

"Let's get to the bottom of this so we can ensure that future elections are conducted fairly."

"You've got computers spitting out [election] results, and a stack of ballots. Let's compare the two."

We have a very unusual situation where the three political parties are in substantive agreement that the ballots should be counted, and even the Pima County Supes seem to be in favor of having them counted (when they're not for having the ballots destroyed,anyway). The ball has moved down the field today. The question is, has it moved forward or backward?

Brad Nelson: Good Fireman, Lousy Fire Chief

by David Safier

If you don't know him, Brad Nelson is the head of Pima County's Elections Department. The quality and accuracy of our elections depend on his work. My experiences with Nelson tell me that our elections are in trouble as long as he's at the helm. He can be described generously as ill suited for the job and less generously as totally incompetent. (Even less generously, though I don't know this to be true, he can be described as someone who has participated in rigging elections and hides his actions behind a show of incompetence.)

I took part in the Saturday audit of the ballots of the recent primary. The ballots came from random precincts in the county. The idea was to count the ballots to see if the number agreed with the number that came from the vote counting machine for each chosen precinct. I watched Nelson in action. More about what I saw after I pause for an analogy.

I think Brad Nelson would make a good fireman. When the alarm sounded at the station, he'd be the first guy to slide down the pole and hop on the fire truck. At the scene, he'd rush into a burning building to pull out your pet dog (and if he abandoned his fire hose to do it, someone else could always take his place). He's the guy you'd see on TV that night, his face covered with soot, a tired grin on his face and a scared puppy in his arms.

But Nelson would make a lousy fire chief. He'd route all the fire alarms to his cell phone. When a call came in, he'd grab a garden hose, call his assistant Mary, hop in his car, speed to the fire and try to put it out himself. When you saw him on TV that night in front of the charred ruins of the house, he'd admit that, yes, it might have been better if he used a real fire hose but he couldn't find one, and a well organized crew of firemen might have done a better job putting out the fire, but there was no time to give each fireman a call, then give them an hour long training lecture, so he decided to try and put the fire out himself. He did the best he could, he'd say. Maybe he'll do better next time.

I was a Democrat working at a table with two Republicans counting ballots (you always have members of both parties to guarantee a fair counting). We were given a sealed bag filled with ballots. It couldn't be opened without breaking the seal -- that's the point. Inside the bag, we were supposed to find a piece of paper with a number written on it, the same number as we found on the seal. If the number on the paper and on the seal agreed, then we could assume the ballots hadn't been tampered with.

We broke the seal, opened the bag and pulled out the piece of paper. The numbers didn't agree. Let me repeat. The piece of paper inside the bag had a different number than the seal. That should be cause for concern, right? For all I know, the bag was opened in the dead of night, some ballots were removed, others were marked and put in their place, and the new seal was put on after the damage was done. Of course, there are perfectly legitimate reasons for the seal to be changed. The original could have gotten broken in transit, for instance. It happens. But for me to be certain the anomaly was legit, I should have seen documentation that explained why the seal was replaced, signed by an elections division official and members of two political parties. (Party observers are supposed to be present at all parts of the election procedures, so they would be available to watch what was going on and sign the document.)

Brad offered no documentation. He said something to the effect that, Well, maybe on election night the seal was broken or someone didn't put on a seal so we had to put on a new one, or something like that. Did he know what happened? No, he didn't, but that was a possibility. He smiled a What-can-you-do? smile and left.

Later that day, I asked Brad if he knew how many other tables had similar problems. He had no idea, he said, and that didn't seem to bother him.

Chain of custody. That's the gold standard for election integrity, just as it is for evidence in a criminal investigation. If there's a break in the chain at any point, the ballots can be tampered with, and from that moment on, there is no way to be certain the ballots in the sealed precinct bag are the same ones the voters filled out.

The Election Integrity group has worked tirelessly (their patience simply amazes me!) to secure Pima County Elections, to make sure every step of the process is monitored and verified. But Brad Nelson, through a combination of carelessness and incompetence (and possibly corruption, though I don't know that's true) has frustrated their attempts at every turn. What I saw Saturday was a small sample of what goes on multiple times at every election Nelson oversees.

We will never -- repeat, never -- have guaranteed fair and accurate elections in Pima County so long as Brad Nelson heads the election process.

Excellence in Analogizing

New Developments on the RTA Election Front

by David Safier

If you're an election integrity fan, here's a new development in the ongoing battle to resolve the questions surrounding the contested 2006 RTA election. Bill Risner working with Audit AZ has sent a long, heavily documented letter to Arizona Attorney General Terry Goddard. It demands that Goddard open a criminal investigation into the RTA election or continue work on the earlier investigation that may still be open.

This time, though, Risner wants the AG's office to pay less attention to the desires of the Pima County Elections Division. He says the suspects themselves helped divert the investigation away from the most damning evidence.

Risner says the AG's office should pay more attention to the evidence in the letter and the supporting documents. I've read the entire letter and much of the evidence. In the opinion of this non-lawyer, Risner has a pretty strong case, which is made even stronger by a recently released affidavit by Zbigniew Osmolski, in which he says Bryan Crane, the computer operator of the Pima County Elections Division, admitted to fixing the election during a conversation at the Boondocks Lounge. Here's the money quote from the sworn affidavit:

During that conversation Bryan Crane told me he "fixed" the RTA, or Regional Transportation Authority election on the instructions of his bosses and he did what he was told to do. Mr. Crane expressed his concern about being indicted and said he would like to talk but couldn't trust anyone.

Basically, it comes down to this. Risner and Audit AZ want a hand count of the RTA ballots to resolve the question of whether or not the election was rigged. What most people don't know is that only Goddard can call for a hand count of the ballots. The Supes can say they want one and the local papers can agree in their editorials, but Arizona law is very strict on this point. The ballots can only be counted when the results of an election are within one-tenth of one percent or when the ballots are evidence in a criminal investigation.

So it's in Terry Goddard's hands. Either he opens the investigation and calls for a hand count, or the ballots sit in their sealed boxes until they're destroyed.

For a more complete discussion, go to my post on The Brad Blog.

UPDATE: Ken O'Day adds this in a comment:

If you care about election integrity and want to make sure that your vote is counted as cast, then PLEASE CONTACT ATTORNEY GENERAL GODDARD'S OFFICE and insist that he reopen the criminal case in the 2006 RTA election on the basis of this new evidence and order a recount of the ballots. Here is the AG's contact info:

Attorney General Terry Goddard
Office of the Attorney General
1275 West Washington Street
Phoenix, AZ 85007
602.542.5025
800.352.8431 (toll free)
Fax 602.542.4085
Email aginfo@azag.gov

Witness Swears Under Oath That Bryan Crane Admitted to Rigging RTA Election at Direction of Election Division Leaders

A witness swears under oath that Bryan Crane, the computer operator in the Pima Elections Division, admitted in January of this year to rigging the RTA at the behest of Elections Division leadership. Apparently Mr. Crane was concerned about getting hung out to dry by his higher-ups for the crime. Expect denials from Pima County Administration, and a frenzied attempt to discredit the affiant.

Click for a larger view of the affidavit:

Muletrain Mail: Elections Whistleblower Alleges RTA Election Rigged and Stolen

By Audit AZ and William Risner, Esq.

EVIDENCE OF RTA ELECTION TAMPERING TO BE DESTROYED BY PIMA COUNTY

SWORN TESTIMONY OF CONFESSION OF TAMPERING

 

New information about the planned destruction of the actual paper ballots from the RTA (Regional Transportation Authority) and tax increase election has come to light this week.  These ballots are scheduled for destruction by Pima County Treasurer Beth Ford unless immediate action is taken by Attorney General Terry Goddard’s office to preserve this important evidence. 

 

Up to this point, the so-called investigation by AG Goddard’s office has been generally described by that body of election integrity groups as “a sham.”  More than a few irregularities, included an untrue claim that Tucson’s election reform community had approved the Attorney General’s Office’s decision to deny a hand count of the ballots from the RTA election.

 

BREAKING NEWS:  Further evidence of tampering with the RTA results has been exposed by a former county employee.  He will testify, under oath, that Bryan Crane, election computer operator, feared discovery of the fact that he, at the direction of Elections Director Brad Nelson, had tampered with the data from the RTA election, materially “fixing” the election to approve rather than reject the RTA.

 

AUDIT AZ on behalf of the public and election integrity activists demands a complete RE-investigation of the RTA Election by AG Terry Goddard’s office, including these steps:

1. To preserve the actual ballots

2. To do a full hand count of all the ballots, with witnesses.

3. Determine whether there are criminal acts to be prosecuted.

Press Conference

Where:  Valdez Main Library Downtown

Downstairs meeting room

When: July 9, 2008,   

Time:  1:30 pm promptly

Contact Information: 

Bill Risner, Esq.

520- 622-7494

Pima County Board of Supervisors Finally Gives Up Trying to Keep Citizens From Verifying Our Votes

The Pima County Board of Supervisors took public comments before adjourning to an executive session to discuss the lawsuit filed by the Pima County Democratic Party against the Board for electronic election data files. 

Vince Rabago, chair of the Pima County Democratic Party, recommended that the board not continue this lawsuit with an appeal.  Several members of the public also spoke, including members of the election integrity organization AUDIT AZ and primary challengers Donna Branch-Gilby (D) and Barney Brenner (R) who are running against Sharon Bronson in Supervisor District 3, and Brad Roach (R) who is running for County Attorney against Barbara LaWall.

 

When the Board returned from executive session, they voted on the four matters scheduled for executive session.  For each of the first three matters, the county attorney made a recommendation and a supervisor moved to "follow the county attorney's recommendation."

 

On the final matter, the Democratic Party lawsuit, the county attorney simply stated the posture of the case in court without stating his recommendation for the record.  Sharon Bronson moved to simply "not file an appeal" and the Board approved the motion on a 5-0 vote. 

The Board also ordered that the electronic data files be hash marked for verification purposes, and released to the Democratic Party on June 9, 2008.

 

After the vote, Supervisor Ray Carroll told this reporter that he could not reveal what was discussed in executive session, but he would describe the tone.  Carroll said the supervisors were "frothing" and that Sharon Bronson was "vitriolic" in her comments to him.  Carroll said he thought Sharon lost it and that Donna Branch-Gilby must be getting to her.

 

Donna Branch-Gilby filed her petitions on Monday with over 1,500 signatures submitted.

 

The County had previously stipulated to an order in the first part of this case.  Party observers will be allowed to open and review ballot boxes for the summary reports of early voting totals at issue in that case on June 25, 2008 under Court supervision.

Read Gary Duffey's coverage at the Tucson Citizen.

Mule Train Mail: Mark Dayton on Pima County Board to Decide on Appeal of Elelction Integrity Ruling

CALL PIMA COUNTY BOARD OF SUPERVISORS:
740-8126

ATTEND BOS MEETING:
Tuesday June 3, 2008 9AM
130 W. Congress St., Hearing Room, 1st Fl.

On Tuesday the Pima County Board of Supervisors is scheduled to decide in secret session with County attorneys whether to APPEAL Judge Miller’s decision to grant the Pima County Democratic Party electronic election databases going back to 1998.

Demand ACCOUNTABILITY! Call the BOS on Monday to tell them “NO”  The Board has already spent too much the public’s money arguing against releasing public records. The County’s “delusional defense”  did not stand up in court.  View the videos posted at BlogForArizona.

• Ann Day, District 1, (520) 740-2738
• Ramón Valadez, District 2, (520) 740-8126
• Sharon  Bronson, District 3, (520) 740-8051
• Ray Carroll, District 4, (520) 740-8094
• Richard Elías, Chairman, District 5, (520) 740-8126

For More Details about Tuesday’s meeting read the Tucson Citizen's article.

Mule Train Mail: Dr. Downing on Citizen Oversight of Non-Partisan Elections

By Dr. Ted Downing

Several have asked my position on SB1053 – a bill that I helped draft and support that is now facing a possible gubernatorial veto.   The Party presently supports a veto.  I respectfully disagree. I  believe a veto will harm both the Governor and the Party. I pray for reconsideration. This explanation is from me, as a former State Representative and election integrity activist, not as Chair of the Arizona Democratic Party’s Election Integrity Committee.

Text of SB 1053

Currently, statutes provide for count room observers in partisan elections.  In Arizona, only 4 cities and towns still hold partisan elections – meaning the count of most of these elections are unobserved.  Likewise, ballot measures include billions of dollars in bond elections that – up to now – are only observed if the county, city or town wishes. I feel these entities have a potential conflict of interest, since they stand to benefit from the results of a vote.

The counting of votes in over $76B in bond/revenue issues is worthy of being observed. They should be observed.  SB1053 allows up to three additional persons for nonpartisan office or ballot measures and establishes procedures for the selection of these additional observers.   It extends the protections of having an observed count to all elections. 

SB1053 grew out of the Arizona Democratic Party’s Election Integrity Committee investigations. Having sponsored the hand count audit and paper ballot bills, I knew that basic reforms will be embraced by a bipartisan coalition if all Parties see it as in their common interest.   I helped draft it, in close collaboration with its sponsor, Senator Chuck Gray (R-Mesa), who shares many of my concerns about election integrity and fiscal accountability.

Democrats testified in favor of the bill in the Senate. The bill passed as with no opposition in either the Senate or House.  In the joint Senate/House Conference Committee incorporated language from several election bills that were at play in this session – as commonly happens late in a legislative session. SB1053 now includes

• all of H.B. 2364 (Sec of State clean up election bill) that was heard in Senate Judiciary committee and caucused 
• portions of S.B. 1015 Strike Everything (SE) adopted in the House Judiciary Committee (counties election bill)
• H.B. 2279 which contained only one provision to allow a voter’s unique identifying number to be accessed by the public (response to Gila County no longer providing this information on      lists to the political parties) and
• S.B. 1211 as introduced which makes conforming changes to the primary election statutes for a biennial election and consolidated elections (the primary election was moved up last year to      allow an extra week between the primary and general elections).
• A substantive provision that I requested that allows observers to be rotated throughout the same day while at the counting center. 

As put forth in the amendment, the bill removed from both H.B. 2364 and S.B. 1015 SE of the requirement that early voting begin 26 days before the election (the Governor objected to the decrease) and the addition of an emergency clause. The full, modified amendment is attached.  Remember that this mark up shows changes and deletions to existing law (in black).  Yes, it seems long and technical – but that is how our democracy works, particularly in election law.

The amendments came forward with the full support of the Counties and Election Directors. I found no substantive threat to election integrity in the revised bill.  I shared the marked up bill with the Party Chair, Executive Director, and the AzDem EIC members who also did not raise any substantive issues.  Nor were their objections up until the bill reached Conference Committee.

In Conference Committee, State Representative Steve Gallardo (D) raised objections and had staff prepare a minority report opposed to the bill. The Senate Democratic minority on the committee did not agree with Mr. Gallardo and voted for the amendment. Rep. Gallardo argues that SB1053 will suppresses voting turnout by reducing the number of days for early and satellite station voting up to 5 days and harming Democrats.

Gallardo's Minority Report

Greg Kaighn, an attorney on the State EIC committee and I carefully studied the bill.  I interviewed by Karen Osborn (Maricopa County elections director), Ann Rodriguez (Pima County), other EI experts and advocates, and legislative liaisons representing key stakeholders.  Quite frankly, his objection has all interviewed puzzled. The language that concerns him codifies existing practice.

ARS 16-545(b) requires that the elections department(s) have the early ballots in their possession 33 days prior to the election. The specific language is “not later than the thirtieth day proceeding the Saturday before the election. As a practical matter since the ballots are received on a Saturday, it is virtually impossible to mail them out before the following Monday. Current law, ARS 16-542 provides that the elections department must “mail . . . .  the early ballot and the envelope for its return within five days after receipt of the official early ballots from the officer charged by law with the duty of preparing ballots pursuant to section 16-545.” Consequently, current law already seems to have the exact limitation that is causing consternation over SB 1053. 

Our finding is that ballots are mailed out 33 days ahead of time. I understand that opponents are claiming that the new language leaves open the possibility that an election director or recorder might, intentionally hold the ballots for 5 days beyond the statutory 33 day date of release of EV. They could do this under existing law, and it simply has not happened. The EV mailing is so large and the storage space so limited that everything ready to be mailed gets shoved out door. This episode is straining Party relations with election directors and recorders. To suggest that this “may happen” borders on impugning their reputations. Without evidence to the contrary – and none has been forthcoming -  this is political paranoia.

I see both political and election integrity risks in a proposed veto. Politically, the objection makes even less sense. Historically early voting favors Republican voters, so the hypothetical delay would harm Republicans, not Democrats?  If there is evidence supporting this claim, then it is time to roll it out rather than risk embarrassing the Governor and the Party. Democratic efforts to change elections law should be driven realistic risk assessments, not a silly hypothetical.Such misplaced claims are comparable to the Republican claims that voter ID laws were needed to prevent “illegal aliens” from voting.

And there is another major political risk.  SB1053 now incorporates language from a dead bill (SB1211) correcting (conforming) critical changes in election timing.  As the Primary date was rolled forward, someone forgot to include the cities/town elections in the statutory changes.  If SB1053 is vetoed, some city elections will take place one week after the state elections.  This is a real, not hypothetical,  threat to statewide election integrity, since two elections will be taking place at nearly the same time. 

Could SB1053 be modified to satisfy its critics? I attempted, and failed, to bring new language back to the Sponsor to change the segment. The Republican Sponsor will not agree to modify the bill… the Sponsor claims it is a good bill and she should sign it. The Republics know that a veto will harm the Party and the Governor. A veto hands the initiative on election integrity protection over to the Republicans – who will rightly claim that they voted for the reforms and the Dems shot them down.  A veto will create chaos in the city elections – and this will not only reduce voter turnout, but the blame will be traced right back to the veto.  Guess who gets blamed for the low turnout and confusion?

And a veto gives the Republicans the option of attempting an override when members may not feel like falling on their swords over such a unintelligible issue – and sharing the blame with the Governor. And at least one Democratic has agreed to vote for a veto override, if it comes back to the legislature. In an election year, how many Dems are ready to fall on their swords and vote against election integrity, against the cities and counties, against the election directors and against the recorders and against reasoned arguments?  Or, the Republican leadership may decide not to vote on an override – allowing the issue to fester and surface again as the public became aware that costly and confusing cities elections were being held one week after state elections.   

Given the unsubstantial nature of the reasons for a veto compared to the power of the bill, what is going on?  I don’t know.   Is someone sticking their foot from the sidelines is trying to trip us up? Or are Democrats just tripping on their own shoelaces?  Udall may have been wrong when he said Democrats form a firing squad in a circle. With due respect to Mo, I believe that sometimes we can’t even form a circle. I stand firm in my opposition to a veto – on the basis of good governance, accountability and transparency.

I need help. Encourage passage of SB1053 – up for Final Read among all members of the legislature – Democrat or Republican.  And please ask the Governor to sign the bill. 

Gov. Napolitano Veto Threatens Chaos for Local Elections, and No Oversight of $79 Billion in Public Funds

Senate Bill 1053 provides for citizen oversight of non-partisan (lots of local and municipal elections) and issue elections (bonds and initiatives). That's most of the elected officials in the State, 79 billion in public financing, and some of the most important legislative acts in our state, including amendments to our state constitution. Pretty important stuff.

Yet veto has been quietly threatened by Napolitano for some unknown, but likely unwholesome, reason.

We desperately need citizen oversight of these elections, and citizens and their political parties are currently completely shut out of the counting house for these vital elections. Consider how close some races are. Sedona as recent example. This year's Mayoral race, which is non-partisan, resulted in 1969 votes for Robert Adams, and 1697 votes for Pud Colquitt (yeah, I agree, he should have won on his name alone...), a difference of just 0.05%, mandating a statutory recount. Shouldn't there be some citizen oversight of counting that can result in such incredibly close and important races?

But critics charge, and apparently Gov. may accept the idea, that one of the technical corrections in SB 1053, unrelated to the oversight of non-partisan and issue races, may allow "voter suppression" of some early ballots. Some timing issues in the handling of those ballots arising from the bill might delay the beginning of early voting from 33 days out from election day, to a theoretical, worst-case-scenario opening a mere 28 days out from the election. That would only happen in the most extreme of circumstances, and would be entirely due to the discretionary actions of officials responsible - thus they could be held responsible for their willful misbehavior if they tried to so game the system in such a way. And really, who is going to be disenfranchised by those circumstances? Anybody? Probably not.

But there will be a side-effect of the Gov's veto that goes well beyond the loss of citizen oversight of a huge chuck of our democratic process. Her veto would result in massive chaos in municipal elections and a much more blatant and wide-spread voter suppression.

The problems would be caused by the misalignment of state and municipal elections that would result from the veto. One of the technical corrections in SB 1053, added in conference committee, re-aligns the dates of state and municipal elections to get them back in synch after the date of state elections was changed slightly. If the Gov vetoes SB 1053, municipal elections across Arizona would be mandated to occur just one week after the State elections.

Can you imagine the result? I can. Massive drop off in participation, and massive logistical problems for local elections divisions in every county and city as they have to deal with overlapping elections instead of handling them as a single election. And the added cost. And the GOP isn't inclined to spare the Gov the trouble her veto will cause by providing a new version of the bill with only the technical corrections she would like. They plan to just point the finger and laugh as chaos unfolds. What, you expected our state GOP leadership to be more responsible? What rock have you been under?

So why is the Gov even considering a veto? The cities and counties of Arizona are all firmly in support of the bill. Our own recorder here in Pima, Ann Rodriguez, is in favor, and is mystified as to why the Gov would veto. Election integrity activists have made this a top priority and they are very supportive of the bill exactly as written.

So why? Well, $79 billion in public funds are suddenly going to get the kind of pesky oversight and questioning that the Regional Transportation Authority vote got here in Pima County. That might make some folks who are dependent on approval of those bond issues to fertilize growth and sprawl a touch nervous about the people and their parties poking their busy-body noses into the whole business.

It is a fundamental conflict of interest for the governments who will benefit from the additional revenue of these bond issues, and whose elected officials are widely acknowledged to be largely in the pockets of local developers, to conduct and count these votes without any oversight. That's why such staunch conservatives like Arizona Senator Chuck Gray and Representative Robert Blendu are the bill's primary sponsors.

And it's why people like Board member of the Region Transportation Authority of Pima County, partner in Napolitano's old law firm Lewis & Roca (the slogan of which should be "hand-maiden to Arizona's real estate and building industry"), and behind the scenes personal adviser and mentor to the Governor, Si Schorr, might not like SB 1053. Asked for comment about the bill, Si hasn't yet responded. I'll be sure to let you know what he thinks of the bill if he does.

Someone is dripping poison in the Governor's ear to kill this good and important bill on the flimsiest of pretexts. Who could have that level of access and influence on our Governor, and the motive to keep bond and local elections under wraps, I wonder?

Victory For Election Integrity in Arizona! UPDATED

Today, Judge Miller ruled that all databases from election past and future must be disclosed to the political parties. This is a victory for citizen oversight of our elections, complete vindication of the hard work and passionate advocacy of the Pima County Democratic Party and it's attorney, Bill Risner, and a repudiation of the obsfucation, stone-walling, and out-right lies of the Pima County Administration and County Attorney's office in the course of this litigation.

More after I have a chance to read Judge Miller's ruling...

Arizona Daily Star coverage.
Tucson Citizen coverage.

UPDATE:

Download UnderAdvisemtRulingC2007207352308.pdf

From what knowledge I've gained of public records law and elections law through this lawsuit, Judge Miller's ruling is reasonable, correctly interprets the relevant statutes and case law, and would hold up very well to any appellate review.

Key to Judge Miller's ruling that all past database files must be released was his finding that there was no evidence presented to the court that there had been any harm to election security as a result of the prior release of two database files from 2006 ordered by the court, and subsequently expanded by the Pima County Board of Supervisors to roughly 300 files. Public pressure that forced the Board's hand was therefore very useful in the ultimate resolution of this controversy. None of the experts from which the Court accepted testimony attempted to measure the impact of that release; at most the Party's experts inferred in their responses that there would be no impact. The Court therefore took into account the absence of any adverse consequences from the earlier release of the 2006 records in finding that the County had failed to overcome the presumption that public records must be released when requested.

The Court dealt separately with the issue of a prospective application of its order to release the records to future elections. He reasoned that since the files are a regular and necessary part of the election process, are readily identifiable, and the public policy reasons supporting release apply to all future elections, a prospective order was proper. The one caveat is that the Judge left open the possibility that the County might seek specific relief for cause from the order.

The Court then considered the proper timing of the release and concluded that to prevent any confusion and to uphold the statutory roles of the canvassing boards and county government, the files should be released no later than announcement of the official canvass. That announcement starts the clock for any legal challenge to the election, making that the most appropriate deadline for the release. Thus the database files now become an integral part of the multiple election records that are exchanged, release, declared, and officially recorded.

Now the question becomes whether the County Board of Supervisors will appeal Judge Miller's ruling. Only 5 people (or is it just 1?) in Pima County can answer that question. And they won't answer it unless asked. Repeatedly. Broadly. Authoritatively. If you feel strongly about this issue, let people know. Tell your Party leaders. Tell your elected officials. They can't act on your opinions unless they know them.

Now is the time for those Democrats on the Board who have been intransigent about this issue to see the light and allow themselves to bepersuaded by the elegant and entirely satisfactory vision of Judge Miller that release of the database files used to tabulate the election become a routine and integral part of the process by which the public is informed and reassured that all is well with their democracy. They need to come back in from the cold, listen to their own Party's united voice and stop allowing the Administration of Chuck Huckelberry make them fools and villains in the eyes of the own natural constituents. You might think that the primary challenges to Democrats springing out of the grassroots might be enough to persuade them. Maybe the voice of justice, added to the voice of the activists will be enough to finally stir their consciences.

Mule Train Mail: Mark Crispin Miller on Sproul and Associates

EDITOR'S NOTE: These Introductory Remarks were addressed by witness Mark Crispin Miller to the Subcommittee on Commercial and Administrative Law and the Subcommittee on Crime, Terrorism and Homeland Security of the U.S. House of Representatives' Committee on the Judiciary during the May 14, 2008 Joint Hearing on "Allegations of Selective Prosecution, Part II: The Erosion of Public Confidence in Our Federal Justice System."

I am Mark Crispin Miller, a professor at New York University and a longtime analyst of media and politics. Lately my work has focused on the growing dangers of election fraud and vote suppression in this country. My books include Fooled Again: The Real Case for Electoral Reform (2005), and, more recently, Loser Take All: Election Fraud and the Subversion of Democracy, 2000-2008.

I am not a Democrat or a Republican, but an Independent dedicated to the promise of American democracy as envisioned by Tom Paine. I believe, with him, that the right to vote is the basis on which all our other rights depend. And so the issue here is ultimately not the victory or defeat of either party, but the people's right to choose their government, and thereby live, and rule, in freedom.

Such was once the view of the US Justice Department, whose Voting Rights Division strongly championed the individual right to vote, by prosecuting all forms of illegal disfranchisement. Since 2001, however, the Department has turned a blind eye toward illegal vote suppression.

Take the case of Sproul & Associates, an Arizona firm hired by the Republican National Committee to run stealth voter registration drives throughout the nation prior to the 2004 election. Starting in the summer, Sproul's troops haunted public areas, posing as non-partisan opinion pollsters or petitioners for liberal causes. Through such deception, the firm worked to inflate the number of registered Republicans, by any means necessary. Closely following a script, the operatives asked leading questions-a form of "push polling"-in order to identify Republican respondents, and then asked them to fill out registration forms. The teams were orderd not to register Democrats or Independents.

Nevertheless, many Democrats filled out the forms—and those forms were destroyed. One Sproul worker in Las Vegas said: "We caught [my supervisor] taking Democrats out of my pile, [and] hand[ing] them to her assistant, and he ripped them up right in front of us."

More frequently, however, Sproul's troops bamboozled thousands of Democrats and Independents into registering as Republicans, either by secretly altering the registration forms, or by misleading people into thus re-registering themselves. Such service was expensive. According to their filings with the Federal Election Commission, the Republican National Committee paid Sproul well over $8 million—the RNC's eighth-largest expenditure of the 2004 campaign.

And what did the party get for it? Aside from ripping up the registration forms of many Democrats, the company created thousands of unwitting faux-Republicans, in Ohio, Florida, Nevada, Pennsylvania, West Virginia, Minnesota, Michigan and Oregon. Thanks to those inflated numbers, there appeared to be more registered Republicans than there were in reality—a misimpression that would seemingly explain the party's upset wins in those states where the exit polls predicted otherwise.

In Ohio, for example, countless Democratic votes were stolen through the tactics documented in the full committee's excellent report on the election there: voter "caging," thwarted registration drives, broad refusal of provisional ballots, organized disinformation and intimidation, shortages of functioning machines in Democratic districts only, and numerous "machine irregularities" undoing only Democratic votes. Those tactics were used also in those other states where the exit polls predicted a Republican defeat—and where Sproul had also helped inflate the number of grassroots Republicans.

Thus Sproul not only broke the law, but may also have assisted in a larger plan to block the vote. (There are oddities, moreover, in the RNC's filings with the FEC, with nine expenditures, totaling well over $1 million, incurred somehow in 2005, suggesting an attempt to minimize the sum spent on Sproul's services.)

While the DoJ has winked at practices that disenfranchise tens of thousands of Americans, that now wholly partisan Department focuses obsessively on "voter fraud," which numbers in the tens.

And so Sproul & Associates clearly merited a full investigation; and yet the DoJ did nothing. If there has been a federal probe of Sproul's activities, I've never heard of it. Far from coming under federal suspicion, Nathan Sproul, the firm's director, was invited to the Christmas party at the White House two months after the election. And while the DoJ has winked at practices that disenfranchise tens of thousands of Americans, that now wholly partisan Department focuses obsessively on "voter fraud," which numbers in the tens.

Between 2002 and 2005, 24 people were convicted of illegal voting, with another 62 convicted since. Those low numbers reconfirm the scholarly consensus that "voter fraud" is actually quite rare. It is, in fact, a highly serviceable myth, and/or delusion, that helps to justify the actual vote suppression, and election fraud, that Sproul and others carry out to benefit their party. Today the fantasy of "voter fraud" preoccupies the managers at Justice, and the Supreme Court. It is therefore up to Congress to return us to reality, and redirect this nation toward democracy.

Mule Train Mail: Mickey Duniho Writes an Open Letter to C. Huckelberry on Elections Security

Mr. Huckelberry:

I got wind of your latest memo on election security [pdf download] by reading about it in a Tucson Citizen article. Given that you mentioned my name in the memo, I would have expected to receive a courtesy copy of the memo. Maybe my copy went astray.

On page 14 of your memo you said that the Pima County Democratic Party Election Integrity Committee “has failed to provide a number of items that it agreed to provide in response to County requests”, including a copy of an election integrity manual that I drafted for the party. [Download ei_manualcomplete.doc ]

I don’t know about requests to the committee, but I provided a copy of the draft manual to the County as part of my deposition in November 2007. I think the manual was an exhibit at the trial in December 2007. John Moffatt was present at the November 2007 deposition, so I assumed that he got a copy of the manual at that time. To avoid having your copy of the manual get lost again in the County bureaucracy, I am sending it directly to you as an attachment to this email. I want to point out that this is a draft that has not yet been officially adopted by any part of the Arizona Democratic Party.

Your memo contains a number of good ideas for improving election integrity in Pima County, particularly your recommendations to improve procedures for chain-of-custody control of ballots, doubling the number of ballots to be hand counted, and adding the hand-count audit process to non-partisan elections. If you would also require sorting early ballots by precinct before hand counting them, it would greatly improve your recommended hand-count process.

Unfortunately, doubling the number of early ballots hand counted in the recent Presidential primary would not be an improvement. There were no Democratic ballots included in the hand count audit and a ridiculously minuscule number of Republican early ballots: 1 batch of the four percent of the ballots that had been set aside for hand counting. When I complained about this omission to Brad Nelson, he claimed he was following the Secretary of State’s manual. He did not read the manual correctly, and the writer of the manual did not read the statute (ARS 16.602.C.3) correctly. I hope that you will remedy this defect in future elections.

I am also attaching a file containing the 22 suggestions I offered to you in December 2007 in response to your call for public comment on election integrity. You recommended in your memo adopting two of these suggestions and part of a third. I have highlighted the adopted suggestions in green and key parts of the other suggestions in yellow. I hope you will reconsider your omission. All of these ideas are already operational procedures in Tucson City elections and would be excellent improvements to the County’s procedures.

Mule Train Mail: Mickey Duniho on the Hand County Audits in Pima County

by Mickey Duniho

When SB1557 was first passed in 2006, Pima County’s attorney told the Board of Supervisors that it would be illegal for them to do a hand-count of the September Primary Election because the new law had not been completely approved by the US Justice Department. Despite a last-minute plea the day before the primary election, the Board of Supervisors voted not to do a hand count audit of that election.

Two days after the primary, we discovered that Maricopa County was doing a hand count audit of their primary on an informal basis, in anticipation of the approval by the US Justice Department of the new law. As events developed, it became obvious that Pima County’s Elections Department was aware of the Maricopa hand count at the time that they told us they could not do it. We also learned that Pima County had been doing hand counts of a single precinct in every election for the past twelve years, with the full approval of the County Attorney’s office.

Under pressure from the people, the Pima County Board of Supervisors finally agreed to do an informal hand count. When they did the count, they delivered to the volunteer counters stacks of ballots that had been removed from their secured containers and neatly stacked up. This violated chain-of-custody rules for the hand count. They also interpreted the law to require the counting of only one race in each precinct, violating the clear wording in the law. Their lawyer backed them up on this erroneous interpretation.

During the period between the primary and the general elections, Bill Risner proposed asking a judge to clarify the meaning of the law. The County attorney immediately caved to our interpretation of the law: counting four races in each precinct as stated in the law.

In November 2006, the Pima Election Director and his lawyer tried to go back on their agreement and interpret the law to allow a single race per precinct hand count, but we then had a memo signed by Huckelberry saying that they would adopt the four races per precinct interpretation. When we showed them the memo, they again caved and agreed to count four races per precinct.

In the 2008 Presidential Preference Primary (PPE), Pima County first announced that they would delay scanning early ballots until Election Day so that they could sort the ballots before scanning them. Then they announced that they would start scanning ballots on Sunday before the election. Then they announced that they would start scanning early ballots on Election Day. We sent observers to the central count facility on Election Day morning, and nothing happened all day. When I asked Bryan Crane about this around 6 pm on Election Day, he said no one had told him to scan any ballots on Election Day.

In the evening of PPE Election Day, Bryan announced that they would select the batches for the early ballot hand count audit and scan them that evening and then count the rest of the early ballots starting the next day. We randomly selected batches of ballots to be scanned and hand counted in the amount of four percent of the expected number of early ballots. These were scanned and set aside. The next day, no early ballots were scanned. Only one of the eight batches selected was hand counted – with Brad Nelson claiming that that batch was far in excess of one percent of the early ballots scanned before the close of polls on Election Day. But the law says that one percent of the early ballots RECEIVED by the close of polls on Election Day will be hand counted.

When the hand count of ballots began, Brad Nelson announced that they would only count one of the two presidential races, in accordance with the new Secretary of State Procedures Manual. The law says all the presidential preference races are to be counted, not just one, and the new procedures manual is contrary to the law. The hand count of early ballots counted approximately one sixth of one percent of the early ballots received – one sixth of the number that should have been counted. Also, since the “randomly selected” ballots were removed from the boxes and counted separately from the rest of the early ballots, their selection was no longer random relative to the rest of the ballots.

It is apparent that Pima County’s Elections Director will continue to game the system whenever he has the chance, and will not follow the law unless forced by legal pressure. In every election since the hand count audit law was enacted, he has tried first one thing and then another to avoid following the clear language of the law.

Mule Train Mail: Dick Kaiser "Bushies Allowed to Kill Election Reform for Another Year"

by Dick Kaiser:

On April 15, as millions of Americans made a commitment to fulfill their obligation to fund the commonwealth and its imperialistic ways, the House of Representatives all but guaranteed that election integrity in November this year will be a crap-shoot at best.

 

The story begins full of good news...

 

At 4pm Empire time, the House voted on HR 5036, the Emergency Election Assistance for Secure Elections Act, providing for paper ballots throughout the country. Already, the bill had been voted unanimously out of the House Administration Committee, chaired by Zoe Lofgren (D-CA), for a full House vote.  With strong bi-partisan support, the Majority Leader Steny Hoyer put the measure on the "suspension" calendar which requires a 2/3's "aye" vote for passage.

So far so good, right?

But just prior to the vote, the White House signaled to Bush supporters in the House to vote “nay” on the bill, and to real democracy. Despite this maneuver, Hoyer, who is responsible for 1) how legislation is brought to the floor and 2) assessing vote strength for each bill headed for a vote, forged ahead on the fast, but risky, track, apparently oblivious to the control Bush still has among House Republicans.

Result?

The bill failed miserably to achieve the two-thirds threshold, 239-178, and the initiative to support paper ballots was stalled, possibly until the next Congress!

 

As expected, author of the bill Rush Holt (D-NJ) and co-author Robert Wexler (D-FL) blamed Bush and the Republicans who claimed the legislation would “cost too much."  But it is clear that activists need to be cognizant of the botched job of the leadership of the House Democrats.

Why on earth did Hoyer risk certain defeat and simply put the bill to a floor vote under regular business? Now that we know the sorry result, a slower, but surer approach would have probably saved the day.

 

Or was this defeat of the bill not bungling but duplicity at work to sabotage an imperfect, but helpful, bill? After all, the elections corporations were fighting this bill, big time. We may need to wait for some politician's memoirs to be written to know the answer to that one.

Who's fault this is, readers will need to decide. But the question remains, “Does Congress have the will to protect the People from the Perpetrators on Election Day?"

Mule Train Mail: Mickey Duniho on the Attorney General's Investigation of Election Integrity in Pima County

by Mickey Duniho:

Pima County voters deserve to see convincing evidence that the May 2006 Regional Transportation Authority (RTA) election was honest, not just a half-baked investigation that raises more questions than it answers.

The concern about possible wrongdoing arose from several anomalies: the RTA passed by a surprisingly wide margin; there are computer audit log entries indicating that after the first day of scanning early ballots, the election staff printed unauthorized vote total summary reports; and there are computer audit log entries indicating that on the second day of scanning the staff began the day by deliberately replacing the previous day’s backup of the election database with a new, unnecessary backup. This replacement could not have been an accident, as suggested by the county’s lawyers, because both GEMS and Windows require that the user confirm the overwriting of a file. Because the Diebold GEMS election database is known to be easily hacked and there were apparently no outside observers, these anomalies raise serious questions about the actions of the election staff.

When the AG investigator queried Michael Shamos, a nationally recognized voting systems expert at Carnegie Mellon University, Shamos responded in email, “My suggestion would be to retabulate from the original ballots. This should tell us very quickly whether the GEMS results were fudged.” The AG investigator replied, “If there is no evidence of any computer issues then the recount …will be unnecessary.” Shamos responded, “My suspicion is that no review by the elections division or the state purporting to claim that no manipulation occurred or was possible will be accepted by naysayers and will instead be viewed as a whitewash. Ultimately the proof of the pudding is in the ballots.” The AG investigator replied, “The most vocal local naysayers have bought into this process.” As one of the local naysayers, I can tell you that we had not bought into the process – we had simply been dismissed by the AG investigator.

The AG investigator’s description of the project sent to Michael Shamos included tests for swapping the Yes and No vote codes in the database. The statement of work written by the investigative contractor contained no reference to such a test. During the investigation, the county’s IT director suggested to the investigative contractor that they look at the Preferences table in the database to see if the programming had changed, and they found no evidence of changes to the Preferences table. But the simplest manipulation of the election database, swapping the codes that identified the Yes and No votes, would have been done in the Candidate table, which they apparently did not examine.

This investigation looks very much like a whitewash. The AG investigator refused to take advice from a nationally renowned voting systems expert about looking at the ballots. We can only be confident that the election results were honest if the ballots confirm the machine total. Arizona’s Attorney General needs to assign an investigator who will publicly recount the RTA ballots.