A Courtroom Report as Pima County Democrats Seek Public Records Access to Diebold Election Databases
By Michael Bryan on 12/5/2007, 8:19am PT  

Special to The BRAD BLOG by Michael Bryan from the courtroom in Tucson, AZ...

It was an eventful day in the courtroom in Pima County yesterday, with opening statements and the first two plaintiff's witnesses' testimony. Already, the general shape of the controversy is becoming more clear and many of the media access issues have been favorably resolved. The Election Integrity press pool is providing video to local news and other interested parties on a non-exclusive basis and there is a ground-swell of support and interest in the trial and use of the resultant footage among journalists and documentarians.

Full summaries of the opening statements of the plaintiff's attorney Bill Risner and Pima County Deputy County Attorney Christopher Straub are available on BlogForArizona.com and they lay out the positions of the litigants.

See our initial backgrounder/intro to this trial, as posted yesterday, right here.

The position of the Democratic Party, argued in the courtroom yesterday, is that the statutory role of the political parties in Arizona, and in America historically, has been to oversee and participate deeply in our elections. The elections belong to the people, not the government. The database the party seeks access to on behalf of all political parties is the only computer record of the election that can provide the information needed to ensure that elections insiders cannot, and have not, manipulated the election. Absent a clear statement by the legislature, the parties should not be denied access to this crucial information to carry out their traditional role of ensuring the public's political rights. Certainly no tortured interpretation of outdated language regarding computer technology from a statute written in the 1980s should be allowed to deny the people access to their election data, only a clear and unambiguous expression from the legislature should be able to do that.

The position of Pima County, however, is that the database requested must remain confidential.

They argue that providing the database to the political parties would violate the standards promulgated by the Arizona Secretary of State because the files contain procedural information and code that is used to program elections machines, and could reveal information that might compromise future elections. The county agrees that the Diebold GEMS software used to tabulate votes has serious security flaws, but that is all the more reason to not allow the information in the database into the public domain...

The real purpose of this lawsuit is to force a change in the software used in elections, and that should be a legislative task, not a judicial one, the county maintained. Even if the database information were surrendered, it would do the party no good in finding fraud, since they admit that the security of the software is such that anyone who had the requisite knowledge to alter the election totals could also cover their tracks completely. Hand count audits (passed in Arizona in 2006) provide a much better method of ensuring election integrity than examination of the database. Finally, though there are security flaws in the system used in Pima County, there are security flaws in all systems certified for use in Arizona, so it better to focus on security around the machine itself than on changing the software used, the county argued.

I'm not going to comment much on Pima's position except to say that, obviously, I disagree with it. Despite that, it is in my opinion as an attorney that it is a colorable argument. It is not a very strong position legally in my view, based as it is, on what I think is over-reliance on statutory and regulatory rules that seek to regulate a very fluid and fast-moving field of endeavor (computer science), while seeming to ignore the very strong and compelling statutory and traditional role of the political parties. Not to mention making the rather absurd assertion that the government can't be both Machiavellian and stupid at the same time: the last 7 years argues eloquently that they most certainly can.

This is a bench trial, so the final determination is solely up to Judge Michael Miller. I suspect that either way Miller decides this case, he'll draw an appeal from the losing party. So far, my observation of the judge's questioning of the witnesses indicates that Judge Miller has at least a working knowledge of computers and software applications. He's asked some astute questions seeking clarification of the terms and issues surrounding software design that may prove pivotal to a decision.

The Democratic Party put on it first two witnesses Tuesday, both experts in computer programming and core members of the team of activists whose work to secure the elections in Pima County eventuated this lawsuit. The full summaries of the testimony of Dr. Tom Ryan and Mr. Michael "Mickey" Duniho are posted on my blog.

The Democratic party has presented a strong case that release of the database to all political parties following an election would not harm the security of future elections. All information in those databases would expire with the relevant the election, and much is already in the public domain. These experts assert that none of the data in the database could be used as leverage to compromise the security of a future election, which is a key contrary claim of Pima County.

One outstanding moment in the trial so far was an assertion by Mickey Duniho (a 37-year veteran programmer from the National Security Agency) that 100% of election fraud is done by insiders - he knows of no instance where an outsider 'hacked' into an election. Those with the greatest access (and Pima admits that insiders can manipulate elections and possibly cover the tracks) are the greatest risk of fraud. Both Duniho and Dr. Ryan made strong claims that the only way to confirm the integrity of elections against insider fraud is to have public access to those databases following an election.

Tomorrow, the Democrats will continue with their witnesses and may rest their case, allowing Pima to begin testimony from their witnesses. Please continue to track this case here on The BRAD BLOG and on Blog For Arizona. Please continue to leave comments with information related to this case and others like it around the county. We have already found information provided by readers to be very helpful.