Claims lack of jurisdiction to order retention of ballots from 2006 election, even if counting them might reveal results were 'rigged'
Opponents of counting argue ballots should now be destroyed...
By David Safier on 2/4/2009, 2:35pm PT  

Guest Blogged by David Safier of Blog for Arizona

If a judge’s ruling in Pima County, Arizona, stands, ballots from the long-contested 2006 Regional Transit Authority (RTA) election will be destroyed, and there will never be a definitive answer as to whether or not the election may have been rigged, as critics have charged.

It’s too late for the actual results of the election to be changed, but knowing whether the election was tampered with is critical to guaranteeing the integrity of future elections, according to local Election Integrity advocates who won a landmark lawsuit, resulting in the unprecedented release of terrabytes of Diebold databases. The databases, containing information on how voters voted, were found by the judge in the suit, to be public records.

Yet, the same people who ran the '06 RTA election are still in charge of elections in Pima County, and the same election software is still in place. If one election was rigged, there is little stopping them from rigging others in the future.

The RTA bond measure was reportedly passed by voters in 2006, but Pima County Democrats and Libertarians believe there is substantial evidence the measure actually went down and the results were flipped in the vote counting computer. The optical-scan paper ballots themselves have never actually been counted. They’re sitting in sealed boxes in the County Treasurer’s office, and may soon be destroyed. The Democrats and Libertarians went to court last month, asking the judge to save the ballots, so they may actually be counted in the future.

In his ruling, however, Judge Charles Harrington's claims he has no jurisdiction in the matter...

Attorney Bill Risner, a veteran of many election integrity battles (he won the earlier case that resulted in the election databases being released to the political parties), argued the case for saving the ballots. Because Arizona law says an election has to be challenged within five days, he didn’t ask that the RTA measure be overturned if the ballots show the results were rigged. He knows the results will stand even if there is absolute proof of election tabulation fraud.

Instead, Risner argued that the reason to save, then count the ballots is to provide "prospective relief for the next election." If fraud is discovered, he noted, the county will be forced to create more intensive safeguards in its elections division.

Three groups are opposing the Democrats and Libertarians: Pima County, which is in charge of the elections; the County Treasurer, who has the ballots in her possession; and the County Republican Party, which for some reason believes it has a stake in making sure the ballots are destroyed.

Risner said the court should begin with the assumption that the election was rigged and counting the ballots would reveal the fraud. That would make it the court’s duty, he argued, to rule that the ballots are saved so the rigging, if it occurred, can be uncovered.

The County’s attorney argued that, even if the RTA election was rigged, enough safeguards have been put into place in the past two years that it can never happen again.

(While it’s true that the Democratic Party’s Election Integrity Committee worked with the County to create procedures to protect the ballots and the transmission of votes from the polling booths to the vote counting computer, none of the procedures would stop an election from being stolen if election officials are intent on rigging the results in the final computer vote count.)

A truly bizarre argument came from the Treasurer’s attorney, who said, if the election were rigged, we’re better off not knowing the truth, since that would destroy the credibility of the work being done with the RTA bond money. "It’s inappropriate to do something that would have such a dramatic effect," he said.

Even though the Republican’s lawyer isn’t scheduled to present arguments until a court date in late February, the judge made his decision, asserting that he has no jurisdiction over the matter.

Risner plans to file a motion to reconsider with the judge. If that isn’t successful, he plans to appeal the judge’s decision and will ask that the ballots be preserved pending the appeal.

A few interesting wrinkles to the story:

  • The Democratic Party supported the RTA bond measure, so the party's quest to count the ballots has nothing to do with wanting the measure overturned.
  • Though Pima County has plenty of lawyers of its own, it hired outside lawyers for the County and the Treasurer to argue the case. Risner believes the reason is, the county lawyers may know things that would make it difficult for them to argue for destruction of the ballots. "The County Attorney’s office...wants to get separation from the matter," he said.
  • The State Attorney General has an open criminal investigation on the RTA elections, and he can demand that the ballots be counted at any time, though he has remained silent on the counting issue. That’s one reason Risner thinks the judge doesn't want to touch the issue of the ballots. "Judges view political cases as a hot rock," Risner said. "They really want to hand it to someone else." (Risner and other local EI advocates are seen confronting AG Terry Goddard about that, at a public meeting, in this video.)
  • John Brakey, head of Arizona’s election watchdog group Audit AZ, who has worked closely with Risner and with the County Democratic Party, has nothing but praise for the work Risner has done and continues to do. "Because of Bill," Brakey said, "we’re looking at issues no one else in the country has been able to look at."