Razor-thin margin, failed tabulators, untallied ballots, terrible 'recount' provisions leave Barber-McSally contest unsettled...

Brad Friedman Byon 12/1/2014, 3:46pm PT

Yes, we're still working on Election 2014 around here. As we've told you many times, problems in elections often take days, weeks or even months or years to reveal themselves, even after the mainstream media has long since moved on.

Last week we told you about the "recount" that awaits the GMO labeling ballot initiative in the state of Oregon and the amazing appearance of 21 "new" mystery ballots that flipped the results of a state Senate recount in Maine. And now, a "recount" lies ahead for the one remaining "too close to call" U.S. Congressional election in Arizona's 2nd Congressional District.

The state's first-ever "recount" of a Congressional race will be very different from the one that will be carried out for Oregon's Measure 92 and --- as demonstrated via a federal court ruling issued on Thanksgiving Day that disallowed the tally of some 133 provisional and early ballots before today's state certification of the race --- much more controversial. We can only hope no mystery ballots appear, as occurred in the still-unexplained contest in Maine.

The razor-thin contest in AZ-2 is between incumbent Rep. Ron Barber (D) and his challenger Martha McSally (R). Out of some 220,000 votes cast in the AZ-2 race --- in Pima and Cochise Counties --- the paper ballot computer tabulators report a margin of "victory" for McSally over Barber of just 161 votes, according to results posted by the Sec. of State.

The U.S. House seat in Arizona's 2nd District was formerly occupied by Rep. Gabby Giffords (D) until she was critically injured in a 2011 mass shooting that killed six and wounded 13 during a public event in Tucson. After Giffords' resignation following the shooting, she was replaced in a special election by Barber, one of her top staffers who was also shot twice himself during the massacre. Barber then went on to defeat McSally in the 2012 general election by less than one percent.

Prior to today's certification of this year's rematch, there were a number of oddities and controversies during the tabulation period. Among the problems, the reported Election Night failure of the paper ballot optical-scan computer tabulators in Cochise County to read a number of memory cards from the Early Voting period. Those sensitive cards store results of precinct-scanned paper ballots. They had to be flown by helicopter to another county before their contents could be discerned (even though paper ballots existed that could have simply been counted by human beings, rather than relying on electronic tallying systems.)

In addition to the troubling ruling last week by the U.S. District Court and the flawed electronic tabulation of some early ballots, local election integrity experts are also concerned about the state mandated process for "recounting" the ballots, a process which includes using the same flawed electronic scanners once again to determine if the initial scan was carried out accurately...

Failed memory cards

AZ-2 is comprised mostly of votes from Pima County (Tucson), but also includes votes from the smaller, much more Republican-leaning Cochise County. The Election Night count for the race was initially delayed when the memory cards on the ES&S optical scan systems in Cochise could not be read by the tabulators at the county's election headquarters. They were flown to Graham to be tallied that night instead. The problem with those particular memory cards remains unexplained.

"McSally trailed Rep. Barber after the initial early ballot numbers from Congressional District 2 were released Tuesday night," Tuscon's ABC affiliate KGUN reported the day after the November 4th election. "But those numbers did not include early ballots from Cochise County, the conservative portion of District 2 McSally won with 59 percent of the vote in 2012."

The TV station went on to note that a message had been posted to the Cochise County elections website late on Election Night, reading: "Due to technical difficulties the early ballot counting machine did not match the hand count. Therefore, early ballots are in the process of being delivered to Graham County where they will be counted by their equipment."

There was a similar failure with Cochise County's tabulation system during the state's August primary, according to KGUN, at which time the memory cards from the voting systems were also flown to Graham County to be tabulated.

Federal court rejects inclusion 133 untallied ballots

With McSally's apparent margin of victory of just 161 votes, Barber's campaign filed suit in federal court last week in hopes of forcing the state to count 133 problematic early and provisional ballots, some of which were cast by registered voters but not in their proper precincts.

Those provisional ballots, Barber's attorneys asserted last week, while arguing that today's certification should be postponed to allow the ballots to be included in the certified tally, were cast at the wrong location through no fault of the voters who cast them.

"These Arizona voters," their lawsuit read, "cast their ballots in accordance with state or federal law and, in many cases, as specifically directed by Arizona election officials. Not only do their votes remain uncounted, but the Pima County and Cochise County Boards of Supervisors have expressly refused to investigate their circumstances or to count their votes. Under federal and state law, these ballots must be counted."

Some provisional and early ballots were also rejected because they had problem signatures which either did not match signatures on file or were left off the envelopes entirely. The Barber campaign argued in their suit that deadlines to cure signature problems were arbitrary imposed: "Pima County refused to allow voters to cure signature mismatches after noon on November 8, and then changed the deadline to close of business on November 9. Cochise County outright refused to provide voters with any opportunity to resolve supposed 'mismatches' after the polls closed on Election Day."

One of those still-uncounted provisional ballots, for example, belongs to 81-year old Tucson voter Lea Goodwine-Cesarec, who attended last week's hearing. She says "she went to the polling location where she was told to vote and that poll workers never raised a red flag," according to Arizona's The Republic.

"I expect my vote to be counted. I did everything I was supposed to do," she said.

The Daily Wildcat reports that Barber's attorney, Kevin Hamilton "argued at the hearing that voters did everything they were supposed to do. In cases such as Goodwine-Cesarec's, Hamilton said the poll workers gave voters incorrect information, and that isn't a good enough reason to discount their vote."

"These voters have been stripped of their right to vote," the Barber campaign argued in court.

U.S. District Court Judge Cindy K. Jorgenson, a George W. Bush appointee, disagreed.

"The Court finds that Plaintiffs have not met their burden to show either likelihood of success on the merits or serious questions going to the merits," Jorgenson wrote in her unusual Thanksgiving Day order, according to the Phoenix New Times. "They have the burden and have not shown a pervasive error that undermines the integrity of the vote."

Jorgenson downplayed the uncounted ballots. "In general, garden variety election irregularities do not violate the Due Process Clause, even if they control the outcome of the vote or election," the Judge said, adding in her order that "Even if all 133 votes are counted, it is undisputed that Martha McSally wins the election because she leads by a margin of 161 votes at this time."

That, of course, is before ballots in the race are "recounted" and, with the results now officially certified by the state, a potential contest to them which Barber may file in court.

'Not accurate enough'

At The BRAD BLOG, we tend to use quotes around the word "recount" in cases where ballots --- paper or 100% unverifiable e-votes --- have never actually been counted by any human beings in the first place.

In Arizona, as in most jurisdictions in the U.S., even hand-marked paper ballots are not actually counted by human beings. Instead, they rely only on easily-manipulated and sometimes wildly inaccurate computer tabulators which tally ballots either correctly or incorrectly. Without an actual hand-count by human beings, its impossible to know either way.

As we noted last week in our coverage of the upcoming statewide Oregon "recount", while paper ballots in that state are initially tabulated by optical-scan computers, state law there mandates a full hand count of those ballots during "recounts" in races with an official margin of victory of less than 1/5th of one percent.

Voters in Arizona, meanwhile, are not nearly as lucky. State law mandates an automatic "recount" in AZ when the margin of victory is less than 1/10th of one percent --- "the worst standard in the USA," according to one local Election Integrity advocate.

More troubling is the fact that the "recount" in AZ-2 will be carried out by the same optical-scan computers that tabulated them in the first place (either correctly or incorrectly --- nobody knows.) State law, however, mandates 5% of the ballots also be hand-counted as a cross-check for the machine "recount".

Those partial hand-count standards, particularly in a race as close as this, are not accurate enough to be determinative, according to local election experts who described their concerns to The BRAD BLOG.

John Brakey, a longtime Election Integrity advocate and Democrat who has long worked on Election Integrity issues with a transpartisan coalition in Tucson and elsewhere in the state, says "This is the first federal election that we know in Arizona that falls under the 1/10 of one percent rule which is the worst standard in the USA."

By way of comparison, he said, in Florida, the margin triggering a "recount" is "1/4 of one percent and ballots in Florida are a public record. That's how the media in 2000 got the ballots that proved however you added the numbers Al Gore won Florida. Sadly, in Arizona ballots are not a public record, thus we never get to find out how this crap really adds up."

He added that, because of the shoddy standards for citizen oversight, election officials have "impunity to screw up big and get away with it." There is, he complained, "No real accountability."

Mickey Duniho is a retired National Security Agency analyst and former, six-year member of the Democratic Party of Pima County Election Integrity Committee. He resigned from that committee "in disgust" over the summer, he says.

He's also a computer programmer and points out some very specific concerns about the standards for Arizona's "recount" statute, both in the computer re-tally, and the small percent of hand-counted paper ballots that is supposed to confirm it. Both standards, he told us, are "not accurate enough to even confirm the winner."

"Arizona law prescribes a machine recount and a 5% hand count audit to confirm it," Duniho explained. "Unfortunately, the measure of success is 1% difference in the precinct ballot hand count and 2% difference in the early ballot hand count. In a race this close (within 1/10 of 1 percent) and with scanners whose error rate is 0.13%, the scanners are not accurate enough to confirm such a close election, and the hand count is not accurate enough to even confirm the winner."

In other words, hand-counting just 5% of ballots, as required in a mandated "recount" such as this, is "not accurate enough" because additional hand-counting will only be required or allowable in the event that the initial 5% hand-count differs from the initial computer count by more than 1% (as compared to the Election Day computer-reported results, and/or by more than 2% in comparison to Early Voting computer results).

Since the computer-reported margin for the entire election is less than 1/10th of one-percent, that mandated 5% hand-count won't be determinative enough, most likely, to tell us if the computer results were accurate in a race with such a tiny computer-reported margin.

"It is a fiasco just waiting for the loser to file suit in court and demand a full hand count, paid for by the loser," says Duniho. "At least that's what I expect to happen."

McSally declared victory last week, before the federal judge sided with her against Barber's lawsuit to include those 133 untallied ballots in the certified count. For his part, according to Arizona Public Media, Barber vowed: "I am not going to concede until the election is certified and the recount is conducted."

That state-mandated "recount" will begin at some point this week and is expected to take about two weeks, according to AZ's Republican Sec. of State Ken Bennett...barring any further surprises.

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