Democratic attorney sends letter to state AG detailing new concerns about Tucson's long-contested 2006 special election

AG's office: Examination may end today, says will 'examine all evidence seized, including poll tapes'...

Brad Friedman Byon 4/15/2009, 1:32am PT

-- Brad Friedman, A BRAD BLOG Special Report

In a letter written to the Arizona Attorney General's office on Monday, as obtained by The BRAD BLOG, the attorney for the Pima County (Tucson) Democratic Party has expressed a concern that thousands of ballots from a disputed 2006 special election, which should be in the AG's possession, may instead be "missing".

"Many thousands of ballots that should be in the ballot boxes in your possession don't exist," attorney Bill Risner writes in the 3-page letter [PDF] to Donald E. Conrad, Chief Counsel of the Criminal Division at the office of state Attorney General Terry Goddard. The alarming allegations come as the second week of an extraordinary hand-count of paper ballots, part of a criminal investigation into the '06 election, continued in Phoenix on Monday.

A spokesperson from the Attorney General's office says she believes the count will be concluded on Wednesday, though that could change. It was originally scheduled to conclude last week.

The AG is conducting a criminal investigation into allegations that that election may have been electronically manipulated by election official insiders. The special election created Tucson's Regional Transportation Authority (RTA) in May of 2006, and funded it with a joint bond measure to the tune of $2 billion over ten years. The Pima Democratic Party had endorsed the two RTA ballots questions in the election, but they now question the legitimate success of the measures. They've been bringing court cases to access ballot materials, and have been demanding a hand-count of the ballots for a number of years. Similar RTA initiatives had failed in four previous elections before they were finally passed in 2006.

"If we are correct," Risner wrote in his Monday letter to the Attorney General's office, concerning the absence of as many as 19,000 paper ballots, as estimated by observers of the counting in Phoenix, "the question arises as to what happened to those ballots." The latest mystery adds still more fuel to the already high-stakes, long-sought hand-count, and raises new questions in the nearly three-years long investigation into the 2006 election results.

If the ballots are indeed missing, did they ever actually exist? Was the Diebold electronic ballot box stuffed? Have ballots been surreptitiously removed by someone for some reason? Or have observers miscalculated the number of ballots being examined? The AG's Press Secretary Anne Titus Hilby tells The BRAD BLOG she's aware of the allegations of missing ballots but could not speak to that point in any more detail "until the examination is concluded"...

The hand-counting at the Maricopa County (Phoenix) election facility began last Monday under strict security which limited observers from each of the Democratic, Republican, Libertarian and Green parties to one each, as selected by the AG's office themselves. Party representatives had expressed dismay at Goddard's limiting of observers to just one from each party, as chosen by his office, and at the exclusion of "cameras...cell telephones...writing instruments...and...audio or video records of any kind". Further, as Conrad wrote to the parties on behalf of the AG's office, in a March 23, 2009 letter [PDF], "No representative will be permitted to communicate with anyone outside of the examination room while present in the examination room by signal, voice or other sign."

"I must emphasize that this is a criminal investigation, not an elections process controlled by applicable Arizona election laws," Conrad wrote, noting that observation would be permitted via streaming Internet cameras. However, as The BRAD BLOG reported last week as the examination of ballots began, Conrad's promised "Eight cameras...stream[ing] live video of the examination proceedings to the internet," amounts to only two cameras in the actual counting room (the others are in different areas of the facility entirely), and both of those are far enough away that it's impossible to oversee the accurate counting of ballots via the Internet.

Nonetheless, despite the severe restrictions on observers, members of the Democratic and Libertarian parties, tracking the progress of the ballot counting through a glass window at the counting facility, have "roughly estimated" that anywhere from 10 to 19 thousand --- out of 120,821 ballots supposedly cast in the election --- are currently nowhere to be found.

Representatives of the Republican party told us that they had similar concerns about missing ballots, though they declined to go on record with specifics.

A 'Duty to Find Out'

"We don't know the answer," as to where those ballots may be, or why they may be missing, if they are indeed missing, Risner explained in his letter to the AG on Monday, "but it is our political party's duty to find out."

Risner explained that the AG "has in its possession 105 boxes from the RTA [election] that include all of the ballots from that election as well as additional records such as the poll tapes" printed out by the precinct-based Diebold optical ballot scanners before polls opened and after they closed on Election Night. Theoretically, those tapes should show zero votes on the optical-scan tabulators at the beginning of the day, and the unofficial scanned results for each precinct, as printed after the polls closed at 8pm.

19 boxes, says Risner, contain additional records from the election, leaving 86 boxes of RTA ballots in total. 31 of the boxes contain the vote-by-mail "early ballots" (absentee ballots). "On average those boxes should contain 1,152 ballots per box," according to the Democratic Party Attorney. "Your office should have the precise count for each box, as our number is simply an arithmetic average. Our experience and visual observation suggests that the 31 boxes were fully packed for storage."

That leaves a "problem", Risner contents, in that the 55 remaining boxes are unlikely "to contain an average of 1,547 ballots per box to arrive at the total of 85,100 ballots reportedly cast at the various voting areas. The boxes simply cannot hold that many ballots, as your office must know," writes Risner.

120,821 ballots, in total, were reportedly cast in the election, according to the Pima County Elections Office results. A check of the Pima County Recorders database of registered voters, made by a Libertarian Party observer on Tuesday night, indicates 120,499 voters voted in the election. While that number is slightly smaller than the number of votes reported in the official results, it falls far short of the "thousands" of ballots believed to be possibly missing from ballots seized by the AG in February.

Why Would Ballots Be Missing?

The BRAD BLOG has spoken to observers, from at least three different parties, who have been on the ground in Phoenix since the counting began last week, including the Democratic Party's John Brakey, a longtime election integrity advocate from AuditAZ, one of the coalition leaders in trying to determine if the RTA election results were recorded and reported accurately.

"Ya know, I voted for the RTA because my party endorsed it," Brakey told us earlier this week after the concern about "missing" ballots began to come to light. "I voted for it. So that's one vote I know for sure the RTA got!," he added with a laugh. "But I want to know, for certain, that it actually passed, or if it didn't."

Both Brakey and the Libertarian Jim March, who has also been observing the count through glass windows at the counting facility, have confidence in their admittedly extrapolated numbers as gleaned over the past week.

"We made individual, specific counts of ballots going into several boxes. We got absolutely, definitely accurate counts of those boxes on high-definition video tape. We saw them going into uniform boxes," March told us on Tuesday night. "We could easily be off 20, 30, 40 or 50" per box, "but not by 200 or more."

"If the AG's office claims that they have all 120,000 plus ballots accounted for, we are going to be able to prove with photograph evidence and video-taped evidence, that there are, in fact, over ten thousand missing ballots. I believe that observers from the Democratic, Republican and Libertarian parties will all agree on this."

Over the last several days, we've been working through a lot of the numbers, background details, and possibilities as to what may be going on , with Brakey and others, in determining why the ballots, if they are missing, might be missing in the first place.

So why would any ballots be missing?

Brakey says, "We don't yet know. It may be incompetence" leading to ballots simply getting "lost" somewhere along the way in the nearly three years since the election. Or, he says, "it may be that some of those ballots never existed. Maybe they stuffed the ballot box electronically. You can hack Diebold['s central tabulator databases] by using 'edit, find & replace', we know that. So we don't know what's going on, and that's what we're trying to find out."

The secure chain of custody, at various times over those three years since the election, has been in question, including since February 24th of this year when Goddard's office suddenly, and secretly, "hauled the boxes away" according to an email we reviewed from an attorney for the Pima County Treasurer's Office. The Treasurer, Beth Ford, had was in charge of custody of the ballots for a number of years, up until they were taken away 7 weeks ago by the AG. The ballots had been stored in an Iron Mountain facility in Tucson until they were "hauled...away", and then they re-appeared at the Maricopa counting facility for examination in the criminal investigation last Monday.

"The paper ballots were originally stored at the Pima elections office, then were transported [about six weeks later] to the Iron Mountain private document storage facility, back to Pima elections as part of litigation over access to other documents in the same boxes, then back to Iron Mountain, then were grabbed by the AZ AG's office and taken to points unknown with no oversight, and then under some circumstance we don't have details on, [went] to the Maricopa elections office for counting," March, an election watchdog and founding board member of BlackBoxVoting.org explained recently. "There are (or have been) opportunities for tampering at several points along the line."

A successful lawsuit brought by Risner and the Democratic Party led to the release of the Diebold tabulator databases from the '06 RTA election in May of 2008. Those databases, the plaintiffs in the suit have charged, show signs of potential fraud, as well as evidence that the results of the "early ballots" were printed out several times before Election Day, which would have been in violation of the state election code.

Brakey contends that years of public records requests, and detailed review of reams of materials from the disputed election, also reveal that "at least 93" optical-scan memory cards, containing precinct results from the election, were "reloaded at least twice" into the Diebold central tabulators by officials following the election, for some unknown reason. By contrast, in the much bigger 2004 general election in November, no more than 3 cards were reloaded by Pima County election officials, he says.

The Diebold memory cards, used in all of their voting systems, have been found in several scientific studies to be exceedingly vulnerable to tampering, as first revealed in the climactic final scene of HBO's Emmy-nominated documenary film, Hacking Democracy. (You can watch the scene, and the live hack of the Diebold op-scan tabulator, via a memory card, right here.)

Additionally, Brakey added to the growing mystery: "On Election Night they reported that 38 machines broke in the field. I learned via email that it was 75. But looking at the database, it tells us that it could be as many as 149."

That's a lot of broken machines. If they broke down, they may not have been able to produce either early morning "zero test", results showing the cards had no votes on them when the polls were opened, or end of the day election result poll tapes.

Those still-unexamined poll tapes could offer quite a bit of additional information, but they've been sealed in the ballot boxes until now, and over the past week, examiners at the Maricopa facility have carefully re-sealed them into ballot boxes after removing ballots for counting.

The BRAD BLOG has learned from an AG spokesperson, however, that those poll tapes will also be counted as part of the criminal investigation. The information came as news to representatives of the Democratic, Libertarian and Republican parties, when we shared it with them on Tuesday night...

'A Wild Story'

So what happened? Why all the reloaded cards, broken machines --- even a whistleblower affidavit alleging that one official admitted he "fixed" the election "on the instructions of his bosses" --- and now potentially "thousands" of "missing" ballots from the criminal investigation hand-count?

Attorney Bill Risner had just notified the Attorney General, earlier this year, of his hopes to review the precinct poll tapes which, the Democrats believed, might offer clues as to whether the precinct results actuallymatched up with the final reported results.

"We have been requesting the cooperation of your office concerning public records that are in the same boxes as the RTA ballots," Risner wrote to the AG on Monday. "Your office's refusal to cooperate on that simple matter not only causes us specific harm, but frustrates our party's ability to carry out its oversight role."

Just ten days before Goddard "hauled...away" the ballots from the Tucson Iron Mountain facility, he had indicated to the Arizona Daily Star that it would be unlikely he'd be counting RTA ballots, despite the years of clamoring for such a count to answer the questions about the election once and for all.

"If they can bring us viable information we would continue to investigate it. They haven't. They've brought us what I can only describe as a wild story," Goddard told the Star. We don't do "curiosity recounts," he's quoted as saying. "There is simply nothing there that says, well, if you had a bad feeling about it and everybody agrees you can take them out and count them again. You simply can't open those boxes under the law that we have and take a look."

Yet, ten days later Goddard, would take the ballots from Tucson up to Phoenix, under cover of secrecy, and a few days later he was forced to admit a hand-count examination was set to begin on April 6th, last Monday.

Goddard's spokesperson Ann Hilby told The BRAD BLOG on Tuesday afternoon that information brought to the AG's office by Risner, in July of 2008, led them to re-open their criminal investigation. Specifically, she pointed to the affidavit filed last summer alleging that a Pima County election official claimed to have "fixed" the results of the 2006 RTA election

But, as to what may have changed Goddard's disbelief in that "wild story" on February 10, as he described it in the Arizona Daily Star, to the time he "hauled...away" the ballots on February 24 remains unclear.

Hilby would neither confirm nor deny that there was any actual change in Goddard's position, noting several times in our interview that "part of the protocol we established is that we will not be commenting until the count is finished."

'We Want an Honest Count Whether We Win or Lose'

Risner believes Goddard's surprise action at the end of February may have been related to the Democrats' pending lawsuit to allow them to review the poll tapes from the election. Action was being taken on that suit just prior to the seizure of the ballots. The tapes were stored inside the then-secured boxes of ballots at the Iron Mountain facility in Tucson. Perhaps Goddard, the state's highest elected Democratic official --- widely believed to be seeking the nomination for Governor in 2010 --- has a reason to either expose or protect the results from the election, as the controversial measures were endorsed by his party.

Risner wrote in his Monday letter to Goddard: "For us to do our job, we need to see the poll tapes and yellow sheets and other public record election documents. Those same documents would seem to be useful to your office. Our observer has informed us, however, that your office does not examine those documents [during the examination over the past week], does not record any information from them, and does not make copies of them. Instead, you place those important records back into boxes that you then securely seal, where they remain unseen and unrecorded."

The Democratic attorney goes on to suggest those documents should, instead, be inspected and copied, as "They contain information that would be useful to your office, just as they are useful to our political party."

"We're the biggest political party in Tucson. We're not just 'some guys on the street!'", Risner told us with a laugh this evening by telephone. "It's astonishing to me to have a lawsuit concerning the poll tapes and then to see them not look at the poll tapes" during the hand-count in Phoenix.

As Risner contends --- and observers from the Democratic, Republican and Libertarian Parties have all confirmed to us --- the Maricopa counting officials "go through a detailed procedure to seal back up the poll tapes in the ballot boxes," after they remove the ballots from them. They have not been examining them.

But the AG's spokesperson told us, point blank, when we asked her directly on Tuesday if they would be examining those poll tapes: "Do we plan to examine those? Yes, we're examining all of the evidence seized, including the poll tapes."

All three of the parties expressed surprise at Hilby's comment. Risner, while still "suspicious", was happy to hear that news. "If the heat is on, and they agree to examine them, that's good," he told The BRAD BLOG. "All we really know is [Pima] county went to an extraordinary length to keep us from examining the ballots. And that the AG's office has gone to extraordinary measures to work with the suspects [the Pima County election officials], and to keep us from seeing the evidence, such as the poll tapes."

"It's amazing that they've been going to these lengths," he said, "at least up until now."

Hilby, however, would not confirm who "the suspects" were. "We haven't commented publicly on who may or may not be the suspects, other than the fact that we're investigating potential fraud associated with the RTA election of 2006. We have worked to respond to Mr. Risner's concerns, including when he brought additional evidence to light in July 2008, when we reopened the investigation."

She did say her office would be "commenting on the status of the ballots, once that examination is concluded." Though she "anticipates the count will conclude tomorrow [Wednesday]", she didn't know when her office would be commenting on the actual results. She also said they would be releasing "specifics of totals from the count" due to "great public interest --- particular in the Tucson area --- as soon as we can make that information public without jeopardizing the investigation."

"I understand that it is frustrating," Hilby added, "when there is public interest in a matter, to not be able to provide the details as soon as it may be done --- as people may be used to --- in a normal election recount." But, she says, this is a criminal investigation, an extraordinary one and "not a normal election recount."

Near the end of Risner's Monday letter to the AG, he promised to "remain available to assist your office in any way in your investigation," and noted, in no uncertain terms: "We have repeatedly tried to make two points clear to the Attorney General's Office. The first point is that the Democratic Party endorsed and supported the RTA. The second point is that our interest in election integrity lies at the heart of the democratic process. This is what we do. We participate in all elections and we want an honest count whether we win or lose."

Whether anybody will ever be able to get "an honest count" --- if thousands of ballots prove, in fact, to be missing --- is still anybody's guess.

* * *

For those curious, these are the general results breakdowns from the officially reported final results of the 2006 RTA special election. Question 1 sought to create the RTA, Question 2 sought a tax hike for Pima residents, in order to fund $2 billion dollars in bods to pay for the RTA.

Question 1

YES: 60.05 | NO: 39.95%

YES: 71,948 | NO: 47,870

(Precinct results) - YES: 49,491 | NO: 34,754

(Early vote-by-mail, provisional results) - YES: 21,310 | NO: 12,473 Question 2

YES: 57.64% | NO: 42.36%

YES: 68,773 | NO: 50,551

(Precinct results) - YES: 47,362 | NO: 36,530

(Early vote-by-mail, provisional results) YES: 20,326 | NO: 13,324

CORRECTION: The original version of the article defined the RTA as the "Rapid Transit Authority" instead of the "Regional Transportation Authority". We regret the error and have corrected it in the story above.



