By John Dougherty
Article Published Feb 9, 2006
This is a career opportunity for U.S. Attorney Paul Charlton.
The 45-year-old Republican prosecutor could be the public servant who restores integrity to elections in Maricopa County.
Charlton's decision to launch a grand jury investigation into the September 2004 District 20 Republican primary and subsequent recount for a state House seat is a powerful signal that there is something seriously wrong with how our votes are getting counted -- or not counted.
Charlton has stormed onto center stage of the messy District 20 vote-counting scandal at a crucial moment.
For 16 months, Maricopa County elections officials have sought to deflect attention from the inexplicable appearance of 489 votes between the September 7, 2004, primary and a recount two weeks later. The recount changed the outcome of the election.
County Attorney Andrew Thomas and Recorder Helen Purcell have repeatedly stated there is nothing wrong with the county elections department and that allegations of impropriety are being generated by a wacko state legislator who's in bed with a reckless "tabloid" newspaper willing to do anything for a "scoop."
The county's flimsy line of defense was shattered on January 31 when a federal grand jury in Phoenix, under Charlton's direction, ordered the FBI to seize all 17,000 ballots from the District 20 race.
The next day, about a dozen FBI agents removed the ballots that were stored in a private facility leased by the Maricopa County Treasurer's Office.
Seizing the ballots should be just the first step in the grand jury's investigation of what happened in the Ahwatukee Foothills legislative district. The grand jury investigation needs to go much further than one legislative race and examine the entire elections process in Maricopa County and, if necessary, the state.
This is a high-stakes case for Charlton and the rest of us because it cuts to something fundamental in our society -- fair and accurate elections. It is the responsibility of government in this country to conduct elections in which every person's vote counts. And it is clear from the District 20 fiasco that there is a tendency around here for votes to simply get lost.
Charlton's investigation needs to answer four fundamental questions:
• Did someone tamper with the ballots between the primary where Anton Orlich defeated John McComish by four votes and the recount where McComish downed Orlich by 13? Along the way, 489 votes that weren't counted during the primary appeared and were scattered among all five candidates running for two House seats. There was opportunity for tampering during the two weeks between the primary and recount because of excessive, improper and unsecured handling of the ballots under the direction of Maricopa County Elections Director Karen Osborne.
• Did Maricopa County and state elections officials illegally conduct elections when they knew, or should have known, that the county's voting machines were failing to accurately tabulate ballots? This by far is the most important element of the investigation, because there is substantial evidence that Purcell and Secretary of State Jan Brewer have known since 2002 that the optical scanning machines used in the county are prone to serious tabulation errors -- especially with early ballots that now account for half of the votes cast in elections.
• Was it proper for the elections department to let Maricopa County Sheriff Joe Arpaio have inmates stuff ballots into envelopes that were then mailed to voters requesting early ballots? Several prisoners were questioned by the FBI shortly after the 2004 primary when county investigators discovered the inmates tampered with ballots before they were mailed to voters. Any rational citizen has to ask why Arpaio was anywhere near the ballots and early-voter addresses, when he was also a candidate in the 2004 Republican primary in which he faced the stiffest competition of his career.
• Did county elections officials commit perjury before Maricopa County Superior Court Judge Eddward Ballinger during a September 2004 hearing when they told the judge they did not know how to reach an employee of the company that manufactured the county's optical scanners? The Election Systems & Software employee, Tina Polich, had received a subpoena to appear in court but failed to show. Investigators later discovered that an assistant Maricopa County attorney worked with an ES&S attorney to keep Polich from testifying.
Polich's failure to appear at the hearing upset Judge Ballinger and forced him to make a ruling without complete information. "I don't like this hearing because it's not the way I like to do things," Ballinger said moments before certifying the election in favor of McComish.
Amazingly, Polich later told county investigators that the optical scanning machines may have failed to operate properly during the 2004 election.
Already under Justice Department oversight for failing to fully comply with the Voting Rights Act of 1965, Maricopa County's possibly using faulty optical scanners for years and trying to cover this up before a Superior Court judge should certainly be of interest to federal prosecutors.
My hope is that Charlton is doing what all good U.S. Attorneys are supposed to do -- step in and investigate a situation that self-serving locals are botching and refusing to fix. But questions are being raised about whether his motivation is to get to the bottom of the mess or to merely lay to rest protests about the county's stonewalling by conducting a toothless investigation.
I'm saying, if Charlton were to find out that no vote-tampering occurred and then drop the matter, that would not be getting to the bottom of the problem. The vital question of whether the county has been using error-prone voting machines -- which officials knew were flawed -- would not be answered.
And the apparent problem would continue in future elections.
State Republican Representative Jack Harper on January 25 received unanimous approval from the Senate Government Accountability and Reform Committee, along with the backing of 21 of 30 Arizona senators, to obtain the District 20 ballots. But before Harper could issue a subpoena, the FBI seized them on February 1.
Harper has been investigating the District 20 recount since last summer and has clashed with Purcell, Osborne, Thomas and Speaker of the House Jim Weiers. In early December, Harper issued legislative subpoenas to the county to make the election machinery available for inspection and to turn over the ballots to an independent third party.
On December 20, Douglas Jones, a University of Iowa computer scientist and expert in voting-machine technology, tested Maricopa County's vote tabulation machines and found serious problems with the ability of the devices to accurately count votes.
While county elections officials provided access to the machines, they refused to turn over the ballots. Thomas claimed Harper needed a court order. Harper hired a private attorney to prepare a court order while Jones was in Phoenix, but Thomas objected again and the ballots remained locked up.
In early January, Jones concluded that the only way to determine how the 489 votes appeared during the District 20 recount was to inspect a random sample of the 17,000 ballots.
Now, rather than the District 20 investigation being conducted by a Senate committee in a relatively open and transparent forum, the federal investigation will be handled in secret.
For his part, Harper believes the feds will do the right thing:
"I'm confident that they are going to do a thorough, independent job and that we can rest assured that their experts are going to have adequate credentials."
Others are less confident that a Republican U.S. Attorney will seriously investigate voting irregularities, particularly in a state controlled by a Republican legislature and whose top elections official, Secretary of State Brewer, was co-chair of President Bush's Arizona election campaign.
"This scares me; I don't know what to think of it," says Dawn Wyland, interim director of the American Civil Liberties Union of Arizona.
"They could actually be looking for the right thing and be interested in finding out what went wrong and investigating further to see if there is election fraud or tampering, or it could all get buried," Wyland says.
At this point, we must believe that Charlton will do whatever is necessary to find out what happened in the District 20 fiasco, including embarrassing powerful fellow Republican Andrew Thomas.
But the fact that Thomas' shills are proclaiming to the media that the county attorney is delighted that a federal grand jury has intervened makes some observers wonder.
Early last year, Thomas conducted a half-assed "preliminary investigation" of the District 20 voting mess and concluded there was no evidence of criminal wrongdoing. Thomas' whitewash is now under attack by top officials in the Maricopa County Republican party.
"The review was conducted by political appointees, not career investigators, did not include any sworn testimony, did not include an examination of any ballots, nor an examination of the recount process and tabulating machines by an independent professional organization," states a February 2 resolution passed by the county Republican Executive Guidance Committee.
The resolution, which commends Harper for his efforts, also applauds the federal grand jury investigation.
Unless the skeptics are right that the federal probe may be a sham, U.S. Attorney Charlton, unlike Thomas, believes there is probable cause that crimes may have been committed.
But even if the grand jury investigation does not lead to indictments, Charlton has an obligation to ensure that the public gets a definitive explanation about what happened in District 20 and that -- if bad things did occur -- election reform results.