This suit was filed just before the Presidential Preference Primary (PPP) election on Feb. 5, 2008. It was heard on election day, and the MCLP won at a hearing held on election day and their chosen representatives were ordered by Judge Swann to be admitted to observe the elections process as equals of the Republican and Democratic Parties.
This suit was never closed. ;-)
The General Election on November 4th approaches and once again inquiries are made by the MCLP Chairman Jim Ianuzzo as to procedure. He leaves several messages on the voice mail of elections department heads and is finally contacted not by any of their staff, but by a deputy county attorney. [WTF???] He figures it is election time and they are just busy. Karen Osborne, Elections Department Director will testify under oath that her representative left"several" emails to Mr. Ianuzzo that went unanswered.
Once again the MCLP's observers and other assigned duties of delegated people assigned by Chairman Ianuzzo are either denied the same access as the R's and the D's, completely blocked, ignored, marginalized, misled, threatened or rebuffed. So the MCLP's attorney amends further complaints onto the Feb. 5th suit and files for an expedited injunction and relief hearing (case #: CV2008-002704).
Since some of the suit relies on a time sensitive procedure, namely the manual validation of the election where a rapidly approaching canvass date of November 24, created a situation whereby a Judge Grant who was acting as the quick appeals judge -- granted a hearing the next day. This was subsequently moved to a judge who specializes (whom has been trained) in election law, Judge Burke. Initially this was going to delay the process one more day, but Judge Burke squeezed it in at 3:30 p.m. on the 12th.
The state of Arizona uses optical readers to scan ballots, 100% in Maricopa County which contains about 85% of the state's population. There is actually a law which prevents recounting the optically scanned ballots by any manner other than by running the ballots through another optical scanner. YOU CANNOT COUNT BALLOTS BY HAND IN AZ IF THEY HAVE BEEN COUNTED BY MACHINE. What could possibly be the purpose of such a law other than to prevent detecting cheating by government on the vote count?
Well, in 2004, a Republican Primary in Legislative District 2o resulted in the non-party favored (libertarian running as a Republican) candidate winning by only four votes. A mandatory recount -- through optical scanners -- occurred. Almost 500 additional votes turned up and the favored candidate won by several hundred votes. Surprise. Many Republicans were incensed. An investigation was launched. [go about halfway down to start hitting the articles on this debacle.] And in the end when the legislature -- who can't be blocked by state law from examining the ballots -- tried to manually count the ballots from this District the FBI swooped in and grabbed the ballots two hours before the count and these ballots have not been seen since. Smelling a vast conspiracy yet?
Legislators introduced a new law creating a statistically valid random selection of a few precincts in which a manual count would occur for a few races, and the count had better closely match the optical count. The Maricopa County Elections Department has fought the elections implementing this since, and only grudgingly done it.
The MCLP was now asking for seven actions from the court. One is to invalidate the lottery drawn precinct hand count for failing to comply with law (in particular, ARS §16-602(c)). And to once again compel the Maricopa County Elections Office (MCEO), to recognize the validity of the various MCLP designated observers and participators in validating the elections process and verification giving them the same access as the other two recognized parties. To nullify the hand count and order a recount of the tabulation validation. And to pay us for our costs and losses.
In opening Michael had to profusely apologize to the court for having erred in forgetting to file a verification document, but said he could have in in by the afternoon and ask the judge's indulgence in that the matter was both time sensitive and important.
The MCEO representative, Colleen Connor, filed a motion to dismiss (MTD) based upon three reasons including the above paperwork filing failure, all of which were denied by Judge Burke except as to the question of failure to join the Maricopa County Democratic and Republican Parties as indispensable to the action, and, would dismiss unless the MCLP joined them to the action. The judge ordered that the newly joined parties be provided copies of the complaints, and that they know of the hearing and that they should appear in his court the next day. He told Mr. Keilsky since he was in a hurry and that as a scheduled trial had canceled on him for the next day, he could have any time he wanted Thursday the 13th to accomplish the contacting the two major parties and getting them in court. Would he like to start at 10 a.m., 11 a.m. or 1:30 p.m? The judge darned near sputtered with incredulity when Michael said 10 a.m. would be fine. The judge even said 'you can get both parties to appear by 10?'
I must confess I was equally concerned that as this was the end of the day it would be very hard to accomplish. But the next day, there they were representatives from both the Democratic (Ms. Rhonda Barnes, attorney) and Republican parties (Mr. William Gates, attorney (sp?); Mr. Tom Husband the chairman of the Maricopa County Republican Party also attended) [all of whom the MCLP should thank for cooperating] sitting in the courtroom with the defendant [the county]. Well done Michael!
It starts off with the judge clarifying the two major parties position on this suit. They both reply they have no position as to the outcome. That they can supply the required elections people if a recount is required by the court. That ended one serious problem.
The first matter is a question from the judge to both parties: Did the LP designate their representatives a week before the election? "Yes" replied the MCLP. "No" replied the County, they did not use the required color paper to submit the names upon.
According to Ms. Connor, the names of the representatives must be provided on a colored paper, not white paper. The procedure is not in the law, but in Maricopa County's own procedure -- the procedure itself which was not introduced into the court, and would turn out under testimony by Karen Osborne to not be required.
A further objection was the count was not done in the Tabulation Center as required by law, nor under constant video surveillance as required by law.
The county contended, the Maricopa County Sheriff's Training Center where the count took place was designated by the County Recorder as a tabulation center for the purposes of the law and this was allowed under a separate law that allowed the County Recorder to use resources as needed to carry out her duties. The judge noted that the law (602c) says Tabulation Center singular, not plural.
MCLP also objected to both the timing of the tabulation and the order in which it was done. Many object to the precinct/ race lottery occurring the day before the count -- potentially giving a day's time to anyone wishing to stuff a now limited number of ballot boxes. An hour before would be more appropriate, especially when those ballot boxes were being guarded by a single deputy, with no tamper evidence security seals and no video cameras. No the timing issue was where the law says you cannot start the lottery for the precinct tabulation until ALL precincts are initially entered into the tabulation computer. The County held the lottery some two to three hours before all the precincts' data was entered. The law also says the precincts are chosen and then the races. The County chose the races and then the precincts.
Another objection was the County gave unsupervised control of the ballots to the Sheriff who was on the ballot running for re-election. There response was there was no evidence the ballot boxes had been tampered with.
The first sworn witness was Jim Ianuzzo, Chairman of the MCLP. He described how he sent a series of emails and left voice mails with Christie Pasturelli (sp?) at the MCEO three and a half weeks prior to the election. There was no response. Two and a half weeks before the election a deputy county attorney called him back. Never heard back from MCEO directly. Submitted forms with designated individuals to be observers: Jim March and Ed Vallejo on white paper. Later informed it needed to be submitted on a colored paper, and that the R's and D's had submitted theirs on red or blue. He submitted his on yellow (goldenrod). Later the trouble they encountered, left Mr. Keilsky to wonder if the MCLP had been treated differently than the R's or D's?
Next on the stand was Ed Vallejo. He was there as a observer the first day and when they found themselves short of workers he was asked and agreed to be a counter (inspector) the second day of the tabulation held at the Maricopa County Sheriff's Training Center. He had not been told about a November 5th meeting. Nor was he informed and present at the precinct lottery selection. He had been at the logic and accuracy test.
On his first day at the Sheriff's Center Karen Osborne (Director MCEO) told him he could observe, but not participate in the count. Only the R's and D's could participate in the count.
He also participated in observing three precincts voting on election day. The judge asked him if he saw any inconsistencies? He said he did. In one polling place the optical reader was in a very small room that prevented him from seeing the vote counter increase by one after every ballot was submitted because of a six foot designated restriction that prevented him from possibly observing the counter. He also witnessed the transporting of the data card [delivered from each polling site with the vote counts for the unofficial count that night] by only one person to the tabulation center. There is a story there. His final polling place was his own. When he showed up and showed his paperwork as an observer the person in charge of the polling wouldn't recognise it and told him he had to leave. He stayed. Apparently the Sheriff was called, because a deputy showed up along with an elections official. The elections official came in, examined Mr. Vallejo's paperwork and then spoke with the poll person saying it was OK for him to be there. The deputy stayed by Vallejo's side from that point the ENTIRE evening he was there. Ridiculous and intimidating. After the polls closed, Vallejo told them he intended to follow the data tabulation card back to the tabulation center after watching them seal it. It was transported by a single person. When Mr. Vallejo followed the deputy followed him. She lost him at a light by speeding off ... while Mr. Vallejo for some reason figured speeding through a yellow might not be in his best interest.
So for 10 minutes she was alone with the data card when he caught up to her already at the collection center. While there he noticed numerous cards being transported into the Center by single individuals.
One lone worker, by himself was taking these data cards and transferring the results to the machine (computer?).
Next on the stand was Jim March -- elections tampering expert and MCLP observer -- who reported there were 10 precincts with missing or malfunctioning data cartridges. He observed the precincts were being picked by lottery before all the election results had been reported as required by law. No comments or questions were permitted. Nor were any of his suggestions acted upon.
He objected to the ballot boxes which were easily tamperable, as he has opened them up when sealed in the manner used by the MCEO in an undetectable manner in under 5 seconds. These boxes were easily transportable. And had been transported out of the 24/ 7 video coverage at the Tabulation Center to the Sheriff's Center. He had requested they put more security tape on the ballot boxes before they were transported and was denied by Karen Osborne.
According to Ms. Osborne the MCLP could only observe; the tabulation was "controlled by the two major parties."
Asked by the judge if there were any other problems: Yes, they use square duffel bags where the top is unzipped around the top to hold the ballot boxes [I think ... it may have held the optical scanner, or a tabulating machine used at each polling place...my notes are unclear] for transport to the Sheriff's Center. They have a double zipper key that were sealed together with a metal strap security seal. He noted many seals were broken and the zipper tabs were unstead closed by a reusable clip.
This is important because there is still enough space when the bag is occupied to allow the ends to be folded up [allowing the double zipper keys to unzip and open up the bag without breaking the metal seal. Despite this several of the seals were inexplicably noted to have been broken at the Sheriff's Center the next day when the count was to start. It would take a lot of force to break a metal seal. [Like the kind of force that might be applied if the bag was being surreptitiously opened in a manner to open up the bag and allow it to be reclosed latter without breaking the seal.]
The tags that were being used had serial numbers on them. The last four digits corresponded to the precinct number. Example Ironwood precinct, #0400 had a security tab ending with 0400 used on the ballot boxes and tabulation machine. Found that procedure was these tags are made in bags of twenty (Karen Osborne later testified bags of 25). And half were given to the polling place, the rest went to someplace unknown. Accounting for all of the seals seemed to be lacking.
When he was at the tabulating center he found that the Sheriff's own men had the same tags. Serial numbers and everything, and freely used them to seal their personal lockers containing their belongings as well as other items. (Karen Osborne would later testify her office supplied the Sheriff's Office with these tags.) The implication is how secure is it to pass these tags around freely?
A lot of Sheriff's deputies were always present during the count (8 to 10 at once) with a total estimated at 14 throughout the day depending upon their shift. There were zero video cameras present (which was also noted by Mr. Vallejo and Karen Osborne). But only a single deputy guarded the facility outside at night.
Break for lunch