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Maricopa Co. Libertarian Party v. Elections Office: Round 2 (Part 2 & Conclusion)

Written by Subject: Arizona's Top News
 
When we got back from lunch next on the stand was Carol Corsica.  Ms. Corsica is a member of the Democratic Party and she has been a precinct committeeman with the Democratic Party. She had raised objections to the procedures being followed. That all the election results had not been tabulated nor publicly released yet, and Karen Osborne had stated that four memory packs were damaged and as a result 10 precincts results were missing. Yet she was going ahead with the lottery to randomly select precincts for the manual validation in violation of law and the Secretary of State's manual.

In addition, she objected to the fact that they were choosing races before precincts, therefore eliminating the intent of the law in which every precinct had an equal chance of being selected as soon.  As soon as a race was picked the vast majority of precincts were eliminated. Both the law and the secretary of state's election manual the 2007 version --  which is the most extant version -- both require that precincts are selected first, then races.

The County attorney asked her on cross examination how many precincts were selected she said either 23 or 24.  The first race selected was the race for president which is preselected by law, as well as a statewide race, the Corporation Commission was the only statewide race so it was selected, and finally one of the ballot measures was selected.  None of those would have eliminated any the precincts.  However, then they selected a Congressional District; district 2 in this case, which dropped the number down to approximately 200 precincts, as well as a legislative district; district 18 in this particular case which dropped many, many hundreds of precincts from being available to be randomly drawn.

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Karen Osborne, director of the Maricopa County elections office then took the stand

Mr. Kielsky asked Karen Osborne regarding the timing of the hand count.  Why she started tabulation before all the precincts had been reported?  She replied that some of the memory cards would not load, and that none of the precincts drawn in lottery were part of the defective data pack's. 

Mr. Kielsky asks her was the law followed? She replied "yes." 

He then asked her to explain her reply. She said if any of the precincts present on the defective security packs had been selected "we would've stopped and gotten them entered before selecting more precincts." 

He asked her is this the procedure described in law? Her reply was "we followed the Secretary of State's elections procedure manual provided us for the presidential preference primary."   Mr. Kielsky noted that this was not the correct procedure in the secretary states manual which was provided the court by the County in their motion to dismiss, and read into the hearing.  The reply was 'yes, but they were using a different manual provided by the Secretary of State's office.  [They later furnished a copy of that manual that they were using, and Mr. Kielsky objected to it because it had no date or archiving record number at the bottom of the manual --- meaning it is not a legitimate manual.  Since the Secretary of State's office is responsible for enforcing that kind of requirement (archiving records) that all government manuals possess this sort of a trace back code so you can identify is as clearly being a authentic manual; that it wasn't a legitimate manual being provided to the court or apparently in use.  Further he had evidence that this manual being presented happened to be the same one that was time stamp from September of 2006, and fact was now superseded by the 2007 manual that the Secretary of State's office had provided .  That Karen Osborne had previously said 'yes she was familiar with his 2007 manual' and the contained directions for doing the tabulation validation procedure.

Mr. Kielsky changed topics and inquired about the Sheriff training facility as a counting tabulation center.  He asked her is this the County tabulation center? Karen Osborne's response is 'it is for the hand count.'  Is it used for other purposes?, said Mr. Kielsky.  "No," said Karen Osborne.

Next he asked her about the custody of the ballots, specifically the 24/7 video surveillance in the county's tabulation center.  That the ballots in fact were secured in the center under constant video surveillance.  That literally anybody could watch online that the ballots were not being tampered with.  And yet the selected ballots were removed from this facility, transferred to the sheriff's training center for an overnight stay to be counted the following day.  Her response was that the county's tabulation center was never envisioned that they would count in this facility.  She said that the laws being discussed had two portions one was the video surveillance requirement, and later on a different law put in place which discussed the hand count, so therefore video surveillance was not required for the hand count.

Then Mr. Kielsky asked why the libertarian party was not selected; he specifically asked did any of your people try to contact libertarian party chairman?   Karen Osborne stated that on August 7 an e-mail was sent out to all party chairman inviting them to get together to go over the procedures.  The Republicans and Democrats were there, the  Libertarian party was not.  That the Libertarian party had failed to designate anyone for specific tasks with the exception of Jim March who was designated beyond an observer.  In the three that were selected in the end were only observers. 

Mr. Kielsky inquires about the color paper.  Now here it gets interesting.  There is change from the testimony offered by Ms. Conner who stated that the reason Mr. Ianuzzo submissions of named designated a representatives was not accepted was the names were submitted on white paper not a colored paper.  And by the time that Mr. Ianuzzo submitted on colored paper the deadline had rolled past. Even the judge as bothered by this; like what the heck is colored paper all about? 

But Ms. Osborne on the stand tells us something completely different.  She tells us that in fact they want those names submitted on white paper as it makes it easier for them to Xerox and photocopy.  The County Election Office is the one who prints the names out on the colored paper and distributed to the various polling places with these people's names on.  All they want is that the chairman of each party choose the color paper that they use so that somebody is less likely to forge a credential with a piece of paper saying that they are a designated observer because they've had trouble with that in the past.

This is very different from the earlier claim that submitted names were rejected because they were or were not on colored paper.  It is very difficult to understand how that error could have been made at the county elections office where they should have known what standard procedure to follow and that the names come in on white paper and that they print them up themselves in office on colored paper.  To hold up the process because the political party's chairman had failed to declare what color of paper he would like the names of his delegates to appear upon is astonishing.  I doubt any chairman would care.  But the disenfranchised Libertarian Party does care about its delegates being omitted -- deliberately -- from voting integrity processes they are legally entitled to participate in.

Mr. Kielsky asked Ms. Osborne about the procedure for transporting the ballots?  When the voting ends and the ballots are transported from the polling place to the tabulation center two people must be transport the ballots together. 

He asked her if there were occasions when only one person transported the ballots?  She said not to her knowledge, that all ballots were transported with two people present in the vehicle. 

Mr. Kielsky asked if that were true for the data packs?  She said, 'well we would like to have two people transport the data packs, but in fact under the procedures only one person can transport that data pack if only one person is available to transport them. 

This is where she also confirmed that the security seals present and in use at the sheriff's training center were the same as the ones on the ballot boxes from the Maricopa County elections office.

Mr. Kielsky also asked her whether or not the people working in the big tabulator were all county employees?  She said, 'No, there were also Sequoia contract employees present working side by side on the big tabulator.' [Sequoia is the manufacture of the optical ballot counting machines that Arizona uses.]

Mr. Kielsky asked her what sort of secure checks were run on these Sequoia contract employees?  Karen Osborne's response was "They are all Arizona registered voters." [Apparently that was the only security check -- if you can call it that -- that was done on these outside employees.  Worse, I seriously doubt they are all registered to vote in Arizona... what kind of weird requirement is that?]

The county's attorney, Ms. Connors, asked Karen Osborne about the purpose of the tabulation?  Karen Osborne said 'the tabulation is solely used to verify the working of the machines.'  [Really.  I am fairly certain the purpose was to lend some credibility to the validity of the voting process when automated computerized counting of the ballots is performed.] 

The judge then asked her to come up with estimates of how much it would cost if he were to order a recount.  They came up with approximately 150 people, at $20,000 [a pitance], working 19 hours [two extended days] to redo the count if he ordered it.

On redirect Mr. Kielsky asked Karen Osborne if they were using tamper evident tape to seal the ballot boxes and to seal the data cartridges and the doors and anything else that needs to be sealed?  Her answer was in effect, 'No, they were using what is referred to as ballot tape, but it is not tamper evident.'  [That is, if you try to remove the tape, even gently, indellible words such as "tamper" appear.  Under the current described setup, somebody could theoretically carefully peel ballot tape off and then put it back on.]

He asked her how many times that the sheriff's office have been used for this validation procedure? She said all five counts that have occurred since the law went into effect since 2006 have occurred at the sheriff's office

The judge then asks for a copy of the procedure that they used as opposed to the copy of the procedure that the Secretary of State issued that they had provided the judge in their motion to dismiss [which is the most extant procedure and therefore the one that is should have been followed].   Ms. Connor said they would get one [and as I relayed earlier, when the procedure they used was finally provided it was questionable as to its validity; both what they presented to the judge because it lacked in the date or identification codes at the bottom of the page as required by state law.  But as Mr. Kielsky demonstrated it probably came from a September, 2006 manual that was clearly superseded a year later by the Secretary of State's revised manual.

So what the heck.  The judge also rebuked Karen Osborne for one of their claims for why they couldn't do a recount was 'there was just not enough time.'  He basically said 'not enough time is the second time I heard this, and he is not going to accept it as an excuse this time around if he so decides to order the recount stating that you agreed to give the Libertarian Party equal access (as the R's and D's) the last time we were here.

The judge then asked her if it only took two or three hours to tabulate the 10 [four actually] damaged data recorders containing the 10 missing precinct data couldn't you just have waited and starting the hand count procedure three hours later?   Karen Osborne really had no answer to that.

The new procedures manual that they had been referring to was brought in the court and copies were given to both the judge and Mr. Kielsky and this allowed Mr. Kielsky to have a chance to re-question Karen Osborne: If this manual is from the presidential preference primary why do you need this procedure for setting up the lottery to select races and then precincts when there was only a single race in that primary?  She was claiming that this procedure manual discussed selecting the race's first then selecting the precints.  As he pointed out a presidential preference primary is only one race so makes no sense this is from the Secretary of State's office discussing how to do the presidential preference primary.  That is when he dropped the bombshell that this is really from September, 2006 procedure is that superseded.  She had no answer for that nor did she have an answer when he asked her whether a newer manual superseded an older one.  [It does.]

The judge had some questions for Mr. Kielsky and they're good ones.  The first question was the one we've been asked on several occasions by different judges which is "Where is my authority for me to order a recount?" 

I thought Mr. Kielsky gave a great answer.  He said that it's implied your honor. You do have the authority to declare that the current lottery and tabulation of this hand count validation violated the law and was illegal and not valid striking it down.   The county recorders are required to lawfully perform this validation.  Therefore they must go back and carry it out [and that makes sense to me.]

The judge brought brought up Barrera versus Superior Court [I have this cite wrong...will correct and hopefully be able to link to it when I run across it in the paperwork] in which the court of appeals rejected the argument that simply lacking faith in the vote counts is not enough to get a recount. This is the only ruling on recounts in Arizona.

Mr. Kielsky responded that this suit went way beyond simply rejecting a lack of faith in the recounts.  It was a clear series of willful violations of the plainly written law and administrative procedures provided by the Secretary of State's Office. It was a willful violation of prior court rulings in favor of the MCLP.

The final item was the judge making it clear to Ms. Conner that he was not accepting the claim there was not enough time.


some references

Secretary of State's election manual (2007)
ARS §16-602

ARS §16-621

ARS §16-452

Superior Court cases (enter case #: CV2008-002704)
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By now you may have heard that we "lost."  But libertarians never lose in court.  We expose the bad guys and get it on record.  The chips fall where they may, and rarely in our favor.  Even when we win rulings, the government ignores those rulings with impunity.  But never let it be said we did not try peacefully to remedy the hypocrisy or outright theft through the process government provides.  I was pleased when this case was going to be heard by Judge Burke after I read a couple of election related minute entries by his honor.  He likes to define the issues and give explanations of his rulings.  That is A LOT better than some who simply say DENIED, DENIED, DENIED.  You may not like the rulings, but you get an explanation.  -- Powell

The judge's ruling, the minute entry is here, and commentary on the ruling by Dan Brakey:

This verdict contends that because Maricopa County is such a large county, logistics and cost allow the county to ignore the statutes passed by our state representative government. Since Maricopa is the fourth largest county in the United States, shouldn't that mean they should take every measure possible to comply with state statutes designed to provide election transparency? 

 

The plaintiff wins all the battles of facts in court but lose the Verdict. 

What happened to the rest of the facts we presented orally and through affidavit? 

 

I believe the judge was privately told that if he finds for the plaintiff and the audit was redone that it would cause “Chaos and Mayhem” in Maricopa with the public and candidates. 

Basically, this is the same thing that happened in our case in Pima and THE JUDGE LACKED COURAGE without additional support.  

Plaintiff Attorney Michael Kielsky wrote, 11/14/2008 (and we totally agree with this short summary :) 

the county violated the law when it picked races before precincts the county violated the law when it started the pick before all ballots were counted the county violated the law when it conducted the hand count away from the central counting center the county violated the law when if failed to maintain all ballots under video surveillance but, "perfect compliance" with the law, "while desirable, is not possible due to" logistical limitations

 Decision for the county.

  

I'll see if I can use that reasoning in future criminal defense cases.  I can just see it:  "Your honor, while perfect compliance with the law is certainly desirable, my client found that impossible due to certain socialization limitations, and so judgment should be for the defense."   Michael Kielsky

We met with Bill Risner, Esq. as a clarification there could be a motion to the judge as to objections to his findings of fact and conclusions of law.  We have a 15 day time limit. (But I hope we could file no later than Tuesday morning).  A similar time limit occurs with a motion for a new trial.  The request for a new trail is with the same judge and really is not a new trial, it is just a motion to present clarifications and new, additional evidence supporting the facts presented.  (I’m attaching one that Bill Risner did “MOTION TO AMEND FINDINGS OF FACT OR FOR A NEW TRIAL)”  (also see Pursuant to Rule 52(b), A.R.C.P. and Rule 59(a)(8), A.R.C.P).

 

The requests for clarifications would be part of those pleadings with all the points above by Michael Kielsky.

 

The point of all this is to force this out of control election department to resolve chain-of custody issues. Force the county to follow the rules of law.

 

At trial, there was also evidence introduced that was not addressed in the court’s decision.  This included testimony given orally and by affidavit.

 

Oral testimony ignored in the verdict:

 

Unsigned poll tapes: This is very serious problem and violation Secretary of State Procedures manual page 142 Approved October 2007. This publication is available by Download the entire manual here.    http://www.azsos.gov/election/Electronic_Voting_System/2007/Manual.pdf  Below I have excerpted see  Note (1)

Lack of security in handling and transporting the memory packs: Another very serious problem and violation. “Transporting the Memory Pack” From SOS Procedures manual page 143 Approved October 2007 (See note (2) below)

Flimsy ballot container seals: Allows for very quick tampering.   Jim March’s testimony about ballot containers with easy access that can be opened without breaking the seals. Jim testifies about the Election Department’s treatment of this issue.

 
Jim March’s affidavit was also ignored in the verdict.  The affidavit covered the following:

 

A.       Central count scanners of the Vote by Mail (VBN) can be compromised before the signed, sealed audit hand count batch results are sealed in the envelope signed by observers.  See points on Jim March’s Affidavit.   See OBSERVATION OF THE 2008 GENERAL ELECTION, page 3 to 5 items 8 to 25

 

·         Item 18. During the creation of these “audit batches” of mail-in votes in which I participated, county election staffer John Stewart made photocopies of each “pink sheet” for the auditable batches.  These would contain the batch code for that scanned batch (typical examples of a county audit batch might be “17-38” or “20-133”, both actual examples from my notes).

 

Central count scanners of the Vote by Mail (VBN) can be subverted making useless the signed sealed audit hand count batches results in sealed envelope signed by observers.  See points on Jim March’s Affidavit Number.  See OBSERVATION OF THE 2008 GENERAL ELECTION, page 3 to 5 items 8 to 25

 

·         Item 18. During the creation of these “audit batches” of mail-in votes in which I participated, county election staffer John Stewart made photocopies of each “pink sheet” for the auditable batches.  These would contain the batch code for that scanned batch (typical examples of a county audit batch might be “17-38” or “20-133”, both actual examples from my notes).

 

C.       We objected to the ballot bags going over to Sheriff Training Center:

 

·         Item 26.  …and that the ballots would be transported that day to a Maricopa County Sheriff’s training facility for overnight secure storage under the care and control of Maricopa County Sheriff.  Mr. Brakey also voiced similar objections – we had read from the Secretary of State’s manual ahead of time.

 

·         Item 27. At that meeting, I requested that tamper-evident security tape be applied to all four corners of each mail-in audit batch, which could evidence tampering attempts and defeat the “remove the hinge” maneuver as described above.  We were told that no such extra precaution would be applied.

 

·         Item 24. I made an audio recording of that meeting. (see Note 3 below)  Link to audio 45 minutes :   http://www.soundandfury.tv/pages/auditaz.html

Audio Youtube of meeting of Nov 5, 2006 short version:  http://www.youtube.com/watch?v=9oAczDmbWww

 

        At 40:53 to 43:51 John Brakey clearly points out a list of violations.

The lottery does not follow the proper procedures of SoS manual.

All precincts are not in. (at least 10 missing)

Polltapes NOT SIGNED allowing duplication with fake results, this is unheard of.

Only one person brings the cartridge in from precincts.

Result cartridges not done properly per SOS manual security. 

Ten seals all the same number given to pollworkers.

 

At 42:15 Brakey asks that the 23 bags with ballots from precincts pick out of the 1,142 could have additional seals done by observers.  The answer was NO from Karen Osborne.  For additional notes from audio (see Note 3 below)

 

Ballot bags can be compromised because of useless seals.

·         Items #

 

Another serious security flaw involves the county’s printing subcontractor for ballots, Runbeck Election Services.  They supply a “ballot on demand” system.

Items 37 thru 40                                                                

However, under “Finding of Facts” what blows my mind the Judge stating that the hand audit was accurate “which validated the machine count”.   With all these problems above, how can he say that? 

 

 Judge wrote under “Finding of Facts”

 

“10. In one group of the hand count there was a variance from the machine count of 1/100th and in the other a variance of 3/199ths, which validated the machine count. “

 

The variance is irrelevant if the ballots were tampered with to match the electronic totals.

Our point was to prove that we did not know whether the ballots were tampered with or not.  The statute

violations were reaffirmed in this trial  and demonstrate that we don’t know if the hand count validated the machine count.

 

In conclusion, it is the role and the responsibility of the political parties in the state of Arizona to give oversight for these problems.  As verified in Pima Co Democratic Party's election integrity lawsuit - from deposition of Jan Brewer’s State Election Director Joseph Kanefield: "WHO CHECKS THE VOTE COUNTERS?"  It is NOT the Secretary of State! Not the Attorney General!  Not the County!

 

It’s the political parties on the ballot!

 

 Testimony in a deposition of the Arizona Secretary of State’s office under Rule 30 (b) (6) designee was Joseph Kanefield, State Election Director, April11, 2008  

 

Joseph Kanefield stated on the record that his office doesn't have the authority to examine election databases.  Excerpt of deposition:

Q.   BY MR. RISNER:  First, can we clearly establish that your office never has gone in and examined a database to see if there's been any fraud or manipulation? A.  Mr. Kanefield:  Our office doesn't have the authority, under law, to do such an examination.  Our -- the extent our office has oversights over a potential fraud investigation would be pursuant to the statute we discussed earlier, where a copy of the election software and database structure is filed with our office.  And at that point, we would make that available to the Attorney General.  That's one of the reasons it has to be kept confidential. So are we going in and are we examining county databases and computer programs?  We don't have the authority to do that.  I mean, the Secretary of State's authority is prescribed by law, as set forth in the constitution, and she's been given oversight over a number of election-related activities, including logic and accuracy testing and other related issues.  But when it comes to the administration of the elections at the county level, what you're talking about, if you're -- if you're alleging that we should have been doing this and haven't, then you're wrong.  We just simply don't have the authority to do that.  If we were provided that authority, then, of course, we would do that.  But we think that the process works and that if those allegations are made, then those with authority -- including the County Attorney, Attorney General -- can undertake such review, as was done by the Attorney General at your request. Q.   BY MR. RISNER: Are you aware of any county in Arizona that has ever conducted a post-election examination of the database for evidence of fraud or manipulation? A.  MR. KANEFIELD: I am not aware, other than what's occurred in Pima County.  But that doesn't mean it hasn't happened.  It's just that I'm not aware. Q.   BY MR. RISNER:  Okay.  So the result, then, is that the Secretary of State, because it has no authority to, does not examine and has never examined an election database after an election in any county in Arizona; correct? A.       MR. KANEFIELD: That is correct.

Must see TV!  Two minutes says it all. 4/21/08 KOLD TV Tucson: facts learned in the Pima Co Democratic Party's election integrity lawsuit - from the deposition of Jan Brewer’s State Election Director Joseph Kanefield: "WHO CHECKS THE VOTE COUNTERS?"  NOT the Secretary of State! Not the Attorney General!  Not the County!  By Bud Foster, 2 minutes long:  http://ca.youtube.com/watch?v=fqlefIQVkrk

 

Many others and I work tireless with the hope that the Maricopa county Republicans, Democratic, and Libertarian Party would come together on just the basic issue of election transparency and having real security virus “Security by Obscurity”.    http://www.av8n.com/security/pima-election-security.htm

 

Respectfully yours,

 

John Brakey,

Co-founder of AUDIT-AZ (Americans United for Democracy, Integrity, and Transparency in Elections, Arizona) & Co-Coordinator Investigations for Election Defense Alliance http://www.electiondefensealliance.org/about_john_brakey
5947 S Placita Picacho El Diablo 
Tucson, AZ  85706
      
John’s AUDITAZ@cox.net

Notes:

(1) Sign the poll tape From Secretary of State Procedures manual page 142 Approved October 2007

Close Out of Optical Scan Unit and Accessible Voting System Unit

Optical Scan Unit:

when the ballots in the emergency bin have been counted, produce a total tape

prepare unit to modem results to election central

Accessible Voting System Unit:

produce a total tape

prepare unit to modem results to election central

Opening the Ballot Bin

At least two board members, not of the same political party, shall be present to open the ballot box bin.

Ballots shall be removed from the compartments, keeping the write-in ballots separate from the regular ballots, and sealed in the ballot transfer container along with one copy of the precinct ballot report.

 

Keypad

Using the key provided, unlock the panel of the optical scan unit and make the keypad available for use, follow the procedures for printing the totals,

tear off the tape,

sign the tape,

place the tape in the appropriate container or envelope, and

if applicable, this tape may be included with the memory pack.

(2) “Transporting the Memory Pack” fromSecretary of State Procedures manual page 143 Approved October 2007

In precincts where transmittal is not done by modem:

place it in the container provided along with the tape,

for accessible voting units with a paper receipt, place the receipt in the container

seal the container,

the inspector and judges sign the seal, then

at least two designated election officials representing voters of different political parties shall deliver the container to the designated receiving site.

Here is a video we shot that proves that the above procedure was not done:http://blip.tv/file/1437202/

Here is a video that shows why the poll workers must secure the “Transporting the Memory Pack” from Princeton University. http://www.youtube.com/watch?v=3bZvqTKOtjI

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Problems with the verdict: by J.T. Waldron of Sound and Fury Productions

1.  This verdict contends that because Maricopa County is such a large county, logistics and cost allow the county to ignore the statutes passed by our state representative government.

Since Maricopa is the fourth largest county in the United States, shouldn't that mean they should take every measure possible to comply with state statutes designed to provide election transparency?

2.  The findings of fact did not include the testimony in this case that Maricopa elections division did not sign the polling tapes.  

This is an indication that there is no reliance in the hand count audit.  Since emphasis on the verdict was placed on how well the hand count validated the machine count, unsigned poll tapes should at least be addressed in the findings of fact.

3.   Contrary to what the verdict states, there is no evidence presented in court that the hand count in fact “validates the machine count overwhelmingly".

There is no evidence presented in this case that shows that the hand count validates the machine count.  

This lack of verification was the point of the trial.  The plaintiffs demonstrated at trial that the chain of custody was compromised, so nobody can state definitively that the hand count validates the machine count.  We simply do not know.

4.  The sheriff's training facility could not have been a secure facility.  There were times when only the sheriff's deputies were with the ballots.  It was uncontested at trial that there was no video camera surveillance at the facility.  So the court ignores the conflict of interest involved with storing ballots in a facility under the supervision of a candidate and closely "guarded" without video cameras by those that work for the candidate (Arpaio).  When the court concludes that the sheriff's training facility is a secure facility, the court is being disingenuous.

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Michael Kielsky
Counselor & Attorney at Law
Email:
Michael@Kielsky.com
Web:  
www.Kielsky.com

John R Brakey

Co-founder of AUDITAZ


Jim March

1 Comments in Response to

Comment by Powell Gammill
Entered on:

Here is another suspicious vote count


thelibertyadvisor.com/declare