Seven years after a highly charged regional transportation-tax vote, the state Court of Appeals will decide whether those who contend there was cheating in that race will get to change future election procedures.
Tucson attorney William Risner wants a court to order some sort of protections to ensure votes are being properly counted. Risner, representing the Pima County Committee of the Arizona Libertarian Party, said the system used to scan and tally ballots is subject to tinkering and abuse.
While what Risner is seeking is a safeguard for future races, to get that he may first have to prove there is a reason for a court to order new election procedures, beyond what is in statute.
To do that, he likely needs evidence the existing safeguards do not guarantee honest results. And Risner said he thinks he can prove that — if the courts agree to take a closer look at the 2006 vote and determine if more people really voted for the half-cent tax than voted against it.
The move is getting a fight, both from Pima County and the county’s Republican Central Committee, whose attorneys contend there is no legal basis for a court to order what Risner wants.
But the ballots from the $2 billion, 20-year Regional Transportation Authority plan are still locked away under judicial order. So the opportunity for reopening the ballot boxes — and the political nastiness from the RTA vote — exists.
At the heart of the fight are Risner’s claims that procedures used by Pima County make it possible for someone to alter the reported results.
“The ease of cheating when matched with the impossibility of challenging any specific election requires court intervention in order to protect the purity of elections and ensure that we will have free elections,’’ he is arguing to the appellate court.
In essence, Risner contends having ballots scanned and tallied by computer is far more subject to outside manipulation than having votes counted by hand by people who are being monitored by officials from each party. He said the scanners used to count the ballots can easily be programmed to shift a few votes here and there, enough to alter the outcome of any race but not enough in any one precinct to raise alarm.
On top of that, Risner said, the Secretary of State’s Office has no authority to audit security procedures. And the programming of the counting equipment, he said, is not public.
“The problem with a ‘black box’ is there’s so many ways to cheat,” Risner said.
But attorney Ronna Fickbohm, representing Pima County, said there’s nothing to the lawsuit. She called Risner’s claims “a sensationalistic and emotional attack on Pima County” which relies on “facts’’ without support.
She did acknowledge the county had, at one time, purchased a “crop scanner,” a device Risner said could be used to alter election results. Fickbohm said this was done “in an attempt to prove or disprove certain reported threats to election integrity.”
But Fickbohm said Pima County Elections Director Brad Nelson, under questioning by Risner more than a year ago, said the device was given to the Sheriff’s Department to be destroyed “a very, very long time ago.”
Less clear is exactly what Risner wants a court to put in place for future county elections.
His legal briefs say the most accurate way to determine if ballots are being counted properly by the county machines is to require the county to scan each ballot and make those available for auditing.
“Scanning is the best answer,” he said. But he said a court could determine some other alternative is appropriate to ensure election integrity.
Fickbohm said there is no legal basis for what Risner is asking. She told the appellate judges that courts are powerless to give him what he wants.
In her own legal briefs, she said only the Legislature can determine what procedures must be followed in elections. And Fickbohm said there are no laws authorizing such a scan.
Risner, however, said courts have broad authority to craft protections for future elections when there is reason to believe the electoral system has been compromised. And he wants the opportunity to prove that by digging into those ballots still locked up from the 2006 bond election.
Nothing found would alter the outcome of the 2006 election. And Fickbohm said that, from a legal perspective, it’s too late to challenge the results of a past election.
An audit of the ballots conducted in 2009 by then-Attorney General Terry Goddard confirmed the 60-40 margin of victory, an audit whose results Risner still questions.
Fickbohm is working to get the judges to throw Risner’s case out.
At the very least, Fickbohm said those 2006 ballots are not public records. Instead, state law requires they be kept for a specific period and then destroyed.
She said that means a court is legally powerless to provide the ballots to Risner for his examination.
The larger question is what a court can order prospectively.
“Obviously, Arizona courts are allowed to decide whether a law established by the Legislature ... has been violated” Fickbohm told the appellate judges. But she said courts cannot make new procedures out of thin air.
But Risner said if the Legislature fails to enact laws to ensure election integrity, “the courts can.”