by Mickey Duniho
When SB1557 was first
passed in 2006, Pima County’s attorney told the Board of
Supervisors that it would be illegal for them to do a hand-count of
the September Primary Election because the new law had not been
completely approved by the US Justice Department. Despite a
last-minute plea the day before the primary election, the Board of
Supervisors voted not to do a hand count audit of that election.
Two days after the primary, we discovered that Maricopa County was doing a hand count audit of their primary on an informal basis, in anticipation of the approval by the US Justice Department of the new law. As events developed, it became obvious that Pima County’s Elections Department was aware of the Maricopa hand count at the time that they told us they could not do it. We also learned that Pima County had been doing hand counts of a single precinct in every election for the past twelve years, with the full approval of the County Attorney’s office.
Under pressure from the people, the Pima County Board of Supervisors finally agreed to do an informal hand count. When they did the count, they delivered to the volunteer counters stacks of ballots that had been removed from their secured containers and neatly stacked up. This violated chain-of-custody rules for the hand count. They also interpreted the law to require the counting of only one race in each precinct, violating the clear wording in the law. Their lawyer backed them up on this erroneous interpretation.
During the period between the primary and the general elections, Bill Risner proposed asking a judge to clarify the meaning of the law. The County attorney immediately caved to our interpretation of the law: counting four races in each precinct as stated in the law.
In November 2006, the Pima Election Director and his lawyer tried to go back on their agreement and interpret the law to allow a single race per precinct hand count, but we then had a memo signed by Huckelberry saying that they would adopt the four races per precinct interpretation. When we showed them the memo, they again caved and agreed to count four races per precinct.
In the 2008 Presidential Preference Primary (PPE), Pima County first announced that they would delay scanning early ballots until Election Day so that they could sort the ballots before scanning them. Then they announced that they would start scanning ballots on Sunday before the election. Then they announced that they would start scanning early ballots on Election Day. We sent observers to the central count facility on Election Day morning, and nothing happened all day. When I asked Bryan Crane about this around 6 pm on Election Day, he said no one had told him to scan any ballots on Election Day.
In the evening of PPE Election Day, Bryan announced that they would select the batches for the early ballot hand count audit and scan them that evening and then count the rest of the early ballots starting the next day. We randomly selected batches of ballots to be scanned and hand counted in the amount of four percent of the expected number of early ballots. These were scanned and set aside. The next day, no early ballots were scanned. Only one of the eight batches selected was hand counted – with Brad Nelson claiming that that batch was far in excess of one percent of the early ballots scanned before the close of polls on Election Day. But the law says that one percent of the early ballots RECEIVED by the close of polls on Election Day will be hand counted.
When the hand count of ballots began, Brad Nelson announced that they would only count one of the two presidential races, in accordance with the new Secretary of State Procedures Manual. The law says all the presidential preference races are to be counted, not just one, and the new procedures manual is contrary to the law. The hand count of early ballots counted approximately one sixth of one percent of the early ballots received – one sixth of the number that should have been counted. Also, since the “randomly selected” ballots were removed from the boxes and counted separately from the rest of the early ballots, their selection was no longer random relative to the rest of the ballots.
It is apparent that Pima County’s Elections Director will continue to game the system whenever he has the chance, and will not follow the law unless forced by legal pressure. In every election since the hand count audit law was enacted, he has tried first one thing and then another to avoid following the clear language of the law.