Results by 11 P.M.! Half a Loaf in the Maricopa County Arizona Election Trial

Dodgy Voting Systems. Luddite Judges. Stressed Out, Arrogant Election Staff. – Small Wonder Vote Counts Are Often Wrong.

In an era of instant news when Twitter, Facebook and news feed updates chirp at you live on your smart phone and desktop, why are vote counting authorities more concerned with getting elections ‘called’ for the 11:00 PM television news than ensuring every vote (including those cast via absentee and mail-in ballot) is counted and correctly reported? In hundreds of counties around the USA, absentee (including those cast by troops stationed overseas) and mail-in ballots are often not processed unless the outcome is in doubt.

When doubt is cast over a result, everybody, including county election officials, head straight to court. They sit before judges asking them to adjudicate fights over technology questions so complex, they require years of complex technical training. Too many on the bench – as well as the lawyers arguing these cases before the bench – are technologically inexperienced.

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The SPIN comes from all sides as pundits attack the motive of those raising any question, not the argument, and charge those raising the issue as conspiracy theorists. Because they fail to understand the basis of security concerns, the messenger is attacked rather than the problem fixed.

Instead of more public servants behaving like CA Secretary of State Debra Bowen, winner of the Kennedy Library’s 2008 Profiles in Courage Award, who in 2007 commissioned a statewide review of electronic voting systems and withdrew their certification citing lack of security, each suggestion is a perceived as a personal attack and both sides dig in for a fight.

Instead of going back to paper ballots and signed poll tapes, or, as in the Maricopa County case, instead of following their own election law(!), states like Arizona and others pass laws saying only the same technology that created the mess can be used to solve it by… running the faulty machines a second time.

Voters rely on the courts to help set the verdict right and interpret how voting technology can or should be used. The same technology- challenged judges and lawyers render opinions from that lack of understanding. The lower courts feed appeals up to the US Supreme Court – run by a Chief Justice who eschews technology and writes his opinions in longhand.

Justice Roberts displayed his technological ignorance in oral arguments for City of Ontario vs. Quon by asking counsel, “What’s the difference between email and a pager?” In that same case, Associate Justice Anthony Kennedy asked “what would happen if a text message was sent to an officer at the same time he was sending one to someone else?” This problem is not limited to SCOTUS.

The recent Maricopa County case had eight highly technical items to be ruled upon and was brought before a local circuit court judge. AUDIT AZ’ John Brakey said, “The case was compromised by lack of time for preparation, as well as the judge’s lack of technical understanding.”

Michael Duniho, who was called as an expert witness, concurred. He was upset that the judge failed to stop unapproved software packages and did not identify wi-fi signals as important.

Said Duniho, “I think [it was] because the judge didn’t really understand the technology,” nor understood why untested software should not be allowed. He continued, “because when someone tells you what their software does, they could easily be lying.” Duniho should know. He spent 37-years working on computer encryption systems for the NSA.

When asked for a layman’s explanation of why wi-fi could become an issue Duniho said, “the potential problem with wi-fi is that if a person in the election department made the central computer wi-fi-capable, it would be possible for someone out of sight (possibly even outside the building) to gain control of the central computer and make it do things like change the outcome of an election by altering the database remotely.”

While vividly remembering an MSNBC Countdown with Keith Olbermann rant about how crazy it was to object to cellphones in election headquarters, Duniho made clear my iPhone or a Blackberry was essentially a tiny, powerful router. He maintains, “the general solution is seen as not allowing any wi-fi signals anywhere near the central computer, or at least to demonstrate that there is no wi-fi router anywhere in the vicinity. All routers should be banned.”

Precisely because most cannot get their heads around this concept, changing a result in the central computer can be far more easily effected than the previously discussed Hursti memory Card hack made famous in the HBO film “Hacking Democracy.”

The Maricopa trial result was half a loaf. Said Brakey, “We won the first flurry when the County basically admitted that they had been doing the hand count audits wrong since 2006 by not publicly committing the precinct results as required by law.” The group lost, though, on a number of important technical points including ensuring that cables were clearly marked and visible and photography allowed in the observation area to ensure transparency and that the rules were being followed. Duniho was aggravated when the Maricopa Elections Director insisted, “she could interpret the law any way she wanted to and it was more important to ‘not confuse the public’ than to literally follow the law.”

Television news puts incredible pressure on election departments across the USA to get the numbers in. Since questionable machines are used across the country and results are constantly questioned (most recently in Tennessee and New York, how can the voter trust the result?

It also begs the question, why not go back to the system still trusted and in use in the UK and other countries? During the 2010 Parliamentary election, no one questioned the count or integrity of the process because every one of 650 Parliamentary districts used the same rule book counting some 40-million ballots by hand. The entire result was known by 3 PM the next day in every single race.

The USA will cast double that amount of votes in three times the number of jurisdictions in this year’s general election. Is it not possible to take the pressure off beleaguered public servants and ensure the count is done right, openly and transparently?

As Duniho said, the judge in the Maricopa case “suggested that the County’s lack of cooperation, though legal, was ill-advised.” And at the end of the day, the judge praised the election activists for their hard work and commitment to improving elections. “So,” said Duniho, “I guess it was a moral victory and a bit of legal victory.”

Democratic Party attorney Bill Risner asks, “why do so many local and state election officials use scarce public resources to pay exorbitant legal fees to fight their own citizens?” These fights give the impression of impropriety or that something – possibly just human pride – is being hidden.

As Brakey and his colleague Jim March stated, “We’ve all learned over many years that Election Integrity is not about ‘trust’ or ‘credentials,’ it’s about transparency and oversight and our right, as citizens, to know that our favorite candidate – or least favorite – won or lost in our public elections. If you find yourself having to trust in someone – anyone, whether it be an election official, a Judge, a voting machine company, or an Election Integrity advocate – rather than being able to see things for yourself, then something has gone terribly wrong.”

For Duniho, Brakey, AUDIT AZ and hundreds of vote auditor activists across the USA, the fight for transparency continues.