See http://electiondefensealliance.org/ballot_preservation_hearing for a brief overview of issues in this RTA case.

For a summary history of the evolving RTA election fraud story, see:

http://electiondefensealliance.org/Fatally_flawed_summary

Pima, AZ RTA Ballots Move One Step Closer to Destruction

Judge Harrington Washes His Hands, Blocks Elections Oversight

In Brief: On January 29, 2009, a Superior Court judge in Pima County, AZ, denied prospective relief requested to guard against electoral fraud in future Pima County elections. The judge also refused to allow examination of the ballots from a 2006 election, sought as direct proof of fraud in that election. Without court protection, those ballots are scheduled to soon be destroyed. Should this ruling stand, the Pima County Elections Division has a green light to rig future elections with impunity.

By John Brakey and Jim March

To understand the current lawsuit, one has to realize that in this “motion to dismiss” (by the people who want to destroy the ballots) the judge must start with the presumption that everything stated by the opposition (Bill Risner and the Democratic Party) is true. In order to find against the Democratic Party, the judge has to do so EVEN IF the RTA election of 2006 was stolen by the people who are still running elections in Pima County. To rule for ballot destruction, he must determine that the court can do nothing to prevent future elections from being stolen.

Excerpt from Hearing Transcript, 01/14/09:

The following exchange is between Judge Harrington and Attorney Bill Risner.

Mr. Risner: Judge, we will offer prospective relief that we can be assured they won't do it again. We're not going to ask you to tell them not to do it again. We will specifically show you can simply order to make sure that they can't do it again. Our fact pattern here takes as a matter of fact that the RTA was rigged. That's our fact pattern. . . . So the issue simply is, is it a fact that using a computer with lousy security, a crook's running it and rigging elections? Does the court have the ability to give prospective relief? We say the answer is yes.

The Court: And it is the court's equitable jurisdiction that you . . . .

Mr. Risner: Yes it is. . . . [W]hen there are decisions made on policies or when people are elected, we must know that that was based on a majority vote that was accurately and honestly counted. . . . This court cannot enter an order telling the attorney general what to do, and we sure can't, but the court can enter prospective relief to absolutely . . . prevent this from happening to the future and you've got jurisdiction to do that. You're obligated to do that. It's your oath. It's your job. It's what courts are here for. You can't just wash your hands . . . .

The Court: Sir, do not, please, say that I'm washing my hands of this matter. . . . That is an insult to this court.

Click Read more for full story

See http://electiondefensealliance.org/ballot_preservation_hearing for a brief overview of issues in this RTA case.

For a summary history of the evolving RTA election fraud story, see:

http://electiondefensealliance.org/Fatally_flawed_summary

Pima, AZ RTA Ballots Move One Step Closer to Destruction

Judge Harrington Washes His Hands, Blocks Elections Oversight

In Brief: On January 29, 2009, a Superior Court judge in Pima County, AZ, denied prospective relief requested to guard against electoral fraud in future Pima County elections. The judge also refused to allow examination of the ballots from a 2006 election, sought as direct proof of fraud in that election. Without court protection, those ballots are scheduled to soon be destroyed. Should this ruling stand, the Pima County Elections Division has a green light to rig future elections with impunity.

By John Brakey and Jim March

To understand the current lawsuit, one has to realize that in this “motion to dismiss” (by the people who want to destroy the ballots) the judge must start with the presumption that everything stated by the opposition (Bill Risner and the Democratic Party) is true. In order to find against the Democratic Party, the judge has to do so EVEN IF the RTA election of 2006 was stolen by the people who are still running elections in Pima County. To rule for ballot destruction, he must determine that the court can do nothing to prevent future elections from being stolen.

Excerpt from Hearing Transcript, 01/14/09:

The following exchange is between Judge Harrington and Attorney Bill Risner.

Mr. Risner: Judge, we will offer prospective relief that we can be assured they won't do it again. We're not going to ask you to tell them not to do it again. We will specifically show you can simply order to make sure that they can't do it again. Our fact pattern here takes as a matter of fact that the RTA was rigged. That's our fact pattern. . . . So the issue simply is, is it a fact that using a computer with lousy security, a crook's running it and rigging elections? Does the court have the ability to give prospective relief? We say the answer is yes.

The Court: And it is the court's equitable jurisdiction that you . . . .

Mr. Risner: Yes it is. . . . [W]hen there are decisions made on policies or when people are elected, we must know that that was based on a majority vote that was accurately and honestly counted. . . . This court cannot enter an order telling the attorney general what to do, and we sure can't, but the court can enter prospective relief to absolutely . . . prevent this from happening to the future and you've got jurisdiction to do that. You're obligated to do that. It's your oath. It's your job. It's what courts are here for. You can't just wash your hands . . . .

The Court: Sir, do not, please, say that I'm washing my hands of this matter. . . . That is an insult to this court.

Click Read more for full story

==================================

Protests to the contrary, the judge did wash his hands of this matter with his decision of January 29. Judge Harrington says laws can be broken, elections stolen, and nothing can be done about it.

The judge took another unusual step. After Attorney Bill Risner's initial filing, Risner filed supplemental case law and constitutional citations. The judge rejected these citations as “filed too late.” Whether it was late is disputable, but more importantly, courts in Arizona must always follow the state constitution which, as Mr. Risner points out, demands fair and honest elections. In this case, the judge is saying that the state law limiting challenges to a five-day post-election window bars reforms even in a situation where fraud is obvious (or in the case of this motion, assumed as fact).

One fact is clear. Contrary to the state's constitutional mandate, the legal structure isn't adequate to ensure fair elections. When laws conflict with constitutional mandates, it is the court's duty to override those laws. Judge Harrington, instead, overrode the constitution. (Since this isn't an election challenge, the law he affirmed, limiting challenges to a five-day post-election window, doesn't even apply.)

Due to failures of both the legislative branch and the executive branch to provide adequate remedy against election tampering by Pima County, Arizona, Attorney Bill Risner filed a motion for the courts to use their jurisdiction to provide prospective relief against future election tampering. Through this measure, the courts would request specific actions suggested by the state political parties to insure against any future election tampering by the Pima County Elections division.

Judge Harrington’s ruling is an insult to the Arizona Courts, the Arizona Constitution, and “We the people.” Judge Harrington places a great deal of emphasis on court jurisdiction at the expense of fulfilling the court's legitimate function. His concern is whether the courts can examine evidence in a civil matter when the result of the examination could uncover a criminal act of election fraud.

As Judge Harrington states, “To this Court, the cross-claim appears to be an elections challenge, because it asks this Court to determine, in colloquial terms, whether the election was ‘rigged.’” In fact, the Democratic Party requested that the court examine the ballots that are earmarked for destruction and, if foul play exists, provide prospective relief to prevent continued fraud by Pima County in future elections. This act is relevant to the predicament of the ballots in question as they are part of a civil case.

In this situation, the judge refused to examine evidence in a civil case for fear of discovering criminal activity that could wind up outside the court’s jurisdiction. Using this logic, no evidence should be examined in a civil case if that evidence is proof of criminal activity. Once criminal activity is discovered, the judge is obligated as an officer of the court to report that activity to the proper authorities.

This path has been followed on numerous occasions. Judge Harrington seemed to misunderstand the nature of the “prospective relief” requested by the Libertarian and Democratic Parties. He stated, “The Libertarian and Democratic parties argue that, because they are only seeking prospective relief in the form of an injunction against future unlawful conduct, and not seeking the statutory remedies of annulling or setting aside the election, that their action is not subject to the time limitation set forth in A.R.S. §§ 16-673. They argue that this Court has equitable powers to fashion an alternate remedy.”

Actually, Bill Risner was explicit about the nature of prospective relief sought. In court he informed the judge, “…[W]e will offer prospective relief that we can be assured they won’t do it again. We’re not going to ask you to tell them not to do it again. We will specifically show what you can simply order to make sure that they can’t do it again.” The judge ignored details surrounding prospective relief sought by Bill Risner and merely labeled it as an “injunction against future unlawful conduct.”

The judge also appeared willfully obtuse regarding the cited constitutional provisions. Later in the proceeding, the Democratic Party cited constitutional provisions in support of the court’s equity jurisdiction.

Excerpt from Democratic Party’s Supplemental Citation of Authorities, filed on January 6, 2009:

http://electiondefensealliance.org/files/Citation of Authorities_010609.pdf

The defendant Democratic Party of Pima County hereby files supplemental authorities that have come to its attention since filing its Joint Opposition to Various Motions to Dismiss:

Ariz. Const., Art. 7, Sec. 12: There shall be enacted registration and other laws to secure the purity of elections and guard against abuses of the elective franchise.

Ariz. Const., Art. 7, Sec. 4: Electors shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at any election and in going thereto and returning from.

Ariz. Const., Art. 7, Sec. 5: No elector shall be obliged to perform military duty on the day of an election except in time of war or public danger.

Ariz. Const., Art. 2, Sec. 21: All elections shall be free and equal and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.

From The Arizona State Constitution, a Reference Guide by John D. Leshy, p. 10, The Dominant Themes of the Arizona Constitution: "Perhaps the most constant thread running through the Arizona Constitution is its emphasis on democracy, on popular control expressed primarily through the electoral process. The delegates' shared belief was that if its citizenry sufficiently controlled the government, social justice could be accomplished."

==========================

Remarkably, the judge refused to consider the constitutional and state case law citations because they were introduced later in the proceeding. There have been countless cases when judges allowed cited cases and provisions to be introduced at this stage of the litigation, but that's irrelevant. A judge is obligated to take into account all cited provisions in the constitution. The argument of the time constraint, raised by Ronna L. Fickbohm (opposing attorney acting for the Pima County Board of Supervisors), has no basis in this instance, since no challenge of election results is at issue. In this instance, it is ludicrous to assert that a (nonapplicable) late filing technicality precludes consideration of constitutional provisions directly bearing on the facts of the case.

Nevertheless, Judge Harrington ruled: “At the hearing on this motion, Pima County made an oral motion to strike the Democratic Party’s Supplemental Citation of Authorities, filed on January 6, 2009. The supplement contains no citations of “new” law that could not have been included in the Democratic and Libertarian Parties’ memorandum in opposition to the motion to dismiss, filed on December 12, 2008. Therefore, Pima County’s motion to strike is granted.”

The following statement is Judge Harrington’s worst offense and a dereliction of his duty: “While it is true that this Court has equitable powers under certain circumstances, that authority is tempered by the principle that equity may not be invoked when the complainant has a plain, speedy, and adequate remedy at law.”

Again, the basis for filing the cross complaint was the lack of a “plain, speedy, and adequate remedy at law.” The Arizona Legislature wrote the election code providing only a five-day window to challenge an election. The facts show that, with a computerized voting system, it is impossible to discover election tampering inside a five-day time frame.

Thus, the law may be “plain," but its time frame is too "speedy" and thus limits any possibility of an "adequate remedy at law.” The Arizona executive branch acted by having Attorney General Terry Goddard conduct a criminal investigation, during which the attorney general allowed the suspects (Pima County elections officials) to assist in developing exculpatory evidence on their own behalf.

Further, Attorney General Goddard refuses to make a proper examination of evidence provided by the complainants. Goddard is perpetuating the fiction that he has no authority to examine the ballots in the course of a criminal investigation. Therefore, the executive branch offers no “plain, speedy and adequate remedy at law.”

[Video] Arizona Attorney General Seems Complicit: http://www.youtube.com/watch?v=JQi54zXEW7A

Judge Harrington later stated, “Because this Court cannot identify a cognizable legal claim that is not otherwise time-barred, the Cross-Claim fails to state a claim on which relief can be granted.”

The “cognizable legal claim” exists in the lack of “plain, speedy and adequate remedy at law.” Harrington refused to acknowledge the basic facts in this case and denied that the court had jurisdiction when, in fact, the court does have jurisdiction. His ruling amounts to a dereliction of duty. Should this ruling stand, Pima Elections Division has an open door to continue to rig future elections. The Judge essentially said ‘Pima County can fix elections again and again in the future.’ They can cheat any time with impunity. Although it was assumed as fact that the election was rigged, the court says ‘There’s nothing you can do about it.’ Sound familiar?

Then Judge Harrington had the nerve to chastise attorney Risner for suggesting that the courts should not wash their hands of their duty to provide prospective relief for election integrity. That, however, is precisely what the court did! We at AUDIT-AZ hereby metaphorically gift Judge Harrington with a huge stack of hand soap. From the database and facts gathered through our investigation, AUDIT-AZ can clearly see that the RTA election was stolen. AUDIT-AZ is very disappointed by this court decision. Below are links to this hearing and other related documentation.

Court Documents

Hearing Transcript 1/14/09 http://electiondefensealliance.org/files/Hearing_Transcript_011409.pdf Judge Harrington's Ruling http://electiondefensealliance.org/files/Harrington Ruling.pdf Supplemental Memorandum, Declaration of Experts and Exhibits 1/13/09 http://electiondefensealliance.org/files/Experts_Exhibits _011309.pdf Supplemental Citation of Authorities Filed 1/06/09 http://electiondefensealliance.org/files/Citation of Authorities_010609.pdf

Videos

[Video] Complete Court Hearing http://video.google.com/videoplay?docid=-9162452062207751657

[Video] Risner's Argument: http://www.fatallyflawedthemovie.com/pages/risnerargue.html

[Video] Richardson's Argument http://www.fatallyflawedthemovie.com/pages/richardson.html

[Video] Fickbohm's Argument http://www.fatallyflawedthemovie.com/pages/fickbohm.html

[Video] Arizona Attorney General Seems Complicit: http://www.youtube.com/watch?v=JQi54zXEW7A

[Video] KOLD TV news, Tucson 4/21/08 [2 min.]

“Who Checks the Vote Counters?"

It Is Not the Secretary of State! Not the Attorney General! Not the County!:

http://ca.youtube.com/watch?v=fqlefIQVkrk