PIMA COUNTY RTA BALLOTS MOVE ONE STEP CLOSER TO DESTRUCTION. Judge Harrington Washes His Hands and Blocks Elections Oversight

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.

Video excerpt from transcript of court hearing of Jan 14th:
http://www.fatallyflawedthemovie.com/pages/courtremedy.html

The Court: . . . [A]ll of these facts that are in the complaint are under the rules. I've got to take them as true –

Mr. Risner: Right.

The Court: – for the purposes of this argument . . . . . . .[W}hat I'm concerned about and I think what you are all concerned about is do I have a legal basis in which to . . . take control or . . . jurisdiction over this matter and the other legal issues that have been raise?

Mr. Risner: Sure. But in looking at that jurisdiction it is a point that there is no way that anyone could ever challenge an election where a computer is used.

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. . . . I don't think it's a complete answer to say, Well, gee . . . what if the public knew . . . and that there was nothing that could be done, we can't let them know. But we must for the next election prevent it from happening. That is in the public interest. . . . [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.

If you looked at . . . the Arizona Constitution . . . it is rock bottom, it is solid, and I don't think that you say, Yep, it was a rigged election, it was illegal and we have to – just because there's an Attorney General that could do something about it, that's his job. Our political party is concerned about the next election and it doesn't help to look at an individual and say, Well, we've got this Attorney General that might do something. What if it was Attorney General Blagojevich that was in charge . . . ?

. . . 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.

Mr. Risner: No, no, no, no.

The Court: That is an insult to this Court.

Mr. Risner: I – I wasn't.

The Court: Please do not make that as an issue here. This Court is taking this case extremely seriously. I have read everything that you have submitted to me and I am allowing you an absolutely level playing field, 100 percent, and I will follow the law. “I have strong (shoulders).”

***

Protests to the contrary, the judge DID wash his hands of this matter with his decision of January 29. Judge Harrington basically is saying by his ruling, laws can be broken, elections stolen, and nothing can be done about it.

The judge took another unusual step. After his initial filing, Attorney Bill Risner filed supplemental case law and constitutional citations. The judge rejected them 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 courts 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—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 introduced 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://www.fatallyflawedthemovie.com/media/Supplemental%20Citation%20of%...

The defendant Democratic Party of Pima County herby 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.

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 this information because it was introduced later in the proceeding. There have been countless cases where 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. This time constraint, as suggested by Ronna L. Fickbohm (opposing attorney acting for the Pima County Board of Supervisors), suggested the idea even though it has no basis in law. It is ludicrous to state that submission of constitutional provisions was late in this instance.

At this hearing, Pima County’s attorney Ronna Fickbohm 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 of law.”

Again, the reason for this cross complaint was the lack of a “plain, speedy and adequate remedy at law.” The legislature offers a five-day window to challenge an election and 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 executive branch has conducted a criminal investigation by Attorney General Terry Goddard. In doing so, the Attorney General allowed the suspects (Pima County) to assist in developing exculpatory evidence on their 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”.

Link to Youtube of 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.

Thought 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 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.

***

Technical analysis of the election databases uncovered unprecedented anomalies that clearly show that the 2006 RTA election was manipulated. Conveniently, NO backup of the database was saved and set aside on election night Tuesday 16th of May 2006 which is standard practice. Not until May 19th at 5:01 pm (three days later) was the election-night database first backed up and saved. Comparison of the database from the May 19th and another database saved on Saturday May 20th reveals the many discrepancies - among these, we see precincts where replacement memory card data was fed in that either added to the vote totals or in some cases subtracted ballots. Ballot purging can't happen without a significant paper trail, which is nowhere in evidence. What we can't see clearly is what happens to the database between 16th at 4pm and the 19th at 5pm. The audit log only records when you go through the GEMS front door. However, the backdoor is MS-Access, and Ted Downing finding the MS-Access manual on election night next to the central tabulator and then later Bill Risner found out that the election department owns a Cropscanner - a known burglar tool to illegally program Diebold precinct memory cards. Link to video on how to do that: http://video.google.com/videoplay?docid=8186883351933387074

What this all adds up to is this: a very high failure rate of memory cards would be the only thing that could legitimately explain all these uploads. Failure rates this high should have caused the county to blame Diebold - but they didn't. Why? Because it appears to be self-inflicted and they knew it! Something was going wrong. We know from the audit logs that the re-uploads of memory cards started fast and furious after 11:00pm on election night, yet eyewitness observers say they went home between 10:30pm and 11pm because "everything was winding down". Once they left, things wound back up again per the logs.

The other fly in the ointment is that the Oro Valley town council race was nail-biter close - the final official difference between winner and loser was three votes. They knew it was close and they knew it would trigger a mandatory recount. Faced with problems likely caused by amateur tampering with memory cards and/or the central tabulator database, they tweaked votes and ballots up and down in various precincts to make the results balance. We know the tweaking was politically motivated because of the memory cards reloaded after the main body were done, all 22 of the Oro Valley memory cards were affected. A technical glitch wouldn't focus so heavily on Oro Valley but hand-repairing the Oro Valley recount certainly would.

Upshot: we don't think this would have been caught at all except for the Oro Valley race being so close. That caused them to scramble to clean up the data by hand, and they left traces of tampering while doing so. This is also likely why they stopped taking snapshots of the progress of the election between the 16th and 19th, to give them time to do the cleanup. And it's that cleanup effort that screams out from the logs and casts doubt on this entire election, including the RTA race.

These and many other facts lead AUDIT-AZ to believe that the RTA election was likely stolen.

Furthermore, last week, Tom Ryan PhD a member of the Pima County Election Integrity Commission, submitted to the commission a report titled "Anomalies in the GEMS databases from the May 16, 2006 Bond Election"
Link to report: http://www.fatallyflawedthemovie.com/pages/orocoverup.html

Additionally From the first trial we won with Judge Michael Miller; Excerpts from Memorandum, Declaration and Exhibits and these are just five examples of many we have:

I. iBeta reported to the Arizona General: “During testing it was discovered that the GEMS software exhibits fundamental security flaws that make definitive validation of data impossible due to ease of data and log manipulation.”
Link http://www.electiondefensealliance.org/files/iBeta_report.pdf

II. The county’s lawyer, Pima County Chief Civil Deputy Christopher Straub, explained in his opening statement that the GEMS software is not secure. “The databases themselves are not secured. We know that and we agree they can be altered using Microsoft Access.” (Opening Statement, Trial Transcript, Dec. 4, 2007, Christopher Straub, “Because it can be easily manipulated, the bottom line is in this whole thing is we’re only going to catch stupid people, all right, because one could also alter the audit logs. One could do anything.”

III. David Jefferson, Ph.D.: “The security mechanisms that are there are ‘in general hopelessly inadequate to prevent manipulation of ballot records or vote totals by anyone with even a very short period of access to the system. …”

IV. California Secretary of State Office Source Code Review of the Diebold Voting System: “Our analysis shows the technological controls in the Diebold software do not provide sufficient security to guarantee a trustworthy election. The software contains serious design flaws that have led directly to specific vulnerabilities that attackers could exploit to affect election outcomes.”

Election Fraud: The Problems are Inside. The Solutions are Outside.
Video Clip 2 min: http://www.fatallyflawedthemovie.com/pages/clips.html

We’re in court working for “PROSPECTIVE RELIEF”:

1) All ballots in Pima County must be sorted by precinct.

2) Graphically scan all ballots, 10% of precincts randomly picked Election-day and that night graphically scanned at the precinct, and placed on internet for all who want to count (Election Night) the rest of ballots are scanned by precinct and also placed on internet ASAP.

Matt Blaze PhD, University of Pennsylvania was the red team leader for the California Sequoia voting system review. On a radio show called “Voice of the Voters” 8/8/07: Matt Blaze was asked; “What is the current condition of all electronic voting equipment in United States of America?”

Answer: “Fatally Flawed!” …we’re 3 to 5 years before anything better will be available.?

Graphically scanning all ballots is far cheaper than replacing Fatally Flawed equipment with more Fatally Flawed equipment that cost millions of dollars. In fact we now know that as bad as that Diebold system is, it’s better than many other voting systems that exist at this time. It's better for us to work with the devil we know rather than the devil we don't.

AUDIT-AZ is very disappointed by this court decision. Judge Harrington told us: (page 32, line 10 to 13) “…I am allowing you an absolutely level playing field, 100 percent…"

Now it appears that ‘we the people’ have been kicked off the playing field altogether.

AUDIT-AZ speaks only for AUDIT-AZ.

Respectfully,

John R. 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

• Link to Motion to Reconsider by Bill Risner filed 2/4/09 to Judge Herrington:
http://www.fatallyflawedthemovie.com/media/Final%20-%20Motion%20for%20Re...

• Link to Judge Harrington's decision: http://www.fatallyflawedthemovie.com/media/Harrington%20Ruling.pdf

• Link to court transcript of the hearing of Jan 14th: http://www.fatallyflawedthemovie.com/media/Transcript1_14_09.pdf

• Link to Declaration of Experts filed January 13th 2009 with court: http://www.fatallyflawedthemovie.com/media/Supplemental%20Memorandum,%20...

• Link to Letter from attorney Bill Risner to Attorney General Terry Goddard explaining why he should investigate Pima County 2006 RTA election. July 14 2008: http://www.electiondefensealliance.org/files/Risner_letter_and_Docs_7_14...

• Link to affidavit of Osmolski and invoice to Cropscanner (a known burglar tool to illegally program Diebold precinct memory cards purchased by Pima County.) Bryan Crane confessed to Zbgniew Osmolski: However, from a press report quoted Crane as saying he had to look up on a map where the Boondocks Bar was located. However he got there, Crane was seen that evening by Scott Egan and one other. Both were interviewed about this by the Attorney General Office.: http://blog.tucsonweekly.com/wp-content/uploads/2008/08/RTAdocumentation...

• Video clip to Link to Youtube of Arizona Attorney General seems complicit: http://www.youtube.com/watch?v=JQi54zXEW7A

• Video clip to Risner's argument: http://www.fatallyflawedthemovie.com/pages/risnerargue.html

• Video clip to Richardson's argument: http://www.fatallyflawedthemovie.com/pages/richardson.html

• Video clip to Fickbohm's argument: http://www.fatallyflawedthemovie.com/pages/fickbohm.html

• Video clip to the long version of court hearing on Google video: http://video.google.com/videoplay?docid=-9162452062207751657

• Video clip Attorney Bill Risner deposing 'the hacker' Bryan Crane 2/27/07; a very nervous, guilt ridden Pima county election Diebold/GEMS computer operator: http://video.google.com/videoplay?docid=208062947245666793

• Video clip from the Pima County AZ court trial testimony of Bryan Crane. Bill Risner on redirect takes Crane apart over the slip of the finger on the computer mouse, bull manure story. http://video.google.com/videoplay?docid=7304338799617243809

• Video link to Youtube, 2 minutes, KOLD TV Tucson 4/21/08, “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

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