PHOENIX — Calling machine-counted voting ripe for fraud, an attorney for the Pima County Libertarian Party asked the state Court of Appeals Tuesday to let trial judges statewide impose new oversight procedures.
William Risner said the protections in existing state laws against tampering with results are insufficient to combat the ease of tinkering with the computerized system that tallies the ballots and spits out a report of what it has found.
“Right now there is a black box,” he told the judges.
“Not a single ballot, for any county race or bond election is ever audited,” Risner continued. “You don't know if the machine counted wrong.”
But under questioning from Judge Kent Cattani, Risner said the procedures for monitoring national and statewide races is little better, even with the possibility of audits. Risner said he believes these, too, can be rigged by anyone with decent computer skills.
The fight is most immediately an outgrowth of a 2006 election in Pima County to levy a half-cent sales tax for 20 years to raise $2 billion for regional transportation improvements.
It's too late for Risner and those who believe that election was rigged to change the outcome or get rid of the levy. But he wants the appellate judges to let him prove that the results were not as advertised — and then use that evidence to get them to put procedures in place to prevent future problems.
That could have statewide implications if he succeeds. It would pave the way for judges to order additional oversight of virtually any future political contest or ballot measure.
The possibility appeared to concern the appellate judges. Cattani suggested to Risner if he and his clients find the existing oversight procedures in state law inadequate they should probably take their case to the Legislature.
“I wish the Legislature would address this,” Risner responded. But he said that does not preclude the courts from stepping in to protect the rights of voters.
“The courts have a responsibility,” he said, saying it's no different than asking a judge to step in to protect an individual's First Amendment rights.
Risner specifically wants courts to allow for “graphic scanning” of ballots.
In essence, the original paper ballots would be counted as they are now by tabulating equipment. Then pictures would be taken of the same ballots, with separate — and independent — equipment tallying the votes and comparing them with what the county's own equipment found.
“Graphic scanning sounds like a good idea,” said Judge John Gemmill.
Attorney Ronna Fickbohm, representing Pima County, said that's legally irrelevant.
She said state law sets out the procedures for exactly what can — and cannot — be done with ballots. That includes a requirement that, after official counting, they be sealed and, unless there is a court challenge, be destroyed.
Fickbohm said Risner or anyone who wants graphic scanning needs to have the Legislature amend the laws.
She told the judges their authority is not unlimited.
Fickbohm said the Arizona Constitution prohibits courts from getting into areas reserved for the Legislature. She said what Risner wants, in essence, is an injunction — a court order — requiring certain procedures be put into place, beyond what is required by state law, to ensure election results are as advertised.
“You can't use an injunction to say, ‘Hey, judge, I've got a better idea about how the statute should read than what the Legislature's done,’” she said.
Risner said, though, courts can step in and order special oversight if there is evidence of prior rigging. And that's why one of the things he wants a court to provide is access to the ballots from the 2006 Pima election, which are still locked away in the county treasurer's office.
Risner said it should not be necessary for him to prove the 2006 election was rigged to get more safeguards put into place.
“What we can show is that it is easy to rig them, and there's nothing you can do about it,” he said.
Risner also said he does not even have to prove that there is a probability that a specific future election would be rigged to get court intervention. He said it's just a question of using common sense, like noting it's easy to defraud a bank which lacks proper accounting procedures.
“So really the issue is not probability” of future fraud, he said. “It's the ease that elections can be rigged and the inability to do anything about it, to prove it, to audit it, to check it.”
The judges gave no indication when they will rule.