All Bark and No Bite

The county attorney could've forced elections department reform, but he backed down

I have no faith in the ability of Maricopa County to conduct fair and accurate elections.

It's now appallingly apparent that County Attorney Andrew Thomas is skirting the serious problems gripping the Maricopa County Elections Department.

I had hoped Thomas would conduct a thorough investigation of the elections department, part of the County Recorder's Office, in the wake of last fall's District 20 primary recount fiasco that exposed vast problems with mail-in voting that accounts for more than 50 percent of the ballots cast in county elections.

The recount revealed significant problems with the county's optical scanning equipment used to read mail-in ballots. Variances of up to 18 percent in the number of votes read by the machines cast serious doubt on the county's ability to hold valid elections.

The county Republican Committee requested last January that Thomas conduct an investigation into the elections department's handling of the District 20 recount based on information I uncovered last fall ("Election Eve Nightmare," October 14, 2004).

Thomas complied with the committee's request and launched what his office called a "preliminary investigation" of the recount controversy ("Litmus Test," February 17, 2005).

A better term for the so-called preliminary investigation would have been "whitewash."

According to records I obtained from the County Attorney's Office under the Arizona Public Records Law, Thomas allowed his minions to conduct a half-assed probe in which investigators failed to interview crucial witnesses -- including county elections director Karen Osborne.

How in the hell can you conduct an investigation of the elections department without interviewing the boss?!

Even more troubling is the fact that Thomas' investigators did uncover evidence of a conspiracy between county election officials and a private vendor to hide crucial information from a Superior Court judge that an optical scanner may have malfunctioned during the District 20 recount.

In other words, Thomas had evidence before him that county elections officials tampered with the outcome of an election. Yet the newly elected county attorney decided to drop the investigation.

With evidence of a conspiracy to defraud voters, a real prosecutor would have unleashed a pack of legal pit bulls on the elections department to plow through every file cabinet, e-mail and hard drive in the office.

Instead, Thomas, who lacks any significant prosecutorial experience, terminated the investigation, saying there was no evidence of criminal wrongdoing.

I had hoped Thomas would have dived into the elections department problems and proved wrong critics who predicted he would place politics ahead of fair and evenhanded prosecutions. Thomas wanted the appearance of an investigation, but he was unwilling to publicly embarrass County Recorder Helen Purcell, a fellow high-ranking Republican in county government.

Thomas turned the inquiry over to two of his top political aides, Tim La Sota and Barnett Lotstein. Information gathered by them indicates that Osborne and her minions worked vigorously to suppress evidence during a crucial hearing last September 23 before Maricopa County Superior Court Judge Eddward Ballinger. Their actions constitute a serious breach of public trust.

The one-day emergency hearing took place to certify the results of the District 20 Republican state House primary election. Anton Orlich had defeated John McComish by four votes in the September 7 primary. The narrow margin of victory triggered an automatic recount. But when the recount was conducted a few weeks later, 489 new votes suddenly appeared, nearly all of which came from early, mail-in ballots.

This time, McComish had 13 more votes than Orlich.

Orlich challenged the recount results, claiming the elections department improperly handled the ballots before the recount, and that the sudden appearance of 489 votes indicated a voting machine had malfunctioned during the recount.

The surge of votes represented a stunning 18.3 percent jump in the total votes tallied on one machine from the primary to the recount.

Orlich's attorney, Lisa Hauser, subpoenaed Tina Polich, an employee of Elections Systems and Software Inc., to testify about the operation of the company's optical scanners. Polich never showed up for the hearing -- which greatly upset Judge Ballinger.

"It's very unfortunate that your witness is not here [after being] duly served," Ballinger told Hauser. "That's very disturbing."

What Ballinger didn't know at the time was that county elections officials made sure Polich wouldn't show up at the hearing.

Her absence left Ballinger with no choice but to certify the election in favor of McComish, who subsequently won the seat in the District 20 general election.

Osborne, her chief assistant Mitch Etter, assistant county attorney Jill Kennedy and representatives of Elections Systems and Software brazenly took steps to keep Polich from testifying.

Here's what happened:

On the afternoon of September 22, a process server delivered a subpoena to Polich's office inside the Maricopa County elections department. Polich was not present, but the subpoena was accepted by Etter.

Etter told county investigators on February 8 that he placed the subpoena on Polich's desk. He also said he called his boss, Karen Osborne, and told her about the subpoena and about Polich's absence.

Osborne, Etter stated, did not direct him to take any further action.

If this is true, Osborne -- who turned down requests for an interview -- should be immediately dismissed from her post by her boss, County Recorder Purcell.

Osborne's top priority should have been to make sure that the court got all the evidence necessary to make a fair decision about the accuracy of the recount. It was obvious that Hauser wanted Polich to testify about the performance and reliability of the optical scanners.

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