Ballot Box Breakdowns

An independent voting-technology expert finds serious problems in the Maricopa County Elections Department

Jones' suggestion that the District 20 ballots be subject to visual inspection is expected to be strongly opposed by key Republican leaders, including Purcell, Maricopa County Attorney Andrew Thomas, Maricopa County Treasurer David Schweikert, Speaker of the House Jim Weiers and Senate President Ken Bennett.

Purcell, Thomas and Schweikert have already rejected a public records request submitted in October by New Times to have an expert examine the ballots. Weiers and Bennett have taken steps to block an investigation of the District 20 recount by Republican Senator Jack Harper, chairman of the Government Accountability and Reform Committee, whose mission is to investigate such irregularities affecting state government.

Last spring, Thomas' office investigated the recount flap at the request of local Maricopa County Republican Party leadership, alerted to significant problems in the election by a New Times column ("Election Eve Nightmare," October 14, 2004).

Clockwise from bottom: County Attorney Andy Thomas, County Recorder Helen Purcell, House Speaker Jim Weiers, Senate President Ken Bennett, and County Elections Director Karen Osborne.
Mark Poutenis
Clockwise from bottom: County Attorney Andy Thomas, County Recorder Helen Purcell, House Speaker Jim Weiers, Senate President Ken Bennett, and County Elections Director Karen Osborne.

Despite finding serious problems within the elections department, including evidence of voter-machine malfunction during the recount and witness tampering, Thomas closed the investigation saying there was no evidence of criminal wrongdoing. Thomas has said he will oppose in court any private or state-funded effort to conduct a recount of the District 20 ballots.

Thomas is taking this stand despite the fact that looking at the votes again cannot change the outcome of the election. No official recount is legally possible in the race, since the election has been certified by a judge.

Also, Jones says an unofficial recount is not necessary to determine what happened. Instead, he says, a scientifically random selection of about 1,000 ballots pulled from the 17,000 cast in the District 20 Republican primary would be sufficient to determine whether the voting machines failed to accurately count votes.

Or whether someone tampered with the ballots and added votes between the primary and the recount.

Jones' recommendation for a visual inspection of the District 20 ballots will be included in a report that was scheduled to be released on January 12 to Harper, who planned to hold legislative hearings to determine what caused the votes to appear during the District 20 recount.

New Times obtained an advance copy of Jones' report because the paper agreed to pay Jones to test the accuracy of the county's voting machines.

Jones inspected the county's machines on December 20, after Harper issued a legislative subpoena to the Maricopa County Elections Department demanding that the machines be made available to an independent expert. Senate President Bennett refused to authorize Harper to use Senate funds to pay the costs related to Jones' inspection, telling the committee chairman to find a private source.

Harper turned to New Times, which agreed in late November to cover the cost of Jones coming in.

Harper also issued a subpoena to County Treasurer David Schweikert to release the District 20 ballots, which are required by law to be held in the treasurer's vault for two years following the primary. But Schweikert, acting on the recommendation of County Attorney Thomas, refused to release the ballots to Jones.

The District 20 recount has been marred by controversy and unusual, if not suspicious, actions since September 2004, when Anton Orlich defeated John McComish by four votes in the Republican primary for a seat in the state House of Representatives. The narrow margin of victory automatically triggered a recount in which the 489 additional votes suddenly appeared. McComish won the recount by 13 votes.

Nearly all of the new votes that appeared in the District 20 recount came from early ballots that voters cast at home and mailed to the county elections department. The county used Optech 4-C scanners to count early ballots in the primary and used the same type of machine to conduct the recount. But the Optech 4-C used in the recount, known as Machine No. 5, detected an 18 percent increase in votes from early ballots.

Orlich filed a lawsuit seeking to block the recount, claiming the elections department mishandled the ballots between the primary and the recount and that it appeared one of the county's voting machines failed to accurately count votes.

Maricopa County Superior Court Judge Eddward Ballinger upheld the results of the recount after an extremely hostile and unusual hearing in which a key witness who worked for the manufacturer of the election machines failed to appear in court despite receiving a subpoena.

Thomas' investigation later determined that the witness, Tina Polich, was instructed to "lay low" during the hearing by county officials and her employer, Election Systems and Software Incorporated, who did not want her to testify about the possibility that the voting machines malfunctioned.

According to County Attorney Thomas' investigation, it appears that several county officials deliberately misled Judge Ballinger during the court hearing when they told him that they didn't know how to contact Polich.

Judge Ballinger expressed serious concern about Polich's failure to appear at the hearing and about the county's ability to accurately count early ballots.

Nevertheless, he went ahead and certified the recount as valid.

Elections department director Karen Osborne has repeatedly said in published statements and in sworn court testimony before Judge Ballinger that the reason for the sudden appearance of the votes was that voters casting mail-in ballots used marking instruments that were difficult for the optical scanners to read.

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