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.
Attorney 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 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-per-dollar 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 the results were not as reported — and then use that evidence to get them to put procedures in place to prevent future problems.
If he succeeds, that could have statewide implications. It would pave the way for judges to order additional oversight of virtually any future political contest or ballot measure.
That possibility appeared to concern the appellate judges. Cattani suggested that if Risner 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.
Risner 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, independent, equipment tallying the votes and comparing them with what the county’s own equipment found.
Although Judge John Gemmill thought it sounded like a good idea, Ronna Fickbohm, representing Pima County, said it is 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. And Fickbohm said Risner or anyone who wants graphic scanning needs to have the Legislature amend the laws.
Fickbohm said the Arizona Constitution prohibits courts from getting into areas reserved for the Legislature, and what Risner wants exceeds that authority.
The judges gave no indication when they will rule.