Election Eve Nightmare   
Can the Maricopa County Elections Department ensure the accuracy of early voting? Hell No!  
BY JOHN DOUGHERTY  Phoneix New Times   14 October 2004

 
With less then three weeks before the general election, I have serious doubts that whatever "official" results the Maricopa County Elections Department posts will be an accurate reflection of what voters intended.

After a week of investigating the department's mishandling of last month's controversial recount in the District 20 state House of Representatives race, I won't believe the results of any election in this county if the contest is within a couple of percentage points.

There is just too much slop in the current system to have any confidence in the winner of an election closer than this.

My concerns over the accuracy of Maricopa County's election numbers result from the widespread and popular use of mail-in ballots. I have discovered ample evidence that the county elections department is covering up serious shortfalls in its ability to accurately count such early mailed-in ballots.

The uncontrolled circumstances of voting at home plus the wide variety of writing utensils commonly used to mark ballots greatly increases the likelihood that early ballots will be misread by the county's optical scanning machines provided by the Omaha, Nebraska-based Election Systems & Software, Incorporated (ES&S).

Major problems with early ballots were first exposed in District 20 when 489 new votes suddenly appeared during the recount. The dramatic increase in the number of new votes nearly all of which (464 votes) came from early ballots stunned the candidates and election experts.

"This makes me question whether there is any ability to say for sure that any election result is what it appears to be," says Phoenix election law attorney Lisa Hauser, whose client, Anton Orlich, was a candidate in the District 20 contest.

Hauser's opinion carries substantial clout.

A partner at the Phoenix law firm of Gammage & Burnham, Hauser is an expert on Arizona's campaign finance law and the Voting Rights Act. She serves as an attorney for the Arizona Republican Party and represented the George W. Bush presidential campaign before the Broward County, Florida, canvassing board during the 2000 presidential election recount. In 2001, she was ed as counsel to the first Arizona Independent Redistricting Commission.

Early ballots will account for at least half of the projected 1.1 million votes expected to be cast in Maricopa County for the November 2 general election. If the 3.6 percent error rate in early ballots discovered in the District 20 recount is repeated on a countywide basis, and early votes account for 50 percent of all votes cast, the election results in Maricopa County could be skewed by a plus or minus 1.8 percent margin.This might not seem like a lot at first, but Democrat Janet Napolitano won the 2002 gubernatorial election by well less than one percent over Republican Matt Salmon.

Hidden from the public but well known to election officials is the fact that mail-in ballots have long been known to be far more likely to be misread or not read at all by Maricopa County's optical scanners than votes cast at the polls.

"I think it's just the nature of the beast that [with early balloting], you give up some degree in accuracy because of the manner in which [ballots] are marked and folded by the voters and how they are processed in the mail," says Joe Kanefield, director of elections for the Secretary of State.

If you want to be sure your early ballot counts, fill it out with special pens available at the polls on Election Day. If you have an early ballot and want to vote before November 2, take it to one of the county's satellite polling offices now open and cast your ballot there using the pens provided. If you are going to vote from home, use only black ink pens or pencils in filling out ballots. Never use felt tip pens. Keep the ballot clean and mail it at least a week before November 2.

Not only does the Maricopa County department of elections face serious technical issues concerning the accurate counting of early ballots, I have found several other troubling issues stemming from the District 20 recount that suggest more widespread problems including:

• County elections director Karen Osborne appears to have intentionally violated state elections law during the District 20 recount by preparing ballots for a manual recount. State law requires a recount be conducted using the same equipment used in the election in question, which in this case were the optical scanners.

• Questionable handling of ballots by elections department personnel in preparation for the unauthorized manual recount increased the potential for vote tampering and possibly contaminated the ballots, calling in to question the accuracy of the recount.

• Rather than working with District 20 candidates to discover why so many votes suddenly appeared out of thin air during the recount, Osborne and her associates took steps to hide crucial details from the public and candidates.

Their cover-up became so elaborate that elections department assistant director Mitch Etter accepted a subpoena issued by Hauser for ES&S employee, Tina Polich, to appear in court to testify about the operation of the county's optical scanners.

Polich has her office in the county elections building and works closely with county officials. Polich never showed up at a crucial court hearing to certify the results of the recount where her testimony was sought by the judge. ES&S officials say she never received the subpoena.

And if all this is not enough to make you want to bag the election and head to Baja for the winter, there's highly partisan Secretary of State Jan Brewer, whose office oversees the elections departments in Arizona's 15 counties.

Brewer is far from a non-biased administrator overseeing the integrity of the state's elections.

A former member of the Maricopa County Board of Supervisors and a longtime associate of Osborne's, Brewer is one of only three secretaries of state to officially endorse President Bush. Brewer served as a delegate for Bush at the Republican National Convention and is an honorary co-chair of the Bush campaign.

If a razor-close presidential election emerges in Arizona, there is little doubt that Brewer will become Arizona's version of Florida's infamous Katherine Harris and move to quickly declare Bush the winner.

The uncertainty raised by the District 20 recount provides a chilling example of what could happen if the Arizona presidential election requires a recount which is automatically triggered if the candidates are separated by less than one-half of one percent of the total votes.

Amazingly, the Arizona Legislature has never enacted a statute to allow for a manual recount even after the chaos in Florida and the U.S. Supreme Court's infamous Bush vs. Gore decision that found Florida's manual recount to be unconstitutional because no rules for conducting a manual recount were in place.

That means Maricopa County will have to rely on using ES&S optical scanners in any potential recount. That is less than reassuring, especially when you consider it is the ES&S IVC optical scanners that failed to detect the 489 votes in the District 20 primary that somehow appeared in the recount.

The stunning increase in the number votes tallied in the recount changed the outcome of the election.

Anton Orlich had a four-vote lead over John McComish after the Republican Primary votes were counted. But the hundreds of additional votes discovered in the recount allowed McComish to overtake Orlich and win by 13 votes.

A detailed analysis of the votes by Orlich, an Arizona State University political science doctoral candidate, and his attorney, Lisa Hauser, found a 3.6 percent increase in the total number of new votes detected on early ballots during the recount.

This deviation from the primary result is on par with the infamous 2000 recount in Florida and the uproar over the hanging chads where the error rate was about 3.8 percent.

The unusual increase in the number of votes in District 20 was so significant that it forced Secretary of State Brewer to swing into action and demand an explanation from her friends at Maricopa County.

"This variance is certainly higher than what I would have anticipated," Brewer states in a September 23 letter that was hand-delivered to Osborne's boss, Maricopa County Recorder Helen Purcell. "The reasons for this variance need to be investigated further."

Purcell responded four days later that she, too, was "not anticipating the variance in the recount of District 20."

Purcell blamed the increase on how voters cast their ballots at home.

"I do feel very strongly that the instruments used to cast votes and the folding of early ballots have a significant influence on tabulation," Purcell stated.

Osborne says voters use everything from crayons, to eyeliner, to gel pens, to felt tip pens to mark their ballots. The optical scanners are designed to detect graphite in black ink and pencils.

The wide variety of different markers used in the early balloting, Osborne says, is the reason votes were not detected the first time they were counted.

But why would the IVC optical scanning machines fail to pick up the 464 votes on early ballots in the District 20 primary only to detect votes in the recount when the same early ballots were run through the same type of machine?

I spent 90 minutes with Osborne recently trying to get to the bottom of this question. Suffice it to say, she had no plausible explanation.

Considered the grand dame of elections in Maricopa County, Osborne has been involved in state and county elections for 27 years. She served as assistant secretary of state from 1977 through 1991, when she became assistant elections director for Maricopa County. She became director in 1995.

A Democrat, she has a stellar reputation as an ethical and fair administrator, and elected officials, especially members of the Maricopa County Board of Supervisors, practically dote on her every word.

Despite her professional stature, Osborne could only muster circular explanations for the spike in votes that surfaced in the District 20 recount.

First she claimed that all of the IVC optical scanners were working perfectly and that they passed rigorous tests before the primary and the recount. Osborne said the IVC optical scanners were virtually interchangeable and would tally nearly the exact number of votes from any given sample of ballots.

But when asked why, then, did one of the IVC scanners detect so many more votes during the recount of early ballots, Osborne blamed the situation on "errant" marks made by voters that sometimes are read by the scanning machines, and sometimes aren't.

"I don't have a specific reason why this particular dot was not read the first time," Osborne said. "I don't have a reason for that. It is the nature of the machines. They are never going to read exactly the same thing."

So much for the much ballyhooed consistency of the IVC optical scanners.

And who knows if the "errant" marks Osborne repeatedly blamed for the increase in votes even accurately reflected voters' true intentions?

In some cases, the IVC scanners have detected tiny dots, smudge marks and even the body oil left behind by a fingerprint and registered them as votes when, upon physical inspection of the ballot, it is obvious the marks or smears were not intended to be votes.

It's clear the IVC machines can't be relied on to provide an accurate count on early ballots equivalent to what is found in the booths at the polls until the public begins taking the utmost care to mark ballots with only black ink pens or pencils.

It's also clear that county recorder Helen Purcell needs to clip Osborne's wings for overstepping her legal authority and initiating steps for a manual recount in the District 20 race.

Osborne tells me she knew that a manual recount was against the law, but she wanted to do one anyway.

"I thought this was the most practical thing to do," she says.

Osborne says Orlich's four-vote margin of victory in the primary was the principle reason she felt a manual recount would provide a more certain result than a machine recount.

She also said a looming deadline for printing early ballots for the general election left her little time to determine who won the District 20 primary and that she needed to begin sorting the ballots before a court officially ordered a recount.

Osborne's unilateral decision to conduct a manual recount triggered a series of events that may have contributed to the sudden spike in votes that later showed up.

Preparing for a manual recount required 25 to 30 county and temporary employees to sort through more the 330,000 early ballots cast in Maricopa County in the primary election and pull out the 7,900 early ballots for District 20.

This sorting process could have inadvertently caused ink, pencil marks, smears and fingerprints to show up on the District 20 early ballots that may not have been there during the primary election.

Such marks caused by sorting could have been among the "errant" marks Osborne says were later detected in the recount.

The sorting process took place over about five days. The sheer handling of that many ballots, by so many people over an extended period of time, increases the possibility of tampering something Osborne says is extremely unlikely.

"In my heart of hearts I don't believe anyone tampered with these ballots at all," she tells me, though acknowledging "anything is possible."

Osborne finally backed down from her plan to do a manual recount after Secretary of State Brewer rejected the proposal.

Brewer was clearly upset that Osborne tried to circumvent state law and proceed with a manual recount.

"I would appreciate it if you would provide me an explanation why you felt the manual recount was necessary in the first place," Brewer wrote in her September 23 letter.

Osborne has not yet responded to Brewer's request.

Nor has Osborne provided the public with an adequate explanation for what happened in the District 20 recount. Unless there are immediate answers, the feds should step in and investigate.

Meantime, I just hope to hell that the presidential election doesn't come down to a recount in Maricopa County because it is painfully obvious that we are ill-prepared to handle such an important task.