Vote-recount probe raises some issues
County attorney questions accuracy of tab machines

Nedra Lindsey
The Arizona Republic
Jun. 12, 2005 12:00 AM

A Maricopa County Attorney's Office investigation has revealed inaccuracies and problems associated with a controversial vote recount that decided a race for the state House.

The investigation has yielded no charges, but a May 5 letter from Maricopa County Attorney Andrew Thomas to Larry Pickard, chairman of the Maricopa County Republican Committee, raises questions about the recount, particularly the voting machines used to help decide the Sept. 7 District 20 primary race.

The letter, obtained by The Arizona Republic, says the County Elections Department was "seriously concerned" about the accuracy of vote-counting machines used to tally ballots during the recount. Two optical-scan voting machines used during the primary were not used for the general election, and the county's election office is considering changing the voting-machine supplier. advertisement 

A deputy district attorney also was reprimanded after advising a representative from Election Systems & Software, the supplier of the voting machines in question, not to show up for a post-recount court hearing because a subpoena was improperly served.

"We felt there was no chicanery by the Elections Department at all," said Barnett Lotstein, special assistant county attorney. "But there was probably some malfunctioning of the machine."

Karen Osborne, the director of elections, dismissed the statements contained in the letter concerning the accuracy and performance of the Optech IV-C voting machines during the recount.

"I don't know what they are referring to," Osborne said. "I am not concerned about the machines. We're going to stay with these machines. They are very solid, and they do what they are supposed to do."

Maricopa County Recorder Helen Purcell, who was copied on the letter, was not reachable for comment.

The county has eight Optech IV-C vote-tabulating machines made by Nebraska-based Election Systems & Software, Osborne said.

The county uses the machines mainly to read early ballots and, in extraordinary circumstances, those from precincts, Osborne said.

The machines are no longer made by Election Systems & Software, though the company continues to provide support for them.

The company phased out the Optech IV-C in favor of more modern equipment, said Meghan McCormick, a spokeswoman for Election Systems & Software.

Despite Osborne's professed satisfaction with the machines, she said the Elections Department is searching for hardware or software that would enable the machines to pick up a range of ink-based marks on early ballots. The unpredictable results in the recount were frequently blamed on the use of inappropriate pens, markers and pencils by voters.

Election Systems & Software makes no equipment that would enhance the reading ability of the Optech IV-C.

"We do not have a software or hardware solution that would work in this situation," McCormick said. "We have hardware that would work on the IV-C but it wouldn't meet the latest federal certification standards."

After speaking with others at the company, McCormick said no one was certain if hardware or software made by other companies exist for the machine.

McCormick added that the machines are accurate as long as the proper writing instruments are used.

Last September, thoughts of gel pens and markers were not on the mind of Anton Orlich, then a 28-year-old Yale University doctoral student. He led John McComish by just four votes - 5,529 to 5,533.

Orlich did not expect a change in the standings. Neither did an Elections Department public information officer a reporter spoke with during the recount.

But by the end of the recount, the five candidates in the District 20 state House of Representatives Republican primary gained a combined 472 votes.

Orlich finished with 5,620 votes. McComish finished ahead with 5,633.

McComish went on to win enough votes in the general election to represent south Chandler, west Tempe and all of Ahwatukee Foothills in the state House of Representatives with state Rep. Bob Robson, R-Chandler.

Osborne attributed the change to voters who used the wrong type of writing device, colored pens and the like, to mark the mailed early ballots.

"They were not new votes," Osborne said after the Sept. 21 recount. "They were not picked up by the machines before."

Suspecting errors such as mishandling of ballots or flawed voting machines, Orlich challenged the results of the recount in court. He was contacted for this story but he declined to comment.

During the Sept. 23 hearing, Lisa Hauser, the attorney for Orlich, argued that the new results were not attributed to markers and gel pens, but rather to a machine that did not work properly. A machine registered a variance in reading votes of up to 18 percent, Hauser said.

Tina Pulich, a project manager for Election Systems & Software in the Elections Department, was subpoenaed to testify to the machine's fitness. But a deputy county attorney told her that she did not need to appear in court because the subpoena was not directly delivered to her.

Deputy County Attorney Jill Kennedy was reprimanded for giving the advice.

"Under the law, if you're not actually served then you can't be faulted for not showing up," Lotstein said. "The advice may have been technically correct but it didn't advance the search for the truth. The attorney doesn't only represent the client, which is the Elections Department, but the people."