Arizona Voters Sue Secretary of State Ken Bennett Over Barber/McSally Congressional Bid

J.T. Waldron

A definitive outcome of Arizona’s District Two congressional race between Democrat Ron Barber and Republican Martha McSally will now depend on the Arizona Supreme Court’s decision to allow a tabulation system that is accurate enough to handle the task. Citizens from a variety of political affiliations have filed a lawsuit on the first of December against Secretary of State Ken Bennett because he intends to perform a recount with the same elections systems that have a margin of error exceeding McSally’s 161 vote lead over Barber. The Defendant intends to proceed with another problematic count despite Arizona state law requiring that a different program be used for the recount.

AZSOS Ken Bennett

Bennett’s erroneous path was revealed on November 25th in Pima County Administrator Chuck Huckelberry’s memo shooting down the unanimous decision by his own Elections Integrity Commission (PCEIC) to recommend the use of a more accurate system for counting the ballots. The PCEIC proposed a full hand-count of the paper ballots or no-error graphic scans of the ballots as the only viable means to remove any doubt about who wins the nationally publicized Barber/McSally race. In response to the Arizona statute referring to the use of a different program for any recounts, Huckelberry states:

“We have shared the EIC memorandum with the Arizona State Election Director Christina Estes-Werther and Deputy Election Director Kris Kingsmore. They have assured us the use of a different ‘program’ for a the recount means only that the tabulation program will be reset to count just the CD2 race and the program as changed will be subject to a new round of logic and accuracy testing by both the Secretary of State and the County. They said it is important to use the same equipment that was used in the General Election to ensure the ballots are treated exactly the same. A statewide recount of a ballot proposition in 2010 and a recount in a Congressional District primary in 2012 were both successfully conducted in this manner by Secretary of State.”

In other words, Huckelberry attempts to confuse the public by mimicking the same flawed rationale coming from the Secretary of State’s office. They might as well be explaining how a law requiring that a truck be weighed again on a different scale does not really mean ‘taking the truck to another scale’. Bennett’s crew instead suggests that ‘different scale’ means that the same scale be ‘zeroed’ before the weight is measured a second time by that same faulty scale. Since Pima County Elections have previously undermined attempts by the PCEIC to check results with a meaningful hand-count audit, there is no effective means to identify what Huckelberry claims as a “successfully conducted” recount.

The typically divided PCEIC’s unanimous request is an anomaly. So is the ideologically diverse list of plaintiffs calling for a truly adequate recount as prescribed by the law. The list includes “Desert Speaks” Host David Yetman, who served ten years on the Pima County Board of Supervisors, former Democratic State Senator Ted Downing who is now a U of A professor, former Tucson Republican Mayoral Candidate Shaun McClusky, former Green Party Candidate for Pima County Sheriff David Croteau, Bisbee writer David Morgan and former Chair of the Democratic Party’s Election Integrity Commission Sandra Spangler who co-founded AUDIT-AZ with fellow plaintiff Arlene Leaf, the uncompromising elections activist who co-produced the movie “Fatally Flawed”. The plaintiffs hired Attorney Bill Risner, who filed the suit yesterday in Tucson.

Bill Risner’s work in election integrity includes the paramount legal victory by the Democratic party against Pima County for electronic elections data in 2007 yielding the largest release of electronic elections data in U.S. history. His appellate court victory for the Libertarian party allowing prospective relief in the Courts ultimately revealed a judicial conflict of interest as it was overturned.  Risner’s continued unfulfilled quest for justice in Pima County’s 2006 RTA election fraud required the State Attorney General to manage the obvious cover-up for all to see in the movie, “Fatally Flawed”. Ironically, his work is the foundation for an electorate now ready to move to a more accurate, easily verifiable means introduced by the PCEIC.

In this case, the plaintiffs only had time for a “Special Action Petition for a Writ of Mandamus” asking that “the court order the Secretary of State to require that a recount be conducted with a separate program as requested by plaintiffs and required by our Legislature.”

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