Pima County Election Integrity Trial: Testimony of Mr. Merle King
Please see the Election Integrity Homepage for complete coverage and the latest news.
The county made a point of stressing that they only paid Mr. King $10 for his testimony, seeking to bolster his credibility with the judge: I think they may have paid too much.
"The Man from Diebold" is the maybe-not-so-affectionate cognomen given to Mr. Merle King by election integrity activists at the trial. His testimony constituted the big hired gun for the defense – the county’s best hope to defend the honor of Diebold, and to justify the withholding of the database by explaining the risks inherent in the release of this data "into the wild," as King and the county’s attorneys put it.
Given that King clearly admits that an operator could rig an election using Diebold’s GEMS software, and may escape detection in doing so, he would seem to have failed his primary task of protecting Diebold’s reputation. Given that Bill Risner picked apart every threat scenario on cross-examination, making those threats seem vanishingly implausible, if not down-right impracticable, compared to the clear and admitted threat of a corrupt insider, he signally failed at the latter task as well.
King made the damaging admission that, to his knowledge, no outsider has ever even attempted to rig an election through hacking of the sort he hypothesizes. The only actual example of electoral mayhem he ever came up with was a guy with a hammer who tried to smash a touch-screen computerized polling machine. Apparently, we need to keep the location of hardware stores a secret.
I would not be surprised if attorneys across the nation will be studying Risner’s cross examination in preparation for their own suits to liberate Diebold’s and other vendors’ tabulator software databases for public scrutiny. It was just that good. A pleasure to watch, and, I’m sure, even more of a pleasure to deliver.
King’s expert testimony was the spine of the county’s case. Risner broke it like a professional wrestler taking on a rube from the crowd.
Risner used a tried and true technique: when confronted with an expert claim full of vague and alarming claims, simply ask, "How." When King claimed specific threats, such as the reprogramming of memory cards in scanners, or creating spurious ballots, or simply spreading chaos and uncertainty, Risner just got down to the business of asking exactly how these exploits would be accomplished.
What emerged was a taxonomy of threats that break down into three categories; the impractical, the absurd, and the unspecified.
Let’s start with the impractical. King described possible exploits using data that might be found in the databases; using the codes and ballot rotation information to reprogram precinct scanners to spoof the reading of ballots, and using ballot layout information to print spurious ballots that would result in misassigned votes.
Both exploits are certainly possible, but have two pre-requisites that make them impractical; they require that one acquire the needed information from the database before the close of the election (and the parties would get the databases only after the election was closed – and because of the preparation and execution time required, one would really need the information considerably in advance of the election), and they require physical access to election equipment (which would be very difficult due to security protocols such as tamper evident seals and mixed-party observers present during the exploits).
Risner also demonstrated that information in the databases needed for these exploits is often already in the public domain (such as ballot rotations and ballot layout), or that the exploit would be far easier to accomplish using other means (such as spoofing ballots by modifying early voting ballots with Photoshop).
Next, there was the absurd. Most vexing was the claim that some party with enough public esteem to be credible would squander that credibility by modifying the copy of the database provided them and claim publicly that theirs was the true outcome of the election. This was described repeatedly by defense counsel and witnesses as a realistic strategy for spreading chaos and uncertainty to undermine our elections and discredit the election system vendors involved (I think I can detect who promoted this particular trial strategy…). I call this the reputational suicide exploit. Bill Risner asked King rhetorically how long it would take before this theoretical party would be "tarred and feathered" and have to "high-tail it outta town."
You see, all political parties would receive the same database and the original would also be retained. It would be a trivial task to prove such claims to be a sham and then to destroy the credibility of the claimant – and the other political parties would be only too happy to help do so. There is a balance of power inherent in transparent security arrangements. Our own government’s separation of powers structure is such a security protocol – or, at least it is supposed to be… In any case, King’s claim really only applies to fringe conspiracy groups and malcontents who might get the database from "the wild."
At one point during King’s testimony, as he was describing hackers who persistently delved into the vulnerabilities of election systems, Jim March of BlackBoxVoting.org, who sat at the plaintiff’s counsel table typing messages to Risner calling bullshit on matters technical, typed during King’s testimony in a giant font size so that people in the audience behind him could see, "Gee, you think he’s talkin’ about me?" I think King certainly was really talking about him and folks like him. King’s "chaos theory" as it came to be known around the plaintiff’s table was really aimed at those who annoy and bedevil the vendors whom King and those like him speaks for. They might actually believe that these hacker-activists aim to bring down and discredit the election system: but most people readily understand that their aim is to strengthen democracy, not undermine it.
Another specimen in the absurdity menagerie is the leverage hypothesis. King claimed that information in the database could be used to reduce the probability space for a brute force attack on encrypted passwords in the database. That’s just true enough not to be perjury. What he certainly tried to avoid highlighting is the inconvenient fact that those passwords are constantly changed; so they are useless. And that cracking one password doesn’t give any leverage for cracking another; so they are useless. And that GEMS is vulnerable to a very simple exploit to avoid password protection with just a few clicks of the mouse; so they are useless.
The final category of threats I call the unspecified. These are the Rumsfeldian unknown unknowns. The claim is that hackers are wily beasts. You can never tell to what clever use they might put that additional jot of seemingly innocuous information. You can’t trust them, so it is good security to just deny them all the information you can. If this is sounding familiar, it should: it’s the Bush Administration’s approach to public information in the face of the terrorist threat – treat the public as if they were terrorists.
This is not only a rather contemptible policy for a free society, it is legally questionable in this context. You see, the county bears an evidentiary burden of persuasion as to the balancing test between the public interest in access and the government’s interest in confidentiality. By using such a vague and unspecified threat as an element of that burden, they are in essence saying that it is incumbent on the plaintiff to show that there is no possible harm. That is known as burden shifting – and it is a big no-no.
These vague imprecations underlie a lazy and deficient approach to security that the election integrity crowd refers to as "security through obscurity." Keeping a weakness secret is the worst possible way to implement security. Conservatives like to say "security through strength." Well, election integrity folks agree. Security systems around something as important and fundamental as our franchise should be robust and transparent systems that do not rely on dirty little corporate secrets; nor on just trusting any one person or group of people to do the right thing.
You see, the plain truth is that secrecy is cheap on the front-end and expensive on the back end. The corps have to pay the front-end costs of implementing security in the systems they vend, so they like secrets, not real security solutions. But the public pays all the back-end costs in stolen elections, undermined public confidence in the system, and unintended Presidencies that cost us lives, treasure, and precious reputation.
The EI movement is about putting those back-end costs back up front and forcing the corporations who only see a way to make a buck to meet much higher standards if they want to play a role in our elections. Lawsuits like this one, which expose this con game, and the con men like King who enable it, are an integral part of that fight.
I feel proud and humbled to have had the privilege to watch this work being done, and to have been inspired by the patriots doing it for no other reason than a burning love of democracy and the American way. As John Brakey of AuditAZ explained about why he does this work on his own time and his own dime, "Once your grand-daughter grabs you by the finger – that’s it, buddy. You’re done."
After the flip, the summary of Merle "the Man from Diebold" King’s testimony. Big props to David Safier for his able and tireless work to compile these summaries. Please recall that these are paraphrased condensed summaries, not transcripts…
Pima County Election Integrity Trial: Gila County Elections Director Dixie Munday
Pima County Election Integrity Trial: Motion for Judgment as a Matter of Law
Pima County Election Integrity Trial: Testimony of Dr. Chris Gniady
Pima County Election Integrity Trial: Testimony of Paul Eckerstrom
Pima County Election Integrity Trial: Testimony of Mr. Bryan Crane
Please see the Election Integrity Homepage for complete coverage and the latest news.
Let me say this before anything else: Bryan Crane is not the villain of this story.
I don’t know if he did anything wrong, and that’s entirely beside the point in any case. The point is that anyone in Bryan Crane’s position certainly could do something wrong – and we would likely never know. That’s intolerable.
The point of this trial is not to prove that Mr. Crane, or anyone else, did anything improper or illegal – only that the opportunity exists. It is tempting to allow the appearance of impropriety, or the mere opportunity to do something wrong – both of which Democrats clearly are demonstrating in this trial – to shade into an accusatory lynching of a man’s character.
I don’t believe that there has been any evidence presented that proves to anywhere near a criminal degree of certainty that Mr. Crane or anyone else has committed a crime, or even behaved improperly. To be sure, there is evidence that is very troubling, even if all of the incidents the Democrats point to are adequately explained. And the only way to clear the air is get inside that database.
What is very troubling to many is how stubbornly Pima County officials have resisted the opportunity to reassure citizens concerned that their votes be honestly counted. That sort of stubborn intransigence strikes many as being consistent with how a guilty person reacts to an accusation; not by honestly trying to exonerate themselves by bringing forth all the facts, but by trying to withhold or "lose" critical evidence that could prove their guilt.
Only one thing is for certain – without access to the GEMS database files, the voters of Pima County haven’t any hope at all of finding out that our vote is being manipulated if someone in Crane’s position is less than honest.
I suspected that the testimony of Bryan Crane would prove pivotal in the case, but I might have underestimated his effect. His testimony could well prove to have been the deciding factor. One thing became undeniably clear: a person of less-than-perfect integrity and honesty in Mr. Cranes’ position would be a serious threat to the integrity of our elections.
The point of good security is both to prevent wrong-doing and to catch the culprit if you can’t prevent him. The very nature of computer processing and counting of our votes means that we really do have to rely on the probity and integrity of the people who operate the system. We can keep people out pretty effectively, but you can’t keep out those who are authorized. The best you can hope for is to be sure of catching them if they are doing something wrong; conservatives call that effective deterrence.
Trusting someone doesn’t mean that we shouldn’t check and be sure that our reliance is not misplaced. Our county officials seem to just want our trust, hold the checking.
There are several crucial points in Crane’s testimony. These are the ones I found to be most important:
Crane severely damaged his credibility right out of the gate by refusing to recognize the fundamental security flaws in the design of GEMS as problematic because access to the computer to outsiders is now well controlled. It’s as if he either can’t imagine an insider manipulating an election (stupid), or simply won’t admit that he imagined it all too clearly (Machiavellian). Finally forced to admit the obvious in redirect, that an unscrupulous operator could rig an election.
One of his most frequent phrases quickly became "I can’t recall," especially when confronted with the details of allegations about improper procedures. Judges know exactly what that phrase means.
He had a MS Access manual in the count room the night of the RTA election. Considering how busy elections are, the explanation that he was researching how to solve an equipment issue for a future election seemed implausible.
The allegation that he was taking home GEMS data backups is denied, but his explanation that co-workers were confused as to what data he was taking isn’t credible. His own assistant, who was trained to work on the same systems, seems unlikely to have been confused. No explanation offered why admin data would continue to be taken home even after there is a fire-proof safe available for election data.
Made implausible and patently fabricated explanations of the GEMS user log data showing unusual activity. Claims these were simply flukes or habits even though the interface is designed to ensure deliberation (must confirm actions).
Given the numerous accounts of Nelson getting summary reports during elections (and there is nothing wrong with that unless the information is shared to affect the election), Crane’s flat denial he had ever given Nelson such reports or seen Nelson with such reports during a count is not just an obvious lie, but a useless one.
The most damning result of Crane’s testimony to the County’s case came with the questioning by Judge Miller. His questioning laid bare the implausibility of the security threats the County points to as justification for continued confidentiality.
- Information in the GEMS database would allow creation of memory cards to manipulate the vote at the scanner. But tamper evident seals would have to be defeated. Only elections insiders could get away with this exploit and only if the information were obtained before or during an election.
- Information in the GEMS database would allow creation of rigged ballots to fool voters into voting for the wrong choices. But a conspiracy of poll workers would be required to introduce the fake ballots, and the exploit could be more simply in Photoshop. Again the information would have to be obtained prior to or during the election.
- A party obtaining a GEMS database could make alterations and claim the official tally is incorrect on the basis of their copy. But all parties get the data and the claim would easily be dismissed. I term this the reputational suicide attack. Could also be defeated by issuing the database on read-only media with unique identifiers on the media.
After the flip is the full summary of Bryan Crane’s testimony. Thanks to David Safier for his indefatigable assistance with these summaries. Please keep in mind these are not intended as transcripts, but condensed and paraphrased summaries…
Pima County Election Integrity Trial: Testimony of Pima County Administrator Chuck Huckelberry and James Barry
Please see the Election Integrity Homepage for complete coverage and the latest news.
Chuck Huckelberry is the bureaucratic head cheese in Pima County government. His title is County Administrator, and he serves at the pleasure of the Pima County Board of Supervisors – theoretically. The political facts are a bit more nuanced.
Huckelberry, though a civil servant serving at the pleasure of the Board, has been in his current position since 1993, a respectable period of time in which to settle in, is it were. The general feeling amongst the political cogniscetti is that Huckelberry is not just a functionary, but a king-maker. His position has allowed him to influence strongly the appointment and election of members of the Board, giving him political influence that far outstrips what his job description or the county’s charter would suggest he has.
A contextual issue that must be kept in mind is that the department of elections used to report directly to the Board of Supervisors. When Brad Nelson was hired as director, he was made a direct report to Huckelberry, instead. Thus, any whiff of scandal in the elections department reflects directly on Huckelberry, as he hired Nelson and oversees his work directly.
There are persistent rumblings about the Pima elections department being transferred by the Board of Supervisors to the bailiwick of the elected County Recorder’s office, inhabited by Democrat F. Ann Rodriguez for the past 14 years. She has expressed a willingness to undertake the task after the 2008 election if given the additional personal compensation commensurate with the additional responsibility, sufficient budget, and the policy leeway she needs to run the department as she thinks it should be. A concern for Huckelberry and Nelson is whether she would also change the leadership (very likely) and conduct an investigation into past practices and possible malfeasance (less likely, but terrifying).
A political concern for both the Democrats and Republicans at the state level, and on the Board of Supervisors, is what might happen if this trial begins to prompt the upending of rocks long left unturned in counties around the state? Thus the annoyance by his own party at Ray Carrol for cooperating, and the reticence of the Democrats to do the same. As intimated in the testimony of many in this trial, the security practices of other counties are just as bad, and often far worse thos in Pima county. It serves no insider’s interest to have potential scandals stirred up in a manner that can’t be carefully controlled.
As to Huckelberry’s testimony, it is about what one would expect from a careful administrator who is the veteran of a thousand bureaucratic death-matches. You don’t lay a glove on a guy as battle-tested as Chuck. You give him opportunities to be too smart for his own good.
One thing that became apparent was that Chuck claims credit for the decision not to release the database to the Democratic Party. That claim may warrant a closer examination at another time, but it certainly puts the public onus on him if this lawsuit doesn’t go his way.
He also clearly has no idea about the technicial issues involved and has relied very heavily on John Moffatt, his consultant who will testify in this trial, without having the curiosity to carefully question the threats his adviser was telling his the data’s release would pose. A stark contrast can be seen between Huckelberry’s unquestioning reliance on expertise, and the skeptical use of experts to draw one’s own conclusions and make a thorough evaluation displayed by the questioning of expert witnesses by Judge Miller in this trial. Keep an ear tuned here for the summary of Bryan Crane’s testimony for an example of the Judge’s style.
Another damaging admission that Chuck let slip was that Pima County had never in 30 years done an analysis of its elections systems because there has never been evidence or allegations that might warrant analysis. For an administrator who is basically asking the court to trust him, his management, and his people as the ultimate guarantor of the people’s vote, that shows a lack of diligence.
Finally, the real kicker is Chuck’s assertion on the stand that "a conspiracy of one is possible, a conspiracy of three is not." He asserts that there is no possible way that the elections department could have done anything wrong, or, in fact, could do anything wrong in the future, because it would require a conspiracy which is simply impractical. Yet, as you will see from Bryan Crane’s testimony, and likely will see again in Pima County’s expert testimony, that an exploit requiring such a large conspiracy it boogles the mind is one of the central threats they claim to justify the withholding the database from public scrutiny.
Video footage of Chuck Huckelberry’s testimony:
The testimony of James Barry is intended mainly to illustrate that the Pima County government had a deep, vested, and motivated interest in the outcome of the RTA election. They spent over $70 on Barry’s services alone in analyzing prior bond and tax elections, creating a plan to divide up projects based on possible electoral trouble areas, and creating a campaign plan. His testimony does indicate that anyone would actually work to steal the election, only that they had an explicit position and desire for approval of the measure.
Video footage of James Barry’s testimony:
After the flip is a full summary of the testimony by Huckelberry and Barry. Sincere thanks to Daivid Safier, without whom this project would be impossible. Please recall that these are not intended as transcripts but condensed and paraphrased summaries…
