A Layman’s View of the Trial’s Aftermath

by David Safier

When I wrote a post after the election integrity trial and before Judge Miller’s ruling (A Layman’s View of the Election Integrity Trial), I tried to predict how he would rule based on my assessment of his intellect and temperament.

I was close. Judge Miller ruled that databases the Democrats are seeking should be released, as I predicted. But I failed to consider one factor—his cautious nature. He only ruled to release some of the databases, not all of them. So I’ll give my predictions a B+ (As a retired teacher, I reserve the right to grade my own work.)

And now we have a new unknown to contend with: a Notice of Appeal and a Motion for Stay Pending Appeal filed by the county, which probably means that the release of the databases will be at best delayed and at worst denied.

Let’s start with Judge Miller’s ruling. The County maintained the databases should not be released because they contain “programs,” and state law forbids releasing programming from elections software. I thought Miller would agree that some portions of the databases could be considered programming, but he would also say that they do not reveal anything about the underlying software, which means the databases can be released. He surprised me by going even further, stating, “The Court finds that the mdb [Microsoft Database] file is not a computer program as defined by A.R.S. 16-444(A)(4).” (italics mine)

This could be a very important ruling with national significance. If other judges in future trials agree, it would punch a hole in the argument that the databases are proprietary software that cannot be released to the public.

For 30 of Judge Miller’s 33 Findings of Fact and Conclusions of Law, he agreed with the Democratic Party’s arguments. As I read along, I thought the Pima Democrats were going to win it all.

But in the last three sections, Miller decided to exercise caution and “split the baby,” giving half the baby to the Democrats and half to the County. (Didn’t King Solomon say he was going to cut the baby in two as a clever ruse to find out who was the real mother? I guess Judge Miller is no King Solomon.) He accepted the County’s contention that, while one or two databases “in the wild” are only a mild threat to the security of Diebold election systems, if numerous databases are out there, hackers will be able to glean enough information to create “Mayhem and Chaos” in elections across the country.

So he ruled that the County must give the Democrats the databases for the 2006 primary and general elections but not those from prior or subsequent elections.

(I’ve talked to Jim March and John Brakey since the ruling, and they both say there are dozens, maybe as many as a hundred databases already “in the wild.” That wasn’t brought up during the trial, unfortunately. If it had been, Miller might have ruled that the number of databases available to the public is not a relevant consideration, and the Democrats would have gotten everything they requested.)

However, and this is important, Miller also ruled that his denial of some of the records “is without prejudice to Plaintiff,” and the Democrats can “re-urge the record request” at a later time if they can show a good reason. In other words, the Democrats have a chance of getting the whole baby some time in the future.

So that’s how the ruling stands. I thought maybe a silver lining to the limited ruling would be that the County would have less cause to appeal the decision. Wrong. The County filed a Notice of Appeal and a Motion for Stay Pending Appeal almost immediately.

This doesn’t necessarily mean the County will appeal, just that they’re thinking about it. At the January 8 Board of Supervisors meeting, they are scheduled to vote whether to appeal or to release the files.

Democratic Party faithful plan to show up at the meeting en masse and give testimony to try and convince the Supervisors to release the databases. It may be a futile gesture. The vote may be no more than a formality. But you never know. The thought of a room full of angry citizens and the media that might follow them into the meeting room could give some of the Supervisors pause. All it takes is three Supervisors out of five.

Right now, though, the County seems determined to hold onto the databases at all costs — including financial. (This trial must have cost the County a serious chunk of change already, and an appeal would add considerable time and expense.) The question remaining is, why is the County so determined not to give up the databases?

I can think of three possible reasons.

The first possible reason is that County genuinely believes that releasing even two databases “into the wild” can result in malicious hackers causing “Mayhem and Chaos” in future elections. I’m going to discount that reason, because I don’t honestly think they believe that. They know better.

The second possible reason is that the county just doesn’t want to give up more information than it absolutely has to. Bureaucracies tend to hate outsiders meddling in their affairs, so it’s deny, deny, deny, until they are forced to surrender the goods. This benign explanation would mean the County’s denials are a simple case of bureaucrats being bureaucrats.

The third and most ominous possibility is that the County truly has something to hide. It could be something reasonably innocent but still damaging. For instance, a review of the database might reveal gross incompetence in the elections division, but no actual election tampering.

But it could also be that people have been messing around with election results, and if anyone found out, we’re talking serious consequences for those involved. Very serious consequences. And who knows how far up the chain of command that would go.

Everyone on both sides in the trial agreed that elections can be rigged by anyone with access to the vote counting computer, and if it were done skillfully, they could cover their tracks completely. But there’s always the possibility that they missed a few tracks.

More than a handful of people believe the RTA election was stolen. They believe it went down to defeat, but the votes were “flipped”—the No votes were counted as Yes, and the Yes votes were counted as No. Flipping an election is child’s play for anyone with larceny in his heart and access to the computer.

Many of the same people who believe the RTA election was rigged suspect hanky panky of one sort or another in other elections as well. If any of this is true, we can expect the County to protect the databases with their lives.

So, we await the vote by the Board of Supervisors on January 8. My mind tells me they will vote to appeal, but my heart leaves open the possibility that three of the five Supervisors will vote to release the database. Stay tuned.