Lawsuit filed to challenge CD 2 recount procedures (updated)

Tucson attorney Bill Risner, an election integrity advocate who pursued Pima County and the Pima County Elections Department for years over the RTA bond election in Tucson, has filed a Special Action with the Arizona Supreme Court challenging the procedures to be followed in the CD 2 recount.

It is important to note that this lawsuit is not brought by the candidates, their representatives, or the political parties, but is an independent action by concerned electors.

A copy of the Special Action complaint (CV-14-0319) sans appendices (via AUDIT AZ) can be read Here (.pdf).

The Arizona Capitol Times (subscription required) reports, CD2 voters challenge recount procedures:

A collection of Pima and Cochise County voters sued Arizona’s top election official on Monday, claiming that the secretary of state’s planned method for conducting a recount in Congressional District 2 was in violation of state law.

The petition for special action filed with the Arizona Supreme Court asks for a delay of the recount, which was ordered earlier Monday by a Maricopa County Superior Court judge.

And it asks that the court require Secretary of State Ken Bennett to find another election program to count ballots in the recount.

Pima and Cochise counties will use the same software to electronically recount ballots cast in the CD2 race between U.S. Rep. Ron Barber, D-Tucson, and Republican Martha McSally, as they did in the general election. Heading into the recount, McSally leads the election by 161 votes.

Tucson-based attorney Bill Risner claims in the complaint that the use of the same program in both the general election and recount violates state law, which requires that a different program must be used to count ballots in the recount.

The relevant statute is A.R.S. §16-664 Recount of Votes by Automatic Tabulation system:

A. In the event of a court-ordered recount of votes that were cast and tabulated on electronic voting equipment for a state primary, state general or state special election, the secretary of state shall order the ballots recounted on an automatic tabulating system to be furnished and programmed under the supervision of the secretary of state. In the event of a court-ordered recount for elections other than for the office of supervisor, the secretary of state may designate the county board of supervisors to perform the duties assigned to the secretary of state.

B. If the office of secretary of state is contested, the governor shall order the ballots recounted on an automatic tabulating system to be furnished and programmed under the supervision of the governor.

C. The programs to be used in the recount of votes pursuant to this section shall differ from the programs prescribed by section 16-445 and used in the initial tabulation of the votes.

A.R.S. §16-445 requires the filing “with the secretary of state at least ten days before the date of the election a copy of each computer program for each election.”

Risner’s interpretation of “program” differs from that of the secretary of state’s office.

Spokesman Matt Roberts said the secretary of state will provide a new code for the programs used in Pima and Cochise counties that, instead of counting all votes on each ballot, will only count votes cast in the CD2 election.

That new line of code clarifying what the software must do counts as a new “program,” as it has for previous recounts, including a statewide recount of Proposition 112 in 2010, Roberts said.

And the program that Risner suggests in the lawsuit the secretary of state acquire to conduct the recount – a system developed by the Clear Ballot Group – is not certified to be used in Arizona elections, as is required elsewhere in state law, Roberts said.

[Short video on how Clear Ballot works: http://youtu.be/hOr90z1QWls. Clear Ballot technology was recently adopted by the Secretary of State of Vermont for a random audit: Press Release 11-17-2014 (.pdf).]

Risner represents former Pima County Supervisor David Yetman, former state Rep. Ted Downing, Tucson business owners Sandra Spangler and Arlene Leaf, and CD2 residents David Morgan and Shaun McClusky.

Risner said his clients represent a wide spectrum of Pima and Cochise County voters, and have no contact with either candidate.

Their intent is to ensure the accuracy of the election by recount, he said, and none trust the software used in either county.

Based upon prior practice approved by the courts in previous recounts, and the lack of certification for Clear Ballot in Arizona, I would not be optimistic. Courts always seek the easy way out in these cases.

h/t AUDIT AZ

UPDATE: Well that didn’t take long. “Justice Ann A. Scott Timme rejected the lawsuit brought forward by seven CD2 voters after hearing legal arguments as part of a conference call. The two-page order does not explain her decision.” Court throws out suit to delay CD2 recount.