Mule Train Mail: Mickey Duniho on the Hand County Audits in Pima County

by Mickey Duniho

When SB1557 was first
passed in 2006, Pima County’s attorney told the Board of
Supervisors that it would be illegal for them to do a hand-count of
the September Primary Election because the new law had not been
completely approved by the US Justice Department. Despite a
last-minute plea the day before the primary election, the Board of
Supervisors voted not to do a hand count audit of that election.

Two days after the
primary, we discovered that Maricopa County was doing a hand count
audit of their primary on an informal basis, in anticipation of the
approval by the US Justice Department of the new law. As events
developed, it became obvious that Pima County’s Elections
Department was aware of the Maricopa hand count at the time that they
told us they could not do it. We also learned that Pima County had
been doing hand counts of a single precinct in every election for the
past twelve years, with the full approval of the County Attorney’s
office.

Under pressure from the
people, the Pima County Board of Supervisors finally agreed to do an
informal hand count. When they did the count, they delivered to the
volunteer counters stacks of ballots that had been removed from their
secured containers and neatly stacked up. This violated
chain-of-custody rules for the hand count. They also interpreted the
law to require the counting of only one race in each precinct,
violating the clear wording in the law. Their lawyer backed them up
on this erroneous interpretation.

During the period
between the primary and the general elections, Bill Risner proposed
asking a judge to clarify the meaning of the law. The County attorney
immediately caved to our interpretation of the law: counting four
races in each precinct as stated in the law.

In November 2006, the
Pima Election Director and his lawyer tried to go back on their
agreement and interpret the law to allow a single race per precinct
hand count, but we then had a memo signed by Huckelberry saying that
they would adopt the four races per precinct interpretation. When we
showed them the memo, they again caved and agreed to count four races
per precinct.

In the 2008
Presidential Preference Primary (PPE), Pima County first announced
that they would delay scanning early ballots until Election Day so
that they could sort the ballots before scanning them. Then they
announced that they would start scanning ballots on Sunday before the
election. Then they announced that they would start scanning early
ballots on Election Day. We sent observers to the central count
facility on Election Day morning, and nothing happened all day. When
I asked Bryan Crane about this around 6 pm on Election Day, he said
no one had told him to scan any ballots on Election Day.

In the evening of PPE
Election Day, Bryan announced that they would select the batches for
the early ballot hand count audit and scan them that evening and then
count the rest of the early ballots starting the next day. We
randomly selected batches of ballots to be scanned and hand counted
in the amount of four percent of the expected number of early
ballots. These were scanned and set aside. The next day, no early
ballots were scanned. Only one of the eight batches selected was hand
counted – with Brad Nelson claiming that that batch was far in
excess of one percent of the early ballots scanned before the close
of polls on Election Day. But the law says that one percent of the
early ballots RECEIVED by the close of polls on Election Day will be
hand counted.

When the hand count of
ballots began, Brad Nelson announced that they would only count one
of the two presidential races, in accordance with the new Secretary
of State Procedures Manual. The law says all the presidential
preference races are to be counted, not just one, and the new
procedures manual is contrary to the law. The hand count of early
ballots counted approximately one sixth of one percent of the early
ballots received – one sixth of the number that should have
been counted. Also, since the “randomly selected” ballots
were removed from the boxes and counted separately from the rest of
the early ballots, their selection was no longer random relative to
the rest of the ballots.

It is apparent that
Pima County’s Elections Director will continue to game the
system whenever he has the chance, and will not follow the law unless
forced by legal pressure. In every election since the hand count
audit law was enacted, he has tried first one thing and then another
to avoid following the clear language of the law.