Pima County Election Integrity Trial: Closing Arguments

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Bill Risner’s closing arguments for the Democrats:

The central theme of Democrats’ attorney Bill Risner throughout the trial was that the elections belong to the people, not the government. The people’s political parties have a legitimate role to play in assuring the integrity of our elections, and it is not appropriate for the government to rely on security through obscurity to protect our elections. Americans want and deserve real security, based on transparency and good design. We don’t want dirty little corporate secrets to be the only thing standing between our votes and those who would subvert our democratic process.

The contrasting style and substance of the opposing parties was on display in these closings, and speaks volumes about the contending philosophies that are clashing in this trial. Sparks flew, and the rhetoric was strong. The judge asked the parties to put aside the legalistic arguments and focus on persuasion. The plaintiff’s attorney did so, but the county seemed unable to rise to the occasion. The simple fact is that it is not really possible to wax eloquent about keeping Diebold’s dirty laundry hidden in the closet, so I wasn’t really surprised.

Pima County’s closing arguments footage coming soon…

The closing for the defense came first as they have the burden of persuasion, and it was delegated by Christopher Straub to Thomas "Tad" Denker. Denker claimed that Merle King was "the most authoritative expert to testify here." That might come as some surprise to Dr. Tom Ryan, Dr. Chris Gniady, Dr. John Moffatt, and 37 year veteran NSA programmer Mr. Mickey Duniho. In fact, if you actually look at King’s credentials, what is notable is his lack of experience in actual computer science, programming, and information security.

Denker continued to harp on the unknown unknowns, dragging his burden-shifting sins over into the county’s closing. His alarmism seemed to know no bounds, even claiming that release of the database could shut down some elections, saying, “Even the ability to conduct some of these elections could be called into question.”

Denker tacitly admitted the weakness of the county’s security argument when he claimed that the “most serious risk is mayhem and chaos.” Not a specific attack, mind you, but generalized chaos of the reputational suicide attack form. I’m put in mind of the scene from Ghostbusters in which Dr. Venkman warns the mayor of dire consequences:

Dr. Peter
Venkman
: This city is headed for a disaster of biblical
proportions.
Mayor:
What do you mean, "biblical"?
Dr. Ray Stantz: What he means
is Old Testament, Mr. Mayor, real wrath-of-God type stuff.
Dr. Peter Venkman: Exactly.

Dr. Ray Stantz: Fire
and brimstone coming down from the skies. Rivers and seas boiling.
Dr. Egon Spengler: Forty
years of darkness. Earthquakes, volcanoes…
Winston Zeddemore: The dead
rising from the grave.
Dr.
Peter Venkman
: Human sacrifice, dogs and cats living together – mass
hysteria.

If the dogs and casts living together is the most serious risk, I think we can maybe live with that.

Denker further tipped his hand when he made the claim that, “there are people out there who have an interest in discrediting the system, the administration, the elections, the vendors.” Just who is Denker and the county really seeking to protect? Well, look at his list. Whether by "the administration" Denker means Chuck Huckelberry, I’ll leave to others to decide, but the presence of the vendors anywhere on that list is problematic, at best. And never once does Denker mention the public interest, unless perhaps one might interpret "the elections" as a proxy – even so, we come in a distant third, behind "the system" and "the administration."

At every turn it seems Denker couldn’t help but undercut his own case. He said that an attack on the election “requires an insider or the MDB from the target jurisdiction.” All along in the trial his team claimed that the release of Pima’s MDBs could be leveraged against other counties with less security. Now he claims you have to have an MDB of the target jurisdiction to mount an attack? Was this an attempt to deal with the fact the Alaska MDB is already "in the wild?" A slip of the tongue? I don’t know. I wonder if Tad does.

Denker suggested that the information from the MDB could help elections activists put together an attack to discredit our system. Unfortunately, that’s how security is improved when secrets are the only real security measure being used. He pointed to the trouble stirred up by these elections activists already, and how they ginned up an "innocent keystroke error" into an Attorney General investigation. But that investigation recognized severe security problems with the GEMS software. Is it a waste of public resources to bring such a serious problem to light?

Denker proclaimed that there is a significant risk of these systems being discredited through hacking. If hacking can discredit a system, it should be discredited. Hacking is just exploiting obscure or secret information to subvert security measures. If your security relies on secrets, you are going to get hacked. And you might even deserve it. And ultimately, if your hackers are the kind who seek a worthy goal, you might even benefit of it.

Denker repeatedly said that he thought "the court gets it." What exactly ‘it’ was, isn’t so clear. If ‘it’ is the justice and rightness and preponderance of the county’s case, I think Denker’s touching faith in the judge’s ignorance of the security issues, susceptibility to alarm, tendency to err on the side of extreme caution regardless of the cost to countervailing public values, and over-reliance on a mercenary expert like Merle King, is misplaced.

Near the end, Denker made an emotional plea, laced with a touching, though naughty, bit of vouching, on behalf of the "much maligned" Bryan Crane and the entire cast of characters who run our elections. In this process, Denker claims, "decent, honest, hard-working people have been defamed and slandered." Such a legal conclusion can be a dicey matter to be bandying about in a public forum. Denker had enough wisdom not to name any of the parties who are responsible for these torts, but the culprits are clear enough. I ask you, as did Jim March in a message typed on his laptop as he sat at the counsel’s table while Merle King testified about naughty hackers, "Gee, you think he’s talking about me?"

Finally, Denker finished with perhaps the greatest irony I’ve ever heard in a closing: he bemoaned the fact that Bryan Crane may never get the chance to clear his name. Well, in fact, if the county prevails, Denker is absolutely right; he won’t. However, if the Democrats prevail and the MDB is released for forensic study, Crane will absolutely get that chance to have his name cleared and his reputation publicly restored.

In fact, objectively, a perpetual pall over the reputation of the entire county elections department is exactly what the county is fighting for. I have a lot of sympathy for Bryan Crane, not because he is unfairly maligned (though that may be true), but because his employers value whatever reasons are truly underlying their intransigence to transparency over the reputation of Bryan Crane.

Risner knew that the judge wanted a big picture, not a recap, and that’s what he gave. He returned to the themes he had established in the opening: the fundamental value of democracy, the election belong to the people, the parties are the people’s statutory agents to ensure fairness and accuracy in elections.

Risner reiterated that this case is not about what it seems to be about. It is not about overturning the RTA – the activities of election integrity activists all started long before the RTA. It is not about Bryan Crane – it doesn’t matter what he has done, it’s about what anyone in his position has the ability to do to subvert our elections.

Risner pointed out that the county claims activists want to wreck and disrupt elections, when in fact they have repeated demonstrated by pushing the county on security matters that their goal is to improve and secure our elections. The county pointed to all these methods of attack based on the information in the database files, but they can’t explain how those attacks are feasible, can’t point to a single instance of such things happening, and can merely charge that plaintiffs seek "mayhem and chaos." Oh my.

In his final and perhaps the most electric moment of the trial, Risner charged that the county was "coming up with slanders against the public in an effort to justify their secrecy."

Denker stood for his rebuttal and charged that the plaintiff’s attorney had "lots and lots of conviction," but little else on his side.

The following is a summary and paraphrasing of the court proceedings, not a transcript. Thanks to David Safier for preparation of this summary.

Closing Arguments

Closing by Deputy Pima County Attorney Thomas "Tad" Denker.

[David was out of the courtroom for the first couple minutes]

If databases have to be recreated from scratch, the chances of error are increased, possibly disenfranchising voters.

Releasing databases poses the serious risk of mayhem and chaos. Many people want to discredit the system, the vendors and the administration. To create mayhem, you either need an insider or an outsider with a database file, who can mount an attack and discredit the system.

When Bryan Crane made an innocent keystroke error, it caused an Attorney General investigation.

Final Point: In the process, fine public servants had their names dragged through the mud. They were defamed. These are good people who deserve our thanks, not derision.

Closing by Democratic Party’s attorney Bill Risner.

It has been my pleasure to represent lots of decent, caring, patriotic citizens.

The rock, the foundation of our freedoms is our ability to vote, to change course if we wish. That needs a vote and an honest count.

As I learned the facts of this case and its background, I sometimes broke into a cold sweat. What if our vote can be taken away from us? What if it has already been taken from us?

Testimony has revealed defects in a number of places in the elections system. The rock on which our freedoms are based is in jeopardy.

Arizona wants and expects an honest vote count.

We’ve heard that the only reason for the lawsuit is so we can go to the legislature. But, where do we go with our concerns? This is the place, the courtroom, in front of a judge who understands the issues.

This isn’t about the RTA election or any single election. We want now, and in the future, to get data that allows us to examine the vote count. This will improve the public’s confidence in elections.

Rebuttal by "Tad" Denker.

Risner worries about votes, and this is a legitimate concern. But in court, Risner has given little information on statutory considerations or on the balancing act.

There is no evidence that seeing the database files will give the Democratic Party any information  that would help them discover election fraud.

Risner has conviction but little else.