Pima County residents ask for day in court

All Ralph Ellinwood and the plaintiffs in a 7 year old lawsuit against Pima County want is ballot integrity. Every step of the way, the nonpartisan group, made up of republicans, democrats, and independents have been thwarted by incompetence or corruption depending on whom and what you ask.

Last week, the group was once again thrown for a curve when the Pima County GOP Executive Committee submitted an Amicus Brief advising the Court that “the finality of elections is more important than the integrity of the election,” according to Ellinwood.

The move has angered the republican grassroots. According to radio show host, Joe Higgins, the move is suspect because the GOP’s attorney, Sean Brearcliffe, filed the Brief at the time Brearcliffe was appointed by Governor Jan Brewer to the Pima County Superior Court bench.

Brewer was the Secretary of State at the time the of the RTA Bond election of 2006. That election has been at the heart of the dispute.

Brakey reports that the Brief was filed on May 2, 2013, and Brewer appointed Brearcliffe a judge on May 8, 2013. However on February 5, 2013, Brearcliffe wrote an email to the Republican Party resigning because he was going to apply to be a Pima County judge and he couldn’t have any conflicts of interest. About 10 days after he resigned he was back on a mission, according to Brakey. That mission was to get the case dropped. Insiders say that some of the republicans did not understand exactly what the Brief meant when they agreed to support it. Brakey now asks, “is this how judges are made? They have to prove their worth to the puppet masters.”

John Brakey, an activist who is featured in the film, Fatally Flawed: The Pursuit of Justice in a Suspicious Election said the “same puppet masters that got the Democratic Party to not appeal, appear to be the same people that got the Republican Party to file a brief that could do two things: create a conflict of interest between the court of appeals divisions two and guarantee that no candidate of any party will be able to ever challenge an election.”

“This was done by Judge Brenner, the required retirement is age 70 and he is hanging his shingle at the law firm of Rusing & Lopez, PLLC, this is also where Sean Brearcliffe works. This caused the case to be moved to Maricopa Division 1,” said Brakey. Court followers believe that Huckelberry did not want to go back to the same court with the same argument.

“If we lose this appeal, the argument that Pima County and now the Republican Party is making about the finality of an election is much more important than stopping cheating in the future, will be locked into law,” Brakey said. “No candidate of any party will be able to ever challenge an election,” which Brakey says is basically the case already, but now it will be a fact recognized by the court. (Read appeal here.)

While plaintiffs say they are not challenging the election, they do rely on that election in particular to prove that the Diebold machines which process and tabulate election results can and were manipulated to alter election results.

Recently the case was moved out of Pima County and into Maricopa County, where the plaintiffs hope they will finally have their day in court.

Pima County Treasurer, Beth Ford, whose credibility was already strained with baseless claims made in the 2012 election, wants permission to destroy the ballots. Ford has claimed issues with the expense; however, the RTA election ballots have remained in storage at the expense of the Libertarian Party. Ellinwood says that Ford offers no legitimate argument for wanting to destroy the ballots.

Ellinwood says the constant obstruction and procedurals maneuvers are surprising because Libertarians, Democrats, “and all parties should care a lot about the integrity of the election.”

Many believe the ballots will provide strong evidence that the election totals were actually changed using the crop scanner. The group simply wants the County to “prevent future cheating, but the County refuses.”

Former Republican candidate for Tucson city Council, Lori Oien told a local radio audience that she doesn’t care about the 2006 RTA election results, “but when there is smoke, there is fire.” She had been a plaintiff in one of the many cases fighting for Pima County election integrity. Oien is unhappy with the Pima GOP’s decision to submit the Amicus Brief.

Ellinwood said that the group hopes that the Court of Appeals will order the lower court to hear the case and resolve the matter once and for all. He would like the case to conclude with an agreement that Pima County elections are “conducted free from tampering and take the precautions necessary” in the future.

Plaintiffs’ primary choice of remedy is independent graphic scanning of all ballots — scanning of early ballots as they are tabulated and scanning of precinct ballots at a receiving station after the polls close. These ballot images would then be posted on a public website starting no earlier than one hour after the polls close so anyone could count the ballots via the images. Fast turnaround is necessitated by Arizona’s tough requirement that challenges to an election occur within 5 days of the final canvas.

Plaintiffs demand that the scanning be publicly observable and done by an “independent” system — not by the same system that generated the original tally. In addition, the scanning station’s capability should be limited to “taking pictures of pieces of paper” and not interpreting the meaning of ballot marks. That way, the graphic scanner cannot be programmed to cheat. Arizona law requires that voter anonymity be preserved but does not require ballot secrecy. Posting the ballot images publicly does not violate this requirement and is the best way to achieve election transparency.

In short, they argue, graphic scanning is a cheap add-on that helps boost the security of the existing secretive and flawed systems.

Brakey says that he has learned a few things since the case first began; “over the last 10 years, I have learned that there are basically three types of election oversight in our country; one is candidate oversight, and then there is party oversight, and finally public oversight. The first two are weakened by their narrow self-interests. The issue becomes political and partisan, and it has got to be about truth and justice.”

Selected pleading relevant appeal issues in Arizona Court of Appeals Division 0ne:

Appellant’s Opening Brief 02 12 13.pdf http://tinyurl.com/blkfsr5

Appellant Pima County Answering Brief 04 08 13.pdf http://tinyurl.com/d74c96c

Court of Appeals Order to transferred to Div One 04 25 13 http://tinyurl.com/c2w2e8p

Appellant Request for Oral Argument 04 25 13.pdf http://tinyurl.com/ce39v9h

Appellant’s Reply Brief 04 29 13.pdf http://tinyurl.com/d3p7v88

Amicus Curiae Brief of PC Republican Party 05 02 13.pdf http://tinyurl.com/cdw6wwx

Memorandum decision of Court of Appeals Div 2 10 28 10.pdf http://tinyurl.com/c5xpcoh

Libertarian Party Initial Disclosure Statement of facts 01 12 12.pdf http://tinyurl.com/chsvk9a

Opposition to PCs Rule Mot to Dismiss Counter claim 02 07 12.pdf http://tinyurl.com/br7z7j6

PCs Mot to Dismiss Counter claim 01 24 12.pdf http://tinyurl.com/d39a9c7

Pima County’s Reply in Support of Motion to Dismiss Counterclaim 02 21 12.pdf http://tinyurl.com/ckw78b5

AZ Rules Of Civil Appellate Procedure Rule 16 Amicus Curiae Briefs.pdf http://tinyurl.com/cg8v9kv

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