Back in 2006, election observers from the Democrat Party and Libertarian Party observed what they believed to be fraud in the Pima County Regional Transportation Authority Special Election. A lawsuit followed, that gained national attention, but was blocked every step of the way by Pima County administrators and establishment since 2006.
Eventually the Democrat Party dropped out of the suit. The Libertarian Party has persisted, and to date, has won all of its appeals and remains hopeful that the taxpayers of Pima County will finally have their day in court this month.
The RTA lawsuit has raised many questions about ballot manipulation. There is evidence that the Diebold voting machines, the GEMS database election management software, and Microsoft Access was used to manipulate the votes. Questions remain as to the inadequate paper trail for this election and access to logical and accuracy backups of elections results.
Laws have been passed and oversight provided by an Election Integrity Commission since this lawsuit was first filed.
After years of pendency, through stalling tactics by interests invested in the bounty of the RTA bonds and County operatives, the Libertarian Party believed it would be allowed to proceed to court with its effort to ensure the honesty, fairness and purity of our elections.
Suddenly last month, after seven years of expensive tireless struggle for truth by the plaintiffs, the Pima GOP decided to gratuitously weigh in with their own amicus brief. It came unexpectedly in support of the status quo and without the support of the rank and file members of the Party.
In its brief, the minority party of Pima County sides with the Elections Department, County Administrator, and County Treasurer to dismiss the case. In a disturbing and inexplicable twist, the GOP requested that the court allow for the destruction of any and all evidence contained in the ballots.
The Pima County Republican Party’s amicus curiae brief argues against the issues that have already been decided by Division II of the Court of Appeals. In it, the Republicans argue that Arizona courts cannot use its equitable jurisdiction in any way, and that proof of election fraud possibly contained in the ballots themselves must not be examined as part of the process to prevent fraud in future elections. They rely on a seemingly irrelevant statute that declares a five day limit to contest elections. In fact, the plaintiffs are not moving to change the election results, but to prove fraud.
The Republican Party’s Amicus Brief completely ignores the memorandum opinion of the Court of Appeals (Div. Two) of October 28, 2010. The Court of Appeals disposed of the “election contest” issue raised by the Republican amicus and resolved the separation of powers argument and the questionable jurisdiction argument.
The Libertarian Party lawsuit is directed exclusively toward protecting future elections.
According to numerous experts, future elections require protection because it is impossible to challenge a computerized election within five days. The appellant has filed two declarations of computer experts which include declarations of experts who explain the impossibility of contesting any computer generated election results within five days. Discovering computer manipulation or other errors in elections certainly takes longer then the five-day contest period allowed under ARS 16-673.
The Court of Appeals has already established that the Superior Court holds proper jurisdiction to hear this matter.
In their counterclaim, the Libertarian Party requested “an appropriate permanent injunction to prevent reoccurrence” of election rigging in Pima County. The Libertarian Party only urged an “appropriate permanent injunction.” The trial courts inferred that “it now appears the Libertarian Party will ask the Court to require Pima County to perform graphic scanning of all ballots,” but also immediately conceded that such a “claim has not been specifically pleaded.” To base a ruling on a claim which has not been plead is improper. “When adjudicating a Rule 12(b)(6) motion to dismiss, Arizona courts look only to the pleading itself and consider the well-pled factual allegations contained therein.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, 189 P.3d 344, 346 (Ariz. 2008). There has not been a specific remedy yet urged by the Libertarian Party.”
According to Party insiders, few, if any of those who voted on offering the amicus brief understood fully what was at stake, except of course the attorney who prepared it in haste because he was about to be named to the Pima County Superior Court bench.
For many of the grassroots members of the Party, the amicus brief was neither friendly to the future of their Party or to the Court. They question how their friends could have based their decision to support the brief on their own biased rationalizations in service of the establishment’s interests. They believe that the short-term appeasement of the establishment will thwart any hope of ever having ballot integrity in Pima County.