Today, the Arizona Supreme dismissed a Petition filed by a group of southern Arizona residents, who called for a fair and accurate count of the votes in the CD2 race between Congressman Ron Barber and Martha McSally.
The telephonic hearing was held in the matter this afternoon. The Supreme Court decided to dodge the issue and advised the plaintiffs to try and enter the case filed by the Secretary of State, which resulted in the recount Order issued today. The time requirement of such a case makes it extremely difficult, according to Bill Risner, attorney for the plaintiffs.
The Petition was filed on Monday, by a group of southern Arizona residents, who asked that Arizona’s Secretary of State Ken Bennett follow Arizona’s election laws pertaining to the procedures employed in the automatic recount of the votes cast in the Arizona CD2 race.
In the Petition, the residents alleged that Ken Bennett “is proceeding or is threatening to proceed without or in excess of jurisdiction or legal authority,” in regards to the automatic recount of the CD2 race between Martha McSally and Congressman Ron Barber.
According to the petition, “The secretary of state does not have the discretion not to follow specific legislative directions such as A.R.S. § 16-664C.”
The petition concerns the statutory recount of the CD2 race. Due to the fact that a 161 vote margin between candidates Barber and McSally triggered a recount pursuant to A.R.S. § 16-661.
Plaintiffs allege that the Secretary of State intends to then exceed his legal authority after the recount was Order by the judge today, and will violate A.R.S. § 16-664. The plaintiffs asserted that it is of a “statewide interest that the recount proceed according to law and that the process not be repeated because the Secretary of State intends to ignore the statutory requirements of a recount.”
A.R.S. § 16-664 requires the court ordered recount of votes to be recounted on an automatic tabulating system to be furnished and programmed under the supervision of the secretary of state. That statute further requires the programs to be used in the recount to differ from the programs used in the initial tabulation of votes.
Plaintiffs are alleging that Bennett intends to use the same program for the recount while the statute requires a different program.
Plaintiffs claim that Bennett “has available to him a different program that would timely recount the votes as required by statute but refuses to use that program. Plaintiffs request that he be ordered to use a program that can accomplish the statutory requirements.”
Plaintiffs stated that they believe that Bennett “ does not intend to require Pima County and Cochise County to follow the mandatory procedures.”
Many have questioned why residents would feel compelled to ask the Secretary of State to follow the law. However since taking office, Bennett has allowed the counties great leeway in devising their own ballot processing schemes.
According to sources, both the Barber and the McSally campaign are considering intervening in the Secretary of State’s case in Maricopa County Superior Court. Because the campaigns have deep pockets, the residents may well have an opportunity to continue their fight for a fair and accurate count.
The recount is scheduled to begin this Thursday, December 4.
A Declaration by Duncan Alan Buell, a professor in the Department of Computer Science and Engineering at the University of South Carolina, was offered to the Arizona Supreme Court to explain the concerns of the residents.
Buell, who served as chair of the University of South Carolina, computer science department from 2000 to 2009, advised the court that the Pima County Administrator Chuck Huckelberry’s proposed process to recount the votes is in violation of state law because it requires that a new program to be used and Huckelberry is only “reconfiguring the tabulation system.”
Buell concludes, “It is my opinion that Mr. Huckelberry’s proposal simply to reconfigure the existing software to count only the votes in that particular race cannot possibly be construed to be the use of a different “program” as specified in ARS 16-664(C) or ARS 16-444 as cited by Mr. Ryan’s memo or as required by the Election Procedures Manual cited in the same memo.”
Related articles:
Barber denied, recount to proceed in CD2
Find out if your vote in CD2 counted
The Declaration reads in part:
Since 2004 I have been working with the League of Women Voters of South Carolina as a consultant on electronic voting machines and on the analysis of the election data produced by the ES&S iVotronic voting machines used statewide in South Carolina. I have published two academic papers (in 2011 and 2013) resulting from my analysis of this data. In 2012-2013, I worked closely with the attorney retained by Richland County, South Carolina to determine why the wait times were so long (more than seven hours in some precincts) in the 2012 general election.
In addition to my analysis of the data in South Carolina, I have also used my programs to analyze election data from Colorado, Texas, and Pennsylvania.
For the purpose of this Declaration, I have reviewed two memoranda. The first is dated November 24, 2014, written by Tom Ryan to the Pima County Board of Supervisors, and asserts that the plan to “recount” votes in the 2d Congressional district race in Arizona violates state law regarding recounts.
The second is dated November 25, 2014, written by C. H. Huckelberry to the Pima County Board of Supervisors, and asserts that reconfiguring the tabulation system to count only the votes in that race would meet the state requirement of a different “program” used for the recount than the program used for the initial count.
It is my opinion that Mr. Huckelberry’s proposal simply to reconfigure the existing software to count only the votes in that particular race cannot possibly be construed to be the use of a different “program” as specified in ARS 16-664(C) or ARS 16-444 as cited by Mr. Ryan’s memo or as required by the Election Procedures Manual cited in the same memo.
What Mr. Huckelberry proposes is what a computer scientist and information technology professional would almost certainly refer to as changing the “configuration” for the program to be run. The underlying code used for tabulation will not be different from the original code used. Only the “table” used to configure what the code will do will be changed. As a professional computer scientist who has been writing programs for 45 years, I declare that this cannot be argued to be the use of a different program.
I will reason by analogy in hopes of being understood by a non-technical audience. I would argue that what is proposed in Mr. Huckelberry’s memo is not much different from “reprogramming” a cable TV remote control unit to have a different list of “favorite” stations. That change is just reconfiguring the shortened list of favorites for the convenience of the viewer; it has essentially nothing to do with the software that actually delivers signals to the screen. If the signals themselves are being delivered incorrectly, then changing which of the incorrect signals is on the short list of favorites will not change incorrect signals to correct ones as delivered to the screen.
I read the Arizona statute, as cited in Mr. Ryan’s memo, to require a separate and distinct computer program to be used in the recount from the program used for the initial count. This is a very sensible constraint. Software is a difficult thing to get right, and in spite of decades of attempts to improve the quality of production software, we are all aware that bugs are common. In nearly all situations in which correct results are necessary and which (as with elections) logic and accuracy testing cannot test for all possible scenarios, having a genuinely separate program for the recount would seem a minimal requirement.
“Ultimately we have won because we have brought the public’s attention to the issues. However, we will not be for me at least,” says John Brakey, an elections integrity advocate and party to the lawsuit, “until we get ballots to become a public record, a white box counting our votes, and a higher recount audit level; then the fight will be over. This case could be a big help to get us there.”