Last Friday’s trial in an election challenge against Maricopa County may not have ended the way two voters hoped, but the public had a chance to learn more about how the general election was performed before Judge Margaret Mahoney dismissed the case following an evidentiary hearing.
Voters Laura Aguilera and Donovan Drobina brought the case after the Nov. 3 general election “to vindicate their rights as Arizona voters to cast a vote that is not only counted, but is counted according to the processes the law requires, in both this and future elections.”
Although Aguilera and Drobina did not allege intentional misconduct by elections officials and employees, the lawsuit contended Maricopa County’s Dominion Corporation’s Democracy Suite 5.5-B voting system did not operate in compliance with state law and left them without confidence that their ballots were counted properly.
Several witnesses testified under oath at the hearing about what was supposed to happen with ballots on Nov. 3 and their belief of what did happen. One person who did not get to testify to the extent he planned was Dr. Jim Sneeringer, an expert in electronic data systems.
Called as an expert witness for Aguilera and Drobina, Sneeringer was prepared to discuss his experience with voting systems. He has been appointed several times by the Texas Attorney General to serve on the examination boards which review election systems that needed to be certified by the state of Texas.
One system put forth for certification was Dominion’s Democracy Suite 5.5-A. Last year Sneeringer wrote a five-page report for the Texas Secretary of State in which he recommended the 5.5-A not be certified.
“I like the idea of using COTS (commercial off-the-shelf) components to save taxpayer money, and Dominion has done a good job of finding COTS components and minimizing the number of custom components,” Sneeringer noted in his report. “Nevertheless, I cannot recommend certification. Computer systems should be designed to prevent or detect human error whenever possible and minimize the consequences of both human mistakes and equipment failure. Instead the Democracy Suite 5.5-A is fragile and error prone.”
But Sneeringer never got to discuss how a system like the 5.5-A in Texas or the 5.5-B used in Maricopa County can be compromised by intentional or unintentional acts. That’s because Judge Mahoney sustained objections from the defendants and ruled Sneeringer could not testify about Democracy Suite 5.5-B system because he had not examined one used by Maricopa County.
Differences between various models of the Democracy Suite system could be minor things, Sneeringer said in his failed attempt to assure the judge.
The tabulation machines used by Maricopa County were the main focus of throughout Friday’s testimony. Many ballots had to be fed through machines multiple times before the system accepted the ballot, but that was not of concern and was addressed in the elections procedural manual, according to the testimony of elections director Scott Jarrett.
Many voters have reported noticeable bleed-through of Sharpie ink marks from one side of the ballot to the other. Initially county officials denied bleed-through occurred, but later officials said it was irrelevant because the ballots were printed in such a way that the bleed-through would not affect the Dominion Democracy Suite 5.5-B.
That contention was disputed by testimony from Joshua Banko who worked at one of the county’s voting centers on Election Day. Banko testified that “about 80 percent” of voters he saw at the Paradise Valley Mall location had problems with the tabulation machines and he could see bleed-through on many of those ballots.
There was also testimony about election officials knowing before Nov. 3 that voters were expressing concern with the Sharpies during early voting sessions. Among the evidence was a communication sent to Maricopa County election staff by an assistant director that Sharpies should not be used during early voting.
“Next, we’ve heard you and we know you’re hearing issues and concerns about the Sharpie Markers,” Kelly Dixon emailed to the elections staff. “Starting tomorrow, 10/23 and through 11/2, we are asking that Clerks hand voters BALLPOINT PENS rather than markers.”
However, Dixon noted that the Sharpies must be used on Election Day.
Those early in-person ballots Dixon referred to were not fed into a tabulation machine the way in-person ballots were on Election Day. Instead, each was sealed in an envelope to be counted later at the county’s main election center.
One of the plaintiffs, Aguilera, testified she showed up on Election Day at one of Maricopa County’s 175 voting centers and was provided a ballot. When a ballot is processed correctly the tabulation machine prompts the voter to press a green button to formally submit the ballot.
Aguilera testified she did not receive any notice, good or bad, and was not given the opportunity to cast a new ballot. The other plaintiff, Drobina, testified a tabulation machine at a different voting center could not read his ballot despite two attempts, “even though it had no stray marks.”
Drobina testified to being instructed to put his ballot in a special slot on the machine to have it reviewed later. He did so, he said, but left the voting site uncertain if his ballot would be properly tabulated especially if it was being counted by a person and not the machine.
“Everyone else’s got counted by a machine, why does mine have to be counted by a person?” he testified. “Why does it have to be interpreted by a person? That’s not even the same thing as counting.”
Jarrett, the county’s election director, testified that ballots placed in the special slot were taken to the main election center for further processing and tabulation. In past elections the public had the opportunity to observe the tabulation process -something Aguilera and Drobina demanded in their lawsuit- but Jarrett testified that “COVID-19 had a significant impact on how we were preparing” for the election.
As a result, no in-person access was available to the general public. Instead, the viewing had to be done by watching a livestream on the county’s website from fixed cameras in the county’s election center.
Mahoney announced after the trial that she was granting a motion filed by Maricopa County officials and the Arizona Democratic Party to dismiss the case. Her reasons will be filed at a later date with the parties. It is unclear whether she will require Aguilera and Drobina to reimburse any of the defendants for their costs in answering the lawsuit.
On Nov. 11, county officials released the results of a post-election hand count audit of more than 8,000 randomly selected ballots out of the 2.1 million cast. The hand count required the review of more than 47,000 marked ovals and resulted in a 100 percent match between the hand count and the machine count, according to Jarrett.