Original Article Litmus Test County Attorney Andy Thomas must prove he can protect our constitutional rights BY JOHN DOUGHERTY john.dougherty@newtimes.com New county attorney Andy Thomas should hold Karen Osborne's feet to the fire. Last fall, I uncovered serious problems with the Maricopa County Department of Elections' handling of a September primary recount that cast a cloud over the county's ability to conduct fair and accurate elections. My concerns have now attracted the attention of the Maricopa County Republican Committee, which is demanding that County Attorney Andrew Thomas conduct a "thorough investigation" of the elections department's handling of the District 20 recount. Republican leaders made their request for an investigation based on the troubling facts that I uncovered and first reported three weeks before the general election ("Election Eve Nightmare," October 14). Their one-page resolution quotes extensively from my column detailing the events surrounding the now-infamous recount. The Republican Party Executive Guidance Committee passed a resolution in January stating that "to insure the integrity of the electoral process, a thorough investigation must follow any election when the outcome of said election is in question due to any irregularity." Republican leaders said there were "serious irregularities" in the elections department's handling of the recount of the District 20 GOP House primary race. My investigation discovered significant problems with the reliability of the increasingly popular early ballots and the accuracy of the county's optical scanning machines -- as well as arrogance and highly questionable actions by county elections officials. So far, the newly elected county attorney has done next to nothing on an issue that should be of extreme public importance: the fair and accurate counting of votes. Instead, Thomas' spokesman, Barnett Lotstein, says the County Attorney's Office is conducting a "preliminary review" to see whether a full-blown investigation is warranted. Lotstein gave no indication as to how long this review will take, although the Republican party's written request for an investigation is dated January 10. That's plenty of time to determine whether to move forward with a formal investigation, especially since there is a mountain of evidence of impropriety. The ultraconservative Thomas -- who has written that drug offenders should be locked up in public stockades, among other medieval law enforcement policies -- has an opportunity to prove that he's more than a far-right ideologue. But six weeks into his term, Thomas looks like he's content to be Sheriff Joe Arpaio's handmaiden and to rubber-stamp Arpaio's increasingly dangerous violations of constitutional protections. Thomas, for example, gave the thumbs-up to Arpaio's latest offensive -- and probably illegal -- policy of requesting voluntary fingerprints from motorists stopped on traffic violations. At the same time Thomas is endorsing policies that infringe on Fourth Amendment protections against illegal search and seizure, he appears to be ignoring serious concerns by leaders of his own party about the conduct of elections in Maricopa County. As far as I'm concerned, Thomas' handling of the request for an investigation into the county elections department is an early litmus test of his administration. Does he have the integrity and courage to investigate the county elections department that is headed by a woman -- Karen Osborne -- whose daughter is married to one of Arpaio's civilian employees? Will he look into the sheriff's office's highly questionable role in the conduct of elections, where inmates are used to prepare and mail hundreds of thousands of early ballots? There's already evidence that inmates tampered with last year's early ballots. Will Thomas also look into the strange anomaly in last year's primary race that had 10,000 more ballots cast for the hotly contested sheriff's race between Arpaio and Dan Saban than for any other countywide election? Or will Thomas bow to political pressure to cut a sister county agency slack despite monumental screw-ups that fouled the District 20 recount and raised doubt about the sanctity of elections in Maricopa County? The answer is obvious. Thomas should immediately upgrade the preliminary review and launch a wide-ranging investigation into the county elections department. Anton Orlich won the District 20 Republican primary for the state House by a mere four votes over John McComish. The narrow margin of victory automatically triggered a recount. That's when the serious problems with the county elections department began to appear. During the recount of ballots, 489 new votes suddenly appeared. The dramatic increase in the number of new votes -- nearly all of which (464) came from early ballots -- stunned the candidates and election experts. "This makes me question whether there is any ability to say for sure that any election result is what it appears to be," Phoenix election law attorney Lisa Hauser, who was representing Orlich, told me then. The recount changed the outcome of the election, with McComish winning by 13 votes. My investigation revealed that county elections director Osborne intended to violate state law by seeking a manual recount of the primary ballots. The law requires that a recount be done with the same equipment as in the first election -- which in this case was optical scanners. Osborne would have proceeded with the illegal manual recount, but her idea was thwarted at the last minute by Secretary of State Jan Brewer. The fact that Osborne was willing to violate a state statute should be more than enough to warrant a thorough investigation of the elections department. There is no doubt that Osborne knew her plan for a manual recount was illegal. She told me as much. A few minutes into an October 8 interview that was videotaped by the county's public information officer, Al Macias, Osborne admitted that she wanted to do a manual recount of the ballots -- even though she knew it was against the law. "The law says if you count them on a machine, you recount them on a machine, and I understand that," she said. Osborne explained that she wanted to skirt the law to expedite the recount process because she faced an imminent deadline to have ballots printed for the general election. She says a manual recount would have been faster than simply running all the ballots cast in the county through five optical scanners -- a process she says would have taken six days. The recount, whether it was manual or by machine, could not occur until after the primary election results were certified by the state on September 20. Osborne also said she believed a manual recount would have provided a more accurate tally of the votes. While Osborne's concerns may be legitimate, the planned manual recount still violated state law. It also led Osborne to order more than 30 workers to begin sorting through more than 300,000 primary ballots to pull out ballots from District 20. The sorting process began immediately after the September 7 primary and took about five days. The sorting may have damaged ballots, causing votes to appear that were not intentionally cast in the primary. Osborne could have avoided any unnecessary handling of the ballots before the recount by simply running all 300,000 primary ballots through the optical scanning machines and let the computer sort out the District 20 ballots. Secretary of State Brewer was livid about the county's plan to circumvent the law with a manual recount and rejected Osborne's plan on September 19. Brewer made her concerns known in a September 23 letter to Maricopa County Recorder Helen Purcell, who is Osborne's boss. "I would still appreciate if you would provide me an explanation why you felt the manual recount was necessary in the first place," Brewer wrote Purcell. After the manual recount plan was shot down by Brewer, the elections department used optical scanning machines to conduct the recount on September 20. The machines needed only about 30 minutes to process the 17,000 ballots cast in the District 20 Republican primary. That's when 489 new votes suddenly appeared -- with 464 of those votes appearing on early, mail-in ballots. Osborne blamed the sudden and mysterious increase on voters. Osborne says too many voters use improper marking devices at home, making it difficult for the machines to consistently detect votes. But others say the sorting process could have contaminated some of the District 20 ballots with marks from other ballots. The optical scanners are so sensitive that they can detect tiny smudges and improperly register them as votes. The sorting process also could have provided an opportunity for ballot tampering -- something that Osborne says did not occur. After learning he lost the recount by 13 votes, Orlich filed suit in Maricopa County Superior Court seeking to have the recount nullified. The testimony in the one-day emergency hearing on September 23 clearly disturbed Judge Edward Ballinger. Orlich's attorney, Lisa Hauser, presented evidence that showed one optical scanning machine was used to count nearly all the early ballots for the recount. That machine, Hauser said, had an 18 percent variation from the total number of votes cast on early ballots in the primary. This shocking discrepancy, Hauser said, revealed a massive problem with the ability of Maricopa County to accurately count early ballots. Judge Ballinger agreed. "It means that if we want to have the most accurate elections, you would not permit early voting," the judge stated. Ballinger's statement should send shivers down your spine. About half of the votes cast in the November general election were on early ballots. If these ballots are fraught with problems and inaccuracies, the legitimacy of any election sanctioned by Maricopa County is brought into question. Furthermore, there is ample evidence that elections director Osborne intended to circumvent state law to conduct the recount. Thomas should immediately order a full-scale investigation of the county elections department and make the findings of the investigation public. The county attorney needs to remember that his job is to protect our constitutional rights -- not infringe upon them. phoenixnewtimes.com | originally published: February 17, 2005