After a county official described a state senator’s actions “bizarre” and possibly illegal, the lawmaker has been told to “calm things down” in his investigation of last year’s recount in an East Valley House race.

Sen. Jack Harper, R-4, nevertheless, will have his day in Superior Court next month in an attempt to examine recount ballots from the Sept. 7 District 20 Republican primary. On Dec. 21, Superior Court Judge Pendleton Gaines set a hearing on Mr. Harper’s motion for Jan. 13, climaxing weeks of tense relations between Mr. Harper and county officials, who were subpoenaed by Mr. Harper to hand over the ballots.

If the judge grants Mr. Harper’s motion, the senator and an elections machine expert would be permitted access to the ballots at a secured county site where they are stored under law.

Mr. Harper’s motion is expected to be opposed by the Maricopa County Attorney’s Office.

Senate President Ken Bennett called Mr. Harper to his office Dec. 21 after the County Attorney’s Office publicly chastised Mr. Harper for his actions as chairman of the Government Accountability and Reform Committee. Mr. Bennett told Arizona Capitol Times, the first to report that Phoenix New Times is helping to fund Mr. Harper’s investigation, that he would like to see the investigation go “in a more productive direction.”

“He told me to calm things down,” Mr. Harper said.

Mr. Bennett, who already has received a $3,000 bill for some of Mr. Harper’s activities — even though the Senate president told Mr. Harper the Legislature would not foot the bill for the investigation — said the financial risk to the state would be a reason to stop the investigation. But, Mr. Bennett added, there could be “the perception of trying to thwart things that need to be looked into.”

“There are some legitimate concerns about our future elections that District 20 brought to the surface,” Mr. Bennett said, but “revisiting the past is dangerous.”

The original primary election tally gave the District 20 Republican nomination to Anton Orlich, a graduate student, by four votes. An automatic recount found 489 more votes than were originally counted, and Rep. John McComish was nominated with 13 votes more than Mr. Orlich.

“There are two separate things going on here,” said District 20 Republican Sen. John Huppenthal, “an investigation into technology and undermining of validity of the election of someone who was duly elected. The referee [county attorney] had to make the call, and it makes me uncomfortable they want to undermine the election.

‘Doing an Al Gore’

“You’re doing an Al Gore here: Keep on counting ‘cause you don’t like the results.

“But we need to understand the uncertainty with those machines,” Mr. Huppenthal said.

Sen. Bob Burns, R-9, said the questions surrounding the voting machines need to be answered, but added he is concerned about New Times’ involvement in the investigation.

The disputed recount was investigated by the Maricopa County Attorney’s Office.

“There was no evidence of fixing an election,” Barnett Lotstein, a special assistant county attorney, said Dec. 21. The County Attorney’s Office, however, said there were issues regarding voting machine tallies. One of the issues is the machines’ sensitivity to ballot marks made with various writing instruments by mail-in voters

Mr. Harper and New Times have joined to have the recount ballots examined and tested by Douglas Jones, an nationally recognized elections expert from the University of Iowa, who was hired as a consultant in the contested 2000 presidential election in Florida.

Karen Osborne, county elections director, says the vendor that maintains voting machines will be changed at the end of the year, and software and hardware upgrades will be made on the machines in time for March elections. Changes will make the machines more sensitive to a variety of writing inks, she said.

County Recorder Helen Purcell said voters should not worry about the integrity of elections.

“It would be nice to have an election that happened September 2004 over with,” she said. “I don’t want anyone to feel that we don’t operate an election with the best integrity in the world because I think we do. I would really like to have it over with.”

Harper denied ballots; says County Treasurer’s Office in contempt

Since Dec. 1, Mr. Harper has demanded the ballots be turned over to him in letters and two subpoenas delivered to David Schweikert, Maricopa County Treasurer, the custodian of election ballots. Mr. Harper’s letters “bordered on slander,” Mr. Lotstein said, adding that Mr. Harper attempted to issue an illegal “desk subpoena,” demanding the ballots be handed over to him personally, with no safeguards for their protection.

On Dec. 19, Mr. Harper served Mr. Schweikert with a second subpoena, demanding that he produce the ballots at 9 a.m. the next morning. With video camera and a two-wheel dolly, Mr. Harper appeared at the Treasurer’s Office Dec. 20. He was handed a letter by Chief Deputy Treasurer Steve Partridge, denying him the ballots, and was ordered to leave.

Outside the Treasurer’s Office, Mr. Harper was joined by Mr. Jones and John Dougherty, a reporter with New Times.

“He [Mr. Schweikert] is now in violation of legislative subpoena and could be held in contempt,” Mr. Harper said. “The contempt order must be signed by the Senate president, though.”

He went on to say, “There is a larger constitutional issue here. For the Legislature to have to go to the judiciary branch to force a court order violates our principles in government. The big issue here is the separation of powers and whether or not the constitutional authority of the Legislature is going to be stomped on by the county treasurer and the county attorney.”

Mr. Harper was asked why he was videotaping his visits to the county.

“It’s going to be an interesting thing to look back on years from now.”

Later that morning at the County Elections Department, Mr. Jones conducted a two-hour test on one of the machines used in the recount with around 500 sample ballots that he had pre-marked with a variety of writing instruments. His tests were required under a subpoena issued by Mr. Harper.

“There have been allegations about sensitivity to funny marking devices, so, of course, I marked with funny marking devices,” he said. “I didn’t use anything that would come off on the inside of the voting machine.

“It would have been interesting to count the real ballots,” said Mr. Jones, who had earlier told New Times that from what he knew, “It’s hard to tell whether they [elections officials] are covering up incompetence or fraud.” Asked Dec. 20 if he stood by that quote, Mr. Jones said, “I’m not sure anything has changed since then. There are serious questions that have to be asked. If indeed the machines are counting ballots very strangely, which is the allegation that we’ve heard, then it would be hard to describe that as competence.”

Mr. Harper said Mr. Jones’ report will be public record and that he has no deal to give it to New Times first, but Mr. Jones told a reporter he would release the report to New Times first.

County Attorney weighs in

In a letter to Mr. Bennett and furnished to the media, County Attorney Andrew Thomas said Mr. Harper “is engaging in a series of bizarre and erratic actions that, I submit, cast serious doubt on his fitness to serve as a committee chair
man and to posses the subpoena and police powers attendant to that position.”

Mr. Thomas and others have questioned the chairman’s relationship with New Times. Mr. Dougherty of New Times says he has personally guaranteed payment for Mr. Jones’ work, which Mr. Jones said will come in under $3,000.

“There are serious questions about the legality and ethics of Senator Harper’s actions and his relationship with the New Times,” Mr. Thomas said.

Mr. Harper says he is merely trying to uphold the integrity of the election process, adding that citizens were “double crossed” by the County Attorney’s Office.

“After weeks of the treasurer and the county attorney promising that they would not oppose a court order [to examine the ballots], the County Attorney’s Office did just that,” Mr. Harper said in an e-mail to Mr. Bennett. “After what appears to be stalling the entire day [Dec. 20], at 4:55 p.m., the judge said the court order was being contested. This was a double-cross to the citizens of Maricopa County on the only day that the elections expert was able to run the ballots from the LD-20 primary election.”

Represented by attorney David Eagle, Mr. Harper obtained a hearing date in Superior Court.

“As to Thomas’ accusations about threatening phone calls,” the e-mail continued, “in one conversation, I told [Deputy County Attorney] Bruce White that the press would be all over the issue if they did not cooperate with the court order as they had promised. I do not think that constitutes “threatening” phone calls as they have vaguely accused.

“Mr. President, there are serious questions that have not been answered about that election. Thomas’ efforts to have me removed as a committee chairman will only add to the public perception of a lack of election integrity.”

Mr. Eagle said New Times might join his court action with an open records law issue.

He would not reveal who was paying him.

Mr. Eagle formerly handled elections matters for the state Democratic Party.

Political consultant: ‘Right thing to do’

Mr. Harper is a client of political consultant Chris Baker, who also used to represent Mr. Orlich, who lost the primary to Mr. McComish. Mr. Baker said he was not behind the recount investigation, but advised Mr. Harper it was the right thing to do.

“I advised him politically as a client,” Mr. Baker said. “Jack asked me if it [the investigation] would blow back on him. I said voters will respect him for what he’s doing.”

Mr. Harper said he will have a committee hearing next month as part of his investigation.

“I’m overwhelmed in trying to take on government,” he said. “I seem to be the one person down there [the Legislature] to stand up for the integrity of elections.”

Mr. McComish said, “I don’t know what his purpose is. The election is long over. It’s time to move on.”