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Court ends bid to force ballot counting changes

The Arizona Supreme Court has rejected a legal bid to force a change in procedure on how ballots for future elections are counted and handled.

Without comment, the justices rebuffed efforts by the Pima County Libertarian Party to order that ballots be scanned and copied so that outside interests can review whether the publicly announced vote tally is, in fact, accurate. The ruling likely puts the issue to rest.

It also means that, if there is to be any change in election procedures, it would have to be enacted by the Legislature. To date, there have been no such moves.

The fight has its roots in Pima County’s 2006 bond election to impose a half-cent levy for 20 years for a $2 billion transportation plan.

Foes argued that the counting was rigged – possibly through manipulating the software in the scanning machines that tally the votes – and that the measure really did not pass. As proof, they pointed out that previous similar measure had been defeated.

Those legal challenges failed. So, attorney William Risner, representing the Libertarian Party, filed suit to force some greater oversight of the ballots and counting process for future elections, alleging, in essence, that there will be future opportunities to cheat without such review.

He said one possibility would be “graphic scanning” of the ballots, essentially photocopying them so that outsiders could do their own review and count.

But the lawsuit also was, in some ways, an indirect challenge to the 2006 vote, with Risner asking the court to give him access to those ballots.

Nothing he might have found would change the outcome of that election or void the levy. But Risner said he hoped to use those ballots to prove his point that cheating using machines to count optically scanned ballots is not only possible, but actually occurred. And that would provide grounds for changes in future elections.

By declining to hear the case, the Supreme Court left intact the unanimous decision issued last year by the state Court of Appeals.

In that ruling, appellate Judge John Gemmill, writing for the court, said Risner and the Libertarian Party had not identified any specific thing that Pima County had done wrong in the past which would entitle the court to order a different procedure for handling ballots in the future.

Gemmill said Risner made lots of generic points about the integrity of elections, but presented the court with no actual evidence of some problem that needs to be resolved through an injunction.

In essence, Gemmill wrote, Risner claimed claiming that Pima County will “cheat again in future elections.”

“But it is not at all clear how ‘cheating’ allegedly occurred in the 2006 special election,” the judge wrote. And since this is not a specific challenge to the 2006 vote but only a request for future legal relief, Gemmill said the court has nothing on which to act.

Gemmill also noted that one thing Risner sought was some sort of mechanism to require Pima County to obey the law in future elections.  But he said that would not be a proper thing for the court to do “because Pima County is already obligated to follow the law.”

The Supreme Court order may have one specific impact.

Those ballots from the 2006 election have been locked away under a court order while Risner fought for access. County officials now may finally be able to destroy them.

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