Special to The BRAD BLOG by Michael Bryan, Esq. from the courtroom in Tucson, AZ..

The final day of testimony over the Pima County Democratic Party's public records request featured the remainder of the county's witnesses for the defense, a surprise call on an adverse witness, and pugnacious closing arguments. The matter now rests with Judge Michael Miller, who says he will decide the case within the next two weeks.

To get up to speed with details on what this trial is about, please see my introductory post. If you haven't been following along, you may want to take a look at my summaries of the first day, the second day, and the third day of trial.

In brief, the Pima County (Tucson) Democratic Party is demanding Pima County release the Diebold GEMS tabulator databases containing voting data from the 2006 election, and those from all future elections, arguing that they are public records. The GEMS software is highly insecure, allowing anyone with access to the computer it runs on to manipulate the outcome of elections at will and likely cover their tracks. Elections are thus highly succeptable to manipulation by elections insiders, and there is no way to detect or deter them without access to the databases for forensic analysis. Pima County's position is that we should trust them to take care of that risk through internal checks and balances, and that releasing the databases simply creates more security risks by outsiders seeking to hack an election.

The county's expert witnesses were Merle "the Man from Diebold" King, and Dr. John Moffatt, a consultant for Pima County's IT strategy. Summaries of and commentaries on their testimony is available on BlogForArizona.com, along with an detailed chronicle of the entire trial.

Both experts sought to convince the judge of the many security threats posed by release of the GEMS databases, and in my view, failed to sustain that position under the cross examination of the Democrats' attorney Bill Risner. Risner poked holes in all the threat scenarios the experts presented, showing them to be impracticable, absurd, or simply undefined.

Here's Risner's closing argument:

Click To Play

Special to The BRAD BLOG by Michael Bryan, Esq. from the courtroom in Tucson, AZ...

The trial is heading into overtime. What was to be the third and final day of the trial ended with the Democratic Party having rested their case at the afternoon break and the County just getting into their witness list. Judge Miller called to reconvene at 8:30 a.m. Friday morning with a determination to finish the trial.

To get up to speed with details on what this trial is about, please see my introductory post, and you may want to take a look at my summaries of the first day of trial and the second day of trial.

In brief, the Pima County (Tucson) Democratic Party is challenging Pima County to release the Diebold GEMS tabulator databases containing voting data from the 2006 election, and those from all future elections, on the presumption that they should be public records. There is a belief that the databases, if obtained by the party, may show fraud or other malfeasance by county election officials. The county maintains that releasing such information will make tampering in future elections easier, even though those same county officials and insiders have all the means and opportunity to manipulate elections.

Today, I have posted a full summary of the testimony of Pima County's head elections programmer Bryan Crane, started Wednesday and concluded Thursday. His testimony was expected to be very important, as it is the appearance of impropriety on his part that prompted the Democrats' inquiry and led to an investigation by Arizona's Attorney General and, ultimately, this lawsuit.

Crane didn't do the county any favors. He undermined his own credibility, developed a great fondness for the expression "I can't recall," and, upon questioning by Judge Miller, revealed that the security threats the County claims are posed by the release of the GEMS database following an election are illusory or highly implausible.

There was brief testimony from the former Chairman of the Pima County Democratic Party, Paul Eckerstrom, who explained the decisions that led to the formation of the Election Integrity Committee, whose findings and research led to this point.

Once the Democratic Party rested their case, the county moved for a judgment as a matter of law, which asks the judge to decide the case in their favor on just the plaintiff's testimony. It is largely a pro forma motion, but it provided an opportunity for counsels to frame the case thus far. Democrats' attorney Bill Risner took the opportunity to test a few of the themes that will likely figure in his closing arguments.

That footage of Risner making his case, is about 10 minutes long and is presented at the end of this post, hot off our press pool camera, in a BRAD BLOG exclusive. The judge took only a few minutes to decide that the plaintiffs had presented a sufficient case that the County must proceed with their side of the case.

The County put on their first witness, the elections director of Gila County, Arizona, another jurisdiction using an identical GEMS tabulation system. The choice backfired significantly. Her testimony revealed that she was completely ignorant of any security issues with the Diebold system her county uses, presumably because she relies on the Arizona Secretary of State and the Diebold corporation for security information. Her county contracts out their election preparation to a private company based in Glendale, Arizona, rather than do it in-house like in Pima County. The private company she contracts with just sends them back a prepared database, which the county then uses in their elections, never having checked the contents of the database.

Except for logic and accuracy testing (running a few sample ballots), the integrity of Gila County's elections rests entirely on the honesty of that private contractor.

The county then put on Merle King, the director of Georgia's Kennesaw College Center for Election Systems. The Democrats' legal team calls him 'The Man from Diebold.' He is a professional expert witness in voting systems who never saw a Diebold system he didn't love. The county made quite a production of eliciting the information that Mr. King had been paid the handsome sum of $10 to appear. I guess it was meant to illustrate how independent he is, but his expenses are being underwritten by someone: my money is on Diebold. His testimony and more will be available tomorrow.

In the meantime, enjoy the Democratic Party's champion Bill Risner presenting his motion for judgment, direct from the courtroom yesterday...

Special to The BRAD BLOG by Michael Bryan from the courtroom in Tucson, AZ...

It was a day packed with testimony Wednesday in Tucson as the plaintiffs' attorney, Bill Risner, continued to crank through his witness list. The day ended with the last witness that will be called by the Democratic Party, Bryan Crane, whom Pima County Attorneys have repeatedly labeled "much maligned," just preparing for a rehabilitating friendly cross-examination by Pima County attorneys. Crane's testimony is pivotal to the case, and will be posted in its entirety tomorrow after cross and re-direct are complete.

To get up to speed with details on what this trial about, please see my introductory post, and if you missed yesterday's action, you may want to take a look at my summary of day one. In general, the Pima County (Tucson) Democratic Party, is challenging Pima County to release the Diebold GEMS tabulator databases containing voting data from the 2006 election on the presumption that it should be of public record. There is a belief that the databases, if obtained by the party, may show fraud and other malfeasance by county election officials. The county maintains that releasing such information will make tampering in future elections more feasible, even though those same county officials and insiders, currently have the easiest route to tampering with such elections, since they already have all the access they need to such information.

The witnesses on Wednesday included a slate of employees from the Pima County elections department. The summaries of the testimony of Isabel Araiza, Robert Evans, Chester Crowley, Romi Romero, and Mary Martinson are posted together on BlogForArizona.

These employees' testimony was sought by the plaintiffs to try to establish a pattern of negligent oversight and security procedures at the elections department, including the actions of head programmer, Bryan Crane (deposition video footage of Crane at bottom of this article), taking backups of election data home and illegally printing summaries that included current vote totals in the midst of elections and then sharing that data with persons not part of the election department.

The prime witnesses of the day, however, were Brad Nelson, the director of the elections department, Crane, the "much maligned" head programmer, and the man with responsibility for the entire bureaucracy, Chuck Huckleberry, the County Administrator...

Special to The BRAD BLOG by Michael Bryan from the courtroom in Tucson, AZ...

It was an eventful day in the courtroom in Pima County yesterday, with opening statements and the first two plaintiff's witnesses' testimony. Already, the general shape of the controversy is becoming more clear and many of the media access issues have been favorably resolved. The Election Integrity press pool is providing video to local news and other interested parties on a non-exclusive basis and there is a ground-swell of support and interest in the trial and use of the resultant footage among journalists and documentarians.

Full summaries of the opening statements of the plaintiff's attorney Bill Risner and Pima County Deputy County Attorney Christopher Straub are available on BlogForArizona.com and they lay out the positions of the litigants.

See our initial backgrounder/intro to this trial, as posted yesterday, right here.

The position of the Democratic Party, argued in the courtroom yesterday, is that the statutory role of the political parties in Arizona, and in America historically, has been to oversee and participate deeply in our elections. The elections belong to the people, not the government. The database the party seeks access to on behalf of all political parties is the only computer record of the election that can provide the information needed to ensure that elections insiders cannot, and have not, manipulated the election. Absent a clear statement by the legislature, the parties should not be denied access to this crucial information to carry out their traditional role of ensuring the public's political rights. Certainly no tortured interpretation of outdated language regarding computer technology from a statute written in the 1980s should be allowed to deny the people access to their election data, only a clear and unambiguous expression from the legislature should be able to do that.

The position of Pima County, however, is that the database requested must remain confidential.

They argue that providing the database to the political parties would violate the standards promulgated by the Arizona Secretary of State because the files contain procedural information and code that is used to program elections machines, and could reveal information that might compromise future elections. The county agrees that the Diebold GEMS software used to tabulate votes has serious security flaws, but that is all the more reason to not allow the information in the database into the public domain...

Guest Blogged by Michael Bryan

I am Michael Bryan, an attorney and blogger whose home is Tucson, Arizona. Starting today and continuing through Thursday, at BlogForArizona.com (my blog) and The BRAD BLOG, I will be covering the trial of Pima County Democratic Party v. Pima County. The proceedings will be live-blogged at BlogForArizona every day, with a daily summary posted each evening of the trial here at The BRAD BLOG.

The trial concerns the Pima County Democratic Party's demand for access to public records. Specifically, they seek access to database files that contain the raw tabulator vote data from a past local bond election. They seek to establish the public's right to inspect and analyze those records to search for any irregularities or manipulation by elections department insiders. Ideally, the Democrats want the judge to declare that all such files must be given to all political parties in Pima County in all future elections, so that public scrutiny can help ensure that the vote is honestly counted.

Why the concern that public officials, whose job it is to count the vote, may be instead manipulating the vote? Because the software Pima County (and many, many other jurisdictions around the country) is using to tabulate the vote is "fundamentally flawed" as to security according to an independent audit [PDF] commissioned by the Arizona Attorney General.

The "fundamentally flawed" software is made by Diebold and is called Global Election Management Software, or GEMS. Election integrity activists and researchers have long known that vote totals can be easily manipulated by insiders with access to the computers on which GEMS runs. The software is so fundamentally insecure that vote data can be changed by simply using the common database software Microsoft Access --- and the fraud can potentially be completely untraceable. With security conditions like that, it becomes imperative that the public have oversight of that data, just as the public has (or should have) oversight over the rest of the elections process.

For more background information about the software and the issues behind the trial, please see my post, Pima County Election Integrity Blues, or my introduction to the trial, both on BlogForArizona.com.

You may also wish to see Steve Rosenfeld's excellent report yesterday at Alternet, offering more specific details on what is at stake here.

If you would like to just listen to a discussion of the issues in the trial, please take a few minutes to listen to my recent interview with Action Point host Cynthia Black on Phoenix' Air America station...

For additional context here, I'll point you to a video (at right) of one of the men at the center of this controversy, Pima County's Election Director Brad Nelson. BRAD BLOG readers may remember this remarkable video referred to as "Election Director Gone Wild" as Nelson breaks into a tirade after being questioned by Pima County Election Integrity activist, John Brakey, about the Diebold DRE voting systems that Nelson was preparing, back then, in February of 2006, to bring into the county.

Please check my blog, BlogForArizona.com, for regular updates on the trial as it unfolds, and here at The BRAD BLOG for updates at the end of the days proceedings today through Thursday. Please use the comments on either blog to ask questions or make suggestions, we'll have someone monitoring the comments during the trial and will do our best to respond.

I'll be speaking tonight to the Pima County Democratic Club at 6:30pm. If you're in the Tucson 'hood, please stop on by!

It's at the Pima County Dem Headquarters:
4639 E. 1st St. (1 blk S. of Speedway & Swan), Tucson AZ
More details here...

NOTE TO PIMA COUNTY REPUBLICANS: I'll be in the area for a few more days, and if you'd like me to come and speak to your folks about Election Integrity, I'd be delighted to! Certainly you're also concerned about same, right?

Guest Blogged by John Gideon

Today the Arizona Daily Star printed their awaited opinion piece that has three members of the county government responding to questions that were compiled by the paper's staff from their readers' responses to the paper's ill-researched editorial of earlier in the week.

Responding to the Letter To The Editor comments and questions were County Administrator Chuck Huckelberry, who allowed the county to spend over a million dollars to buy new Diebold TSx machines. Also responding are Elections Director Brad Nelson and John H. Moffatt, of the county's Office of Strategic Technology Planning. Both are proponents of the Diebold TSx. And, by the way the questions/concerns were answered, both seem willing to do nearly anything to ensure Diebold gets the Pima Co. taxpayers' money...

Tuscon Arizona's local NBC TV news affiliate ran a story Wednesday night on the raging controversy across the state concerning Sec. of State Jan Brewer's recent agreement to allow hackable Diebold touch-screen voting machines into the state.

Their report (linked below) included a snippet of the video that The BRAD BLOG ran as an Exclusive at the end of February featuring Pima County, AZ Election Director, Brad Nelson freaking out and verbally assaulting Election Integrity Advocate, John Brakey --- on video --- during a public local precinct council meeting.

Nelson, the station reports, has apparently apologized for his tirade. Brakey is also interviewed in the new report on Pima County being "pushed into a national controversy."

Their coverage of "both sides" of the story led last Wednesday's 6 O'Clock newscast in Tuscon.

MORAL: Always bring a video camera (or audio recording device) when meeting public Elections Officials. They often don't fare well under the harsh light of actual public scrutiny, and footage of such encounters may help your local TV affiliate suddenly become interested in reporting on the story.

Report on AZ's Diebold Touch-Screen Voting Machine Controversy:

-- Video in Streaming Flash format...
-- Windows Media Player Version...

-- Our original Video Exclusive story, featuring Nelson's full tirade is here.

The battle between Election Officials and Election Integrity Advocates has been simmering and intensifying for some time. Last week, in Arizona, one such confrontation boiled over briefly into an outburst at a public meeting which was documented on video tape. In what could be a preview for the Electoral Integrity fight still to come, Pima County, Arizona's Election Director Brad Nelson went into a short tirade last Tuesday as the video camera rolled during a local Democratic precinct council meeting in the state's 26th Legislative District.

The BRAD BLOG has obtained the exclusive video of the event which reveals the Republican Nelson flying off the handle and shouting as he confronts Election Integrity Advocate, John Brakey, "nose to nose" during a question about Diebold's DRE (touch-screen) voting machines. Before Brakey was able to get to his main question concerning Nelson's plans for Logic and Accuracy testing on the machines, he was interupted by Nelson's outburst over whether or not he had, in fact, signed a contract for use of the new voting machines in the county.

Diebold's hackable touch-screen machines have been recently approved for first-time use in the state by Arizona's Secretary of State Jan Brewer.

Ironically enough --- especially in light of this new video --- Brewer herself recently referred to election integrity advocates as "anarchists" in an interview with the Arizona Star after demonstrators concerned about Diebold interrupted her re-election campaign announcement just after the first of this year.

While Nelson's confrontational rant was just short of anarchic, it certainly sent a shockwave of concern throughout the room of stunned onlookers.

One of the witnesses present, Rev. Gerry Straatemeier, described the "intimidating behavior" displayed in the incident as "completely out of line for a public official". Straatemeier was so troubled by the display that she sent an open letter to the Pima County Board of Supervisors calling for Nelson to be censured for the behavior. In the letter (posted in full at the end of this item, along with a text transcript of the event) Straatemeier says, "I really thought he was going to land a blow on Mr. Brakey and I was scared to death."

In the video, Nelson charges towards the camera at one point --- which Brakey was standing near --- coming so close that it's impossible to see anything but his chest in full camera's full frame.

Straatemeier, in her letter, suggests the tirade was an attempt to intimidate Brakey --- and other election integrity advocates --- from further inquiry into the controversial Diebold touch-screen voting equipment now coming into Arizona despite a Dept. of Homeland Security warning that their tabulator software is hackable, a non-partisan GAO report confirming the failures and loss of ballots via electronic voting, and a recent independent analysis [PDF] commissioned by the Sec. of State of California which warns about the hackable "interpreted code" used in Diebold voting machines despite a ban on such code by the federal Help America Vote Act (HAVA) guidelines.

As we reported in May of last year, Brakey has for some time been closely investigating a number of troubling anomalies in recent Arizona elections. His intensive work auditing his own precinct in Pima County, where he says evidence suggest fraud occurred in the 2004 election, was covered in detail last year by The Tuscon Weekly. That work has brought him in contact many times in the past with Nelson --- without incident apparently, until last week.

Last Tuesday, as the following video shows, the simmering frustration and growing anger roiling up between many Election Officials and Election Reformers, has finally begun to make its way to the surface and into the public eye...

Additional versions of the video...
-- Video in Streaming Flash format...
-- Video in Windows Media format...

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UPDATE 3/17/06: Tuscon's local NBC affiliate runs a report including this video, Nelson says he is sorry for the outburts. Full report here...
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A complete text transcript of the incident, and a copy of Straatemeier's open letter to the Pima County Board of Supervisors calling for censure of Nelson follows...