SETTING THE RECORD STRAIGHT
2004 DISTRICT 20 PRIMARY ELECTION
January 10, 2006
Dear Interested Citizens:
This afternoon Senator Jack Harper has requested that the court dismiss his request to enforce a subpoena for production of the 2004 District 20 primary ballots. The dropping of this case by Senator Harper is an acknowledgement his attempt to obtain the ballots was not appropriate.
Even though it seems that Senator Harper has retreated from his previous position he has nevertheless continued to publish misinformation and distortions relating to the controversy over the 2004 District 20 Republican Primary and his desire to conduct an investigation. Even though his accusations are inaccurate and not supported by facts, I do not intend to engage in a personal tit for tat dialogue with him, for the issues which face us are too significant for personal invective. Rather, I would like to in clear and concise language set the record straight and inform you of the facts that have led up to the present situation.
In November 2004, Legislative District 20 held a Republican Primary. Among the numerous individuals that ran as Republican candidates were Anton and John McComish. The initial vote tally after the primary election revealed that Anton Orlich had won by four votes over John McComish. In view of the closeness of the primary election, Arizona law mandated an automatic machine recount. (It should be noted that hand recounts are not lawful under Arizona law, thereby, mandating machine recounts.) Upon the conclusion of the machine recount, an additional 489 votes were tabulated. These increased vote tallies were distributed among all candidates combined, not just Mr. Orlich and Mr. McComish. All candidates received an increased number of votes. Mr. Orlich's vote total went from 5,533 to 5,620 and Mr. McComish's vote total went from 5,529 to 5,633, thereby shifting the election victory to Mr. McComish by a margin of 13 votes. It should also be noted that the number of election ballots did not change. There were no new ballots counted. The discrepancy occurred because upon the recount, the voting machines reflected additional votes which were not counted during the first tabulation.
Mr. Orlich, obviously concerned that the vote totals had changed and he was no longer the winner of the primary election, challenged the election results. He was represented in this challenge by an experienced elections attorney, Lisa Hauser. During the course of the hearing, representatives of the County Elections Department testified that the reason for the discrepancy in vote totals was as a result of the optical scanning election machines failing to recognize all of the votes cast. The machines were designed to read ink containing graphite. Unfortunately, the citizens who completed absentee ballots oftentimes used writing devices that contained dye based ink. The first time that the ballots were tabulated the machine did not recognize all markings made with dye based ink. The second time the ballots were tabulated, the machine recognized an increased number of dye based ink markings accounting for the increased vote totals. At the conclusion of the court hearing, the court certified the election declaring Mr. McComish the winner. Mr. Orlich did not appeal the court's decision thereby finalizing the election.
However, during the course of the court proceeding, a situation occurred which Senator Harper has now wrongfully concluded that the court was deprived of relevant testimony which may have shed light on why there was a technical malfunction of the vote counting machine. The facts are that the court was not deprived of any relevant testimony, even though a representative of the County Attorney's Office gave accurate but improper legal advice which contributed to a witness failing to appear before the court. The facts simply stated are, attorney Hauser on behalf of Anton Orlick attempted to issue a subpoena for an employee of the voting machine company. That subpoena was not personally served upon this employee as required by law. Upon the employee learning that a subpoena had been issued for her appearance even though she had not personally received it, she contacted the attorney representing her employer. That attorney contacted a Deputy County Attorney and inquired whether or not the subpoena had been legally and properly served, therefore, requiring his employee to appear in court. The Deputy County Attorney accurately but, in our opinion, improperly informed this private attorney representing the voting machine company that because the subpoena had not been personally served upon their employee, she was not required to appear in court. That advice was legally accurate, however, we determined that our Deputy County Attorney's conduct was improper for she is not authorized to give legal advice to a private attorney representing a private company. Nor should she be engaging in any conduct which would have the effect of depriving the court of a witness. The attorney in question was officially reprimanded for her actions and has since left the employ of the County Attorney's Office. It should also be noted that during a review of the circumstances by the County Attorney's Office, this employee of the voting machine company was interviewed and it was determined that even if she had appeared before the court, she would not have been able to provide relevant testimony as to why the machine may have malfunctioned for she did not have the necessary technical knowledge. She was not a technician and did not have information that could have shed light on whether the machine had malfunctioned during the County process. So even though we felt our attorney had acted improperly in giving advice to a private company, the court was not deprived of testimony which could have shed light on whether or not there was a malfunction and why that malfunction occurred.
On January 10, 2005, Mr. Larry Pickard, Chairman of the Maricopa County Republican Executive Committee, requested that the Maricopa County Attorney's Office investigate the September 2004 Republican Primary election in Legislative District 20. Upon receipt of this request for investigation, my office commenced a review of the facts and circumstances relevant to this election for the purpose of determining if sufficient evidence was present to justify initiating a formal criminal investigation. The Maricopa County Attorney's Office is a criminal prosecution agency. Our, jurisdiction is confined to criminal matters. We are not authorized to investigate whether or not a county agency has administrative deficiencies. A preliminary review to determine whether or not criminal conduct existed was undertaken. Numerous individuals were interviewed, records were reviewed, and the law was considered. Upon the conclusion of that review, it was determined that there was no evidence to indicate criminal conduct with regard to the vote total discrepancy that occurred during the 2004 Republican Legislative Primary election in District 20. However, because of the desire to insure that our elections are accurately determined, I took the extraordinary step of contacting County Recorder Helen Purcell and requested that she inform me as to what steps she would take to insure that in the future vote tallies will be as accurate as possible. Mrs. Purcell has done so and I believe that Mrs. Purcell has, in fact, acted forthrightly and candidly and has initiated various administrative changes to insure confidence in our election results. We reported the results of our review to Mr. Pickard and others and considered the matter closed.
However, on December 1, 2005, 13 months after the primary election of November 2004, Senator Jack Harper issued legislative subpoenas to Maricopa County Recorder Helen Purcell and Maricopa County Treasurer David Schweikert seeking the ballots used in the District 20 Republican Primary election. Mr. Harper was informed by my office that Arizona law required ballot security and that his subpoenas would be honored if he obtained a lawful court order for production of the ballots. At that time, we believed that Senator Harper was acting on behalf of his Committee and had issued valid Legislative Committee Subpoenas. These assumptions turned out to be untrue. Mr. Harper took issue with our interpretation of the law that a court order was necessary before any subpoena could be honored for the ballots in question and resisted obtaining a court order.
While I had initially agreed that if he obtained a lawful court order, the subpoenas that he issued would be complied with, subsequent facts came to my attention that have compelled me to resist Mr. Harper's subpoenas. We have learned that Mr. Harper had agreed to an arrangement with the New Times tabloid newspaper that the New Times would finance an "expert" to examine the ballots which Mr. Harper was attempting to obtain by Legislative subpoena for purposes of a governmental investigation. We have also learned that the results of any examination by the New Times "expert" of documents obtained by Legislative subpoena would belong exclusively to the New Times for their publication. It is obviously improper for a private company, i.e. the New Times, to finance an official government investigation. It is also improper for Legislative Subpoenas to be used to gather information to be provided to a private company, namely the New Times, for their exclusive publication purposes. While Senator Harper has denied that he had an arrangement with the New Times to provide the information determined as a result of his inquiry to them, the words of the New Times editor as reported in the media are revealing. In the January 5, 2006, edition of the East Valley Tribune it was reported as follows: "he (Harper) also said New Times does not own the report because Jones is working as an employee who reports to the Senate Committee." However, Rick Barrs, Editor of the New Times, disagreed saying they own the rights and plan to run a story January 12th. "We're not going to hand out the report to the press and get scooped on our own endeavor," Barrs said. It is obvious that this alliance between Senator Harper and the New Times has changed the circumstances which have resulted in my position that the subpoenas issued by Senator Harper are being issued for an improper purpose. In addition, Senator Harper has attempted to issue illegal "desk subpoenas" demanding the ballots be turned over to him personally, rather than his Legislative Committee as required by law, with no safeguards for their security and protection.
Unfortunately, Senator Harper has chosen to disparage the motivations of numerous elected officials, including Helen Purcell, Senate President Bennett, House Speaker Weirs, and myself. As Maricopa County Attorney, I was elected to conduct my office in accordance with the law. There is no special law for Democrats or Republicans or even Legislators. We all have the obligation to follow the same law. In Arizona, ballots which are cast during an election are secured and are not to be released to any party without an appropriate court order. Legislative subpoenas may not be issued to advance the agenda of a private entity (the New Times). In addition, a review of those ballots may not be used to conduct an illegal recount which is obviously the motivation for requesting the original ballots. If Mr. Harper is truly interested in determining if there was a malfunction of the vote counting machine rather than desiring to recount the original ballots all that needs to be done is secure blank ballots, mark them in various ways and have them counted by the original machine. An examination of the original ballots is not necessary. This election regarding Mr. McComish and Mr. Orlich is over, has been certified, and may not now, more than a year and a half later, be reviewed.
Finality in election contests is necessary to insure the orderly administration of government. While I can appreciate the frustration of Anton Orlich in losing such a close election, his and his supporters remedy is not in casting doubt on the motives of election officials or conjuring up conspiracy theories which have no basis in fact. I personally was disappointed at Anton Orlich's defeat for I had endorsed him. However, prolonging a controversy is in no ones interest. My only interest is in having the law obeyed. That is what I have done, and is what I will continue to do.
Sincerely,
Andrew P. Thomas
APT:bjb/010606