The state Court of Appeals will not order new procedures for how Pima County — and potentially others — handle and count their ballots in future elections.
In a unanimous ruling Thursday, the judges said they have no legal basis to grant the request by the county's Libertarian Party to require that future election ballots be scanned and copied so outsiders can review the accuracy of the vote tally. Judge John Gemmill, writing for the court, said the party had not identified any specific thing that Pima County had done that would entitle that he and his colleagues to order something different down the road.
In rebuffing the request, the judges also effectively quashed efforts by attorney William Risner to get a look at the ballots from the county's 2006 bond election, an election the Libertarians have alleged was rigged. While Risner could not overturn that vote, he had hoped to have those ballots reviewed as proof that future protections were needed against election fraud.
Thursday's ruling is not the last word, as Risner said he intends to seek Supreme Court review.
In arguments to the court last month, Risner said there are insufficient protections in state law to prevent tampering with election results. He specifically claimed that software used to read and tally the ballots can be altered to produce desired results.
An initial legal challenge to the 2006 $2 billion bond vote went nowhere.
In the latest round, Risner said some greater oversight of the ballots and the counting process is necessary. He told the judges that one possibility would be “graphic scanning” of the ballots for outside review.
But Gemmill said that while Risner made lots of generic points about the integrity of elections, he presented the court with no actual evidence of some problem that needs to be resolved through an injunction.
In essence, Gemmill said, Risner is 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.
He also pointed out that the state already has various laws designed to prevent tampering, fraud or corruption in elections. Gemmill noted Terry Goddard, who was then the state attorney general, reviewed the 2006 election results and found no problems.
“The procedures implemented by the Legislature have run their course,” Gemmill wrote. “The Libertarian Party's dissatisfaction with the statutory procedures in place to investigate election tampering does not establish a justiciable claim in law or equity.”
Gemmill also noted 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.”
That 2006 bond election imposed a one-half cent sales tax designed to raise $2 billion for regional transportation improvements. Among the arguments of those claiming fraud is that similar votes were previously defeated.
A trial judge had ordered the ballots from that race destroyed. But they have remained locked up while Risner pursues this case amid his arguments that examination of these will prove there is a need for greater oversight of elections.