Legal Strategy with Dan Gutenkauf
Arizona Election Bills and Testimony
by Dan Gutenkauf (
(Contact Dan Gutenkauf at: dGutenkauf@msn.com )
Wednesday Jan. 17, 2001, I, Dan Gutenkauf, attended the Arizona Association of
Counties meeting, which was held at Phoenix Civic Plaza. That association
consists of representatives of the 15 Arizona County Recorders offices. Among
the other election officials present
were Secretary of State Betsey Bayless, State Elections Director Jessica
Funkhouser, Maricopa County Recorder Helen Purcell, and Maricopa County
Elections Director Karen Osborne. They distributed a summary of Recorder's Bills
to be presented to the Arizona House of Representatives the following week.Those
H. B. 2073 Vote Tabulating
H. B. 2078 Presidential
H. B. 2256 Sample Ballots
H. B. 2257 Voter Registration; Confidentiality
H. B. 2258 Elections; Law Changes
H. B. 2259 Elections; Precinct Committeemen
S. B. 1019 Early Ballot
bills were discussed by the panel in detail, with questions and comments coming
from the various county recorders and election officials.
Tuesday Jan. 23, 2001, I attended the First Regular Session of the 45th Arizona
Legislature. The Committee on Judiciary met in House Hearing Room No. 3 at 1:00
p.m.to hear testimony on election bills. The
first bill to be heard was H. B. 2073 on vote tabulating equipment. As I recall, State Elections Director Jessica Funkhouser was
the first witness to give testimony in favor of the bill. The County Recorder's
summary of that bill stated that "The Secretary of State's committee to
test vote recording or tabulating devices will include hardware, software and
upgrades; all such devices offered to the Secretary of State for adoption must
meet or exceed the requirements of the Federal Elections Commission voting
system standards and must have been tested and approved by an independent
testing laboratory. Any existing
devices that fail to meet or exceed standards may be disapproved for use."
The current law gives the Secretary of State the authority to approve
voting machinery, but not specifically to revoke approval of voting devices.
This bill would allow Secretary of State to revoke approval of election
equipment, if it fails to meet minimum requirements.
I filled out a registration form to give testimony on this particular
bill, with a five-minute speaking limit. The following is a general summary of
my comments to the legislative committee.
When my name was called, I stood at the podium microphone and addressed
the nine legislators on the committee. Present in the first row behind me were
State Elections Director Jessica Funkhouser, Maricopa County Recorder Helen
Purcell, and Maricopa County Elections Director Karen Osborne, who were there to
give their advocacy to the various election bills.
After identifying myself to the panel, I held up a copy of Relevance
1996 issue on "Pandora's Black Box, Did It Really Count Your Vote?"
and requested that copies of the article be entered into evidence. I addressed
the issue of testing the computer equipment. I pointed out that the computer
"logic and accuracy test" was determined to be no test at all, because
it did not check for hidden sub-routines within the source code, such as
"trap doors", "Trojan horses", "flip flops", and
"time bombs". I made a public records request for the logic and
accuracy test results in November from Maricopa County Elections Department, but
have still received no response to my request as of this date.
I told the committee how the Relevance article documented that there are
seven ways to alter the vote count, which are undetectable within the 20,000
lines of code. I noted that the source code software which tabulates the ballots
is a "trade secret", and that only the vendor knows how it counts the
votes. (I requested a copy of software from Secretary of State's office
in October, but never received a response to my public records request. I will
refile my request this month) I reported that under Arizona's public record
statute, "trade secrets" are not exempt from public records
inspection, and this is confirmed by an Attorney General's opinion.
I explained to the legislators that the Relevance magazine article
describes the exact computer used
to count votes in Maricopa County. The Eagle Optech III-P scanner contains a
two-way modem, which not only transmits information, but can also receive
information from a cell phone or satellite, and can undetectably alter the vote
I told the committee that I was in favor of the bill's provision allowing
the Secretary of State to revoke approval of election equipment, if it fails to
meet minimum requirements set by the FEC. I suggested that Canada's recent
elections had shown us the best guideline for conducting speedy and verifiable
elections. 13 million paper ballots were manually counted at the precinct polls
in 4 hours, compared to 36 days of recounting and controversy in Florida.
I recommended that a board of six workers per precinct be hired to
manually count the votes when the polls close. I submitted that this is the only
way to have honest elections with verifiable results.
I also gave a brief synopsis of my 1997 lawsuit Gutenkauf
v Maricopa County, when my brother Dennis and I were threatened with arrest
while attempting to monitor the vote count at the polls, pursuant to Arizona
Revised Statutes 16-601. The Supreme Court has ruled that the right to
vote includes the right to have your vote
honestly counted. [ U.S. v. Mosley,
Reynolds v. Sims]
Rep. Roberta Voss, Chairman of the Committee, asked her colleagues if
anyone had any questions. To my amazement, not one of the nine legislators had a
question about the computer's vulnerability or the violation of voters' right to
an honest vote count!
At the conclusion of my testimony on H. B. 2073, I gave seven copies of
Relevance magazine to a legislative page, who distributed it to the panel
members. There were not enough copies for all the legislators and
transcriptionists, so I retrieved 7 additional copies
from my van for later distribution. A reporter from the Associated Press was
sitting directly in front of me, and asked me for the spelling of my last name.
I gave him a copy of the Relevance article, so that he would be exposed
to this vital information.
The next election bill before the Committee on Judiciary was H. B. 2078,
dealing with the Presidential Preference Election. Among other provisions of
this bill, it removes the requirement that a county use only half of its usual
polling places during the presidential preference election. It authorizes the
officer in charge of elections to conduct a preference election by mail, and
sets forth procedures to do so. As I recall, Maricopa County Elections Director
Karen Osborne and County Recorder Helen Purcell both gave
testimony on behalf of this bill. I
registration form to give testimony on this particular bill.
When called to the podium again, I suggested that in considering this
bill, it might be useful to examine some problems encountered with the 1996
Arizona Presidential Preference Primary. I reported that Maricopa County
Republican Party Chair person Helen
Warman had documented a list of complaints during our state's first Presidential
Primary. One of the problems
identified was that the number of polling locations was reduced at the
last-minute, and there was considerable confusion among voters about where to
A second problem that occurred in 1996 was the mailing of 60,000
duplicate voter identification cards in Maricopa County. I told the committee
that I would read from a public record entered into evidence in the case of Gutenkauf
vs. Maricopa County. I quoted from the November 1996 New American magazine
letter to the editor from Jim Collier, author of Votescam, the Stealing of America. The letter told how Jim Collier
questioned the Maricopa County Elections Director (Karen Osborne) about the
60,000 duplicate voter ID cards. She told him that the county had hired 10
workers to punch in 219,000 voter ID numbers, consisting of seven digits each,
and that only two numbers came up as having voted twice. Mr. Collier asked her
for the names of those 10 workers hired and she refused to give the names.
He also requested a copy of the computer printout of 219,000 numbers
being punched in, and again she refused. I told the committee that these items
were clearly a matter of public record. When I requested the same information
two years later via public records request, Ms. Osborne responded in writing
that there was no record or document
in the County's possession containing that information.
I reported that Karen Osborne had recently sent me two
letters asserting that Maricopa County Elections Department had no
public record or documents containing the names of the precinct workers at
my polling place. I said that I didn't like being lied to by my public servants.
I had documented my complaints in a letter to Sen Chris Cummiskey and
asked that it be entered into evidence. I noted that it is a class six felony to
impair the availability of public records.
At this juncture, the committee Chairman, Ms. Roberta Voss, interrupted
my testimony and attempted to rebuke me for impugning the integrity of a public
official. She did not see the relevance of these issues. I responded by
saying that the current bill dealt with mailings in a presidential primary, and
that my point was germane to this issue. I
also told her that it did no good to pass new legislation, if those charged with
administering election law ignored the statutory provisions already in
existence. I insisted that there must be accountability from our public
officials charged with administering our highest right as citizens. I invited
Ms. Osborne, who was sitting in the front row, to respond to these issues, but
she did not. (She could not defend
herself, because the issues I cited were documented as public record.)
The Committee Chairman asked me to make a recommendation for
or against the bill, and to restrict my comments to the specific provisions
being discussed. I told her that I only had
summary of the bill, and not a complete copy of the statutory amendments. She
directed an aide to furnish me a copy of the complete bill. She said
that after I had a chance to read it, she would allow me another
opportunity to give testimony. She also stated that she would accept any other
materials I had to present to the committee outside of the concurrent
legislative testimony. I deferred to her authority as Committee Chairman,
thanked her for the opportunity to testify, and returned to my seat in hearing
I nearly fell out of my seat a few minute later when I heard State
Elections Director Jessica Funkhouser announce to the panel the formation of a
new organization called "Committee
for Good Government", with Karen Osborne as the designated treasure.
After all the duplicity and stonewalling I've received from Ms. Osborne, the
irony was overwhelming.
I felt a tremendous sense of catharsis, having made my criticisms and
grievances a matter of public record before the legislative committee. This was
an accomplishment for me, because I
previously presented these same matters to Sen. Cummiskey's Modern Election
Practices Task Force, and I have received no response from my letter to him a
I perceived my testimony before the Legislature to be a strategic
maneuver around a Federal court system that had previously denied me due process
of law, and around a legislative task force that was unresponsive to redress of
grievances. I have a "zero tolerance" policy for arrogant public
servants, who feel they have no accountability to their masters, WE THE PEOPLE.
It is now my conviction that the most effective strategy
for redress is to publicly expose
government malfeasance to the legislature, based
on what the public records show about the offender's performance in office.
If they refuse to follow the law and uphold their oath of office, they must be
publicly shamed into compliance. This is where the rubber meets the road!
How can an election official have any credibility in giving advocacy for
a legislative bill, when the public record shows her utter disdain for both the
Legislature and the rights of voters? We must teach our public servants that
they are accountable to us. If they continue to ignore the law and violate our
rights, there is always the option of filing a lawsuit (a second time if
necessary), reporting their violations to the attorney general (which I have
done), and the threat of recall (which I am considering). As I have asserted
previously, "Where the Law begins, tyranny ends."
As I am completing this report (2-6-01), C-Span 2 is broadcasting
the Florida State Election Task Force hearing on voting procedures,
standards, and technology systems. I am sure that these type of hearings are
taking place concurrently in other states as well. I encourage citizens in these
states to attend the hearings, take notes, ask questions, and offer research or
information into testimony. The recommendations will then go to the respective
legislatures for a vote. I encourage you to follow through the whole process and
report back to the votefraud.org
The Supreme Court has ruled that it is not the function of our government
to keep the Citizen from falling into error; it
is the function of the Citizen to keep the government from falling into error. [American
Communications Assoc. v Douds, 339 U.S. 382, 442]
I will close this report with a quote from President George W. Bush in
his recent inauguration speech. "I ask you to be citizens. Citizens, not
spectators. Citizens, not subjects.
Responsible citizens, building communities of service and a nation of
Jim Condit Jr. and Citizens
for a Fair Vote Count exemplify that attitude. Will you now heed that
clarion call too?
Contact us at: votefraud.org; Dan Gutenkauf's email is at the beginning of this article after his byline.