Legal Strategy with Dan Gutenkauf

                        Arizona Election Bills and Testimony

                                      by Dan Gutenkauf (Contact Dan Gutenkauf at: )

On 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 bills are:

            H. B. 2073  Vote Tabulating Equipment

            H. B. 2078 Presidential Preference Election

            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 Requests. 

These bills were discussed by the panel in detail, with questions and comments coming from the various county recorders and election officials.

On 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 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 magazine's

November 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 count.

     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 submitted another 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 vote.

     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

a 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 room.

      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 month ago.  

     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 website.    

     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 character."

       Jim Condit Jr. and Citizens for a Fair Vote Count exemplify that attitude. Will you now heed that clarion call too?


Contact us at:; Dan Gutenkauf's email is at the beginning of this article after his byline.