Wednesday, April 20, 2016

Mundell and Chabin seek federal investigation into ACC corruption and conflict of interest

According to Stacy Pearson with Strategies 360, this afternoon, Bill Mundell and Tom Chabin, Democratic and Clean Elections candidates for seats on the Arizona Corporation Commission sent the following letter seeking a federal investigation into ongoing corruption and conflict-of-interest in that agency by John Leonardo, US Attorney for the District of Arizona.


Dear Judge Leonardo:

The Arizona Corporation Commission (ACC) is an elected body responsible for regulating the state’s public utilities (electricity, telecommunications, natural gas and water), in addition to facilitating the incorporation of businesses and organizations, securities regulation and railroad/pipeline safety. In carrying out its responsibility to regulate the telecommunications and electric utilities in Arizona, the ACC works closely with both the Federal Energy Regulatory Commission (FERC) and the Federal Communications Commission (FCC). The commission also works closely with the United States Securities and Exchange Commission (SEC), and state and federal law-enforcement in enforcing both federal and state securities statutes. Commissioners function in an Executive capacity, yet they also adopt rules and regulations thereby functioning in a Legislative capacity, and have Judicial powers when making decisions in contested matters, most notably those affecting the utility rates of Arizona consumers.

Given the incredibly powerful and broad scope of their duties, it is imperative that the commission’s ability to impartially carry out its duties isn’t compromised. This is why we are running for two of the commission seats in 2016 – to restore integrity and balance to the commission. However, as more and more information becomes public, it is becoming apparent that an electoral solution alone may not solve the ongoing controversies of the ACC. We are gravely concerned that certain commissioners, and other elected officials, are engaged in unethical and potentially illegal activities.

On March 24, 2016, it was reported in The Arizona Republic that the newest appointed commissioner, Andy Tobin, had not reported the fact that his brother works for Cox Media. Cox Media is an affiliated business of Cox Communications – a business regulated by the ACC. The fact that Mr. Tobin hid this conflict-of-interest during his appointment process is incredibly troubling, and given the fact that he was replacing a Commissioner who also had a conflict-of-interest related to Cox Communications, it is simply inexcusable.

If this were an isolated incident one could chalk it up to a mistake, albeit a big one, but a mistake nonetheless. And if that were the case we most likely wouldn’t be writing this letter today.

However, this is just another in a series of troubling incidents that have surrounded the ACC since the 2014 election cycle. To wit:
  • The ongoing issue of Commissioner Stump’s text messages – some of which have been recovered despite vast efforts by Mr. Stump to discard his cell phone and any trail of his communications - with a utility executive, commission candidates, and political operatives running a “dark money” campaign aimed at getting those candidates elected to commission. Arizona Attorney General Mark Brnovich has stated that some of the text messages could be considered public records, yet a Maricopa County judge has ruled the texts are not public record. How is it that hundreds of text messages being sent to political operatives and regulated executives from a public official on a phone paid for by public dollars are not public record? The very notion defies logic.
  • There is evidence to support this theory. Since being elected, both Commissioners Little and Forese have vigorously defended the interests of APS at the expense of ratepayers and other interests. Even to the point of completely stopping fellow Commissioner Bob Burns’ efforts to require disclosure from APS on any political spending around the Arizona Corporation Commission races. The actions of Commissioners Little and Forese are unprecedented.
  • In addition to Commissioner Tobin’s undisclosed conflict-of-interest discussed above, he also has another conflict-of-interest which he initially concealed from Governor Ducey during the appointment process: his son-in-law works for SolarCity, another business which is regulated by the ACC. Upon learning about this conflict-of-interest, the commission’s own counsel told Mr. Tobin he wasn’t “electable or appointable”. Yet, this didn’t stop Mr. Tobin, Governor Ducey, or the Arizona legislature from moving forward with his appointment. Which begs the question, if the Governor is concerned about the impartiality of the commission, why would he replace a conflicted commissioner with another person who has not just one conflict, but two?
So, does all of this mean the ACC has been compromised? We honestly don’t know, but it is with that question in mind that we turn to you.

As the U.S. Attorney for the District of Arizona, we are asking you to initiate a full investigation into possible corruption involving the ACC. Specifically:
  1. Is Commissioner Tobin eligible to serve on the commission?
  2. Does HB2123 constitute “special legislation”, which is illegal under Arizona state law? And is it an attempt to conceal an illegal appointment of an unqualified individual to the commission?
  3. Has the ACC been unduly influenced by Arizona Public Service or any other regulated entity’s political activities?
  4. Have there been communications between commissioners, candidates and independent political operations in order to illegally coordinate campaign activities?
  5. Why do Commissioner Stump’s text messages continue to be hidden from the public, even though the Arizona Attorney General has deemed some of them as public record?
  6. Has there been collusion between certain sitting commissioners and Arizona Public Service to prevent public disclosure of certain campaign expenditures?
We encourage you to look at any other commission related activities you deem appropriate to review. Ensuring an uncompromised commission is of the utmost importance to the consumers of Arizona.

We understand the serious nature of this letter. We turn to you only because we cannot trust the vast majority of our state officials to be unbiased in this matter.

It is obvious we cannot trust the commission to police itself – other than Commissioner Burns, the current commissioners have shown they will do everything to maintain a cloud of secrecy over their activities. It is also obvious that we cannot place faith in the Governor or the legislature to take any action. They have already shown complicity in supporting the questionable activities surrounding the commission and are actively seeking options to expand the influence of dark money on Arizona’s elections, as evidenced with the recent passage of Senate Bill 1516.

The only statewide elected official who has shown any interest in bringing some accountability to the commission is Attorney General Mark Brnovich. He sought the removal of Commissioner Susan Bitter-Smith prior to her resignation and has tried to secure the public release of some of Commissioner Stump’s text message. We have copied him on this letter in hopes that he will join our call to your office to fully investigate the activities of the ACC.

Arizona voters and consumers deserve to know if one of the most powerful regulatory bodies in the state is serving their interests, or if it has instead become a captive body to the very interests it is supposed to be regulating. Thank you for your time and consideration of this serious matter.


Bill Mundell Tom Chabin

[Ed. links embedded above provided by the Arizona Eagletarian and were not in the original letter. They are intended to provide background only, and not to infer any approval or disapproval by or from Mundell or Chabin.]

SCOTUS again validates Independent Redistricting in Arizona

The Supreme Court of the United States today UNANIMOUSLY ruled in favor of the people of Arizona, by way of the Arizona Independent Redistricting Commission, in Harris v AIRC.

The opinion delivered by Justice Stephen Breyer reads, in part,

On the basis of the facts that we have summarized, the District Court majority found that “the population deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . even though partisanship played some role.” 993 F. Supp. 2d, at 1046. This conclusion was well supported in the record. And as a result, appellants have not shown that it is more probable than not that illegitimate considerations were the predominant motivation behind the plan’s deviations from mathematically equal district populations—deviations that were under 10%. Consequently, they have failed to show that the Commission’s plan violates the Equal Protection Clause...
On December 9, 2015, the Arizona Eagletarian reported,
Remember from yesterday's post that news coverage of the hearing seemed to lean toward wondering how the Harris plaintiffs could even justify bringing this case to the Supreme Court? Therefore, as USA Today reported,
"The Supreme Court on Tuesday appeared unlikely to toss out Arizona's state legislative districts because of population differences, but several justices expressed concern that an independent redistricting commission took politics, along with race and ethnicity, into consideration."
This evening I began reading the 74-page transcript. It didn't take long before I could see why Richard Wolf would be so bold as to make that his lede.
The AIRC issued the following statement regarding the ruling,
Wednesday, April 20, 2016 -
Today, the United States Supreme Court unanimously held that Arizona's state legislative districts are constitutional.
The Commission is pleased with the Court's decision and is gratified that Arizonans will continue using the districting plans created by the Arizona Independent Redistricting Commission in Arizona legislative elections through 2020. The Commission is grateful for the pro bono representation it received from Paul Smith and his team at the law firm Jenner Block.

Monday, April 18, 2016

Did Trash Burner Bob think his long nightmare -- accounting to Arizona citizens -- was over already?

Not so fast, young fella!

Checks and Balances Project has been fighting for more than a year to inspect public records Corporation Commissioner Bob Stump knowingly has withheld in defiance of Arizona's statutes. That law intends to prevent corruption by having elected officials conduct the people's business in the light of day. It's easy to recognize that, at minimum, Stump has succumbed to ingratiation*, which is bad enough. Wouldn't you like to know the extent to which elected officials favor their friends over your interests?

Last Friday, C&BP attorney Dan Barr filed a Second Motion for Further Inspection of Stump's phone. In part, the motion states,

C&BP also blogged today about the situation,

Strange Business
Of the 3,547 text messages we have asked to be examined, Attorney General Brnovich’s office has recovered only 36 or roughly 1%.
  • The 36 text messages were blank.
  • None had HASH values – the equivalent of a text message’s DNA.
  • The HASH value of a text message would show whether its content has been deleted or altered.
  • Stump claims he deleted text messages. But HASH values should still exist in unallocated space of the phone’s hard drive.
  • The AG admits a complete image of the phone, including all unallocated space, was not made.

The digital forensic expert that we have retained, with 36 years of experience, who is located in Phoenix, believes that “the protocols and the programs that I use… would be more effective in recovering information from the ‘unallocated space’ on the iPhone and thus in retrieving any deleted text messages.” (To read our expert’s affidavit, CLICK HERE.)
Arizona citizens have a right to know about possible public business and electioneering that Arizona Corporation Commissioner Bob Stump may have conducted via text messages on his taxpayer-provided iPhone.
The Bottom Line
This is a circus and an embarrassment to Arizona.
If there is truly nothing in Stump’s texts, don’t you think they would want these accusations put to rest and allow a second look by our expert? Why has Commissioner Bob Stump, the Arizona Corporation Commission, and Attorney General Brnovich worked so hard to keep them hidden?
Perhaps soon the citizens of Arizona will find out.

Stump should #ReleaseTheTranscripts! Oops, I meant that Hillary should disclose the text messages... or something like that.


* From the link above on ingratiation,
... ingratiation is probably the most common type of impression management. People attempt to be perceived as likable by doing various kinds of favors, by expressing opinions similar to those held by others, and by complimenting their interactants (Rosenfeld et al., 1995). Complimenting the targets of impression management shows the speakers’ fondness for them (Vonk, 2002) and raises the targets’ self-esteem (Leary, Haupt, Strausser, & Chokel, 1998). Because people tend to like those who like them (Backman & Secord, 1959; Singh, Yeo, Lin, & Tan, 2007) and those who reward them (Byrne, 1997), the targets of ingratiation are assumed to like the ingratiators. Previous research has indeed documented the effectiveness of the ingratiation tactics in making others like us and treat us nicely (e.g., Seiter, 2007). According to this research, it is much easier to succeed in ingratiation than in self-promotion (Godfrey et al., 1986). Even if an outside observer sees through the manipulative attempt, the target of the ingratiation usually likes the flatterer (Vonk, 2002).
THIS is the name of the game when elected officials and others who wield the power of government authority make hugely compensated speeches to, or mingle, dine and/or recreate with lobbyists.

Anyone who claims otherwise is either a fool or intentionally trying to deceive you.

Friday, April 15, 2016

Democratic Party lawsuit challenges Arizona election schemes that caused last month's debacle

Today, pursuant to news released and reported on Thursday, the Arizona Democratic Party and the Democratic National Committee joined with several other plaintiffs and filed suit in United State District Court, District of Arizona, challenging the State of Arizona, including Secretary of State Michelle Reagan, the Maricopa County Supervisors and County Recorder Helen Purcell regarding voting laws and procedures. The 51-page lawsuit was brought,
to secure equitable relief from Defendants’ unlawful deprivation of Plaintiffs’ (and, in the case of the organizational Plaintiffs, their members’ and constituents’) rights, privileges, and immunities guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the First Amendment to the United States Constitution, Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, and the laws of the United States.
According to statistical estimations presented in the AUDIT-AZ lawsuit (last week), more than 150,000 voters in Maricopa County were disenfranchised by the violations of the Voting Rights Act challenging in this new legal action.

This suit also challenges the recent legislation (HB2023) making felons out of those who assist voters in getting their signed, sealed early ballots delivered to elections officials.
2. “No right is more precious in a free country than that of having a voice in the election of those who make the laws . . . .” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Plaintiffs bring the instant lawsuit to protect that right and to prevent the continued disenfranchisement of thousands of Arizona voters—including specifically Arizona’s Hispanic, Native-American, and African-American voters—whose right to vote has been and will continue to be denied or unreasonably infringed upon due to the lack of oversight for Maricopa County’s allocation of polling locations; Arizona’s practice of not counting provisional ballots cast in a precinct or voting area other than the one to which the voter is assigned; and the State’s recent criminalization of the collection of signed and sealed absentee ballots with the passage of H.B. 2023.
The suit cites the history of Arizona being subject to preclearance of changes to voting laws and procedures before they could take effect -- because of the Voting Rights Act which in 2013 was defanged by the Supreme Court in Shelby County v Holder.

The suit then recites last month's debacle regarding the Presidential Preference Election in Maricopa County.

8. Arizona is also arbitrarily and disparately disenfranchising voters at alarming rates through its provisional balloting process, in which the ballots of some voters are rejected where they cast their ballot in the right jurisdiction but in a precinct different than the one to which they are assigned (“out of precinct” voting), while others are counted so long as they vote in any polling location found within the jurisdiction. Effectively, this means the ability of Arizona citizens to have their vote counted in such circumstances depends entirely on the county in which they live. These arbitrary differences cause voter confusion, which is compounded by the fact that some of the jurisdictions that accept out-of-precinct ballots in one election (e.g., Maricopa County in the PPE), may reject them in the next (e.g., Maricopa County in the 2016 general election). It is therefore not surprising that, in 2014, Arizona ranked fifth in the nation for the total number of provisional ballots rejected. The main reason that Arizona refused to count provisional ballots in 2014 was that they were cast in a precinct other than the one to which the voter was assigned. In Maricopa County alone, over 2,800 ballots were rejected for this reason. Upon information and belief, the provisional ballots cast and rejected across the state were disproportionately cast by Hispanic voters.
Therefore, the plaintiffs seek the following relief,
WHEREFORE, Plaintiffs pray for judgment in their favor and against Defendants as follows:
A. An order declaring that:
1. Arizona’s prohibition on the counting of out-of-precinct provisional has a disparate effect on Hispanic, Native-American, and African-American voters in violation of Section 2 of the Voting Rights Act;
2. Arizona’s prohibition on the counting of out-of-precinct provisionalballots burdens Arizona voters generally and, specifically, Hispanic, African-American, and Native-American voters as well as voters in Maricopa County without a sufficient state justification for doing so, in violation of the Equal Protection Clause of the Fourteenth Amendment; 
3. Arizona’s policy of rejecting provisional ballots cast out of precinct in certain jurisdictions, while allowing for the counting of ballots cast out of precinct in others, violates the Equal Protection Clause of the Fourteenth Amendment;
4. H.B. 2023 violates Section 2 of the Voting Rights Act, the Equal Protection Clause of the Fourteenth Amendment, and the First Amendment to the United States Constitution; and 
5. The rights and privileges of Plaintiffs will be irreparably harmed without the intervention of this Court.
B. An order preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, successors, and all persons acting in concert with each or any of them from: 
1. Allocating polling locations for the 2016 general election in Maricopa County without first submitting the allocation plan to this Court for review and approval to ensure that the plan is in keeping with state and federal law, Section 2 of the Voting Rights Act, and the United States Constitution;
2. Rejecting provisional ballots solely because they were cast in the wrong precinct or polling location, and requiring that such ballots be counted for all elections in which the elector is eligible to vote; 
3. Implementing, enforcing, or giving any effect to the challenged provisions of H.B. 2023.
C. An order requiring the Maricopa County Defendants to draft and submit to this Court for review and approval a contingency plan to address and remedy long wait times should they occur in the 2016 general election;
I'm not sure to what extend corporate media will compare and contrast this action with that filed one week ago by AUDIT-AZ. Briefly, Brakey's lawsuit goes after the balloting and ballot counting systems and procedures, as well as some of the points in this latest suit. But today's filing goes after the broader issues of racial discrimination and violations of the Voting Rights Act.

As I learn more about responses to these lawsuits as well as hearings to sort out the issues, I will keep you posted. 3TV | Phoenix Breaking News, Weather, Sport

Saturday, April 9, 2016

On Friday, AUDIT-AZ filed suit to challenge the Presidential Preference Election held on March 22

On the evening of March 22nd, after 7 pm, the official poll closing time, it was immediately obvious that there were substantive problems with the election as a whole. Most of the problems were in Maricopa County, where roughly 60 percent of the state's voters reside. 

Political decisions by the Republican-controlled state legislature to cut funding anywhere and everywhere possible, including in elections budgets, coupled with the Maricopa County Recorder and Board of Supervisors (each also Republican-controlled) approving reduction of the number of election day polling locations from 200 to 60 wreaked havoc. The last voters who got in line before 7 pm did not finish voting until after midnight.

Friends from all over the country who were watching corporate media reporting of the Arizona results also could quickly tell something was way off kilter. Broadcast media called the Democratic race for Clinton about four hours before voting finished.

There has been plenty of national consternation over Arizona and Maricopa County in particular since. 

My March 28 post includes video from the House Elections committee hearing. By March 31, Helen Purcell was complaining about it. From the Yellow Sheet (March 31),

Maricopa County Recorder Helen Purcell said she was blindsided at Monday’s House elect hearing and was amazed that Ugenti-Rita and her committee allowed the crowd to get so raucous. Purcell said it was her understanding from Ugenti-Rita’s invitation that she and the Arizona Assn of Counties would simply provide information. So, she was surprised, she said, when Ugenti-Rita wouldn’t allow Jennifer Marson of AACO to assist with her presentation, which in effect kept them from giving the full presentation. Purcell said it didn’t feel at all like a hearing. “To me, it felt more like a public flogging. I was absolutely amazed that the Legislature would allow something like the conduct of the people in that room,” she said (YS, 3/28). Purcell said she tried to maintain decorum, “even though no one else did.”
Apparently Helen Purcell is more interested in her hurt feelings than those of the many thousands of voters she disenfranchised.

From the Yellow Sheet (March 28), Purcell tried to explain the "rationale" for her role in suppressing the PPE vote,
Purcell was contrite, apologizing repeatedly throughout the hearing and taking full responsibility for the election night fiasco. Purcell also tried to explain how the county came to the conclusion to open only 60 polling precincts.
She said county election officials estimated that turnout at the polls (meaning the people who would vote on Election Day, not counting early ballots) would be 23 percent. They based that number on the turnout in 2008. Using the figure, they calculated that 71,300 voters would show up at the polls, which they believed would translate to roughly 1,200 voters per polling precinct if they consolidated precincts to 60. They rounded it up to 1,500 voters per consolidated polling place, and increased the number of workers per site.
The problem that those decisions created quickly became apparent on Tuesday night. At the end of the day, 83,489 people had voted at the polls, roughly 24,000 received provisional ballots, and 18,000 independents showed up, even though they’re legally barred from casting a ballot in the PPE. Both [Democratic state Rep. Jonathan] Larkin and [committee chair Michelle] Ugenti pressed Purcell if she and others had made allowances for the fact that people are energized by candidates like Donald Trump and Bernie Sanders, and that turnout might, in fact, be high. “Was that even a thought when you were deciding to set up 60 polling locations?” Larkin said. Purcell indicated that this wasn’t part of the consideration.
AUDIT-AZ point man John Brakey on Friday (April 8) filed a complaint in Maricopa County Superior Court challenging the PPE. Allegations include three counts, misconduct by defendants, illegal votes, and erroneous count of vote totals.

Brakey, along with counsel Michael Kielsky (a partner with the law firm of Udall Shumway in Mesa) were granted an Order to Show Cause hearing before Judge David Gass on Tuesday, April 19 at 8:45 am. Defendants (Michele Reagan and all of the county recorders) will state their case for why the relief Brakey requested in the complaint should not be granted. Notably, a court order that the election canvass, signed on April 4, be voided and a revote be conducted.


In an e-mail newsletter last week, Maricopa County Democratic Party stated,
Most provisional ballots were disallowed because the voters were on County records as independents. In reality, there is some evidence that upwards of 20,000 party-aligned voters “lost their party identity” when ADOT's Motor Vehicle Division may have deleted that information when some licenses were renewed.
We know from anecdotal reports that this problem was not limited to Maricopa County. I would also note that MVD contracts with a private company, to process voter registration online. The website's about us page does not disclose the ownership of the contracting company, only stating it is "the Authorized Service Website for the Arizona Department of Transportation, Motor Vehicle Division."

That relationship itself opens election processes and the voter database to tampering and election fraud.

Comparing 2008 PPE voter turnout (the last contested Democratic PPE) AUDIT-AZ estimates that because of Maricopa County's drastic reduction of polling locations, upward of 152,000 voters (combined for all eligible political party voters) were excluded because of the chaos involved in reduction in the number of polling locations.  The 20,000 who made it into a polling place but whose provisional ballots were not counted because of voter database discrepancies would be in addition to the 152k.

So, as many as 172 THOUSAND voters were disenfranchised in Arizona through no fault of their own. An explanation of that calculation in included in Richard Charnin's affidavit, which is on pages 13 and 14 of the complaint.

The bottom line, and the position AUDIT-AZ has taken for years is that "elections must be transparent and verifiable. Anything less is unacceptable."


Can any reader of the Arizona Eagletarian honestly say that election security is a non-issue? Really? Never before in my lifetime (or at least since I turned 18 and became a voter) has the stakes been higher.

Rather than expound on those questions, I will simply recommend a MOOC (Massive Open Online Course) offered by and taught by University of Michigan professor J. Alex Halderman.


In case readers have wondered about my absence/silence over the last couple of weeks, it was mainly because my mother passed on the day after the election. I had to take care of related issues.