By Lourdes Medrano, Courthouse News Service

TUCSON (CN) — Arizona primary voters head to the polls Tuesday, but a tally of absentee ballots is already under way in Pima County and a federal lawsuit seeks to ensure that digital records are not destroyed.

The lawsuit against Pima County, filed a day before ballot counting began Aug. 24, seeks a temporary restraining order and injunction to preserve image files generated during the early vote count in the primary and subsequent elections.

A hearing had been scheduled for 10 a.m. Tuesday before U.S. District Judge Richard Gordon.

Pima County, whose seat is Tucson, plans to delete the images after counting them, a problematic process, because "if there are any questions or concerns or auditing that would need to come up later, there's that kind of missing piece in the chain of custody of the ballots in the counting process," said Kasey Nye, attorney for early primary voter Richard Hernandez.

Pima County elections director Brad Nelson did not return calls seeking comment, but chief deputy county attorney Amelia Cramer said Nelson "has made the decision to retain those copies pending the outcome of the lawsuit."

The county switched to a new tabulation system last year and first used it in the November 2015 city and county elections. At issue are the images generated by high-speed ballot scanners, called DS850s.

After unfolding each ballot and imprinting it with a serial identifier, the scanners create a digital file. The software then processes the file to count the vote and saves it.

"While the county is preserving the ballot, they weren't going to preserve the image, the actual file used to tally the vote," Nye said in an interview.

The county's intention to delete the images came to light at a July 15 meeting of the Elections Integrity Commission, a body formed in 2008 as part of several measures to improve security after the Democratic Party sued Pima County for its ballot-counting processes.

In this year's March presidential primary, Pima County voters reported computer glitches that changed their party affiliations. In Maricopa County, Arizona's most populous county, based in Phoenix, drastically reduced numbers of polling places caused long lines and voter confusion.

At the commission meeting, Nelson said files would be deleted after the daily vote tally, according to the lawsuit.

"As a result of this decision, there will no longer be any record of the actual ballot image files used by the D850s' software to generate the daily vote tabulations of early ballots," the complaint states.

It adds that under state law, the county must keep the images for at least 22 months — and the county is still under court orders stemming from the 2007 lawsuit to make available all database records to registered political parties.

"They can't generate the same complete database with this system without retaining the images," Nye said.

In its annual report released in January, the commission documented some technical problems with the new scanners and said the process of saving ballot files turned out to be time-consuming.

"As a result, ballot image saving was turned off after storing approximately 90,000 images," the report states.

Hernandez seeks temporary and permanent injunctions.

To Learn More:

            Kansas Officials Fight to Hide Voting Machine Records (by Noel Brinkerhoff, AllGov)