EXCLUSIVE: AZ State Sen. Sonny Borrelli Lawsuit Against Maricopa County Includes Evidence Maricopa Performed Illegal Voter Signature Verifications – FILING AND SHOCKING EXHIBITS INCLUDED

Evidently, to try to speed up its signature verification process, Maricopa County election officials took an unproven approach in the recent general election by delegating to a private corporation and its software (“the Delegated Software”) the crucial job of assessing the veracity of signatures on approximately 1.3 million mail-in ballots and presumably ballots retrieved from drop boxes. Maricopa intended that the Delegated Software would compare a voter’s signature on a mail-in ballot or ballot retrieved from a drop box against a signature exemplar the voter had signed in the past, such as a record from the Department of Motor Vehicles. Untrained temporary workers would then be hired to review the software’s adjudications. But County election officials indulged this experiment without first putting in place safeguards to make sure it worked.

For instance, County officials failed to set standards or provide guidance of any sort for (1) adjustments that might be made to the Delegated Software’s settings during the ballot count, (2) recruiting and hiring people tasked with operating the software (“the Signature Verifiers”), (3) adequate training for the Signature Verifiers, (4) reliable back-up systems, or (5) mechanisms for appeal or review of rejected ballot signatures. Election officials thereby let an untold number of ballots pass without adequate assurance of accurate verification. As a result, a disproportionate number of Maricopa County’s mail-in ballots and presumably drop box ballots were counted when they should not have passed a proper verification system, thereby diluting the voting strength of voters in other counties, including Mohave County.

The so-called “artificial intelligence” used in tools like the Delegated Software has been exposed as too often being neither “artificial” – especially where profit-motivated human beings train their AI through all-too-manual “curve-fitting” to reach a desired result – nor “intelligent,” given that humans cannot seem to help but introduce into AI systems their own inevitable, often unconscious cognitive biases. Infamous examples of biased training include Amazon’s recruiting AI, whose training consisted of being fed resumés of (almost entirely male) engineering job applicants, benchmarked against (almost entirely male) current employees, so that the artificial “intelligence” was able to conclude that the best candidates were . . . almost entirely male. Similarly, University of Toronto and MIT researchers recently found that every facial recognition system they tested performed better on lighter-skinned faces,1 and researchers have shown a 1-in- 3 failure rate in identifying darker-skinned females.2 Or consider Microsoft’s Tay Twitter chatbot, which was designed to become conversational by learning from other Twitter users, but which instead was corrupted during its training – by Twitter trolls flooding it with a deluge of racist, misogynistic, and antisemitic tweets – so that it turned into “a robot parrot with an internet connection3” – and a mouthpiece for repugnant ideologies.

Upon information and belief, Maricopa County is the only county in Arizona that delegates the work of verifying mail-in ballots to artificial intelligence programs. Maricopa County has outsourced a material portion of its signature verification responsibilities to a private corporation, Runbeck Elections Systems, and its Verus ProTM signature verification software. The Delegated Software preprocesses and scores each signature, and then comes up with a confidence score – whose bases remain secret – for each signature match. The Signature Verifiers – temporary workers without relevant experience or training, hired at $15 an hour to sit at their monitors – are then presented with a prominent display of the Delegated Software’s color-coded verification decisions. As they attempt to decide, in an instant, whether to verify the voters’ signatures, it is beyond the limits of human nature for these Signature Verifiers not to be influenced by the seemingly authoritative, but actually opaque and unproven, conclusions of the Delegated Software.

The Arizona Attorney General has pointed out that such delegation is not authorized by Arizona law.4 No Arizona statute allows counties to outsource a role so crucial to computer software. Moreover, Maricopa County failed to provide the procedures and training requirements necessary to enable humans to work with the Delegated Software. Upon information and belief, Maricopa County ran 1.3 million images, on monitors, past the eyes of a few dozen of its Signature Verifiers at such a rapid clip that it was physically impossible for them to verify the Delegated Software’s adjudications about those images reliably.

Real human beings charged by statute with verifying signatures are not supposed to act as rubber stamps for unreliable decisions already made by private corporations’ trade-secret software. Maricopa County’s delegation to third parties, and software, casts serious doubt on the integrity of the election. “At first blush,” Arizona’s nondiscretionary requirement for immediate, and human, signature verification set forth in A.R.S. § 16-550(A) may seem unimportant—just as the requirement for “mailing versus hand delivery [of ballots as required by A.R.S. § 542] may seem unimportant.” Reyes v. Cuming, 191 Ariz. 91, 952 P.2d 329, 331 (Ariz. Ct. App. 1997) (quoting Miller v. Picacho Elementary School District No. 33, 179 Ariz. 178, 180, 877 P.2d 277, 279 (1994).

But as the Supreme Court of Arizona has explained, considering their purpose, such laws are “very important.” Id. It bears emphasis. Both these “non-technical” statutes advance the constitutional goal of “setting forth procedural safeguards to prevent undue influence, fraud, ballot tampering, and voter intimidation.” Id. (quoting Ariz. Const. art. VII § 1). Such laws may seem trivial at first, but they are imperative to “secure the purity of elections and guard against abuses of elective franchise.” Id. (quoting Ariz. Const. art. VII § 12). Indeed, the “purpose of A.R.S. 16- 550(A) is to prevent the inclusion of invalid votes.” Id.

“To rule otherwise would ‘affect the result or at least render it uncertain.’” Id. (quoting Miller, 197 Ariz. at 180, 877 P.2d at 279). This is especially true where, as here, “the absentee ballots counted in violation of A.R.S. section 16-550(A) indisputably change[] the outcome of the election.” “[B]ecause A.R.S. section 16-550(A) is a non-technical statute and because absentee ballots counted in violation of that statute have rendered the outcome of this election uncertain,” the only appropriate remedy is for the results from the Maricopa County election to be “set aside.” Id.

Because Mohave County used a more rigorous system to verify signatures for mail-in ballots, Maricopa County officials, in using The Delegated Software without legally adequate human verification, diluted the voting strength of residents of Mohave County. Defendants introduced artificial intelligence software into the procedures and training of human workers in a manner not authorized by Arizona statute and antithetical to the rights and protections guaranteed by the U.S. Constitution, including the fundamental right of each voter to know his or her vote counted.5

Maricopa County officials’ use of the Delegated Software to make decisions that can only be made by well-trained human beings illegally and unavoidably overcounted the number of verifiable ballots counted in Maricopa County, resulting in the disenfranchisement of Mohave electors who had properly cast their ballots in a county that followed state election law and verified each signature properly, by trained human beings.

This is material because only 17,116 votes separated the winner from the loser in the gubernatorial race. Maricopa County outsourced the processing of 1,311,734 mail-in or drop-off ballots to its unreliable system of (1) unproven software and (2) untrained Signature Verifiers. Upon information and belief, the margin for error in an AI-driven software like the Delegated Software, using only static or offline signature data, is at least three percent (3%).6 Applying a 3% margin of error to 1,311,734 signatures yields 39,352 falsely accepted signatures, which could have affected the outcome of the general election for governor.

The law is well settled that, “once the legislature prescribes a particular voting procedure, the right to vote in that precise manner is a fundamental right.” See Charfauros v. Bd. of Elections, 249 F.3d 941, 951 (9th Cir. 2001) (emphasis added). Changes to voting procedures that disenfranchise certain voters are a per se violation of the Equal Protection Clause of the Fourteenth Amendment—even if the violation is well intended or based on simple negligence or ineptitude. While elected officials in Maricopa County may have felt required to take shortcuts due to time constraints, “[t]he press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” Gore, 531 U.S. at 108, 121 S. Ct. at 523. Here, Maricopa County officials:

(i)  Failed uniformly to administer the general election consistent with state mandated procedures;

(ii)  Adopted unproven and misguided procedures to cope with its handling of the election;

(iii)  Poorly implemented those procedures, which became more burdensome than available alternatives prescribed by law; and

(iv)  Relied on unproven, proprietary software of a nongovernmental, third-party to initially verify ballot signatures, thereby interjecting artificial intelligence into the voting process in a manner not prescribed by law.

Maricopa’s novel procedures resulted in a substantial number of electors from other counties being disenfranchised. The Maricopa County election procedures violated the First and Fourteenth Amendments to the U.S. Constitution, and necessarily mandate an election contest as defined in A.R.S. § 16-672 and 676. Defendants have violated Plaintiffs’ rights under the Equal Protection Clause (Count 1), their procedural due process rights (Count 2), their fundamental right to vote and have their votes treated uniformly under the principles enunciated in Bush v. Gore, 531 U.S. 98 (Count 3), and their rights under Arizona elections statutes (Count 4). As a result, the November 8, 2022, Maricopa County election results for governor are insufficient to “sustain the confidence that all citizens must have in the outcome of elections.” Id. at 109.

The following relief is requested in Borrelli’s lawsuit.

Declare impermissible and unlawful the use of unproven and opaque third-party computer software that delegates the function of determining, initially or otherwise, the validity or invalidity or likely validity or invalidity of a ballot affidavit signature, under A.R.S. Section 16-672, et seq and unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and find and conclude that in doing so or allowing it to be done during or in connection with the 2022 general election for governor, Defendants violated those provisions.

Declare impermissible and unlawful the use of unproven and opaque third-party computer software to delegate to artificial intelligence the function of determining, initially or otherwise, the validity or invalidity or likely validity or invalidity of a ballot affidavit signature and unveiling that determination to the human assigned the task of ballot signature verification before he or she does his or her job, under A.R.S. Section 16-672, et seq. and unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and to find and conclude that in doing so or allowing it to be done during or in connection with the 2022 general election for governor, Defendants violated those provisions.

Temporarily, preliminarily, and permanently restrain and enjoin the state of Arizona and Maricopa County from using unproven and opaque nongovernmental, third-party software vendors and artificial intelligence to perform the function of determining, initially or otherwise, the validity or invalidity or likely validity or invalidity of a ballot affidavit signature.

Enjoin the use of signature verification software for which software code, AI training methods and data, manual curve-fitting practices, error rates including false negatives (or rejects) and false positives (or “accepts”), and similar data have not been made reasonably available for public notice and comment.

Mandate that elections officials in Arizona seek to extend the time and resources available for signature verification to ensure such verification is constitutionally adequate to the task of verifying millions of signatures.

Affirm that Mohave County voters’ early voting ballots meeting the statutory requirements and verified by trained human beings are counted in the 2022 general election for governor.

Invalidate and set aside the 2022 Maricopa County general election results for the race for governor, and/or and invalidate and set aside all Maricopa County mail-in ballots in the 2022 general election for governor.

Award Plaintiffs attorney fees in this action pursuant to 42 U.S.C. § 1988(b).

Award Plaintiffs their costs of suit.

Grant and impose any other remedy and grant and impose such other and further relief, at law or equity, that this Court deems just and proper in the circumstances.