Page:Aguilera v. Fontes (CV 2020-014562) (2020) Order.pdf/6

 CV 2020-014562 First, the two specific tabulator machines that Banko testified had issues were not the same tabulators either Aguilera or Drobina used because Banko, Aguilera and Drobina were at three different polling sites on Election Day, each of which location had its own separate tabulator machines.

Second, Banko's description of what he saw and how clearly he could see the marks on various ballots of voters was unreliable. During Election Day, Banko's various assignments included manning the drop box for early voting ballots, acting as a registration clerk, and handling the on-demand ballot printers. Banko contends that he could see, often from a distance, that there were no extraneous votes or lines on the ballots and that the bubbles seemed to be filled in completely and appropriately by the voters who nevertheless were having issues. Banko also assumed he knew which portions of the voters' ballots allowed one or more votes because he himself lived "in proximity" to this polling location and many of the voters' residences were also "in proximity" to this site. While acknowledging that he was "obviously doing other tasks," Banko thinks he got a "good look" at another 15 ballots at least, while he was stationed throughout the polling site. Banko testified that voters having issues were showing their ballots to the Marshall or the Inspector, whose jobs involved addressing such issues. It was not Banko's job to examine the ballot of a voter with an issue. Despite Banko's limited exposure to the voters' ballots, Banko testified that all of "[t]he ballots were in pristine condition."

THE COURT FURTHER FINDS no probative value to Banko's testimony which was unspecific, categorical, appeared largely speculative and untrustworthy, and was not material to the voting experiences Aguilera and Drobina had at their separate voting locations.

THE COURT FURTHER FINDS to the extent Banko's testimony was intended to show that the tabulators at one site, different from the polling locations where Plaintiffs voted, experienced problems on Election Day, such evidence directly undercuts Plaintiffs' claims that voting machines are reliably perfect. In addition, the uncontroverted Certificates of Accuracy (Exhs. "45" and "46") verified that successful Logic and Accuracy Tests of the 2020 General Election Combined Voting Equipment were conducted in Phoenix on 10/6/2020, in accordance with A.R.S. § 16-449, and post-election on 11/18/2020.

A.R.S. § 16-446, Specifications of electronic voting system, provides in pertinent part: A. An electronic voting system consisting of a voting or marking device in combination with vote tabulating equipment shall provide facilities for voting for candidates at both primary and general elections.

B. An electronic voting system shall:

1. Provide for voting in secrecy when used with voting booths. Docket Code 042