Greetings. It's great to be here, even though I'm not there and we're not in Vegas. Well,
maybe you are, but I'm not. And after years of pilgrimage to Vegas and DEF CON and other
security conferences, primarily to speak about, well, privacy and security and inevitably
Bitcoin, I never imagined that I would be doing this virtually, especially not for the voting
villages or voting village rather than the crypto and privacy villages where I normally hang out.
But with that said, I have spent significant time in the voting village and I've even included a
couple of photos in this presentation to help bring us back to our in-person DEF CON days.
Which we will surely return to. But for now, our virtual CON is our reality. So I hope this
presentation helps to educate you and brighten your summer in safe mode. Please find me on Twitter
if you have any questions. I'm at Cordero underscore ESQ. And with all that out of the way,
let's get into it. A lawyer's reflections on elections. Let's get into it. So who is Cordero?
That's me, the lawyer speaking now, providing reflections to those that will listen.
And without reiterating my entire biography, I want to quickly go through a couple of these points.
I'm a partner at Sublime Law, which focuses on business and intellectual property.
I lead our emerging technologies practice group. And before joining Sublime Law, I worked at a
forensics and cybersecurity professional services firm in Silicon Valley, as well as a large U.S.
law firm, where I focused on privacy. I graduated ASU Law with honors, focusing on law, science,
and technology. And I worked at ASU's innovation advancement program. But most relevant for today,
I'm a former political candidate that has a story to tell that is part of a larger and
more important narrative than any single election race or election case. So what will we not be
going over today? What's not on the agenda? I will not be making a political statement
in support of any party. I won't be litigating any lawsuit or critiquing any judicial officer.
So with that out of the way, let's get into the agenda of reflections.
First, I'm going to explain the structure of the American government,
including state and federal similarities. Second, I'm going to introduce how my lawsuit came to be,
the origins of the campaign, and the lawsuit that followed.
Three, I'm going to highlight issues and share the oddities of election law that I learned along
the way. And fourth, I'm going to share some information and some resources for your reference.
And finally, as you can see on the bottom, the overall objective here is to educate
and broaden the community of people that can become experts in how the system works
so they can help improve it over time. Getting into it, democracy now.
You may already know that the U.S. federal system has three branches of government.
And to keep things simple and to appeal to DEFCON's global audience, this slide represents
how the U.S. Constitution, through its different articles, structures the federal government.
This system of co-equal branches of government is meant to accomplish an appropriate balance of
powers, thereby achieving a level of accountability and independence that is good for governance.
You can think of these branches of government as the rule makers, rule enforcers,
and rule interpreters. But there's more to the U.S. than the federal national government.
There are state and local governments. The states follow a similar structure of government,
using a state constitution and establishing co-equal branches of government.
But what is more important to understand is that these local state governments are
typically much more impactful than the federal government in terms of your everyday life.
So how do the national and state local governments share power? Let's take a look.
Wow, this one might make your eyes glaze over, but stay with me. We know from before that it is
the constitutions that inform us as to the sharing of powers between the federal and state
local government. For instance, as you can see on the bottom of this slide, the 10th Amendment of
the U.S. Constitution declares, as we'll discuss more later, the, and I quote,
the powers not delegated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people. That's a mouthful and a very
old sentence. We're talking 1776, right? So what does that mean? In other words,
states have all powers not granted to the federal government under the Constitution.
So conveniently, this slide gives some examples of the sharing of powers
via exclusive and concurrent powers. And what should really be a Venn diagram,
but let's just focus on this slide from left to right. The exclusive federal powers are things
like coining money and declaring war, conducting foreign affairs. In the middle, we've got
concurrent and shared powers, and those are things like taxation and establishing courts.
And finally, on the right, we have exclusive state powers, like conducting elections. And that's a
little bit of a gray area because the federal government does have some administration
aspects related to elections. And I wouldn't really call it a completely exclusive state power,
but the states do control the elections and how they proceed. There's also providing for public
safety, health, and welfare. But the point of showing this slide is to demonstrate
that state and local governments have much more power to influence communities than is often
expected by its citizens. So let's explore some of those local powers some more.
The impact lies locally. Just take a minute to take in the amount of powers and responsibility
that is delegated to local authorities. We have budgeting, prioritizing, human resource functions,
program management, taxation, ordinances and resolutions, charter and constitutional amendments,
zoning and land use and eminent domain, regulating public health and safety,
as we previously discussed, and liaisoning to other governments.
But for today, we want to focus on elections. So now that we've briefly examined some of the
structural foundations of the American government, we have arrived at our next point on this journey
of learning. And that is the second point in the agenda. Stories from my own campaign
and related lawsuit while seeking a seat on the local city council of the city of Peoria, Arizona,
not Peoria, Illinois, for all the Midwesterners listening. Shout out to Sec KC, by the way.
So why run? Well, I hope that the previous slides have established,
at least in part, that running for local office can provide a great platform to bring positive
influence to your community. And specifically, on this slide is my answer in quotes to this
question of why run that I gave to the local newspaper, Peoria Times. I talked about my
campaign platform, community safety, more engagement, and better protection of people's
opportunities and legal rights. I also talked about my qualifications as a lawyer and my
connection to the community. But what isn't on this slide or in the newspaper is clarification
of what kind of candidate I was and how that impacted my chances of winning.
And I don't mean what kind of candidate I was in terms of person or party affiliation,
but from a procedural perspective. That is to say, I was a write-in candidate.
To understand write-in candidates, think of Kanye West.
He would most likely be considered a write-in candidate for the 2020 presidential election,
but he would not be considered an official write-in candidate because he probably has not
filed the necessary paperwork. Just as individuals often write-in candidates like
Jesus or Mickey Mouse, these candidates are not official. They cannot serve
if they get the requisite number of votes. This is because they haven't complied with the other
rules and regulations or filing of paperwork that might be necessary.
So I was an official write-in, meaning that votes for me would count and meaning that I filled out
the extra necessary paperwork. But why was I a write-in? It's an unusual election that I took
part in and it also coincided with an unusual and unfortunate time in my own life, but I nonetheless
found it important to carry on as you'll see in the next slide. Despite the fact that most
write-in candidates lose their elections, why continue? Well, as was noted by my alma mater
here on the right side of the slide, I felt compelled. But more importantly, why I felt
compelled was because of my care for the community and to carry on what others before me had started.
For instance, Carlo Rocky Leon, who became a sort of mentor to myself and my sibling,
had received honors from the National League of Cities and earned the respect of his constituents
in my city for over 20 years. I wanted to carry that legacy forward and I would get that opportunity
to try in 2018, or rather 2019. But let's first start with 2018.
Background to the 2018 race, which I did not take part in. As I mentioned,
someone I looked up to, Rocky, who was the Pine District Councilman for so long,
he actually won the 2018 race, which I did not partake in. But unfortunately, a few months into
it, Rocky's term was cut short and due to health reasons, he was forced to resign.
So this brings us to the background to the 2019 special election race.
You can see there are two ballot candidates, Danette on the left
and Randall on the right. And there's me, the write-in candidate, in the middle. This story
gets a bit more complex. During the election, Reigns drops out for health reasons and it is
reported that he has said about his medically forced withdrawal that having a very qualified
write-in candidate makes his decision a little easier. This will allow the voters to have a
choice in this election. Hopeful for voter choice? You can see Reigns' quote there,
on the left and on the right. And perhaps Mr. Reigns knew something that I didn't at that time.
In fact, it's interesting to note that Mr. Reigns was passed over by the sitting Peoria Council,
who made Danette Dunn the interim council member and seemingly favored Dunn after publicly backing
her at events in the 2018 race that she lost. Thus, it's very possible that Mr. Reigns may
have already been aware of something afoot. But what was it? And this brings us to the controversy.
Might not have been what Mr. Reigns was thinking about, but he was concerned with the city
providing choice to its constituents. And I'd like to begin talking about this lawsuit by reading
the introductory paragraph of our complaint, because this gives the high-level story of the
lawsuit from my perspective. Though other lawyers may simply call it hyperbole, the ones listening
in on the voting village will probably not. I quote, most election experts across the United
States of America agree that our election processes are vulnerable in a variety of ways.
These are not limited to attacks on elections from outsiders. In fact, this statement of contest
concerns an unscrupulous internal attack and misinformation campaign that led to an election
result that is believed to be illegitimate. Indeed, a democratic state necessitates that
its citizens are adequately informed by the state, or at a minimum, are not misled or misinformed
by the state about election matters. So what really happened? You can see something there
on the right about a postcard. And we'll definitely get to that. But the allegations
against the city are many and should be viewed as cumulative. The allegations range from enforcing
inaccurate and outdated sign regulations against my campaign, withholding voter data, improperly
removing my campaign signs, inciting my campaign volunteers for irrelevant code violations.
However, one of the primary controversies as it relates to this special election in 2019
is about a postcard. And specifically, the city overstepped its responsibility
and improperly did so, not in accordance with the letter of the law, by sending out a postcard under
a pretext of an update, when that update clearly helped the city's preferred candidate over all
others. Essentially, the city of Peoria, despite having an agreement with the Secretary of State
to handle the election procedures, took it upon themselves to release a postcard not in line with
the letter of law on or around the day that the ballots arrived. As you can see on the right side
of the slide, the postcard, which the court ultimately confirmed was sent to voters not in
accordance with the letter of the law, appeared to many voters to be confusing and as an endorsement
of the other candidate. For the record, this was an all-mail-in election. And what's extra notable
is that in order to win in the primary, you must win by a certain percentage, 50% plus one.
And this is important because if there isn't a conclusive winner, then the general election
would need to happen and all candidates would be on the ballot, including the write-in candidate
myself. So in that context, the content of the postcard becomes very clear in its motives,
especially its timing. The postcard contained a message that wasn't meant to simply inform
of all candidates. In fact, it didn't inform of all candidates. It was meant to partially inform
of candidate updates and ultimately discourage wasted votes on one candidate in exchange
for the other known candidate on the ballot.
Let's take a closer look. As you can see here, on the left is the law. This is a part of our
complaint. And on the right is instructions that the Secretary of State, not the City of Peoria,
the Secretary of State provided. And you can see the law in ARS 16343G, which is excerpt on the
left side of the slide in our complaint, requires that notice of withdrawn candidates shall be made
available by providing with the early ballot instructions, the things on the right, a website
address for information regarding withdrawn and write-in candidates. So on the right side,
look what was provided by the Secretary of State. It's circled right there, a website address for
updates about candidates. This follows the law. But this wasn't all that was done. This is all
that should have been done. But let's look to the next slide to see what the city actually did
in terms of notice to its voters, which we already know was in addition to what the state
election law provides, right here on this slide. So the postcard is on the right.
And the details are clearly more than what is required. It states how Mr. Raines is no longer
a candidate and that votes towards him will not count. Don't waste your vote on him. He's not,
he's out of the race. So the implication here is if you want your vote to count, it's to vote
for a single person on the ballot. Then that's done. Or simply abstain from voting because
a lack of awareness of another candidate. Notably, write-in candidates have the biggest challenge of
really marketing and letting people know that you're out there and you're
in the race and you are wanting to represent their interests. And
to have this postcard come out and simply provide what seems to be a partial update,
not in accordance with the letter of the law. From my vantage point, this is a clear violation
of law. It's not just not the letter, it's a violation. And the court agreed insofar as the
city was not following the letter of the law. But as you'll see, that didn't matter much in the end.
So what did I request as a remedy anyways? I wanted the results set aside. I wanted to
organize a general election as scheduled and required if primaries are inconclusive.
And to get on the ballot of any new election. And crucially, I wanted to stop officials from
exerting improper influence or engaging in misconduct. But what's really important to
understand is that I did not want to file this lawsuit against my hometown. This is
a painful experience, one that was awkward. And ultimately, just as I felt compelled to run as a
writing candidate, I felt compelled to file this lawsuit for my community and the hundreds of
individuals that wrote my name on the ballot. Correctly, I might add, which is a feat. And
because I saw something that I thought was wrong, I thought it was a violation,
I wanted to have a judge take a look at it and make a determination for the betterment of our
election system. But that's not exactly how the press covered the story. And it's not how the
city viewed the lawsuit either. So as you might expect, the city of Peoria maintained that they
did nothing wrong. The city of Peoria and interim council member Dunn sought dismissal of the
action. The city went as far as claiming that the court didn't have jurisdiction over the city
due to perceived lack of service of process. And I'm not going to go into
why I don't agree with those arguments, but I will go into some of the procedure.
And this is for all the legal nerds out there. The case was set for a hearing on a motion to
dismiss, but we ultimately received an expedited hearing on the merits after informing the judge
through another emergency filing that the case was an election contest. And that we were entitled
to an evidentiary hearing on the merits of the case within 10 days, according to Arizona law.
The judge agreed and we were eventually offered an evidentiary hearing, but we were ultimately
not successful, despite that we believe there were multiple violations of law and that the city
admitted in court for the application of inaccurate election-related regulations against my campaign.
Moreover, the press was not particularly kind, making the lawsuit appear frivolous and as a
waste of resources, so much so that I was getting additional hate mail. Something you just get used
to as a politician or a would-be politician, I guess. Also, what's critical is that the judge
did not believe the lawsuit was frivolous and did not order me to pay the city or Dunn's attorney's
fee. I guess that's a small win. So, before discussing lessons learned, I want to turn to
Montesquieu on the spirit of laws, because it is relevant to how I feel in this instance as,
well, they follow the spirit of the law, not the letter. But it's also relevant because it
was required reading for our founding father. Montesquieu writes in reference to a brutal state
with not much of a procedural due process in terms of a legal system,
I quote, for one to have the passions of pleaders would be quite dangerous. The passions presuppose
an ardent desire to see justice done, a hatred and active spirit, and a steadfastness in pursuit
of justice. To me, this quote stands out because I believe I was perceived as a threat, a political
one, and upon making my pleadings be known in court, I was considered even more so, despite
that in my heart, spirit, and action, I was simply seeking justice for the people. Maybe that is
exactly why. But just as the local paper's quotes of mine on this slide demonstrate, despite
disagreeing with the decision, I decided to move on and not appeal for practical reasons like money
and time and futileness. Or perhaps, as in the words again of Montesquieu, each man
should know that the magistrate must not hear of him and that he owes his safety only to his
nothingness. So, no appeal. Alas, all said and done, I consider this lawsuit a small victory
towards ensuring election integrity, and I hope the lawsuit encourages others to file similar
legal actions. It should be noted here that if you're a voter, you probably have legal standing
to sue. You don't have to have skin in the game like I did. So, if you see or experience suspicious
activities or misconduct during an election, say something. Now we can get into the bigger picture
and lessons learned. So, this personal experience that I wouldn't really wish on anyone made me dig
deeper into our electoral system. And from my research and experience, it has become increasingly
clear that many human and structural problems exist, including how the branches of government
share power related to elections and the jurisprudence related to how the courts decide
matters of importance concerning election issues. Although I do not bring forward a complete solution,
below are some of the primary issues that I believe we need to address as a society to ensure
a more secure and fair democracy. We need to implement strong federal standards for protecting
voting rights and eliminate pretexts for stacking the deck. The case that really comes to mind is
Roosh versus Common Cause, which is a 2019 Supreme Court case involving North Carolina
and Maryland racial gerrymandering, which is, of course, redrawing of district lines
to have a political guarantee of seats, say. And the court ruled against the plaintiffs,
finding that the partisan advantage is actually permissible in terms of intent
behind districting choices, because this issue is to be left with the legislature
and not to be decided with the courts. And the turning point for the decision was,
there are no legal standards that are discernible.
And they turn to fairness, and they say, fairness, as you can see on the slide,
fairness is not a judicially manageable standard. And I find that
to be untrue, because courts sit in fairness and equity all the time. So a decision like this,
it makes a lot of people cringe. And I believe this was a 5-4 decision, meaning it was really
close. And that means our Supreme Court justices were not in agreement. And so hopefully this case
gets revisited along with some other cases. But I don't have time to go into a whole lot of other
cases. But what I would like to discuss is the pandemic election litigation happening in 2020.
And as of right now, there are dozens and perhaps maybe by now hundreds of cases
that over the past few months, have been just ticking up in terms of numbers. And this really
spells trouble. It could either be a good or a bad thing. It means people are fighting inequities.
Or, and I guess there's each dispute will have a side to it. I just hope that a lot of these
pandemic election litigations get resolved in the proper way. Because these are dealing with
things like, how do high risk individuals in a pandemic, in a hotspot, accomplish voting safely?
This is not something that America should really be struggling with in 2020. It seems
it seems beneath us. And I really implore all those that are still listening to speak up about
these election fairness issues, and voting rights and become more knowledgeable on these topics.
I'm not the top expert in this field. I'm a privacy lawyer, data protection lawyer.
This is something I learned almost on accident. And so for all those that aren't on the front
lines of the litigation, let's go to the bottom of this slide. I would say get involved in the
fight for democracy and more secure elections by getting involved in different organizations,
like support fighting election disinformation, which is what the election and integrity
partnership is doing, EIP. And I love this idea because they are not focused on the candidates,
what the candidates are saying. They're focused on content. So not necessarily political content,
but content intended to suppress voting, reduce participation, focus or confuse voters as to
election processes, or delegitimize election results without evidence. These are certainly
big ticket items and challenges in 2020, especially with November, right around the
corner. And with so much misinformation out there, not simply by, as in this case,
it was alleged that the misinformation was coming from the government. And I think that's happening
probably throughout the government of the United States. But I think as it relates to a lot of
disinformation, we have to be very wary of things we're seeing online. So do your part in
encouraging others to be careful, those that might not be so digitally savvy as those that
might be listening to this presentation. So I really want to close this with some concluding
thoughts and not get too hung up on a lot of the other cautionary tales that are out there.
And clearly, as I mentioned, there's dozens and dozens of them that are playing out in the courts
right now. So be on the lookout for those things. Be aware of these things that are happening
and speak up against them when you can. So to conclude here, this story and experience,
it didn't make me lose faith in democracy. It wasn't a negative experience. There were
negative aspects of it, that's for sure. There were painful moments. But speaking to
constituents that felt like they were misled by the city, and they're asking you to help fix it,
that was something, again, I felt compelled to do. And I did it. And we fought the fought,
but we lost those battles. And I think the war is still raging on. So these are two lost battles,
a lost election and a lost litigation. But I did learn a lot. It was a journey of learning.
And I didn't think I needed it as a lawyer. But I did. And I'm glad I endured this.
And some of the lessons that I learned are listed here. So we can read through the slide together.
Democracy is not perfect, right? It's made up of humans. You get things wrong. And it's not
just institutions, right? It's not just separation of powers. And that's it. Everything's okay.
And hackers know the persistent vulnerabilities of humans in pursuit of securing any information
system. So it should make sense to you all here that humans need monitored closely,
especially when democracy is at stake. Strengthening voting rights and securing
elections will require hard work and advocacy, which usually means money and lawyers and
lots of it and them, for better or worse. And election litigation, as I've come to find out,
is a beast of its own. Remember, I'm a data protection lawyer and not an election lawyer.
This happened by accident. And knowing the importance of these cases,
these election cases and the expedited schedules for resolution,
makes this fight for democracy very difficult without experts. So if you see something,
say something. If you're involved in helping advocate for voter rights and you see something
or you run for local office and you see something that you don't think is right,
reach out. Reach out to me. I may not be the person to help you, but reach out to somebody
that has more knowledge than you do. I perhaps would have done better in the litigation had I
sought out an election law lawyer early in the process, but that wasn't in the cards for me.
I hope it will be for you if you ever find yourself in such a bind. And here's the bonus
lesson. You might already know this one, but for those of you that get into politics, local
or otherwise, or find yourself, for whatever reason, speaking to the press, do not blindly
trust them. Usually they're not interested in telling your story or sometimes not even the
true story. And they are often interested in telling their own version of the story for their
reader base. And I can't hate them for that. They are making a living. That's their job. But do not
trust them blindly. It will do more damage to you than good. I would bet on that.
So thank you so much. And I'm happy that I had this opportunity to do this,
even if it was virtual. I really appreciate all of you that stuck it out and made it this
long. Thank you so much. I appreciate you. If you have questions, please reach out to me. And as you
can see here, my own lawyer on this case, who is also not an election lawyer on the left there,
Brittany, is another sublime law attorney. And she's here with me on the left there
at DEFCON 27 Voting Village. And we will return. So if you see us, make sure to say hello. We will
definitely stop into the Voting Village and try to gain some additional knowledge as the years go
on. So thank you all and have a great and fantastic rest of your summer.