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John BrakeySeptember 7, 2008

During Saturday’s audit of Pima County (Tuscan) ballots from Arizona’s primary election, official observer John Brakey was forcibly removed by sheriffs when he raised questions about possible ballot tampering.  At least seven ballot bags arrived unlocked or lacked proper chain of custody documentation.  Elections Director Brad Nelson had Brakey arrested and charged with criminal trespass. 

“I was doing my job!” Brakey said, who represented the Democratic and Libertarian parties in an official capacity at the state-mandated audit.  “The first thing you do is check the seals.  Are the ballot bags locked?  Do the numbers on the seals match the seal number listed on the documentation inside of the bag?  This lets us know that the ballots were properly stored and sealed by election workers, and arrived with chain of custody intact.”   

Brakey’s attorney, Bill Risner, called the noon arrest “outrageous.”  He plans to enter his appearance on Monday and will seek a trial on this matter.  He wants Nelson and the sheriffs to explain, on record, their removal of an election official who questioned improperly received ballots.  Risner explained:

“It’s a bad situation here.  We have an incompetent Elections Director who is working against the interests of our political parties.  Nelson is intentionally creating confusion and slowing things up to blame the Democrats for his own internal problems.

“I’d be surprised if the prosecution proceeds. The whole essence of the crime requires that he be shown to have been unlawfully present at the counting center.”

Election Defense Alliance is covering the story and dug up this television news video of the incident from KGUN TV, Pima AZ. FatallyFlawedTheMovie.com posted this lengthier video providing deeper coverage of the arrest.

Brakey noticed that seals on three ballot bags arrived broken.  He then asked nine counting teams if the documentation inside the bag, known as the “End of Day Certification Reports,” were properly completed.  At least seven bags did not contain the legally required documentation.

“You can’t count those ballots – there’s no chain of custody,” Brakey advised. When ballot bag seals are not properly affixed, anything could have happened to the ballots from the time they left the poll site on the 2nd.  A break in chain of custody, or lack of proper documentation of that custody, precludes any rational basis for confidence in ballots being audited.

Brakey observed the opening of one bag by Director Nelson, who pulled out a scrap of paper with two signatures scrawled on it.  Brakey questioned this, but Nelson assured him he knew those election workers and deemed those signatures valid.  “How can he know them? You couldn’t even read those signatures, and there are 3,000 poll workers in the county.”

According to the Arizona Daily Star, Nelson estimates incongruities were found with only two or three of 18 bags, likely caused by poll-worker errors on election night. While Nelson admits that asking questions is appropriate, he added that inquiries should be directed to him and not to the ballot-counters.  “He refused to direct questions to me,” Nelson said.

Brakey advised he only spoke with ballot counters who were chit-chatting, and did not interrupt them from work.  After ascertaining that a bag had not been properly sealed or documented, he “advised them to watch for discrepancies.”

That’s when Brakey was asked to leave the building.  But he refused to leave until Pima County Sheriffs handcuffed and physically removed him.  Witnesses were shocked at the rough treatment, imploring the officers to go easy.  “He’s got a broken wrist.  Be careful!”  Brakey’s cast was recently removed, but the wrist is still tender.  “I’ve got a little swelling there now, but it’s fine,” he said on Sunday.  “But I squealed in pain when the cuffs were squeezed.”

Brakey is a co-founder of Arizona-based AUDIT-AZ, which stands for Americans United for Democracy, Integrity and Transparency in Elections.  He also helps coordinate the Investigations Unit of Election Defense Alliance.  Election observation is a critical task that advocates have long promoted.  Brakey agrees:  

 “The problems we have with our elections are on the inside.  The solution is on the outside.” 

Brad Friedman reports that Brakey is the “citizen hero (and yes, a community organizer!) who helped shepherd the landmark lawsuit recently brought by the Pima County Democratic Party resulting in the release of Diebold database files showing how voters actually voted in a 2006 election and earlier. The databases were sought after fraud was (and still is) suspected in a number of important elections and ballot issues.  Both Pima County and Diebold had opposed the release of information on how voters voted, citing security issues and Diebold’s claim of ‘proprietary trade secrets.’

“The lawsuit was successful, as the judge ultimately disagreed with the County, leading to the largest release of such databases ever in this country.”  Attorney Bill Risner was lead counsel in that lawsuit.

Pima County, Arizona experienced a 24% turnout on September 2nd of 471,187 registered voters.  Two-thirds cast “early” ballots while the rest voted at the polls.  All the votes were counted on Diebold-Premier optical scanners.  Diebold-Premier recently admitted a flaw in its GEMS program that drops votes, which the company said could not be fixed before November’s presidential election.  The flaw exists on all Diebold voting products sold in the last ten years.