Dec. 18, 2022, Tucson, AZ - A hearing has been set for Monday December 19, 2022, at 10:00 a.m. for thirty (30) minutes in Division 18 Pima County Superior Court. The court will hear the DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT against John Brakey & AUDIT Elections USA. 

Monday’s hearing should be interesting according to attorney Bill Risner and could have a chilling effect on Arizona citizens. Santa Cruz County filed a lawsuit against AUDIT USA and its Director and co-founder, John Brakey, simply because Mr. Brakey requested a public record from the county’s election department. 

AUDIT USA, founded in 2004, is a well-respected 501(c)3 nonpartisan, non-profit organization dedicated to working towards elections that are transparent, trackable, and publicly verified: www.AUDITelectionsUSA.org 

Meanwhile within the last 10 days the Santa Cruz County recorder who made false allegations against Mr. Brakey has resigned her elected post. 

“Santa Cruz County is pulling a political stunt,” said Bill Risner, Arizona attorney for AUDIT USA. “This highly unusual legal action is political theater at the expense of AUDIT USA. Mr. Brakey and AUDIT USA have every right to request this record, called the Cast Vote Record (CVR), just as citizens around Arizona and the United States have a right to request records from their government without fear of retaliation.” 

“For Santa Cruz County to sue Mr. Brakey for simply asking for election records turns the entire concept of public records requests on its head,” Risner continued. “Imagine if every citizen had to fear being sued just for asking for a government record.”

“This should not happen to any citizen,” Mr. Brakey said. “Santa Cruz County is essentially suing me for following the law.  I have a right under our constitution and under state law to request any election record.  If Santa Cruz County does not want to supply the records I requested, they can refuse to do so if they give a statutory reason for denying my request.  If they can’t provide a statutory reason, that’s their problem, not mine.”

In 2020, Santa Cruz County freely supplied the CVR for the 2020 General Election, but the county said in its lawsuit that it is no longer sure that a CVR is a public record. The county wants the court to decide if the CVR is a public record and is asking the court for a declaratory judgment.

In response to Mr. Brakey’s request for the CVR for the August 2, 2022, Primary Election, the county initially emailed Mr. Brakey to let him know that it would provide the CVR by August 18.  Instead, in a surprise move, with no notice or warning, the county filed a lawsuit against him on that same date. 

“The CVR is a very important audit record,” Mr. Brakey said: “It’s a database that lists every anonymous ballot cast in the county in a spreadsheet form. Each row is a different ballot and the columns going across show the votes on that ballot. The CVR is completely anonymous and does not reveal the identity of any voter. It's an important verification of the county’s election results and a document that the public has a right to see.”

“I checked several races in the Santa Cruz CVR against election results for the 2020 election and everything matched perfectly,” Mr. Brakey said. “The CVR shows the selections made on ballots that are already anonymous as soon as they leave the voter’s hands. There is no reason for Santa Cruz County to deny access to this important audit record for the August 2022 Election.”  “Furthermore, Santa Cruz County has supplied the CVR as a public record in the past. I used the Santa Cruz November 2020 CVR as an example in my video of what transparency could look like in Santa Cruz County using this important spreadsheet / database with the anonymous ballot images for publicly verifying election”: Link to video: https://bit.ly/3VIbBou

In a strange legal twist, Santa Cruz County refuses to give the reason why it no longer thinks the CVR is a public record, claiming that their reason is “attorney-client privilege.” In its lawsuit, the county does reference the fact that AUDIT USA successfully sued Santa Cruz County in 2014 over the county’s withholding of other election records and noted that AUDIT USA has a current lawsuit against Maricopa County over ballot images and the interpretation of ARS 16-625.

The Santa Cruz Complaint says it “anticipates” that AUDIT USA will sue the county over the CVRs, so the county is suing AUDIT USA, apparently as a pre-emptive action.  Link to Press Release for the Maricopa County case in the Court of Appeals, Case # 1 CA-CV 22-0254, AUDIT-USA v. MARICOPA which we will have oral argument for on Jan 4th, 2023: https://bit.ly/3RQV0N6

In addition to asking the court for a declaratory judgment regarding CVRs, the county is also asking the court to force AUDIT USA and Mr. Brakey to pay Santa Cruz County’s legal fees. “For the county to ask for legal fees on top of violating John Brakey’s right to request public records is frivolous, brazen, and ludicrous,” said attorney Risner. “For whatever reason, Santa Cruz County doesn’t want transparency and doesn’t like the citizen oversight that is part of AUDIT USA’s mission. They are seeking to financially destroy AUDIT USA with legal fees.” 

Mr. Brakey was asked by several citizens and two candidates from Nogales to review Santa Cruz elections processes and procedures. A big part of their concerns were the operations of the county recorder’s office, specifically the total lack of transparency, the incompetency, and concerns of possible corruption with the vote by mail that the county recorder had total control over with little to no oversight. 

Santa Cruz County historically finished in the top half of our state in voter turnout. In the last 10 years, elections in Santa Cruz now finish close to the bottom in turnout of AZ 15 counties. In the most recent election Yavapai County had a turnout of 75.20%. Santa Cruz County came in next to last at 45.59%, only beating out Yuma by 1.05%. 

“REAL transparency is vital to overcoming the general cynicism that is all too prevalent today in Santa Cruz County, our State and Country.” Brakey said: “Suing citizens for asking for public records sends a very bad message to the public and only creates more cynicism. This is why transparency is so important in elections. It is the currency of trust, and without it our democracy will surely die in darkness. We must ensure that elections are transparent, trackable, and publicly verified to protect the integrity of our democratic system and ensure that the voices of the people are heard.”

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Links to documents and the Pima County Superior Court Case No. C20223426. 

·        Plaintiffs Santa Cruz County’s VERIFIED COMPLAINT filed 10/18/2022, with exhibit #1- BRAKEY’s & AUDIT USA Public Records Request: https://bit.ly/3Kdc7FQ

·        On October 20, Defendant AUDIT USA filed a Motion to Dismiss because Santa Cruz County has not said a claim upon which to base relief. Link to Motion to Dismiss: https://bit.ly/3MKq5Qx 

·        Plaintiffs’ response in Opposition to Defendants’ Motion to Dismiss filed 11/01/22: https://bit.ly/3HJ4wiN and Plaintiffs’ Important Exhibits to Defendants’ Motion to Dismiss filed 11/01/22: https://bit.ly/3V4LUgm 

·        Defendant AUDIT USA Reply to Plaintiff Motion, filed 11/15/22: https://bit.ly/3FZXHbt 

·        Court Order for Hearing on 12/19/22 on Defendants’ Motion to Dismiss: https://bit.ly/3FAhr43 

 AUDIT USA has produced a video that explains the importance of CVRs and how to analyze them. THE FIGHT FOR ELECTION TRANSPARENCY. Showing a Cast Vote Record (CVR) and How to Analyze It.  Part 2: Shows how to take a CVR and convert into a Ballot Image Audit (BIA) database by importing that ballot image and the single CVRs in the spreadsheet by precinct to verify if the election and prove if the results are correct: https://bit.ly/3VIbBou