Sidelight in the Election Integrity saga: Brakey innocent. Nelson “over-reached.”

by David Safier
The big election integrity story is happening in Maricopa County as we await AG Terry Goddard's statement about the counting of the RTA ballots. But today, we had a small part of the story play out in a downtown Tucson courtroom.

I spent most of my day sitting outside Judge José Luis Castillo's courtroom waiting to testify in the misdemeanor trial of John Brakey. In September, 2008, Brakey was hauled out of Pima County election headquarters in handcuffs during an audit of the primary elections. I was one of the auditors, which is why his lawyer, Bill Risner, asked me to be a witness.

I never got the chance to tesify. Judge Castillo declared Brakey innocent based on what he heard from the lawyers and from the testimony of Elections Director Brad Nelson, the person who ordered that Brakey be removed. The judge said Nelson "over-reached" in ejecting Brakey. Trial over.

I posted about my experiences at the September audit the day it happened, if you want to read the whole story. The short version is this. I was one of many Democrats, Republicans and Libertarians who went to election headquarters a few days after the election to count ballots from randomly selected precincts. If our results were the same as those the computer generated, the election was determined to be valid. If there were significant differences in the counts, more precincts would be hand counted, until it could be determined whether or not the computer's election results were accurate.

My group of auditors (myself and two Republicans) was handed a bag of ballots closed by a tamper proof seal with a serial number on it. We broke the seal and looked inside for a sheet that was supposed to have the same serial number on it. We found the sheet, but the number was different. I asked Nelson why the numbers weren't the same. He shrugged his shoulders. Maybe the seal was broken election night and they had to replace it, he suggested. Maybe the workers at the polling booth forgot to put on a seal. It didn't seem to bother him much.

The problem is, if the seal numbers don't match, there's no way of knowing the bag wasn't opened and the contents tampered with. It's that old "chain of custody" issue with evidence you see in cop shows all the time, and this chain was badly broken. It's one of the problems election integrity activists complain mightily about, as well they should. You can't assure the validity of an election unless you know the ballots you're counting are the same ones that were put in the bag at the polls on election night.

John Brakey was one of two people serving as party observers that day. He observed the seal problem at my table. I didn't know it at the time, but mine wasn't the only one. He saw a number of other tables with similar chain of custody problems. So he asked auditors at other tables, "Did the number on your seal match the number inside the bag?" Nelson told Brakey he couldn't ask the auditors questions. Brakey said he could, and he was going to continue. So Nelson had an officer cuff Brakey and take him off the premises. Brakey was charged with a misdemeanor.

Bill Risner, Brakey's lawyer, told me the reasons the judge declared Brakey innocent without hearing more testimony (As a witness, I couldn't be inside the courtroom, so I couldn't hear what was going on myself.) The judge said there are no written rules saying a party observer can't ask questions of the auditors, so Brakey was well within his rights. And he also noted the questions Brakey asked were important. It turned out about half the precinct bags opened that day had problems with their seals, which might never have been discovered without Brakey's persistence.

Why did Nelson see red when Brakey insisted on asking questions? Maybe it was because the problems with the seals made Nelson look bad. It's Nelson's job to assure that the ballots are secure, and he clearly botched that job. Or it's possible Nelson was involved in election tampering of some kind, and he didn't like people inspecting his work too closely. Local election integrity people suspect Nelson has been involved in tampering with past elections, the RTA election included.

Nelson has every reason to dislike Brakey, who makes the life of an election director difficult, especially one like Nelson who would rather act on the fly than set up careful, consistent procedures. Brakey is something of a bull in a china shop. When he sees a problem — and he sees plenty in Pima County elections — he charges in without worrying what Emily Post might think. But an election system isn't a Wedgewood teacup. It has to be robust enough to withstand rough scrutiny. The nationally recognized election integrity committee here in Pima County has done tremendous work by scrutinizing our local elections from every conceivable angle. Regardless of the findings in the RTA ballot count, our elections are among the most secure and transparent in the country due to their work. And Brakey is an integral part of that effort.

Brad Nelson comes out looking bad almost every time his work is called into question. And today, in a court of law, Nelson came out looking bad once again.

UPDATE: In a comment to this post, AzBlueMeanie has once again demonstrated an understanding of the political wheels-within-wheels that is far beyond anything I know. If you want to learn more backstory, read the comment. And be sure to make it to the last paragraph where The Meanie says the AG's report "is going to raise even more questions about the Pima County Elections Division."

ANOTHER UPDATE: Brad Friedman, on his nationally respected BradBlog which covers election integrity issues across the county, wrote a good post about Brakey's court date. And if you want more information about what has been going on at the RTA ballot count in Maricopa County, including a concern that "thousands of ballots may be missing," read this Friedman posted Wednesday.