The Tucson Connection in the Alabama Election

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Last week's big political news was the upset victory of Democrat Doug Jones over Republican Roy Moore in Alabama's election for U.S. senator. There was also an important but not widely reported drama behind the drama of the election itself: the question of whether digital records of the voters' paper ballots should be saved. Featured in that drama was John Brakey, the Tucson head of AUDIT-AZ.

Jones' win was sizable enough—about 20,000 votes, a 1.5 percent margin—that everyone accepts his victory except Moore and some of his most ardent supporters. But if the margin had been narrower and a recount was called for, the digital records question could have been a significant part of the story.

In Alabama, as in Arizona, voters' paper ballots are fed through optical scanners, which then count the votes electronically. The scanners can easily save the ballot images. It's just a matter of flipping a switch. But in Alabama, when the scanners are turned off, the images are destroyed. Brakey, working together with a group of Alabama voters and a lawyer with vast experience in election recounts, fought to have the images preserved. Dec. 11, the day before the election, a judge agreed and ordered that the images be saved. Later that day, the Alabama Supreme Court stepped in and blocked the lower court ruling.

Arizona's scanned ballot images used to be destroyed as well. However, according to Brakey, "In Arizona, it's no longer permissable because we sued Pima County and won the case." The decision to save the images was adopted in ten other Arizona counties which use the same machines.

Brakey decided he wanted to expand beyond Arizona. "I've been traveling the country for years doing speaking engagements" he said. "I gathered together my peers, and we're getting organized." He's working alongside Chris Sautter who Brakey calls "the number one election attorney in the country."

Sautter's bio lends credence to Brakey's praise. Sautter coauthored a book, The Recount Primer, in 1994, worked on the 2000 Florida presidential recount for Al Gore and was the lead attorney for Al Franken in the 2008-9 Minnesota recounts. He worked with Barack Obama's campaign as well. Brakey says they met when Sautter came to Arizona during the 2016 primaries to do work for the Bernie Sanders campaign.

Sautter acknowledges Brakey's importance in the fight to preserve ballot images. In an interview with Brad Friedman, who writes and speaks about election integrity issues, Sautter said, “John Brakey founded or cofounded this movement in Arizona, and he is expanding his organization so that it can begin to move in other states.” They decided that Alabama was a good place to expand their work on preserving scanned ballot images nationwide.

Brakey hopes to go beyond simply preserving the ballot images. "We want the images put online by precinct, and anyone can pull down the results and count them.” Some states, including Florida, Michigan and Wisconsin, currently make the scanned images public.

The fight in Alabama isn't over. The state Supreme Court simply stayed the ruling to preserve the ballot images, they didn't rule against it. Brakey, Sautter and the Alabama voters will have their day in court in January to argue that future images should be preserved.

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