Free Press readers are likely aware of the efforts of John Brakey and AUDIT USA. The thrust of their work is that “Elections must be transparent, trackable, and publicly verified”. All the efforts of AUDIT USA revolve around this concept, including the fight for hand-marked paper ballots; opposition to ballot-marking devices (BMDs) for all voters; and the ongoing effort in multiple states to require the retention of ballot images and make those images a public record.

AUDIT USA’s successful litigation in 2016 forced Arizona counties to preserve ballot images and the organization’s current litigation in Arizona will make ballot images a public record. AUDIT USA’s current litigation in Florida will require Florida counties to retain ballot images in accordance with state and federal laws. AUDIT USA has been the primary driving force in the U.S. behind the increasing recognition of ballot images as vitally important, redundant election records that must be retained and must be available to the public.

In response to a public records request made on July 28, 2022 asking for election records from the August 2 Primary Election, Santa Cruz County sent a letter to AUDIT USA on August 11 promising to provide the requested records on August 18. Instead of providing those records, however, the county sued AUDIT USA and its director, John Brakey, on August 18th - the same day it had promised to provide the records, asking the court for a declaratory judgment as to whether Cast Vote Records are available to the public under Arizona statute 16-625.

This is commonly referred to as SLAPP lawsuit (Strategic Lawsuit Against Public Participation”), which is designed to silence or intimidate citizens who exercise their First Amendment rights — in this case, the right to request public records.

Good News! In a unanimous decision issued on October 20, the Arizona Court of Appeals, Division Two, affirmed the dismissal of Santa Cruz County v. AUDIT USA & John R. Brakey in a ruling that the County’s preemptive lawsuit was non justiciable. This is a victory for transparency as the Appeals Court ruled that governments cannot sue citizens for asking questions. AUDIT USA celebrates a major win for open government. The Court found that “the County’s declaratory judgment action states no ‘adverse claim’ against AUDIT USA” and sought “a premature judgment or opinion on a situation that may never occur.” The decision reaffirms that public bodies cannot sue citizens simply for requesting records — doing so would chill the public’s right to know. This marks a significant victory for public records requesters and election transparency advocates statewide. The Court emphasized that allowing governments to sue requestors “would burden a requester’s statutory right to seek public records… [and] could frustrate” Arizona’s commitment to open government. The panel further noted that it is not the role of the courts to give advisory opinions and if officials want guidance, they should request an advisory opinion from the Attorney General — not file a lawsuit.

We at the Free Press salute John Brakey and Audit USA. This lawsuit inhibited their work for 3 years. The future of fair election in America is very much in doubt as the Orange King is unlikely to give up power as long as he is able to breath. Congratulations for this victory and for fighting for free and fair elections.