Alabama Supreme Court Blocks Digital Ballot Preservation in Eleventh Hour

The Alabama Supreme Court stepped into Tuesday’s U.S. Senate race between Republican Roy Moore and Democrat Doug Jones on Monday night by blocking a lower state court’s ruling earlier in the day that ordered election officials to take steps to preserve digital images of every ballot cast Tuesday.

In effect, the Alabama Supreme Court’s stay—or freezing—of an earlier court order to preserve the digital ballot images undermines the best-case scenario for ensuring that an accurate vote count can be verified in the controversial Senate race.

Alabama’s Supreme Court, where Moore served as chief justice, did not issue an explanation with its stay. However, a lengthy brief filed at the close of business Monday by state attorneys on behalf of Alabama Secretary of State John Merrill contained a list of eyebrow-raising assertions, such as Merrill had no authority to tell local election officials how to operate their voting machines. The state also said only private vendors holding contracts to program the machines could do so—and that it was too late for that.

“The only Defendants to this case—Secretary of State John Merrill and a member of his staff—do not have authority to make changes to voting machines or to require local officials to do so,” the state’s brief said. “It [Monday’s earlier court order] purports to order Counties, which are not parties, to take action that the Secretary believes is impossible to complete before the election and which will disrupt the election. The order will cause confusion among local election officials who are not party to this suit and who will be unsure of their obligations.”

Chris Sautter, a Washington-based lawyer specializing in election law who helped the Alabama-based legal team and plaintiffs, said Merrill’s argument was plainly “disingenuous” and designed to sabotage the necessary steps to ensure the full public record in Tuesday’s election will not be destroyed.

At issue in this case is the simple fact that Merrill and his elections staff refused to tell county election offices to check one box in the software running the scanners that will read the ink-marked paper ballots and tabulate the vote Tuesday. Everything else cited by Merrill’s attorneys is a legalistic sideshow distracting from that basic fact.   

However, the 11th-hour intervention by the state Supreme Court all but runs out the clock on any appellate process that could be meaningfully executed on Tuesday, Sautter said. It hardly matters that Alabama law requires all election materials be preserved for six months, and that federal law requires all election materials be preserved for 22 months. By the time Sautter and the Alabamians his legal team represent get their day in court, state election officials will likely have certified the winner of Tuesday’s Senate race.

“In the long run, we can win on the principle [of preserving digitized images of every paper ballot vast] for 2018,” Sautter said. “Even if we could go to the Eleventh Federal Circuit [Court of Appeals] and file before midnight, they are unlikely to do anything in order to allow the images to be preserved.”

The state's brief shows how far Alabama's red-run state government will go to obstruct the best practices to verify Tuesday’s count.

To start, the state argues that all the paper ballots will be preserved—even though they are not what’s used to tabulate the statewide vote total, and would have to be rerun through scanners if there was a recount. The state's brief also said the ballot images are not retained by their voting machinery, but doesn’t say why. Why? Because a box on a computer screen needs to be checked.

“Some voting machines take a digital image of voters’ paper ballots, and presently most machines do not retain that image,” the brief said. “Instead, the paper ballots are preserved in the event of an election contest or other need to examine the records.”

The state went on to say that no county election official was capable of checking that box on the software operating the ballot scanners. The state also said the secretary of state, the top statewide election official and a constitutional office, has no jurisdiction over voting machines, which are essentially privatized.

“The voting machines are under the authority of the Probate Judges, not the Secretary of State, and the Secretary of State is not party to the contracts between Probate Judges and ES&S to maintain and program the voting machines,” the brief said. “To change a machine’s program would require a third-party vendor, ES&S, to go to 2000 machines around the state.”

This is a real-time snapshot of how partisans hijack elections. The arguments put forth by Merrill’s attorneys are meant to sound neutral and technical, when actually they have explicit partisan conflicts of interest. These arguments clearly paper over the fact that the state has no intention of using best practices to ensure transparent vote counts, just as the state is willfully ignoring state and federal law to preserve all election materials as a public record.

Indeed, as Pima Levy has written for Mother Jones, Merrill has taken a heavy-handed approach to making voting harder during his tenure, which is stark contrast from his stance on Monday that he has no power to preserve ballot images.

"This time last year, Alabama’s chief elections official landed in the national spotlight for delivering a screed against nonvoters that many people interpreted as an attack on African Americans in the state, who have long faced barriers to voting. 'If you’re too sorry or lazy to get up off of your rear and to go register to vote, or to register electronically, and then to go vote, then you don’t deserve that privilege,' Republican John Merrill said in an interview with documentary filmmaker Brian Jenkins," Levy wrote. "Jenkins had asked why he opposed automatically registering Alabamians when they reach voting age, and his response sizzled with anger toward people who “think they deserve the right because they’ve turned 18.” So he made a pledge: 'As long as I’m secretary of state of Alabama, you’re going to have to show some initiative to become a registered voter in this state.'"

Alabama's governing classes have a long history of suppressing the vote, including this past decade deploying a menu of tactics from extreme gerrymandering to toughening ID requirements to get a ballot—and then closing the state offices that issue those IDs. But this last-minute intervention by the Alabama Supreme Court to muddy the vote count in a U.S. Senate race where a former chief justice is a candidate breaks new boundaries.    

Even Rick Hasen, the University of California law school professor who runs the nation's most influential election law blog, was stunned by the court's actions.

"It appears that the court issued its order within minutes after the stay request, without giving the other side a chance for briefing," he blogged. "How could they have had a chance to fairly consider the issue?" 

Hasen then quoted a timeline from, the online site of the state's largest newspapers, "But at 4:32 p.m. Monday, attorneys for Alabama Secretary of State John Merrill and Ed Packard, the state administrator of elections, filed an 'emergency motion to stay' that order, which the state Supreme Court granted minutes after Merrill and Packard’s motion was filed." 

Hasen continued, "It is very disturbing because the AL Supreme Court’s order effectively decides the case. The ballot images will be destroyed, even if plaintiffs ultimately win on the merits weeks later. Goes against principles of preserving the status quo."



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