Alabama Voters Sue State to Preserve Ballot Images in Special U.S. Senate Election

Four Alabamans filed a lawsuit late Thursday seeking to preserve electronic images of every paper ballot cast in next week’s high-profile special U.S. Senate election between Democrat Doug Jones and Republican Roy Moore—a key step in verifying the vote in case the election is close and a recount ensues.

The filing for a Republican, Democrat, Independent and a minister came after lawyers for the voters were rebuffed by statewide Alabama election officials, who they urged not only to preserve all election records (as required under federal law), but to ensure the electronic scanners that will read and count the ink-marked paper ballots are properly programmed to capture the paper ballot images.

“Defendants [Secretary of State] John Merrill and [State Elections Director] Ed Packard are failing to carry out their duties to instruct county election officials to preserve all election materials as required by law,” the suit filed in the Circuit Court of Montgomery County said. “Specifically, Defendants, according to information provided by them, indicate they do not and will not instruct election officials in each of the Alabama counties to preserve digital ballot images created by digital voting machines used throughout the state even though they are instructing such county officials to preserve ‘write-in’ digital ballots.”

The lawsuit said Alabama’s top election officials are poised to violate state and federal laws about preserving public records, and said that the lawsuit raised issues that would be relevant during 2018’s cycle of state and congressional contests—namely establishing vote count documentation in case a recount or election challenge is necessary.

“As a result of Defendants’ failure to comply with Alabama’s public records law, digital ballot images used for tabulating votes and possible post-election adjudication will be destroyed following the December 12, 2017, special election for United States Senate in Alabama,” the suit said. “The issue continues to be ripe through all elections scheduled in 2018.”

Next Tuesday’s special election for the seat previously held by U.S. Attorney General Jeff Sessions has been rocked by accusations from multiple women that Roy Moore sexually harassed or assaulted them several decades ago. Those disclosures have led to swings in pre-election polls, prompting the voting rights advocates to sue to ensure all the votes cast are accurately counted.

“We need to make sure we can check on the results of the election if there’s any question,” said plaintiff Anna Victoria Tuggey of Cullman County. “The confusing ballot design for the special election makes it extra important that human eyes can verify that the machines are counting the votes correctly. The public should be able to look at those images and make sure the machines count every ballot where voter intent is clear.”

Alabama votes with paper ballots that are marked by individual voters. In the senate race, voters can choose between four choices: voting for a Democrat, a Republican, Jones or Moore.

Those ballots are fed into computer scanners that read and tally the votes. During that process, Alabama’s machinery creates a digitized image of every ballot scanned. The lawsuit explained that local election offices could program the scanners to save ballot images—to be kept in the machine’s memory after Election Night. That is one of three settings; another is clearing the memory when the machines have reported and are turned off. 

“Defendants have confirmed that in previous elections and in the December 12, 2017, special election, they have instructed and are instructing election officials of all Alabama counties using the ES&S DS200 or similar digital ballot scanning devices to preserve ‘Processed Write-in Images’ only,” the suit said. “As a result, county election officials or workers under their supervision automatically destroy all other digital ballots following the election.”

The suit cited Alabama law requiring election records be preserved for six months and federal law that all election records be preserved for 22 months.

“Defendants violate Alabama’s public records law and Plaintiffs’ right to a fair and accurate election by failing to instruct county election officials to preserve all ballot images,” the suit concluded. “Without the preservation of these digital ballot images, Defendants’ rights to a fair and accurate election could be denied.”

The suit is seeking a temporary restraining order preserving the ballot images, to be followed by a hearing for a preliminary injunction within the next 10 days.

Chris Sautter, a nationally known voting rights attorney working with Alabama lawyers, said he was hoping the Montgomery Circuit Court would hold a hearing Friday.

Sautter also said county election officials in Montgomery County, the state’s fourth most populous, had independently agreed to preserve the ballot images. But “the state election director, secretary of state, and all other counties are saying they won’t.” 

In a similar legal action in Arizona earlier this year, the judge ruled that ballot images are a public record and must be preserved as outlined by law.


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