A Victory for Clean Elections in Alabama Special Senate Election

An Alabama court ordered the state’s election officials to preserve all digital ballot images of the paper ballots cast in Tuesday’s high-profile special U.S. Senate election between Democrat Doug Jones and Republican Roy Moore.

The temporary restraining order by Montgomery County Circuit Court Judge Roman Ashley Shaul is a key step in verifying the vote in a controversial election, in case a vote count challenge or recount ensues.

“It appears that Plaintiffs and similarly situated voters would suffer irreparable and immediate harm if digital ballot images are not preserved,” Judge Shaul wrote.

He cited “a reasonable belief that the results may be close,” state and federal law requiring “digital images to be preserved,” the fact that the secretary of state routinely “provide[s] election information to election officials,” and the “nominal” cost of doing so—sending an email telling election offices to check one box on software that runs the scanners reading and tabulating the results from ink-marked paper ballots.

Shaul rejected the contention by Alabama’s top election official, Secretary of State John Merrill, a Republican, that the four citizens who brought the case had sued the wrong office.

“Even if the Secretary of State were an improper party, the only action being requested of him at this point is to send a communication through a system that already exists and is routinely used,” Shaul wrote before ordering Merrill and Alabama Election Director Ed Packard to “communicate and send to all probate judges and election officials in the State of Alabama, the following ORDER: All counties employing digital ballot scanners in the Dec. 12, 2017 election shall set their voting machines to save ALL PROCESSED IMAGES in order to preserve all digital images.”

The order is a victory for voting rights and election transparency activists. It affirms that paper ballots—and the electronic images that scanners create while counting them—are public records that must be saved.  

Federal law states that all federal election materials must be kept for 22 months, but some states and counties have not done so in recent years. That was the case in Alabama, where, until Monday’s order, top election officials only told local election officials to preserve digitized imaged of write-in ballots.

While the paper ballots that were scanned would remain, Alabama, like many states, does not have a recent history of election challenges and recounts. That means the potential destruction of Tuesday’s ballots scans would only have added another layer of complexity to verifying the results, should a challenge ensue. 

Four Alabamans—a Republican, Democrat, Independent and a minister—late last week sued Alabama’s Republican Secretary of State John Merrill and State Election Director Ed Packard after their lawyers were rebuffed by the statewide officials, who refused to instruct county election officials to properly scan the ballot images.

Next Tuesday’s special election for the seat previously held by U.S. Attorney General Jeff Sessions is one of the most controversial in recent state history. It has been rocked by accusations by more than half a dozen 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. Their suit cited Alabama law that required election records be preserved for six months and federal law that required all the records be preserved for 22 months.

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