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Alabama Supreme Court blocks order that required elections officials to preserve electronic ballots

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HUNTSVILLE, Ala. — The Alabama Supreme Court has overruled a Montgomery judge who had ordered the Alabama Secretary of State’s office to ensure electronic ballots cast in the U.S. Senate election are preserved, rather than destroyed.

The state’s high court late on Monday froze the order issued earlier in the day by a Montgomery Circuit Court.

The order came in a lawsuit filed by four Alabama voters who complained state elections officials are violating the law by not preserving digital records of the votes that will decide Tuesday’s election.

Alabama Secretary of State John Merrill’s office was named in the lawsuit.

Merrill opposed the order, which required:

“All counties employing digital ballot scanners in the Dec. 12, 2017 election are hereby ORDERED to set their voting machines to save ALL PROCESSED IMAGES in order to preserve all digital ballot images. This order applies to those machines that have such a setting and does not apply to any machine that does not allow for processed images to be saved.”

In ordering the records preserved, Montgomery County Circuit Judge Roman Shaul found:

  • There was reasonable belief the election would be close;
  • It appears federal and state law requires the preservation of digital images;
  • The Secretary of State’s office has the ability to provide information to county elections officials;
  • The cost to address the situation would have little cost.

But after losing before the circuit court, attorneys for the Secretary of State’s office petitioned the Alabama Supreme Court to block the order from going into effect for Tuesday’s election.

Attorneys for Merrill argued:

  • The plaintiffs don’t say how the election would be impacted by the failure to preserve the records. And they contend that it is “entirely speculative” to suggest someone might contest an election result and, even if they did, the paper ballots are sufficient;
  • The Secretary of State doesn’t direct the actions of local elections officials;
  • The request comes too late to be applied to this election. They contend 2,000 voting machines would have to be reprogrammed, which risks interfering with the election;
  • Courts shouldn’t tell state officials how to conduct their duties.

The Alabama Supreme Court received a motion to block the judge’s order from Merrill’s office. The Alabama Supreme Court granted an emergency stay of Judge Shaul’s order. The court ordered briefings in the case to begin within 14 days.

The Montgomery Circuit Court had set a hearing in the case for Dec. 21.

Alabama Attorney General Steve Marshall, whose office, argued the case on behalf of the Alabama Secretary of State, issued a statement Tuesday night about the case.

“Media and social media stories that the State of Alabama is seeking to prevent the preservation of records in the event of a recount or challenge of the December 12 election are false,” said Attorney General Steve Marshall. “Recent confusion over Alabama election record keeping
procedures has led to a misunderstanding of the facts. Alabama election procedures already provide a path to a recount. The plaintiff’s lawsuit and resulting Circuit Court order, which have fortunately been stayed, would have only created chaos and delay in the election process.

“The Alabama Supreme Court’s actions helped ensure a smooth election and will not result in the destruction of records needed if there is a recount or a challenge to the election.

“Here are the facts.
“Digital images of ballots are not required in the event of a recount or an election contest. Original paper ballots are preserved while electronic images generally are not preserved. The same records have always been used in election contests and recounts.

“The vast majority of Alabama ballot scanning machines are not programmed to preserve the images. To change them, as the plaintiffs seek, would not mean simply flipping a switch, but would require the third-party vendor, Elections Systems and Software, to travel to 2000 voting machines around Alabama to change them. This process could not be completed in a day. To attempt it the day before and day of the election would cause chaos, confusion, and delay.”

Updated at 5:08 p.m. to correct timing for submission of legal briefs.