TRO Saves Alabama Senate Race Ballot Images — Well, ALMOST!!!
A Republican, A Democrat, An Independent, And A Minister Walk Into An Alabama Court… And Successfully Sue To Preserve Digital Voting Records… UPDATE: Court Order Stayed In Ex-Parte Hearing


Monday, December 11, 2017

By Nicole Powers

Alabama Digital Ballot Image Preservation Preliminary Order

A group of Alabama voting rights activists have secured a temporary restraining order to stop digital election records being destroyed after Tuesday’s highly contentious Senate special election between Doug Jones (D) and Roy Moore (R). The preliminary injunction, issued by a Montgomery circuit court judge, orders all Alabama counties to save all digital copies of ballots that are created when vote counting machines scan paper ballots.



UPDATE 1: We just got a call from John Brakey and Chris Sautter from Alabama. The State Supreme Court, without a hearing, but on the pure "ex-parte" (i.e. private) complaint of the State, "stayed" — that is, OVERTURNED THIS MORNING’S RULING TO PRESERVE ALL BALLOTS!


The temporary restraining order, which can be viewed in full above, states:

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.

Prior to this court case, election officials in at least three of the state’s largest counties had planned to only preserve images in the case of write-in ballots, meaning that all other images would be lost once the vote counting machines, which scan the paper ballots, were switched off on Tuesday night. The defendants in the case are Republican Secretary of State John Merrill and Alabama's Administrator of Elections, Ed Packard. The complaint, filed on behalf of Pamela Miles of Madison County, Dan Dannemueller of Elmore County, Paul Hard of Montgomery County, and Victoria Tuggle of Cullman County, states:

1. Defendants John Merrill and Ed Packard are failing to carry out their duties to instruct county election officials to preserve all election materials as required by law. 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.

2. 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 issue continues to be ripe through all elections scheduled in 2018.

3. Plaintiffs believe the failure of defendants to require that all election materials including digital ballot images violates Alabama’s public records law and infringes upon their right to a fair and accurate election.

As noted in the complaint, “Digital scanners count the digital images of the ballots rather than the paper ballots themselves while optical scanners count the paper ballots. Ballot images are therefore in the chain of custody and constitute public records.”

"People think that when they mark the ballots and they go into the machine that that's what counted,” said Priscilla Duncan, one of the attorneys for the plaintiffs, to local news outlet AL.com. "But it's not, the paper ballot is not what's counted. That ballot is scanned and they destroy [the ballots] after the election ... If there's ever an election challenge you need to have what was actually counted.”

John Roberts Brakey, a noted Arzona-based voting rights advocate, is an integral part of the team responsible for bringing the case. After news broke that the group's bid had been successful and that a TRO had been issued, we reached out to him for comment. He tells us: “The Court’s decision today is a clarion call to election officials in Alabama and across the country that transparency is essential to healthy democratic elections in our constitutional government. I believe this is the first of many successful challenges that will make our elections transparent, trackable, and publicly verified.”

A full hearing is set for December 21, when Brakey hopes the court will make the temporary restraining order permanent.


UPDATE 2: Following news that a stay has been issued, essentially overturning the TRO to preserve digital copies of paper ballots in the Alabama Senate Race — which makes a recount impossible — we reached out to voting rights advocate John Roberts Brakey for comment:

“By this desperate action filed late today one can see that they clearly don’t want elections that are transparent, trackable and publicly verified,” says Brakey. “History teaches us that elections without public accountability are nothing more than vote-counting in the dark, controlled by a government, in the act of choosing itself and its cronies, while picking our pockets.”

The full motion to stay, filed by Republican Secretary of State John Merrill, can be found here. Merrill's corrected petition for emergency writ of mandamus with exhibits can be found here.


UPDATE 3:: The order from the Supreme Court of Alabama granting Republican Secretary of State John Merrill's motion to stay, which essentially overrules the TRO secured by voting rights activists that would have preserved digital copies of Senate race paper ballots.

The-Stay-from-Supreme-Court-of-AL-12.11.17

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