Disturbing News from Alabama Senate Race: “Alabama Supreme Court Blocks Digital Ballot Preservation in Eleventh Hour”

Steven Rosenfeld:

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 the state 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.

Update: Here is the order. It provides for further proceedings. But it grants an emergency stay in the interim, which for all practical purposes allows the ballot images to be destroyed before the case could be heard.


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

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.

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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