After a Montgomery County Circuit Court judge instructed Alabama election officials to maintain all digital ballot images after Tuesday's special election, Alabama's Supreme Court granted a stay of that order.
[A]ttorneys 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. By granting the stay, the court effectively told the state that it does not in fact have to preserve the digital ballot images - essentially digitized versions of the paper ballots voters fill out at the voting booth - created today.
A hearing will be held on December 21 to determine whether or not the case should be dismissed, but that leaves plenty of time for ballots to be destroyed.
Merrill and Packard's attorneys argued in the emergency motion Monday that the two officials "do not have authority to maintain such records or to require local officials to do so. Plaintiffs therefore lack standing, the Circuit Court lacks jurisdiction, and the order is a nullity. Although a nullity, it will, if not stayed, cause confusion among elections officials and be disruptive to an election scheduled for tomorrow."
Merrill declined to comment directly on the case in a phone interview with AL.com Tuesday morning. "We don't comment on pending litigation," he said. But he did state that though the state does not preserve the digital ballot images, it does maintain the original paper ballots. "The records for federal elections are required by law to be preserved for 22 months after the election occurs," Merrill said.
Priscilla Duncan, an attorney who sued the state last week on behalf of four Alabama voters, said the the argument is misleading:
Duncan said that "the paper ballots aren't really what's counted" unless there is a statewide recount, which would be "cost-prohibitive" if the state were ever to undertake one.
"People think that when they mark the ballots and they go into the machine that that's what counted," she said. "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."
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