[UPDATE: RULING OVERTURNED. The following article was written just hours before Republican Secretary of State John Merrill today went through extraordinary lengths to obtain permission to destroy the digital ballot images which are part of the vote-counting machine audit trail in use across Alabama. Merrill asked for, and got, an over-ruling of Montgomery Circuit Court Judge Shaul's order this morning that the digital ballot images be preserved. According to election integrity activist John Brakey, who has been assisting the plaintiffs, the ruling took place behind closed doors.]
Alabama voters consisting of a Republican, a Democrat, an independent, and a minister scored a landmark victory today in a Montgomery court which would make it easy for citizens to verify for themselves the accuracy of the machine-counts of the paper ballots cast in super-charged election Tuesday between Doug Jones and Roy Moore, by preserving the digital images of the ballots which are produced as they are fed into the machines. [Judge's order]
Although the court stated only that the images must be preserved, election integrity activists argue that they can and should be made available to citizens or posted online for inspection. Such machines are in use in 85% of the precincts in Alabama, and widely used across the United States. [See "Voters in Roy Moore - Doug Jones Race Sue to Prevent Election Officials from Destroying Evidence of Hacking"]
On the day before a US Senate race which could determine the fate of a GOP tax bill, the plaintiffs in the case, Tuggey et al vs. Merrill, opened the way for citizens to scrutinize the results of each precinct's reported machine-count of votes for either Roy Moore or Doug Jones.
The Alabama Secretary of State, John Merrill, argued that there was no reason or legal requirement for the digital ballot images be preserved, and that election authorities should be able to delete them, even though such images are described in the marketing literature of vote-counting machine manufacturers as part of the audit trail.
In a temporary restraining order Judge Roman Ashley Shaul wrote:
"A highly contested election is being held in which there is a reasonable belief that the results may be close...There was little argument, although somewhat contested, that the law at issue requires digital images to be preserved as a matter of Alabama law and Federal law..."
The most widely-used machines which perform this function in the US are the ES&S200, the ES&S850, and the Dominion Systems Imagecast Precinct. The election integrity organization VerifiedVoting.org publishes a directory of the kinds of vote-counting machines in use in every state and county.
Election integrity activists following the case concede that the battle for the goal of a fair, transparent, and verifiable election is not over, as pointed out by Ohio democracy activists Bob Firtrakis and Harvey Wasserman, in "Will Jim Crow Strip & Flip the Alabama Senate Race? Or Will Today’s Major Court Victory Stop that From Happening?" Alabama has a voter photo ID law that is considered onerous by some, such as Scott Douglas, executive director of Greater Birmingham Ministries, who wrote today in the New York Times:
"I work with poor, black Alabamians. Many of them don’t have cars or driver’s licenses and make under $10,000 a year. They cannot afford to pay someone to drive them to the motor vehicles or registrar’s office, which is often miles away."
And in a shocking, draconian departure from merely not counting the votes of voters whose registration bears the wrong party affiliation, Secretary of State Merrill, a Republican, has threatened criminal prosecution of voters who incorrectly crossed party lines last September to vote in the Alabama special election Republican primary, between Luther Strange and Roy Moore. Merrill raised the specter of fines up to $15,000 and sentences as much as 10 years in prison. The effect, say critics, is to chill participation in Tuesday's election by less-educated, largely minority voters who may now think they are not eligible to vote in the special general election.
Nevertheless, the victory in court today in Montgomery slowly narrows the window for impunity in which election officials may force the public to accept the results of highly contentious and disputed elections, without meaningful recourse. At WhoWhatWhy.org in "Voters are Left in Dark by Alabama's Election System" the author notes that awareness of the potential for ballot images to add a layer of transparency to the vote count is spreading, and writes:
"Plenty of other states — including Florida, Michigan, and Wisconsin — already release their ballot images to the public upon request. Some jurisdictions, like Dane County, WI, go even further and post their ballot images online."