Alabama court gives last-minute order that could impede recount procedure

Controversy swirled over the mechanics of the Alabama Senate election after the state supreme court intervened at the eleventh hour to give election officials a green light not to preserve electronic ballot records that could form the basis of a recount.

A court in Montgomery, the state capital, issued an injunction on Monday afternoon ordering election officials around the state to preserve digital images of the ballots cast by Alabama voters in the hard-fought contest between controversial Republican Roy Moore and Democrat Doug Jones.

But the supreme court stayed that injunction almost immediately following a protest lodged by Alabama’s chief election official, the secretary of state, John Merrill. Voting rights experts denounced the ruling as a blow to transparency in a state that already has a flawed vote recount procedure and a somewhat checkered history of questionable election outcomes that the state’s senior officials and courts have allowed to go unchallenged. “There’s no legitimate reason not to preserve ballot images,” said Christopher Sautter, a veteran Washington election lawyer who helped the plaintiffs in the case. “It’s neither expensive nor inconvenient. It amounts to flipping a switch.”

Priscilla Duncan, the lead plaintiff in the case, noted with some amazement that the secretary of state’s protest was lodged with the supreme court at 4.38pm and the justices came back with their ruling at 5.18pm. “It’s just unbelievable that they examined the pleadings and got eight judges to concur in half an hour on a Monday afternoon,” she said.

Homosexuality should be illegal

In 2005, Moore said: “Homosexual conduct should be illegal.” In an interview televised on C-Span, Moore added: “It is immoral. It is defined by the law as detestable.” During a debate in September 2017, he went out of his way to bemoan the fact that “sodomy [and] sexual perversion sweep the land”.

September 11 attacks as divine punishment

In a speech in February, Moore appeared to suggest that the terrorist attacks of September 11 were the result of divine retribution against the United States and prophesized in the Book of Isaiah. In comments first reported by CNN, Moore quoted Isaiah 30:12-13, saying: “Because you have despised His word and trust in perverseness and oppression, and say thereon ... therefore this iniquity will be to you as a breach ready to fall, swell out in a high wall, whose breaking cometh suddenly at an instance.” Moore then noted: “Sounds a little bit like the Pentagon, whose breaking came suddenly at an instance, doesn’t it?” He added: “If you think that’s coincidence, if you go to verse 25: ‘There should be up on every high mountain and upon every hill, rivers and streams of water in the day of the great slaughter when the towers will fall.’"

Praise for Putin

In an interview with the Guardian in August, Moore praised Putin for his views on gay rights. “Maybe Putin is right. Maybe he’s more akin to me than I know.” The comments came after Moore suggested the United States could be described as “the focus of evil in the world” because “we promote a lot of bad things”. Moore specifically named gay marriage as one of those “bad things”.

'Reds and yellows’

At a rally earlier in September, Moore talked about “reds and yellows fighting” while discussing racial division in the United States. Moore justified this on Twitter by citing lyrics from the song Jesus Loves the Little Children. He wrote “Red, yellow, black and white they are precious in His sight. Jesus loves the little children of the world. This is the Gospel.”

Tracking livestock is communism

In 2006, Moore condemned a proposal for a national ID system for animals as “more identifiable with communism than free enterprise”. The proposal received attention after a cow in Alabama had been diagnosed with mad cow disease. Moore, who was then running for governor, was skeptical that the outbreak was real. Instead, Moore suggested it was a ruse intended to promote the tracking system.

“We have reason to believe those machines can be compromised. Whether intentionally or through error, there can be some false results, and there have been some tests around the country where there have been some rather sizeable discrepancies.” Theoretically, election officials could go back to the paper ballots as cast by the voters and recount them by hand – a method that many voting rights advocates believe to be the most reliable.

But Alabama law does not provide for such manual recounts, only a machine recount of the digital images that are taken at the time each ballot is cast. If those images are then destroyed, there is no easy way to verify that they were read and counted correctly.

“I don’t understand why the state does not want to preserve them. That doesn’t make sense,” said Marian Schneider of the national advocacy group Verified Voting. “Jurisdictions should have processes in place for ordinary citizens… to review election documents and verify that results came out the way they should have.”

Tuesday’s Senate race is by far the most important election in Alabama since the US supreme court’s 2013 Shelby Count v Holder ruling, which stripped the justice department of the ability to veto discriminatory voting laws in states like Alabama with a long history of racial inequality.

The American Civil Liberties Union and other rights groups are already deeply concerned about Alabama’s strict voter ID law and the fact that 31 department of motor vehicles offices, all of them in black-majority counties, were closed shortly after the voter ID law’s passage. Some have since reopened, but with curtailed opening hours. They were also alarmed when Merrill threatened to jail hundreds of voters who crossed party lines to vote in October’s primary runoff race that saw Roy Moore emerge as the Republican candidate.

A new law banning crossover voting passed only a few months earlier and had not been widely publicized. All these issues could become factors if the Senate election is too close to call. The Senate has the right under the constitution to override Alabama law and conduct an investigation as it sees fit, but it won’t be able to check the electronic ballot imagines if they have been destroyed.

“I don’t want to speculate what this might open the door to,” said Sautter, the veteran election lawyer, “but it could lead to results that can’t be verified. That would definitely be extremely unfortunate given how important this election is.”