In final-hour order, court rules that Alabama can destroy digital voting records after all

Alabama is allowed to destroy digital voting records created at the polls during today's U.S. Senate election after all.

At 1:36 p.m. Monday, a Montgomery County Circuit Court judge issued an order directing Alabama election officials to preserve all digital ballot images created at polling places across the state today.

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.

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.

The court will hold a hearing on Dec. 21 about whether to dismiss the case outright. By that point the state will have had ample time to destroy the digital ballot images legally under the stay.

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."

But Priscilla Duncan, attorney for four Alabama voters who sued the state last week in an attempt to force election officials to preserve the digital records, said Tuesday that their argument was "spurious" and misleading.

"They made a bunch of spurious arguments that they don't have the authority to tell [election officials across the state] what to do - well, they're already telling them what to do - and that it will cause a bunch of confusion at the polls, but the voters wouldn't even know if they changed their retention policy," Duncan said.

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.

But 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.

"The fact that none of their arguments makes any sense just makes you wonder what's really at stake here. These machines are hack-able ... That's what worried us," she said. "It's just all about transparency. It's like saying, 'well, we don't need a car because we have a horse and buggy.'"