Voters in Roy Moore - Doug Jones Race Sue to Prevent Election Officials From Destroying Evidence of Hacking

Updated on December 13, 2017

An Alabama Republican, a Democrat, an Independent, and a minister have filed a lawsuit asking a Montgomery circuit court to order Alabama election officials to not destroy an audit trail generated by most Alabama vote-counting machines in next week's contest between Judge Roy Moore and attorney Doug Jones. The audit trail consists of a digital image of each ballot that is fed into the machines, which makes it possible for citizens to detect vote hacking without always resorting to requesting hand recounts. [Copy of lawsuit] [Notice of hearing] [Court exhibits]

The principle defendant and chief election official, Alabama Secretary of State John Merrill, is a Republican. The hearing is set for Monday, December 11, at 9:00 a.m. in room 4A at the Montgomery County Courthouse.

John Brakey, an election expert from Arizona who is assisting the plaintiffs, said in the group's press release:

“I have been informed by election officials in three of the state’s largest counties that they intend to save only the images of the write-in ballots...This means an election official will intentionally change the setting to destroy ballot images.”

In Arizona in a similar lawsuit, Brakey succeeded in having a judge order that digital ballot images not be destroyed, and that they are to be considered part of the audit trail the same as paper ballots.

The machines, the Election Systems and Software DS200 and DS850, are in use in 85% of Alabama precincts. As with many optical scanner vote-counting machines in use across the US, the machines automatically generate a digital image of each ballot as it is fed into the machine. The machine then tabulates the votes in accordance with software instructions. Vote-counting machines of this type have been demonstrated to be prone to hacking. At a hackers conference in Las Vegas this year, hackers broke into similar machines in under 90 minutes, and could change vote totals.

Brakey said in the press release:

“The Secretary of State’s office is legally required to set procedures to assure all election materials for 22 months after a federal election...Even the envelopes from absentee ballots have to be kept. Destroying the ballot images is illegal. We’re only asking the Secretary of State to follow the law.”

The digital images of each ballot automatically generated by the vote-counting machines make it possible to detect irregularities without physically accessing and recounting, by hand, the paper ballots. Many election integrity activists have been arguing that the online publication of the images, or making them available on a DVD, is one of the best ways to cheaply and easily detect the hacking of the optical scan vote-counting machines now widely in use across the US.

Ordinary citizens who wish to could recount the votes tabulated by the machines, and call for examination of the actual paper ballots when significant discrepancies are found.

The election integrity organization VerifiedVoting.org publishes a directory of the kinds of vote-counting machines in use in every state and county.

The Alabama race is seen as of utmost importance in political circles, in some ways a referendum on President Donald Trump, who has thrown his full-throated endorsement behind Moore. The race is considered too close to call going into the final hours. Republicans presently maintain a razor-thin majority in the US Senate, while the Democratic Party has aspirations to seize the majority in 2018.


Marketing literature from Dominion Systems explaining "audit" feature of digital ballot image taken of each ballot.
Marketing literature from Dominion Systems explaining "audit" feature of digital ballot image taken of each ballot. | Source

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