Four Alabama voters – a Republican, a Democrat, an independent and a minister – have filed suit to force election officials to preserve digital records of the votes to be cast in Tuesday’s hotly-contested special election for the U.S. Senate.

The plaintiffs in the case, which was filed in a state court in Montgomery, say Alabama Secretary of State John Merrill plans to erase digital images that will be produced by tabulating machines that scan the paper ballots after they’re marked by voters.

While state law requires that the actual ballots be sealed and retained, the plaintiffs contend that the images also are critical to ensuring that voters can be confident that the votes have been accurately recorded. The official vote court is based on the scans rather than the actual ballots.

The digital images could be particularly important because of a potentially confusing feature in the actual ballots. Alabama permits straight ticket voting, so voters will be able to mark their ballots for one party and also for the Senate candidate of the opposition.  

“The public should be able to look at those images and make sure the machines count every ballot where voter intent is clear,” plaintiff Victoria Tuggle said in a news release announcing the suit.

John Roberts Brakey, an election security activist working with the plaintiffs, said Merrill’s office “is legally required to set procedures to assure all election materials [are preserved] 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.”

Merrill apparently disagrees. He told the news website whowhatwhy.org that state law does not allow him to preserve the digital images. “If we didn’t have the ballot, if we only had a visual image … that would be a completely different situation,” he said. “But we actually have the physical ballot that’s available for people to review. The chain of custody is not broken in that regard.”

Tuesday’s election between Democrat Doug Jones and Republican Roy Moore is being closely watched nationally as a test of public attitudes concerning sexual misconduct and the loyalty of GOP voters to their party. It has been decades since Alabama sent a Democrat to the Senate, but polls indicate Jones is running neck-and-neck with Moore, whose campaign has been rocked by charges that while in his 30s, he molested a 14-year-old girl and pursued romantic relationships with other teenage girls.

Moore denies all the charges. He was a controversial candidate even before the sexual misconduct allegations came to light. A lawyer and former justice of the Alabama Supreme Court, he was twice forced from the bench for defying U.S. Supreme Court decisions.

President Trump, who in his own election overcame harassment allegations – and a tape-recording in which he bragged about grabbing women’s genitals –  gave Moore a full-throated endorsement over the weekend. But Alabama’s senior senator, Republican Richard Shelby, declared that “Alabama deserves better” than Moore and said he has cast a write-in vote for someone not on the ballot.

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