On today’s BradCast, we take a deep dive into the insane state of play in the final days before voters finally head to the polls in Alabama for the U.S. Senate special election between the Republican, twice-removed-from-the-bench judge Roy Moore and Democratic former US Attorney Doug Jones.
But first, a few quick news items today, including an update on the still-out-of-control Southern California wildfires; The mostly-failed terror bombing by an alleged ISIS sympathizer in the subway near Times Square today; news in the case of three white rightwing “militiamen” on trial for an alleged scheme to bomb a community of Muslim Somali refugees in Kansas. Their motion seeks to get more Trump-supporters from elsewhere in the state on their terror trial jury; New details on the school shooting (by another white guy) in New Mexico last week that took three lives, including that of the shooter. Despite FBI investigators interviewing the man last year after he is said to have left online comments seeking information on weapons to use in a mass shooting, he was able to legally purchase a semi-automatic pistol and high-capacity magazines last month anyway.
And then it’s onto our deep dive into “deep red” Alabama and the state of the important Moore/Jones U.S. Senate election before Election Day on Tuesday. Among the issues covered on that front today:
- Election Integrity advocates obtained a big win on Monday morning, when receiving an order [PDF] from a state court requiring state election officials retain digital ballot images created by computer scanners tabulating the paper ballots used across much of the state. (My interview last week with John Brakey, the election integrity advocate who organized the court action, explaining why its necessary, is here.)
UPDATE 12/12/2017: After a private ex parte motion (meaning, the opposition was not present) later in the day, by the defendants, AL’s Sec. of State and State Election Director, the Alabama Supreme Court stayed the earlier Circuit Court ruling and set a hearing on the matter for later this month. That, effectively, means that ballot images will not be preserved after all. More on this remarkable late ruling on today’s BradCast… - Some last minute news on the anti-gay, anti-Muslim Moore, who has been accused by 9 different women of inappropriate sexual contact with them when they were teenagers (including one who was 14-years old at the time), on his belief that Constitutional Amendments which came after the ten in the Bill of Rights — including those that ended slavery and gave voting rights to African-Americans and woman — somehow violated the intentions of the nation’s Founders;
- New polling from Fox “News” claiming to find the Democrat Jones up by 10 points over Moore on the eve of the election, and another new poll from Emerson finding Moore up over Jones by 9 points;
- How the entire race will come down to turnout, particularly in the African-American community, and whether they are allowed to vote and to have their votes counted as cast, given the state’s Photo ID voting restrictions and other practices which Republican state lawmakers have been caught admitting to having designed specifically to suppress black and Latino voting;
- AL’s senior Senator Richard Shelby, a fellow Republican, announces he could not vote for Moore, based on the allegations against him;
- And, finally, a remarkable focus group led by Republican pollster Frank Luntz for VICE News with so-called “conservative” Alabamians explaining why they plan to vote for Moore despite the allegations by nine different women against him…
Buckle up!…
Finally, a court issued injunction that addresses the need for election integrity.
If Doug Jones should hold an early lead in Tuesday night’s tabulation/returns, then America will get to watch election-fraud IN ACTION. What a treat that will be!
If Jones has the lead, then expect the usual computer glitch halting tabulation to occur a bit after midnight when everyone’s asleep. When it resumes after an hour or 2, Jones’ lead will vanish and Moore will go on to win.
I’ll be so disappointed if Moore leads all the way, and the fraud is not visible. Where’s the fun in that?
But it will be so much more satisfying to actually “watch the cheat” as it happens, if Jones should have a lead, and the “glitch” changes everything.
Since Moore will be winning regardless, the glitch/Fraud maneuver being visible will at least be, in a sense, giving us our money’s worth out of a bad situation—-Ah, FRAUD, for all to see. Just like I pictured it …
congrats john brakey and everyone that supported him in this case
in alabama tomorrow there is away to get around the id law…if an election official will say they know you live in precinct(at least i thought i heard on news)
a huge write in vote benefits jones
ok so the bama supremes overturned?
what now?
In his Dec. 11 Order Granting Preliminary Injunction, Judge Roman Ashley Shaul order simply required that all “counties employing digital ballot scanners in the Dec. 12, 2017 election…to set their voting machines to save ALL PROCESSED IMAGES in order to preserve all digital ballot images. This order applies to those machines that have such a setting and does not apply to any machine that does not allow for processed images to be saved.”
The court noted that “there was little argument…that the law requires digital images to be preserved as a matter of Alabama law and Federal Law. The Secretary of State’s Office..does have the ability to provide election information to election officials as a matter of course and routinely does so; and…all parties agreed that the relief requested would require nominal resources and cost on the part of the Defendants.”
Subsequently, Greg Palast Tweeted that he had been informed by attorneys John Brakey and Chris Sautter that the GA Supreme Court had stayed Judge Shaul’s order based up an ex parte complaint filed by the State.
If accurate, that is deeply troubling for two reasons.
(1) Under Rule 3.5 of the Alabama Rules of Professional Conduct, it is ordinarily unethical for an attorney to engage in ex parte communications with a judge — communications about the substantive merits of litigation in which the opposition does not have adequate notice and opportunity to be heard.
2. Given the absence of significant costs and the clarity of the legal obligation to preserve the record, it is difficult to comprehend any reason for the stay — other than a desire to preserve the ability of local election officials to alter the outcome of this pivotal election without leaving the evidence of that alteration for all to see via the preserved digital images.
ty ernest,
can anyone address the rules concerning straight party voting?
if a person votes straight party repub and then votes jones in senate that ballot would be thrown out as an over vote wouldn’t it?
trying to see if following twit is incorrect
Aaron Booth @ActorAaronBooth
Was able to confirm with Sec Merrill’s Spox that if a voter picks “Republican Party” AND “Doug Jones” that it would be a vote for Doug Jones. “The straight party option only comes into play when a voter leaves an option open on the ballot.” #ALSen https://twitter.com/actoraaronb...02857001205761 “¦
Ernie @ 5:
FWIW, this was one thing I was worried about when discussing the matter with John Brakey last week before the suit was filed, that a version of the “Purcell Principle” could be applied here. I asked Rick Hasen about it after the AL Supremes decision here.
Here’s how that convo went this morning…
Karen @ 6:
That is also my understanding of AL state law on how to count votes for a different party’s candidate than that specified on the “Straight Party” option.
Whether the computers that do the tallying understand it that way, of course, is a separate matter.
Re Brad @7.
In furtherance of Rick Hasen remarks, the Purcell principle has been applied with respect to the timing of federal court orders affecting state election law procedures. Generally a federal court will not order eleventh hour changes to how an election is “conducted” (e.g., photo ID laws) so as to avoid confusion “at the polls.”
As Rick notes, the state court injunction does not impact how votes are cast at the “front end” and therefore would not cause confusion “at the polls.”
It simply requires that election officials to simply set the machines to save all processed images. That is neither a burdensome 11th hour change nor one that would cause “confusion at the polls.”
Finally, before the AL Supreme Court issued a stay, it should have afforded notice and opportunity to be heard to the plaintiff. Otherwise, the issuance of a stay would be the product of a denial of due process. It was incumbent on the Court to explain the reason why a stay was issued.
Ernie @9:
Here’s what the defendants (State SoS and Election Administrator) argued at the conclusion of their motion [PDF] seeking the stay [emphasis mine]:
Whether that’s true or not, whether it won’t affect voters as Hasen (and you) seem to be arguing, doesn’t matter as much as whether the court in this case — where nobody was present to argue against the defendants — believe it’s a last minute issue that can cause chaos at the polls. And it looks like the court bought that argument.
That said, I have been troubled from the outset about what the plaintiffs were calling for this late in the game. I don’t like the idea at all of election officials/poll workers going into the Admin section of the voting system software at the last minute at the polls.
Yes, it should be a simple flip of a software switch. And, in truth, it is. BUT, accessing the Admin settings on the systems after they’ve been deployed is INCREDIBLY dangerous. It’s VERY easy to do damage at that point.
Now, one of the attorneys on the case this morning told me that Defendants didn’t make the “chaos” argument at all in the lower court, nor did they argue that accessing the Admin screens was dangerous. But it is dangerous to do while the system is in “Election Mode”, and the state Supremes seemed to buy the argument defendants made in their emergency ex parte motion.
Woo Hoo!!!!!!!!!!!!!!!!!!!!!!!!!
I was wrong and I couldn’t be happier.
Doug Jones WINS over Roy Moore, and I am totally shocked.
I still believe that the GOP COULD HAVE reversed the vote-count via “black box” tabulation shenanigans at the last minute, if it wanted to.
Apparently, the party elites must have figured Roy Moore’s presence in the senate would actually HURT them more than help them, and allowed the accurately-tabulated results to come in without computer manipulation.
It may be a strike back against Steve Bannon as well, whose power/status seems diminished by this loss.
IMO, the GOP decided not to “Honduricize” this election because Moore/Bannon would have more harm than good to the party.
Doug Jones is no Progressive, and is likely much more “centrist”.
But for Alabama, that will do.
‘Tis enough.