A case filed yesterday in the Ohio Supreme Court asks that Secretary of State Jon Husted be ordered to prevent destruction of key election records in the May 8 primary election. Fifteen counties in Ohio use digital scanners to count votes cast on hand-marked paper ballots. In two of these counties, Cuyahoga County (where Cleveland is) and Franklin (where Columbus is) election officials have said that they plan to destroy the digital ballot images produced by these scanners.

According to John Brakey, Director of Americans United for Democracy, Integrity, and Transparency in Elections (AUDIT-USA), officials Summit County refused to disclose whether or not they’ll follow the law, which requires that all election materials be retained. Twelve counties have stated that they will retain the ballot images. We haven’t been able to confirm that.

While only one voter is named in the official filing, at least five other voters will be joining the suit in the coming days, as soon as their affidavits can be filed with the court.

AUDIT-USA is supporting voters around the country to file similar suits. Because the digital scanners don’t count the votes on paper ballots but instead count votes on the digital images created from those ballots, the images are part of the chain of custody of election records.

Digital ballot images can be used for auditing or manual counting of the votes cast in an election, as well as for research into voting patterns. While keeping the paper ballots is of course essential, it’s not enough because it’s the votes on the digital images that are actually counted.

The Ohio case follows similar cases we’ve worked on in Arizona and Alabama in 2017. In the Arizona case, the judge ruled in favor of election transparency. The Alabama trial court judge ruled similarly, ordering the ballot images to be saved. Then, in a shocking move, Alabama’s Secretary of State, John Merrill, filed for an emergency stay of the lower court’s order, requesting permission to destroy legally protected election records. That stay was granted without our side even being given an opportunity to make our case. We’re waiting for a ruling from the lower court about how ballot images will be handled in future Alabama elections.

Last week, an appellate court in New York ruled that digital ballot images are part of the public record and must be made available via the public records request process.

The digital images feature of newer election systems that scan hand-marked paper ballots was created for “auditing and adjudication” purposes, according to promotional materials produced by Elections Systems & Software (ES&S). Those checks and balances can’t happen if the images are destroyed.

The law is clear. The current case in Ohio simply asks the judge to order elections officials to follow the law. We should be able to count on Jon Husted to follow the law even without a court order.

See these documents to learn more about the case:

April 20 Press Release

Court Documents