In a move blasted by voting rights experts as an affront to transparency, the Alabama state Supreme Court granted local election officials permission not to preserve electronic ballot records less than 24 hours before polls opened – records that could form the basis of a recount.

The Alabama state Supreme Court’s ruling overturned an injunction issued by a lower court in Montgomery, the state capital, which had ordered election officials across the state to preserve digital images of the ballots cast in the Senate race between Republican Roy Moore and Democrat Doug Jones.

Alabama Secretary of State John Merrill appealed the lower court’s injunction to the state supreme court at 4:38 PM on Monday afternoon and the justices came back with their ruling at 5:18 PM – an usually quick turnaround time.

“It’s just unbelievable that they examined the pleadings and got eight judges to concur in half an hour on a Monday afternoon,” said Priscilla Duncan, an attorney representing the plaintiffs in the case.

Duncan expressed concern the voting machines could be compromised, “whether intentionally or through error,” indicating tests around the country have demonstrated sizable discrepancies.

“We have reason to believe those machines can be compromised. Whether intentionally or through error, there can be some false results, and there have been some tests around the country where there have been some rather sizeable discrepancies,” she said.

“There’s no legitimate reason not to preserve ballot images,” said Christopher Sautter, a Washington election lawyer who helped the plaintiffs in the case. “It’s neither expensive nor inconvenient. It amounts to flipping a switch.”

While some have noted Alabama officials could just count the original paper ballots in the event of a recount or court challenge, Alabama law does not provide for manual recounts – only a machine recount of the digital images that are taken at the time each ballot is cast.

“People think that when they mark the ballots and they go into the machine that that’s what counted,” Duncan noted. “But it’s not, the paper ballot is not what’s counted. That ballot is scanned and they destroy [the ballots] after the election … If there’s ever an election challenge you need to have what was actually counted.”

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