Montgomery County Circuit Judge Greg Griffin is considering a motion to dismiss a case involving Alabama’s voting machines. The lawsuit seeks to prohibit the use of electronic voting machines, claiming the machines make elections “unsecure and fatally compromised.”

“With each passing election the unreliability of electronic voting machines has become more apparent,” the lawsuit states. “In light of this experience, the vote tallies reported by electronic voting machines cannot, without objective evaluation, be trusted to accurately show which candidates actually received the most votes.”

The plaintiffs in the lawsuit are State Rep. Tommy Hanes (R-Byrant), David Calderwood and Focus on America. Lindy Blanchard was an original plaintiff in the case but recently backed out of the suit due to connections between write-in campaigns and the lawsuit.

Defendants named in the lawsuit are Secretary of State John Merrill and members of the Alabama Electronic Voting Committee, Judge Bill English, State Rep. Wes Allen (R-Troy), Clay Crenshaw, Jeff Elrod and State Sen. Will Barfoot (R-Pike Road).

The lawsuit lists allegations of electronic voting machine glitches dating back to 2002. One of the witnesses in the case is former Gov. Don Siegelman, who said he lost the 2002 gubernatorial election due to a computer glitch that removed over 6,000 votes in Baldwin County. 

“Despite the evidence of possible electronic vote manipulation where an injustice was suffered by our democracy and the people of Alabama, there was never an official investigation nor governmental inquiry into the inexplicable differing vote tabulations affecting the outcome of the governor’s race in 2002,” Siegelman stated in a declaration supporting the lawsuit.

Election Systems & Software manufactures optical scanners. The lawsuit claims all scanners and ballot marking devices certified by Alabama have been “wrongly certified for use.” 

When asked for proof of those certifications, Merrill’s team entered a motion to quash the subpoena requesting documents, claiming they didn’t have adequate time to prepare those documents as provided by law and even if they did, making those documents public could be a security issue.

“Assuming that Plaintiffs are correct and that Alabama electronic vote counting machines can be hacked, it would be irresponsible to publicize technical details about the machines,” the motion stated. “Indeed, Plaintiffs’ own witnesses recognize that such machines are ‘critical infrastructure,’ see, e.g., doc. 85, which the Legislature has exempted from public disclosure under the Open Records Act because such disclosure ‘could reasonably be expected to be detrimental to the public safety or welfare[,]’ Ala. Code § 36-12-41. To the extent the requested documents would reveal such technical details, Secretary Merrill objects to their disclosure. See Ala. R. Civ. P. 43(c)(3)(A)(iii) & (B).”

In the motion to dismiss, attorneys for the state, including Alabama Attorney General Steve Marshall, said the plaintiffs filed the lawsuit “based on nothing more than speculation and innuendo.” They said there were documents showing the Committee publicly inspected voting machines before the election was certified. In all, the attorneys gave five reasons the case should be dismissed:

“Plaintiffs’ claims are due to be dismissed for—at least—the following reasons: (1) they lack standing because their injury is speculative and because they sued Defendants who neither caused nor can cure their injuries; (2) sovereign immunity bars their claims; (3) the jurisdiction-stripping statute bars their claims; (4) the individual-capacity claims fail because this Court did not acquire subject-matter jurisdiction before they were first asserted in the amended complaint, because Plaintiffs do not request relief that Defendants can provide in their individual capacities, and because those claims are barred by sovereign and state-agent immunities regardless; and (5) Plaintiffs fail to state a claim on which relief can be granted because the exhibits they attach to the complaint contradict the factual allegations on which their claims rely. For all these reasons, Defendants1 move to dismiss the claims against them pursuant to Rules 12(b)(1) and 12(b)(6) of the Alabama Rules of Civil Procedure.”

The defendants claim none of the machines in Alabama connect to the internet or cellular connections.

There is no indication of when the judge will decide on the motion to dismiss.

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