We’re back on today’s BradCast after a brief New Year holiday break! But it wasn’t entirely a break, as Alabama’s Secretary of State John Merrill decided to launch a bizarre Twitter exchange with me over the holiday weekend. [Audio link to show follows below.]
The conversation included the state’s chief election official repeatedly (and inaccurately) insisting that Alabama’s paper ballot computer scanners do not “capture” scanned ballot images that can be retained by the system for review by the public after an election. He is wrong, as I politely noted during the conversation.
In fact, Merrill almost certainly knows he is wrong, since he actually went to the State Supreme Court to block an order by a lower court, issued the day before the December 12th U.S. Senate Special election between Democrat Doug Jones and Republican Roy Moore, to instruct all county election officials to set their computer scanners to retain all captured ballot images! [We discussed that multi-partisan lawsuit with one of the organizers, John Brakey, before it was filed, and again with one of the plaintiff attorneys, Chris Sautter, after the order was blocked by the state Supreme Court, allowing counties to destroy their captured ballot images.]
Nonetheless, after I questioned Merrill about the inaccurate information he was offering to the public, he decided to block me on Twitter, rather than admit that he had misinformed the public. Here’s a PDF that reconstructs as much of the conversation as I could, given that I’m now blocked by him, so can’t easily see his Tweets. Moreover, he also deleted a number of his own Tweets after he blocked me, and he repeatedly broke the conversation thread throughout. So, that PDF reconstruction will have to suffice for now to give you an idea of what at least one Twitter user accurately described as a “bonkers” exchange!
It wasn’t the first time Merrill would block journalists, election law experts, or even his own constituent voters on social media after someone dared to suggest that he was wrong about AL election procedures. We’re joined today by JOSHUA A. DOUGLAS, professor of election and constitutional law at the University of Kentucky College of Law. He, too — like me, and like UC Irvine election law professor Rick Hasen — was blocked on Twitter by Alabama’s Republican Sec. of State after asking a question, in November, about the state’s election code.
“I said, it’s not about lying, it’s about asking questions of a public official running their elections, and the next thing I knew, I was blocked myself. So, kind of ironically, Merrill blocked me for questioning whether he should be allowed to block others on Twitter who were trying to interact with him about the election,” Douglas explains. He wrote about the incident and why it matters at AL.com.
We discuss all of this bizarre behavior, and whether or not it’s a violation of the Constitution when folks like Merrill and, yes, the President of the United States, block citizens from being able to read their social media comments. All of which makes what we do — as journalists, legal professionals and, yes, voters — more difficult and even Constitutionally problematic in a number of ways.
Also today: Despite Merrill’s odd behavior before, during and after the election (Merrill supported Roy Moore), Doug Jones was sworn in to the U.S. Senate today after (apparently) defeating Moore to become the state’s first Democratic U.S. Senator in some 25 years, narrowing the GOP majority to just 51 to 49. And, King of the Twitter Trolls, Donald Trump threatened nuclear war again with North Korean leader Kim Jong Un and social media had a huge laugh at Trump’s comments about having a “much bigger” nuclear button than Kim. But is any of it — including the threat of war between two nuclear-armed nations — really all that funny?…
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[audio:http://bradblog.com/audio/BradCast_BradFriedman_TrumpNKThreat_JohnMerrillTwitterBlock_JoshuaADouglas_010318.mp3]
(Snail mail support to “Brad Friedman, 7095 Hollywood Blvd., #594 Los Angeles, CA 90028” always welcome too!)
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I must be doing something wrong. I was involved in a portion of that dialogue, yet Merrill didn’t block me.
This is for the Alabama Secretary of State and those like him: Real men are not afraid of the truth.
Alabama Secretary of State John Merrill is a dodgy character.
In the reconstructed Twitter thread Brad appears to make a reasonable but erroneous assumption that Merrill was claiming that that his state’s optical scan system cannot be programmed to save ballot images.
But Merrill never comes right out and says that because he knows it isn’t true. Instead, he tells Brad: “Our machines are not programmed to capture the images.” (emphasis added).
That hair-splitting assertion, though accurate, raises a red herring. The Circuit Court’s Dec. 11 order reads:
The order also noted: “the law at issue requires the ballot images to be preserved as a matter of Alabama and Federal law”; and that “all parties agreed that the relief requested would only require nominal resources and costs.”
After Brad had been blocked from Merrill’s twitter account, I submitted a Tweet to Merrill in which I linked to the order and pointed out that it only applied to those machines that could be set to save all processed images. I also Tweeted:
Merrill, who did not argue in either his Supreme Court motion for a stay or in his petition for an emergency writ that the ES&S DS200 optical scanners cannot be set to capture the images, replied:
In other words, rather than acknowledge that it would have been a simple matter for he and county election officials to comply with a court order by simply setting the machines to “save ALL PROCESSED IMAGES”, Merrill saw fit to use a half-truth — that the machines were not as yet placed on that setting — to mislead everyone who read his Tweets into believing that he was claiming that the machines could not be programmed to “save ALL PROCESSED IMAGES”.
And, when confronted with the simplicity of complying with the order, he chose to change the subject — complaining about the eleventh hour nature of the legal filing.
Oh, one other point. The plaintiffs did not, as Merrill claimed in his reply Tweet, wait “until the day before the election” to request that the machines be set to “save ALL PROCESSED IMAGES.”
The order reflects that the request for the preliminary injunction was filed on Dec. 7 — five days before the election. On Dec. 8, the court scheduled the matter to be heard on Dec. 11 — one day before the election.
Whatever objections Merrill had to the eleventh hour nature of the request, there is no reason why the machines could not be reprogrammed before the next election.
Ernie –
You are correct on the earlier filing date. I don’t recall if I saw that one or not, as it might have been after he’d blocked me.
On your first point, however, I hadn’t made the “erroneous assumption” you suggest. In his very first Tweet in the reconstructed thread, he says [emphasis added]:
He knew he was wrong after I corrected him, because he later modified that claim to “”Our machines are not programmed to capture the images”.
But he was wrong there as well. The machines capture an image of every ballot. That’s how they tally them, by capturing an image and then reading that captured image.
The hair he was splitting is whether or not those images are retained after the system is powered down, which they will only do if the software is set to do so. But, in any event, ALL ballots are captured via image on his machines. He is either lying or misinformed when he suggests otherwise.
And P.S., for the record, had he claimed they shouldn’t have “waited until the 11th hour” to file that suit, I might have agreed with him, since I don’t think it’s a good idea for election officials to be going into the Admin portion of those systems when the machines are already in Election Mode. That’s a recipe for disaster, mischief, etc.
But, of course, that’s now what he said. As you correctly note, he incorrectly stated that they waited until the day before the election.
Re: Brad @5 & 6:
Even the “our machines do not capture” is an example of a Merrill hair-splitting dodge. The machines do not “capture” as in “are not programmed to retain” the images. That way Merrill evades the simple truth: that the op-scans can easily be set to “save ALL PROCESSED IMAGES”.
I concur with your assessment that it’s generally a bad idea to go “into the Admin portion of those systems when the machines are already in Election Mode.”
But I have to wonder who is responsible for the timing? Was the 12/7 motion for a TRO the first notice Merrill received or did the plaintiffs present a request to his office before they initiated the legal action?
Is there a “wayback machine” for twitter??
Also, I wonder what the NASS has to say about Merrill’s behavior — seems to me he is violating the oath he took to obey their bylaws. In fact, NASS violates its own bylaws by not taking SOS’s to task for not holding transparent elections.
one more thing — should add Merrill & NASS fail to uphold the NASS Constitution as well
Epic Twitter exchange.
After all these years, it seems like you have fake being computer illiterate to get a job overseeing computer voting machines.
Basically, hand counting ballots is “off the table” in our fake democracy.
Let me try that again. 🙂
After all these years, it seems like you have TO fake being computer illiterate to get a job overseeing computer voting machines.
I had read that about 5 times, Larry, before I finally figured out what you were trying to say. Glad you have now confirmed it! 🙂
Sorry about that. 🙂