Alabama Sec. of State John Merrill is claiming Roy Moore can request a recount in Tuesday’s U.S. Senate race, which Moore lost by 21,000 votes. But state law appears to say otherwise.
Merrill’s stance could help the GOP delay seating Democrat Doug Jones in the U.S. Senate. It’s just the latest example of the secretary of state, a Republican and Moore backer, creating serious doubts about his ability to administer the crucial race fairly.
Alabama law is clear that an automatic recount must be held at the state’s expense if the margin of victory is less than 0.5 percent. Jones’s margin in his upset win was 1.5 percent. But as of Wednesday afternoon, Moore had not yet conceded the race.
Despite Jones’s victory, voting advocates reported numerous problems at the polls Tuesday. They included long lines in black areas, and voters who had been placed on the “inactive” list improperly being forced to provide additional documentation.
Merrill (pictured) said on CNN late Tuesday that a recount was unlikely, and that it almost certainly wouldn’t change the result. But he also said that any candidate is entitled to a recount at his or her own expense, no matter the margin. He pointed to a recent governor’s race in which one candidate paid for a recount.
But Rick Hasen, a respected election law expert at the University of California, Irvine, wrote online that Merrill got it wrong. Citing state law, Hasen wrote that only candidates for state-level positions, not federal ones, are entitled to a recount whatever the margin.
The Alabama Law Institute’s Election Handbook appears to support Hasen.
“I understand that Merrill may have made an error in the heat of the election (but truly, this is something he should have known going into such a high profile and closely watched election),” Hasen wrote Wednesday morning. “But what explains his failure to correct things now? We are moving from a mistake to possibly something else.”
Merrill’s response? He blocked Hasen on Twitter. (It’s not the first time that Alabama’s chief elections official has blocked an election expert who dared criticize him. One was even blocked after saying Merrill shouldn’t block people on Twitter).
Asked by The Daily Democracy whether Merrill stood by his interpretation of the recount law, a spokesman didn’t respond.
There’s almost no chance that a recount could give Moore enough votes to win. But a recount would almost certainly delay the process of certifying the result, which Merrill legally must do by January 2 to make it official.
That, in turn, could make it much easier for Republicans in the U.S. Senate to wait until then to seat Jones. Democrats are currently demanding that Jones be seated before a vote is held on the GOP’s unpopular tax cut legislation.
For Merrill, the recount controversy is just the latest in a strong of episodes that have drawn criticism from Democrats, voting rights advocates, and election experts.
On Monday, his office succeeded in convincing the state’s Supreme Court to block a lower court decision barring election officials from destroying digital voting records. That makes it much harder to verify the results if necessary, potentially undermining public confidence in the process.
Last week, he pressured Google to remove an online ad placed by a pro-Jones group that encouraged African-Americans to vote, falsely accusing the group of “voter intimidation.”
Merrill also has refused to spend money to publicize a change in the state’s felon disenfranchisement law, which restored the vote to thousands of ex-felons, saying people who really want to vote will try multiple times.
Merrill has made claims about potential widespread illegal voting in the Senate runoff election, which turned out to be false. That controversy included telling the African-American congresswoman who represents Selma that she isn’t “informed enough” to discuss voting rights with him.
Merrill has said that making voting easier via Automatic Voter Registration (AVR) would “cheapen the work” of civil rights heroes like Martin Luther King and John Lewis (Lewis strongly supports AVR).
And last month, Alabama’s top elections official even appeared to deny the state’s shameful history of disenfranchising its black population, writing on Twitter: “I am not aware of any time in the history of the state where an individual has been denied the opportunity to vote in the general election if qualified.”
Late Update, 3:25pm: Merrill appears to be wavering in his interpretation of the recount law, telling The Montgomery Advertiser, in a reference to Hasen: “If we need advice or counsel on this matter, we’ll be seeking it from attorneys and judges in the state of Alabama, not attorneys and judges in the state of California.”
Later Update, 12/15: Nope, no wavering. Merrill spokesman John Bennett tells AL.com: “It’s out contention that the votes can be recounted. We contend that authority is there.”