A top election official insists Roy Moore is entitled to a recount. The law says otherwise.
Roy Moore cannot get a recount under state law, a growing chorus of legal scholars said Wednesday, despite what the state's top election official and the Senate candidate himself might have you believe. (Moore told rallygoers Tuesday night that the race is "not over," and that it will "take some time.")
"It looks like Roy Moore cannot request a recount in the Alabama Senate race if the margin is greater than 0.5 percent (there's an automatic recount for the 0.5 percent range)," wrote Rick Hasen, a University of California Irvine law professor and curator of the nation's most influential election law blog. "Last night on CNN, Alabama SOS [Secretary of State] John Merrill got it wrong, saying that Moore could pay for a recount in the larger range. The statute does not allow this for federal offices."
As of midnight Wednesday, Democrat Doug Jones had 671,151 votes to Moore's 650,436 votes, good for a margin of victory of 1.5 percent. The election also included 22,819 write-in votes, which is what Sen. Richard Shelby (R-AL) suggested Sunday that his fellow Alabama Republicans submit.
Hasen's comments -- which were affirmed by other election lawyers on his listserv -- highlight the latest dubious behavior by high-ranking Alabama officials surrounding the controversial U.S. Senate election.
On Monday, a Montgomery County court issued an order telling Merrill to instruct all county election officials to preserve the digital images of every ballot that is scanned and counted. That involves checking one box on a software window after turning on the scanners. Merrill appealed the ruling to the Supreme Court of Alabama, which reversed the lower court order and undermined any chance of creating a public record for a possible recount. Of course, Alabama officials thought they were helping Roy Moore.
The Supreme Court of Alabama quickly issued its order without hearing from attorneys representing the four Alabama citizens seeking to preserve the ballot images.
"It appears that the court issued its order within minutes after the stay request, without giving the other side a chance for briefing," Hasen blogged. "How could they have had a chance to fairly consider the issue?...It is very disturbing because the AL Supreme Court's order effectively decides the case. The ballot images will be destroyed, even if plaintiffs ultimately win on the merits weeks later. Goes against principles of preserving the status quo."
If that wasn't bad enough, later on Tuesday Merrill told CNN that Moore could pay for a recount, when as Hasen and other election lawyers have noted, the state's election law does not allow a recount unless the victory margin is under 0.5 percent.
"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. "But what explains his failure to correct things now? We are moving from a mistake to possibly something else."
Merrill didn't respond to Hasen, but blocked him on his Twitter account Wednesday.
The Washington Post's Philip Bump took a closer look at the preliminary vote results, which have not been officially certified. Before Moore spoke on Tuesday night when he refused to concede, his campaign chairman said there were still uncounted ballots from overseas military personnel.
"To [CNN's Jake] Tapper, Merrill said it would be 'highly unusual and highly unlikely for that number of ballots' -- the 20,715 margin between Jones and Moore -- 'to be outstanding' from service members. It might, however, be enough to draw Moore within 0.5 points, he said," Bump wrote, before debunking that assertion.
"We can be confident, though, that it wouldn't," Bump continued. "As of May 2016, there were only about 8,700 people from Alabama serving in the armed forces. Assuming that's held fairly steady, even 100 percent turnout from that group would account for only about 42 percent of the gap that Moore needs. Even if all of those service members voted and all of them voted for Moore, Jones would still have a lead of 0.9 percentage points. Not enough."