Merrill backs Mobile probate judge, city clerk in ballot row

A Republican secretary of state candidate’s assertion that less than 20 absentee ballots were handled inappropriately during the 2021 Mobile municipal election has been met with sharp rebukes by city and county election officials. 

Ed Packard, a GOP candidate for the state’s top election office, sent a letter to Lagniappe criticizing City Clerk Lisa Carroll Lambert’s handling of up to 17 absentee ballots that could not initially be read by an automated counter due to a variety of issues. 

Instead of hand-counting the ballots, per state law, Packard said Lambert’s office transcribed the votes from an unusable ballot to a fresh one before feeding it into the machine. Packard said this is inappropriate. 

“This issue first arose in the last election for the city of Mobile, and when that happened we learned that the procedure that the city was following was a procedure that the Mobile County Probate Office advised them to use,” Packard wrote in an email message. “An issue like this would be serious at any time, but it takes on a higher level of import given what happened in the 2020 election and the concerns and allegations about the improper handling of ballots in that presidential election.” 

While there were allegations of voter fraud in the wake of the 2020 presidential election, which resulted in President Joe Biden beating incumbent Donald Trump, no one has made the claim before in reference to an election in Alabama.

Both Mobile County Probate Judge Don Davis and Lambert said they didn’t speak about counting absentee ballots prior to the municipal election, but Davis did confirm in a meeting with Lagniappe that the county uses that process to count unreadable absentee ballots in all its elections. 

On occasion, Davis said, a high-speed counter used to tally absentee votes cannot read a ballot for several reasons. When this occurs, he said, poll workers tasked with tallying absentee votes will identify the particular ballot style in question and two of the workers will transcribe the markings onto a fresh ballot. 

“We get poll watchers for each candidate or party to look and verify that the poll workers accurately transposed the data to the fresh ballot,” Davis said. “We spoil the old ballot. The secretary of state has told us that’s an acceptable procedure.” 

While Davis admitted state law does require a hand-count of any ballot that can’t be properly read by a machine, he said the law does not define what “hand-count” actually means. He argued then that his procedure is actually more accurate than a traditional hand-count. 

In a follow-up email, Packard said Davis is “mistaken” in his definition of “hand-count.” 

“As I pointed out in my last letter to [Alabama Secretary of State John] Merrill, I do not know how one considers remarking ballots and feeding them into an electronic ballot counter as ‘hand-counting,’” Packard wrote. “Hand-counting’ has a particular meaning within the election administration and does not involve ballots counted by an electronic ballot tabulator, regardless of whether state law addresses that specifically. As many [attorney general] opinions point out, words are given their normal, everyday meaning when considering what a law or administrative rule says. In this case, we are talking about an administrative rule.” 

In a phone interview with Lagniappe, Merrill said that when it comes to election administration, Davis has his full confidence. Merrill added that his office was asked to come down and monitor the 2021 municipal elections and they did offer some recommendations to Lambert’s office, but none of those suggestions had anything to do with absentee ballot counting. 

Davis said a traditional hand-count performed by Mobile County, which still happens during fire district elections, requires a poll worker, usually himself, or a deputy to call out the votes on each ballot while at least two other workers make a note of it. In a traditional hand-count, Davis argued, there is more human contact with a ballot and it’s easier to make mistakes. 

“From a practical standpoint, the system we’re using minimizes problems,” Davis said. 

Lambert confirmed her office used the same process Davis uses to count absentee ballots that can’t be read by a machine. However, she said, she didn’t consult with the Republican probate judge during the election process. 

She said 15 to 17 ballots couldn’t be read, but claimed Packard was there when the votes were counted. In addition, representatives for each candidate were also on hand. 

“Nobody had any issues with it,” she said. “One person read the ballot and one marked it then we ran it through [the counter]. To me, it’s not any different than calling it out. To me, it’s cleaner.” 

The relatively small number of absentee ballots in question wouldn’t have changed the outcome of any of the municipal races in 2021. 

Packard is in a crowded field to represent the Republican Party in the secretary of state’s race. Packard will be on the May 24 primary ballot alongside State Auditor Jim Zeigler, State Rep. Wes Allen and Christian Horn.