Tuggle v. Ala. Sec'y of State John Merrill & Dir. of Elections Ed Packard) (Ex parte Merrill)

• Decision Date: 18 May 2018
• Docket Number: 1170216
• Citation: 264 So.3d 855
• Parties: EX PARTE Alabama Secretary of State John MERRILL and Director of Elections Ed Packard (In re: Virginia Tuggle et al. v. Alabama Secretary of State John Merrill and Director of Elections Ed Packard)
• Court: Alabama Supreme Court

264 So.3d 855

EX PARTE Alabama Secretary of State John MERRILL and Director of Elections Ed Packard

(In re: Virginia Tuggle et al.

v.Alabama Secretary of State John Merrill and Director of Elections Ed Packard)

1170216

Supreme Court of Alabama.

May 18, 2018

Steve Marshall, atty. gen., and James W. Davis, deputy atty. gen., and Brad Chynoweth, asst. atty. gen.; and Brent Beal, deputy atty. gen., Office of the Alabama Secretary of State, for petitioners.

Priscilla Black Duncan of P.B. Duncan & Associates, LLC, Montgomery; and Catherine R. Steinwinder of Steinwinder & Ratliff, LLC, Montgomery, for respondents.

SHAW, JUSTICE.

The defendants below, the Alabama Secretary of State, John Merrill, and a member of his staff, Ed Packard, the director of elections, petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate a preliminary injunction and to dismiss for lack of jurisdiction the underlying action seeking injunctive and declaratory relief. We grant the petition and issue the writ.

Facts

On December 7, 2017, Pamela Miles, Dan Dannemueller, Paul Hard, and Victoria Tuggle (hereinafter referred to collectively as "the plaintiffs") filed a civil action in the trial court against Merrill, in his capacity as Secretary of State, and Packard, in his capacity as director of elections (hereinafter referred to collectively as "the defendants"), seeking injunctive and declaratory relief. Specifically, they alleged that certain electronic voting machines used in Alabama elections created digital images of the paper ballots scanned and counted by the machines. Further, according to the plaintiffs, the defendants "do not and will not instruct election officials" to preserve the digital ballot images. Those images, it was argued, are public records that, under Alabama law, must be preserved. The plaintiffs also appeared to allege that federal law, specifically, 52 U.S.C. § 20701, requires that those images be retained. This failure "to require that all election materials" be preserved, the plaintiffs contended, "infringe[d] upon their right to a fair and accurate election." The plaintiffs specifically cited the then upcoming December 12, 2017, special election for United States Senate and argued that the failure to preserve digital ballot images in that election "used for tabulating votes and possible post-election adjudication" would result in such images being "destroyed." The plaintiffs further contended that their action "continues to be ripe through all elections scheduled in 2018."

The plaintiffs sought a temporary restraining order directing the defendants to "inform county election directors to preserve digital ballot images or files" in the December 12 election, requested that a hearing be held and a preliminary injunction be issued, and asked that, upon a final hearing, the trial court render a judgment declaring that the defendants had "a duty to preserve and instruct Alabama county election officials to preserve all digital ballot images and files produced in the State of Alabama." From the materials before us, it does not appear that the complaint was verified or that it included any supporting affidavits or evidence.

The trial court scheduled a hearing for Monday, December 11, 2017, at 9 a.m. Counsel for the plaintiffs and the defendants appeared at the hearing. It does not appear from the materials before us that any evidence was submitted or testimony taken at the hearing.

After the hearing, the defendants filed a motion to dismiss. That motion was stamped as electronically filed at 12:47 p.m. on December 11. In the motion, the defendants argued, among other things, that the plaintiffs had no standing, that the action was filed too late to impact the December 12 special election, and that the plaintiffs could not meet their burden of establishing that they were entitled to injunctive relief. Specifically, the defendants argued that the plaintiffs did not allege how the failure to preserve digital ballot images would deny them the right to a fair and accurate election and that it was speculation that an election contest might occur where such images would be needed, especially given that the actual paper ballots, which would be the "best evidence," would be retained. They further alleged that no injury was fairly traceable to them because local election officials, not the Secretary of State, have authority over voting machines; the Secretary of State, they assert, is empowered by law only to give "uniform guidance" to those officials and could not order those officials to take the actions the plaintiffs requested. Additionally, any order mandating that officials retain digital ballot images would require "reprogramming" the electronic voting machines, which would risk interfering with the election that was to occur the next day. It does not appear that the trial court ruled on the motion to dismiss; instead, the motion was set for a hearing on December 21.

Subsequently, in an order stamped as electronically filed at 1:32 p.m. on December 11, the trial court entered a preliminary injunction. It directed the defendants to communicate with and to send to all probate judges and election officials in the state the following order:

"All counties employing digital ballot scanners in the Dec. 12, 2017 election are hereby ORDERED to set their voting machines to save ALL PROCESSED IMAGES in order to preserve all digital ballot images. This order applies to those machines that have such a setting and does not apply to any machine that does not allow for processed images to be saved."¹

The trial court's order further set the matter for a "full hearing" on December 21.

At 3:53 p.m. on December 11, the defendants filed in this Court what was styled as a "petition for an emergency writ of mandamus." Within an hour, the defendants filed two "corrected" versions of the petition and a motion to stay the preliminary injunction; the defendants contended in their motion to stay that the preliminary injunction, if not stayed, would "cause confusion among elections officials and be disruptive to an election scheduled for tomorrow." This Court granted the motion to stay and ordered answers and briefs.

Discussion

A. The defendants' challenge to the preliminary injunction

In their petition, the defendants contend that the plaintiffs failed to demonstrate that a preliminary injunction² was warranted.³

" ‘In order for a trial court to grant a preliminary injunction, the plaintiff must show all of the following: (1) that without the injunction the plaintiff would suffer immediate and irreparable injury; (2) that the plaintiff has no adequate remedy at law; (3) that the plaintiff has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the defendant by the injunction would not unreasonably outweigh the benefit accruing to the plaintiff.’ "

Stephens v. Colley, 160 So.3d 278, 282 (Ala. 2014) (quoting Perley ex rel. Tapscan, Inc. v. Tapscan, Inc., 646 So.2d 585, 587 (Ala. 1994) ). Plaintiffs seeking a preliminary injunction must present evidence to substantiate their pleadings. Blount Recycling, LLC v. City of Cullman, 884 So.2d 850, 855 (Ala. 2003) ("[W]hile Rule 65, Ala. R. Civ. P., ‘does not explicitly require that oral testimony be presented at a preliminary injunction hearing, some type of evidence which substantiates the pleadings is implicitly required by subsection (a)(2) of the rule.’ " (quoting Bamberg v. Bamberg, 441 So.2d 970, 971 (Ala. Civ. App. 1983) ) ).⁴ Further, Rule 65(c), Ala. R. Civ. P., requires that security, such as a bond, see Rule 65.1, Ala. R. Civ. P., be given unless the trial court makes a specific finding, based upon evidence, that one or more of certain exceptions exists. Spinks v. Automation Pers. Servs., Inc., 49 So.3d 186, 191 (Ala. 2010). It does not appear that security was given by the plaintiffs in this case, and the trial court did not state that an exception existed.

According to the defendants, there is no plausible allegation that the failure to preserve digital ballot images would cause the plaintiffs imminent harm because the paper ballots, from which any digital ballot image would be made, will still exist after the election. Further, there is no reasonable chance for success on the merits because the Secretary of State is not empowered to order that electronic voting machines be set in a particular fashion as the plaintiffs requested—instead, the local probate judge is the chief elections official in each county, and the Secretary of State offers only "guidance" to local election officials and could merely request—not order—that local election officials preserve the digital ballot images. See Ala. Code 1975, § 17–1–3 (providing that "[t]he Secretary of State is the chief elections official in the state and shall provide uniform guidance for election activities" and that "[t]he judge of probate is the chief elections official of the county"). Thus, the defendants argue, there is no recourse for any failure to comply with an order issued by the Secretary of State, like the one ordered to be sent by the trial court. Finally, the defendants argue that "equities also weigh against the plaintiffs" because an order by the Secretary of State purporting to direct local election officials "to make major last-minute changes to the machines" the evening before the December 12 election was "likely to cause confusion" and "disrupt election activities" in that such an order would likely be read to require action on their part.⁵

The preliminary injunction directed the defendants to take action regarding the December 12 special election for United States Senate. That election has already occurred. Therefore, the question is whether the defendants' challenge to the merits of that injunction is now moot.

"This Court has often said that, as a general rule, it will not decide questions after a decision has become useless or moot." Arrington...