From the alternet article linked above:
“The only Defendants to this case—Secretary of State John Merrill and a member of his staff—do not have authority to make changes to voting machines or to require local officials to do so,” the state’s brief said. “It [Monday’s earlier court order] purports to order Counties, which are not parties, to take action that the Secretary believes is impossible to complete before the election and which will disrupt the election. The order will cause confusion among local election officials who are not party to this suit and who will be unsure of their obligations.”
Chris Sautter, a Washington-based lawyer specializing in election law who helped the Alabama-based legal team and plaintiffs, said Merrill’s argument was plainly “disingenuous” and designed to sabotage the necessary steps to ensure the full public record in Tuesday’s election will not be destroyed.
At issue in this case is the simple fact that Merrill and his elections staff refused to tell county election offices to check one box in the software running the scanners that will read the ink-marked paper ballots and tabulate the vote Tuesday. Everything else cited by Merrill’s attorneys is a legalistic sideshow distracting from that basic fact.
“The voting machines are under the authority of the Probate Judges, not the Secretary of State, and the Secretary of State is not party to the contracts between Probate Judges and ES&S to maintain and program the voting machines,” the brief said. “To change a machine’s program would require a third-party vendor, ES&S, to go to 2000 machines around the state.”
Reading that, I'm entirely unsurprised that the order was almost immediately stayed by the Supreme Court. That argument is, at least from a purely legal perspective, anything but "disingenuous." What is disingenuous, IMO, is Sautter's evasion the fact that the plaintiffs in the case do seem to have sued the wrong parties, and were therefore asking the Secretary of State to do something not within the Secretary of State's authority.
The injunction is available online
. The injunction itself acknowledges that the Secretary of State "is alleged to be an improper party," doesn't address the question of whether the Secretary of State actually is a proper party, and instead justifies the injunction on the basis of the "nominal resources and cost" required to "send a communication through a system that already exists and is routinely used." But the content of the communication the court ordered
sent read, "All counties...are hereby ORDERED to set their voting machines..." (caps in original).
So the court, without first determining if the Secretary of State was an appropriate party to the suit or if the Secretary of State had the authority to order the counties to set voting machines to do anything, ordered the SoS to order the counties to set their machines.
I'm unsurprised that the order was stayed. The ultimate recipients of the order - the counties - weren't part of the proceedings, so the court very probably lacked jurisdiction to directly order them to do anything. Indirectly ordering the counties to save ballots by ordering the Secretary of State to order them to do so is only possible if the Secretary of State independently has the authority to issue such an order. The court didn't even attempt to resolve that question before ordering the SoS to issue that order.
I'd have have to do at least a couple of hours of research to be sure, but if I was a law clerk to one of the justices on the AL Supreme Court, I could easily see myself advising the justice to concur with the stay.
I believe that each era finds a improvement in law each year brings something new for the benefit of mankind.
--Clarence Earl Gideon