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Redistricting Lawsuit Likely to End Today

Brandon Moseley

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By Brandon Moseley
Alabama Political Reporter

The fate of Alabama’s legislative 2012 redistricting plan will be decided by a panel of federal judges in Montgomery in a trial that is likely to conclude today (Tuesday).

Alabama state Representative Jim McClendon said on Facebook Tuesday August 13, “Senator Dial and I wrap up the Redistricting Trial today. He testified last Thursday, I testified yesterday, Monday. Hopefully today will be the final day of this endurance contest. The Legislative Black Caucus sued the State over the plan passed by the legislature and signed by the governor, so we are the defendants, having taken a big role in the constitutionally mandated task of redrawing House and Senate district lines. My expectation is that the court will rule in favor of our work.”

Both Houses of the Alabama Legislature passed decennial reapportionment plans in last year’s Special Session. Alabama State Senator Rodger Smitherman (D) from Birmingham opposed both the redistricting plans for the Alabama Senate and the Alabama House of Representatives. Sen. Smitherman told ‘The Alabama Political Reporter’ last year that he feared that all African-Americans in the state will be disenfranchised as a long term result of the new reapportionment plans.

Sen. Smitherman said, “What they have done is take African-American voters out of many of the districts that they are trying to change to be predominantly Republican districts that are Democratic districts now.” The Birmingham Democrat said, “They don’t ask you if you are Republican or Democrat they have just totally disenfranchised those voters to the point where they moved some of them to districts that are predominantly Republican and they are upset about it. Those people are totally disenfranchised. They will be at the mercy of that district.”

Sen. Smitherman said that the redistricting plan will result in Alabama no longer having a viable two-party system. Sen. Smitherman said that the reapportionment plan: “is designed to have a system that is split up where African-Americans are on one side (Democrats) and everybody else is on the other side (Republican)”….. “As a result you have segregation.”

Sen. Smitherman, and the Alabama Democrats as a group, claim that Republicans packed as many minority voters as possible into majority minority districts because most Alabama Blacks vote for Democrats, while most Alabama Whites vote for Republicans.  Increasing the percentage of White voters in the 27 majority white Senate Districts they clam increases the likelihood that Republicans will win those districts, leaving Alabama with one political party dominated by Whites and one political party that is dominated by Blacks.

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Sen. Smitherman said, “Now you have a situation where 27 people (Senators representing majority white districts) are going to be ignoring the other 8 (Senators representing majority minority districts). All African-Americans in the state are going to be disenfranchised and then you are going to have an acceleration of the efforts to hinder African-Americans the opportunity to vote.”

Article One, Section 2 of the United States Constitution calls for a national census every ten years. “Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”The Census is then used for redistricting Congress, the legislature, and state school board. The actual redistricting is performed by each individual state based on the numbers in the most recent Census. In Alabama the Permanent Committee on Redistricting is assigned the responsibility of performing this Constitutional role. The Permanent Committee on Redistricting is composed of nine Senate Republicans, two Senate Democrats, seven House Republicans, and four House Democrats. The distribution between the two political parties is based on their representation in their respective houses. After the election of 2010, the Republican Party won control of both the Alabama House and Senate. The goal of the Committee is to create fair districts; but redistricting is a political process. The Joint Chairmen of the Committee on Redistricting were Sen. Gerald Dial (R) from Lineville and Representative Jim McClendon (R) from Springville.

Rep. McClendon said on Facebook Tuesday that he would, “ Be glad to get freed up from this 3 year project and get on with my race for Senate.” Rep. McClendon is challenging state Senator Jerry Fielding (R) from Sylacauga in the 2014 Republican primary. Sen. Fielding was elected as a Democrat in 2010.

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Brandon Moseley is a senior reporter with eight and a half years at Alabama Political Reporter. You can email him at [email protected] or follow him on Facebook. Brandon is a native of Moody, Alabama, a graduate of Auburn University, and a seventh generation Alabamian.

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Elections

Alabamians request more than 101,000 absentee ballots with 30 days left to apply

So far, 35,184 absentee ballots have been successfully returned for the general election.

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(APR GRAPHIC)

At least 101,092 absentee ballots have been requested so far in Alabama according to Secretary of State John Merrill, with just 30 days left to apply for an absentee ballot for the Nov. 3 General Election. So far, 35,184 absentee ballots have been successfully returned for the general election.

In order to protect the safety and well-being of voters, Merrill is encouraging those who are concerned about contracting or spreading the coronavirus to apply for and cast an absentee ballot.

Absentee ballot applications can be downloaded online or requested by visiting or calling your local absentee election manager’s office.

Voters may also contact the Secretary of State’s office at 334-242-7210 to request an absentee ballot application.

Due to the declared states of emergency, any qualified voter who determines it is impossible or unreasonable to vote at their polling place shall be eligible to check the box on the absentee ballot application that is most applicable to that individual. In the case none of the boxes are appropriate, voters can check the box which reads, “I have a physical illness or infirmity which prevents my attendance at the polls. [ID REQUIRED]”

For the Nov. 3 General Election, the deadline to register to vote is Monday, Oct. 19, the deadline to submit an absentee ballot application is Thursday, Oct. 29, the deadline to return an absentee ballot to the absentee election manager is the close of business Monday, Nov. 2, and the last day to postmark an absentee ballot is Monday, Nov. 2.

Voters who are eligible to vote pursuant to the Uniformed and Overseas Absentee Voting Act will have until Tuesday, Nov. 3 to postmark an absentee ballot.

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Voters concerned about COVID-19 are encouraged to select the box on the affidavit, which accompanies the absentee ballot, which reads as follows: “I am physically incapacitated and will not be able to vote in person on election day.”

Due to recently witnessed delays with the U.S. Postal Service, Merrill encourages voters interested in returning their ballot by mail to go ahead and make application for their absentee ballot. As a reminder, Merrill worked with the Legislature last year to pass Act 2019-507, allowing voters the opportunity to return their absentee ballot by commercial carrier in addition to U.S. mail.

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Corruption

Former Barbour County sheriff arrested, charged with taking money from sheriff’s office

Upshaw was charged with two crimes connected to taking more than $85,000 from several accounts that belong to the sheriff’s office.

Eddie Burkhalter

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(STOCK PHOTO)

Alabama Attorney General Steve Marshall on Tuesday announced the arrest of Leroy Davie Upshaw, the former sheriff of Barbour County, on charges that he used his office for personal gain. 

Upshaw, 49, surrendered to the Barbour County Sheriff’s Office on Monday and was released on bond, according to a Marshall’s office. He had served as sheriff until his term ended in January 2019. 

Upshaw was charged with two crimes connected to taking more than $85,000 from several accounts that belong to the sheriff’s office, Marshall’s office alleges. One charge alleges that he used his public office to receive personal financial gain and the other charge alleges that he used his office to obtain financial gain for members of his family. 

The Dothan Eagle reported in 2018 that Upshaw’s troubles began when the sheriff’s office was audited and cited for 11 errors, including one in which Upshaw gave himself the additional salary that had gone to the former work release administrator.

If convicted of the class B felony of using his office for personal gain, Upshaw could face up to 20 years in prison.

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Health

Governor: Alabama will get 1 million rapid antigen COVID-19 tests

The state is to receive the Abbott Laboratories BinaxNow rapid tests in phases over the next few months. The initial shipment is set to include approximately 96,000 tests. 

Eddie Burkhalter

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Abbott’s BinaxNOW™ COVID-19 Ag Card is highly portable, about the size of a credit card, and doesn’t require added equipment. (VIA ABBOTT)

Gov. Kay Ivey on Tuesday announced that the Trump administration is to send 1 million new rapid COVID-19 tests to Alabama, but the details on their use was still being worked out. 

Ivey’s office announced in a press release that the state is to receive the Abbott Laboratories BinaxNow rapid tests in phases over the next few months, and that the initial shipment is to be of approximately 96,000 tests. 

It was unclear Tuesday who will get the tests or whether the results will be required to be reported to The Alabama Department of Public Health (ADPH), however. In a statement Ivey said while we await a vaccine “providing Alabamians – especially our students and vulnerable citizens – with this free resource will be another critical tool in the toolbox to combat COVID-19.”

Our Office is working in coordination with Public Health as we firm up plans for distribution. We are working to ensure students and high-risk individuals have access to this resource,” said Gina Maiola, Ivey’s press secretary, in a response to APR’s questions Tuesday. 

Questions to ADPH on Tuesday weren’t immediately responded to. 

The U.S. Food and Drug Administration on Aug. 26 gave an emergency use authorization to Abbott laboratories for the rapid antigen tests, which is the first of its kind to require no lab equipment. 

The USDA on Sept. 18 reissued an emergency use declaration, changing wording to say that the tests are to be used “within the first seven days of the onset of symptoms” and that “testing facilities within the United States and its territories are required to report all results to the appropriate public health authorities.” 

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“Studies have shown that antigen levels in some patients who have been symptomatic for more than five days may drop below the limit of detection of the test. This may result in a negative test result, while a more sensitive test, such as RT-PCR, may return a positive result,” the Centers for Disease Control and Prevention said in guidance on the use of antigen tests

The Trump administration approved a $760 million contract with the company to produce about 150 million tests. 

“We’ll ship tens of millions of tests in September, ramping production to 50 million tests a month in October,” Abbott Laboratories said on the company’s website

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Other governors were making similar statements Tuesday about pending Abbott Laboratory tests coming to their states. 

President Donal Trump on Monday announced plans to ship 100 million of the tests to states based upon population. 

“Governors have the flexibility to use these tests as they deem fit, but we strongly encourage governors to utilize them in settings that are uniquely in need of rapid, low-tech, point-of- care tests, like opening and keeping open our K-through-12 schools; supporting critical infrastructure and first responders; responding to outbreak, specifically in certain demographics or locations; and screening of surveillance in congregate settings,” said Adm. Brett Giroir, the U.S. Department of Health and Human Services official in charge of COVID-19 testing for the White House’s coronavirus task force, speaking with Trump from the Rose Garden on Monday. 

The Abbott Laboratories rapid antigen tests, which use a swab and a small card and can provide results within 15 minutes, have some similarities to existing antigen tests now being used across Alabama, which use small machines to provide quick results. 

ADPH has struggled at times to get results from those existing rapid antigen tests, which are often used in non-traditional lab settings, such as nursing homes, universities and urgent care clinics, some of which aren’t accustomed to ADPH’s reporting process. 

Dr. Karen Landers, an assistant state health officer for ADPH, told Kaiser Health News last week that she was concerned about the undercounting of antigen test results, and that some providers were struggling to submit results.

“We can’t afford to miss a case,” Landers told the news outlet.

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Health

Delayed reporting caused spike in Alabama’s daily COVID-19 count

Two large labs were improperly reporting COVID-19 testing data to the Alabama Department of Public Health, and a data dump from those labs resulted in the state’s largest single day spike in new daily cases on Sept. 25.

Eddie Burkhalter

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(STOCK PHOTO)

Two large labs were improperly reporting COVID-19 testing data to the Alabama Department of Public Health, and a data dump from those labs resulted in the state’s largest single day spike in new daily cases on Sept. 25 when 2,452 cases were reported. 

Alabama State Health Officer Dr. Scott Harris told APR on Tuesday that once those two labs sent in a mass of old test results electronically to ADPH — almost all of them point-of-care antigen tests — those results caused the spike in new daily cases. 

“ADPH continues to make all efforts possible to identify new labs and bring them into the electronic reporting process in order to capture the positive and negative labs for case investigation and data accuracy,” the department said in a statement regarding the recent data dump.

In addition to the large batch of backlogged positive antigen tests on Sept. 25, the state has also begun including probable tests — largely those positives from antigen tests — in both its statewide and county-by-county data, which APR uses to populate its charts. The state began reporting probable cases and deaths on the statewide level on May 30, and began including those totals in graphs on Sept. 1.

(APR GRAPHIC)

(Because ADPH has been reporting probable cases and deaths since May 30, APR was able to adjust our charts back to May 30 beginning Sept. 1 without the addition of the probable cases causing a huge spike.)

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On the county level, though, probable cases and deaths were not reported at all until Sept. 25, when the full total of every probable case was added to county charts. The addition of those probable cases made some counties appear to have even larger spikes than the statewide increase on Sept. 25, which was already the largest increase to date because of the backlogged positives from the labs improperly reporting positives.

(The addition of the new probable cases have also affected other measures APR calculates based on those cumulative and daily totals including seven-day averages, 14-day averages and percent positivity.)

For example, many counties over the past week have reported more positive cases than total tests, which would be impossible without the data delay and the addition of probable cases. Some counties, like Lee County and Tuscaloosa County, showed such large increases on Sept. 25 that their positive totals on that day alone appear to outmatch the statewide increase.

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That, again, is because the statewide total was already including probable cases beginning Sept. 1 and daily probable data was available back to May 30, but county level data did not include probable cases until Sept. 25.

Harris said it’s not uncommon for some labs to hold off reporting test results for a couple of weeks, then submit them all at once. Smaller commercial labs that don’t amass many tests often wait until a batch has been accumulated to submit. 

Two labs sent in a large batch of older negative test results to the state in August, which skewed charts that use that data to track new daily tests and percent positivity. A similar artificial dip and spike in statewide COVID-19 data in early June was the result of computer system problems.

Speaking on the current state of COVID-19 in Alabama, Harris said “we’re cautiously optimistic about where we are” and noted that unlike the spike in new cases, hospitalizations and deaths statewide after Memorial Day into July, the most recent Labor Day holiday does not seem to have resulted in larger numbers.

“We did not appreciate a big spike after Labor Day, which was very, very encouraging,” Harris said.

Harris noted that the state hasn’t imposed any new restrictions since May, other than the statewide mask order in mid-July, which was followed by a decline of new confirmed COVID-19 cases.

“I will say, we still have room to improve. The hospital numbers now are about half of where they were in early August,” Harris said. “Yet they’re still a lot higher than they were back in the spring, so I wish we would continue to see more improvement, but I think we’re definitely much better than we were a couple of months ago.”

Gov. Kay Ivey’s statewide mask order is set to expire Friday, but Ivey and Harris are expected to make an announcement about whether it will be extended. Harris said Ivey’s coronavirus task force is to have a conference call Tuesday afternoon and that an announcement would likely come soon.

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