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Confusion at End of House District 79 Race

By Brandon Moseley
Alabama Political Reporter

On Thursday, September 22, 2016, Alabama Secretary of State John Merrill (R) announced that Republican Primary winner Joe Lovvorn will be certified as the winner of the House District 79 (HD79) seat after the Secretary of State’s office determined that Libertarian candidate Gage Fenwick failed to get enough signatures from registered HD79 voters to qualify for ballot access.

On Friday, Fenwick then released a statement questioning the Merrill press release in which, “They stated that Libertarian Party candidate Gage Fenwick did not acquire enough verified signatures for ballot access. It was also stated that the number of signatures needed was 300 when the campaign was informed that it needed 276 signatures from Director of Elections Ed Packard back in July. There is now concern that the campaign was either given the wrong number to begin with or that a new standard was reached and the Secretary of State’s office failed to inform the campaign.”

The Alabama Political Reporter (APR) phoned the Secretary of State’s office for clarification on this.

Secretary of State John Merrill answered our inquiry in writing: “The total required number of signatures Mr. Fenwick needed to produce to appear on the General Election ballot was 276 which is calculated based on a percentage of the number of people that participated in the last gubernatorial election in that legislative district. Mr. Fenwick did not meet this threshold and will therefore not appear on the ballot.”

Fenwick also objected to Secretary Merrill’s decision to cancel the Special General election. Fenwick said, “The people of House District 79 deserve to have a choice in representation. When 88 percent of registered voters chose to not vote for a Republican, it is clear that there should have been another choice available.”

Merrill told APR, “Amendment 97 of the Alabama Constitution specifically states that in the event that no other candidate has qualified by the deadline then the general election should be subsequently canceled.”

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APR then looked up Amendment 97 in the Alabama Constitution, “Special Elections to Fill Vacancies in Either House of Legislature. Whenever a vacancy occurs in either house of the legislature the governor shall issue a writ of election to fill such vacancy for the remainder of the term. However, if the secretary of state determines that a legally qualified candidate for election to the vacancy is unopposed when the last date for filing certificates of nomination has passed, the election shall not be held. The secretary of state shall issue a certificate of election to the candidate, the same as if an election had been held, and the certificate shall be accepted by the house in which the vacancy occurred as evidence of the unopposed candidate’s right to fill the position created by the vacancy. In the event an election is held, all the costs and expenses incurred thereby shall be paid out of any funds in the state treasury not otherwise appropriated.”

This also happened last year when Chris Blackshear won the Republican Primary in House District 80. The qualified Democratic Party candidate chose to drop out of the race, thus Sec. Merrill waived the special general election and Blackshear was sworn in without the formality of a special general election.

Some in HD79 claim that their right to write in a candidate was violated by Sec. Merrill’s decision to exercise his Amendment 97 powers. Fenwick complained about Alabama’s ballot access laws, which he said are the second worst for third party candidates in the country. Gage is an economics student at Auburn University.

Amendment 97 was passed in the 1940s when the Democratic Party was in the ascendancy and all the action was in the Democratic Primary. Republicans weren’t elected in Alabama then so general elections were simple formalities.

This same scenario could play out in House District 41. There (like HD79) the Democratic party failed to qualify a candidate. In HD79 Republicans had a primary choice of four candidates; but in HD41 only Shelby County Commissioner Corley Ellis (R from Columbiana) qualified, so there was no Republican Primary. Independent and third party candidates have until October 18 to qualify a candidate. If that does not happen then Merrill likely will waive the special general election and Ellis could be elected to the state legislature without ever appearing on any ballot.

House District 79 became vacant when disgraced Speaker Mike Hubbard (R-Auburn) was found guilty of 12 felony ethics violations by a jury of his peers on June 10, 2016.

House District 41 became vacant when Alabama Governor Robert Bentley (R) chose Rep. Mike Hill (R-Columbiana) to be the Alabama Banking Commissioner.

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Brandon Moseley is a former reporter at the Alabama Political Reporter.

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