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Bentley Cites Third Party ballot access and cost as reasons why Special Election cannot be called this year

Brandon Moseley



By Brandon Moseley
Alabama Political Reporter

A number of State officials are questioning the legality of Governor Robert Bentley’s decision to postpone the Special Election until 2018 for the US Senate seat.

On Saturday Gov. Bentley responded to the criticism claiming that it would be too expensive to hold a Special Election and there would not be enough time for independent and minor party candidates to get the necessary signaturs for ballot access.

State Representative Christopher John England (D-Tuscaloosa) said on Facebook, “As you know, I have been questioning the legality of the Governor’s plan for the election to permanently fill Jeff Sessions’ Senate seat. I think that it is clear that his plan to use next year’s election cycle is illegal. Well, they responded. So, here is why they believe that what they are doing is legal.

The Governor’s Office Response: “Alabama Code section 36-9-8 has three scenarios for setting a special election to elect a senator to fill the unexpired term of a senator.
(1) One scenario is if the vacancy occurs 60 days before a general election. Then the statute states the election is held in 60 days. That scenario does not apply here because we are not within 60 days of the 2018 general election.
(2) The second scenario is if the vacancy occurs within four months but over 60 days before the next general election. That too does not apply here, since we are over four months from the 2018 general election.
(3) The third scenario is if the general election is over 4 months from the general election. That is the situation that applies to this vacancy. In that case the code says “the Governor shall forthwith order an election. . .”
The term “forthwith” does not have a set definition in terms of a time period. As one Court observed, “forthwith” lacks the “definiteness” and “certainty” as to “the matter involved.” State ex. Rel. Gunn v. Argo, 151 So. 844 (Ala. 1933). It may have “a relative meaning, implying a longer or shorter” time period according to the connection of its use and nature of the requirement. Haisten v. State, 59 So. 361 (Ala. Crim. App. 1912). Context of how this particular term is used greatly affects its meaning. InHaisten v. State, 59 So. 361 (Ala. Crim. App. 1912), the Court discussed different definitions of “forthwith” including Black’s Law definition and noted that when “forthwith” is used in a statute it means to act in “a reasonable time.”
There are several factors in considering what is a reasonable time. Those factors include compliance with federal statutes and cases, saving unnecessary expense, and setting a time that will increase voter participation and turnout.
1. UOCAVA, 42 U.S.C. §1973ff. This statute is a federal act that requires overseas service members and citizens residing overseas have ballots in their hands forty-five days before any federal election. This forty-five day requirement would apply to the special election primary, special election run-off, and the special general election. In order to insure that the ballots are in the hands of the service member or overseas citizen, the Secretary of State must mail those ballots fifty-four days before election. The requirements of UOCAVA are in addition to other applicable election timelines set out by state law. An expedited schedule of 60 days would (1) violate federal law and, ultimately, the Constitution, and (2) would violate federal law that protects the right to vote for our soldiers serving overseas. Therefore such an expedited setting is not reasonably practicable as the Alabama law requires.
1. Hall v. Merrill, 2016 WL 5796871 (M.D. Ala. 2016). Holding the special election at the 2018 general election also must respect a current federal court order protecting the constitutional rights of ballot access and the ability of voters to choose independent candidates. In the case of Hall v. Merrill, 2016 WL 5796871 (M.D. Ala. 2016), the Federal Court held that Alabama’s 3% signature requirement for independent candidates to gain ballot access was unconstitutional in a special election for United States House of Representatives seat because it placed a severe burden on independent candidates by having the deadline for filing the signatures within 106 days of the announcement of the vacancy and 56 days from the announcement of the setting of the date of the special election. In determining if an unconstitutional burden is imposed by the ballot access statute, the Court held it must look at whether a reasonably diligent candidate could have been expected to satisfy the 3% signature requirement in the allotted petition window. A candidate seeking ballot access for the United States Senate special election will need 6 times the signatures as the candidate- plaintiff in the Hall v. Merrill case. Therefore, any special election for an anticipated Senate vacancy must be set under the mandate of the Hall v. Merrill decision and allow independent candidates enough time so as to not impose an unconstitutional burden on their attempts to obtain ballot access. Scheduling a quicker special election in defiance of a federal judge’s order, is contrary to the Constitution and at the very least not legally practicable.
1. A faster special election is not practicable because of the cost associated with it. While estimates of cost savings may vary, there is no question that holding the anticipated special election to coincide with the 2018 general election will save the state millions of dollars. The savings in ballot printing costs and compliance with the electronic ballot requirements alone will save the state millions of dollars. The state would save monies for poll workers, security, electronic ballot programing, voting machine custodians, and many other election expenses by having the special election coincide with the 2018 general election. There are numerous other logistic advantages to holding the special election to coincide with the 2018 general election.
1. It is also expected that having the special election coincide with the general election of 2018 will greatly increase voter participation and turnout.
For these reasons, the 2018 general election is the most reasonable time to hold the special election to fill the unexpired term of Senator Sessions.”

Rep. England said, “Now that Luther Strange has been appointed to the US Senate to replace Jeff Sessions, what happens next? Well I’m glad you asked! State law requires the Governor to call a special election.” “According to Alabama Code Section 36-9-7 the Governor’s Appointment is only temporary. So what does temporary mean? Could it mean that we can just wait until 2018 when Sessions’ term expires anyway? That’s another great question! The answer is unequivocally NO.”


Rep. England said, “Alabama Code Section 36-9-8 states that “whenever a vacancy occurs in the office of senator of and from the State of Alabama in the Senate of the United States more than four months before a general election, the Governor of Alabama shall forthwith order an election to be held by the qualified electors of the state to elect a senator of and from the State of Alabama to the United States Senate for the unexpired term.””

Rep. England concluded, “So what does that mean? Well, unless we are within four months of the 2018 General Election, we must have a special election to replace the Governor’s temporary appointment. It appears to be clear to me that you can’t wait until 2018. The law REQUIRES a special election.”

State Auditor Jim Zeigler said that Gov. Bentley’s setting of the special election for a U.S. Senate seat in the 2018 election cycle “is in double violation of state law.”

On Friday, Zeigler filed a request for an Attorney General’s Opinion that Bentley cannot delay the special election for 22 months but must set it “forthwith.” Zeigler said that the delay by Bentley is “an effort to give almost two years to the appointed Senator without a vote of the people.”

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Zeigler said, “He says the election can be delayed to the next regular election only if the senate vacancy occurs within four months of the next election. The vacancy caused by former Sen. Jeff Sessions becoming US Attorney General was 21 months from the next general election, November of 2018.”


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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In Case You Missed It

Tuberville calls for term limits, balanced budget and lobbying reform

Tuberville has also made a major media buy across the state to trumpet this message.

Brandon Moseley



Republican Senate candidate Tommy Tuberville (TUBERVILLE CAMPAIGN)

Senate candidate Tommy Tuberville’s campaign began emphasizing key structural reforms that the Republican nominee hopes to advance if elected to the U.S. Senate including congressional term limits, withholding lawmakers’ paychecks unless a balanced budget is passed and a ban on former officials becoming lobbyists.

“Only an outsider like me can help President Trump drain the Swamp, and any of the proposals outlined in this ad will begin the process of pulling the plug,” Tuberville said in a statement. “Doug Jones has had his chance, and he failed our state, so now it’s time to elect a senator who will work to fundamentally change the way that Washington operates.”

Tuberville has also made a major media buy across the state to trumpet this message.

“You know Washington politicians could learn a lot from the folks in small town Alabama, but Doug Jones … he’s too liberal to teach them,” Tuberville added.

Polls consistently show that term limits are popular with people across both political parties, but the U.S. Supreme Court has ruled that imposing term limits would be adding a qualification to be a member of Congress and that can only be done by constitutional amendment.

It is an unspoken truth that when Americans send someone to Congress they never come back. They either keep getting re-elected like Alabama’s own Sen. Richard Shelby, who is in his sixth term in the Senate after four terms in the U.S. House of Representatives. On the other hand, they may become lobbyists getting paid to influence their colleagues on behalf of corporations, foreign governments or some well funded non-government organization.


Tuberville said he would ban that practice.

A balanced budget amendment almost passed in the 1980s and again in the 1990s.

Since that failure, Congress has increasingly passed bigger and bigger budget deficits. The U.S. government borrowed more money during the eight years of President George W. Bush’s presidency than the government had borrowed in the first 224 years of the country combined.

President Barack Obama followed and the TARP program propped up the post-Great Recession economy. Rather than cutting the deficit, President Donald Trump invested billions in the military and a tax cut without cutting domestic spending. The 2020 coronavirus crisis has further grown the budget.

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The government has borrowed trillions to prop up the economy and provide stimulus while investing billions into medical research and treating the virus victims. Congress is currently debating a fifth stimulus package that would add more to the deficit.

Both a balanced budget amendment and a term limits amendment would have to be ratified by the states if passed by Congress. Tuberville is challenging incumbent Sen. Doug Jones, D-Alabama.

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In Case You Missed It

House passes General Fund Budget

Brandon Moseley



By Brandon Moseley
Alabama Political Reporter

The Alabama House of Representatives passed the state General Fund Budget on Tuesday.

The General Fund Budget for the 2019 fiscal year is Senate Bill 178. It is sponsored by Sen. Trip Pittman, R-Montrose. State Rep. Steve Clouse, R-Ozark, carried the budget on the House floor. Clouse chairs the House Ways and Means General Fund Committee.

Clouse said, “Last year we monetized the BP settlement money and held over $97 million to this year.”

Clouse said that the state is still trying to come up with a solution to the federal lawsuit over the state prisons. The Governor’s Office has made some progress after she took over from Gov. Robert Bentley. The supplemental we just passed added $30 million to prisons.

The budget adds $50 million to the Department of Corrections.


Clouse said that the budget increased the money for prisons by $55,680,000 and includes $4.8 million to buy the privately-owned prison facility in Perry County.

Clouse said that the budget raises funding for the judicial system and raises the appropriation for the Forensic Sciences to $11.7 million.

The House passed a committee substitute so the Senate is either going to have to concur with the changes made by the House or a conference committee will have to be appointed. Clouse told reporters that he hoped that it did not have to go to conference.

Clouse said that the budget had added $860,000 to hire more Juvenile Probation Officers. After talking to officials with the court system that was cut in half in the amendment. The amendment also includes some wording the arbiters in the court lawsuit think we need.

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The state General Fund Budget, SB178, passed 98-1.

Both budgets have now passed the Alabama House of Representatives.

The 2019 fiscal year begins on Oct. 1, 2018.

In addition to the SGF, the House also passed a supplemental appropriation for the current 2018 budget year. SB175 is also sponsored by Pittman and was carried by Clouse on the floor of the House.

SB175 includes $30 million in additional 2018 money for the Department of Corrections. The Departmental Emergency Fund, the Examiners of Public Accounts, the Insurance Department and Forensic Sciences received additional money.

Clouse said, “We knew dealing with the federal lawsuit was going to be expensive. We are adding $80 million to the Department of Corrections.”

State Representative Johnny Mack Morrow, R-Red Bay, said that state Department of Forensics was cut from $14 million to $9 million. “Why are we adding money for DA and courts if we don’t have money for forensics to provide evidence? if there is any agency in law enforcement or the court system that should be funded it is Forensics.”

The supplemental 2018 appropriation passed 80 to 1.

The House also passed SB203. It was sponsored by Pittman and was carried in the House by State Rep. Ken Johnson, R-Moulton. It raises securities and registration fees for agents and investment advisors. It increases the filing fees for certain management investment companies. Johnson said that those fees had not been adjusted since 2009.

The House also passed SB176, which is an annual appropriation for the Coalition Against Domestic Violence. The bill requires that the agency have an operations plan, audited financial statement, and quarterly and end of year reports. SB176 is sponsored by Pittman and was carried on the House floor by State Rep. Elaine Beech, D-Chatham.

The House passed Senate Bill 185 which gives state employees a cost of living increase in the 2019 budget beginning on October 1. It was sponsored by Sen. Clyde Chambliss, R-Prattville and was being carried on the House floor by state Rep. Dimitri Polizos, R-Montgomery.

Polizos said that this was the first raise for non-education state employees in nine years. It is a 3 percent raise.

SB185 passed 101-0.

Senate Bill 215 gives retired state employees a one time bonus check. SB215 is sponsored by Senator Gerald Dial, R-Lineville, and was carried on the House floor by state Rep. Kerry Rich, R-Guntersville.

Rich said that retired employees will get a bonus $1  for every month that they worked for the state. For employees who retired with 25 years of service that will be a $300 one time bonus. A 20-year retiree would get $240 and a 35-year employee would get $420.

SB215 passed the House 87-0.

The House passed Senate Bill 231, which is the appropriation bill increase amount to the Emergency Forest Fire and Insect and Disease Fund. SB231 is sponsored by Sen. Steve Livingston, R-Scottsboro, and was carried on the House floor by state Rep. Kyle South, R-Fayette.

State Rep. Elaine Beech, D-Chathom, said, “Thank you for bringing this bill my district is full of trees and you never know when a forest fire will hit.

SB231 passed 87-2.

The state of Alabama is unique among the states in that most of the money is earmarked for specific purposes allowing the Legislature little year-to-year flexibility in moving funds around.

The SGF includes appropriations for the Alabama Medicaid Agency, the courts, the Alabama Law Enforcement Agency, the Alabama Department of Corrections, mental health, and most state agencies that are no education related. The Alabama Department of Transportation gets their funding mostly from state fuel taxes.

The Legislature also gives ALEA a portion of the gas taxes. K-12 education, the two year college system, and all the universities get their state support from the education trust fund (ETF) budget. There are also billions of dollars in revenue that are earmarked for a variety of purposes that does not show up in the SGF or ETF budgets.

Examples of that include the Public Service Commission, which collects utility taxes from the industries that it regulates. The PSC is supported entirely by its own revenue streams and contributes $13 million to the SGF. The Secretary of State’s Office is entirely funded by its corporate filing and other fees and gets no SGF appropriation.

Clouse warned reporters that part of the reason this budget had so much money was due to the BP oil spill settlement that provided money for the 2018 budget and $97 million for the 2019 budget. Clouse said they elected to make a $13 million repayment to the Alabama Trust fund that was not due until 2020 but that is all that was held over for 2020.

Clouse predicted that the Legislature will have to make some hard decisions about revenue in next year’s session.


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In Case You Missed It

Day Care bill delayed for second time on Senate floor, may be back Thursday

Sam Mattison



By Samuel Mattison
Alabama Political Reporter

The day care bill, which would license certain day care centers in Alabama, was once again delayed on the state Senate floor after one lawmaker requested more information.

Its brief appearance Tuesday ended with state Sen. Gerald Dial, R-Lineville, saying a compromise had not yet been worked out with the bill’s detractors.

Alabama’s Senate has been hesitant to act on the legislation because of complaints of state Sen. Shay Shelnutt, R-Trussville, who has been an opponent of the bill since its introduction last year. The bill’s delay on Tuesday marks the second time its been taken off the Senate’s agenda.

The bill has had a rocky time in this year’s session, but the bill’s sponsor state Rep. Pebblin Warren, D-Tuskegee, said she is still confident about its passage out of the Legislature.

Warren, D-Tuskegee, filed the bill this session with the support of influential lawmakers including Gov. Kay Ivey, who told reporters last year that she though all day cares should be licensed.


Mainly sparked by the death of 5-year-old boy in the care of a unlicensed day care worker, the bill had great momentum coming into this year’ session.

Despite the growing support from lawmakers, Religious groups had concerns that the bill would increase state-sponsored reach into religious day cares in churches and non-profit groups.

Spearheading the dissenters was Alabama Citizens Action Program, a conservative religious-based PAC.

Warren, proponents, and ALCAP announced a compromise to the bill while it was still in the Alabama House.

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Announced by ALCAP originally, the new bill was a weaker version in that it did not require that all day cares in the state be regulated. Instead, religious-based day cares would only need to be registered if they received federal funds. At a Senate committee meeting in February, Warren said a similar requirement was about to come from federal law in Congress.

The bill moved through the House in a overwhelming vote in favor of the proposal and passed unanimously out of a Senate committee a few weeks ago.

Warren, speaking to reporters after its passage from the House, said she was unsure if the bill would encounter resistance in the upper chamber.

It was the Senate that killed the daycare bill last year amid a cramped last day where senators took the bill off the floor. The bill may face similar complications this year, as lawmakers seem to be preparing to adjourn within a few weeks.

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In Case You Missed It

Fantasy sports bill fails on Senate floor

Sam Mattison



By Samuel Mattison
Alabama Political Reporter

Would-be Fantasy Sports players in Alabama will have to wait to legally play in the state following a Senate vote on Tuesday.

The Alabama Senate decisively killed a bill to exempt fantasy sports from the state’s prohibition on gambling.

Not even entertaining a debate on the Senate floor, the proposal was killed during a vote for the Budget Isolation Resolution, which is usually a formality vote preluding a debate.

Fantasy sports are contests where participants select players from real teams to compete on fantasy teams using the real-world players’ stats.

Since 2016, the practice has been illegal in Alabama following a legal decision by the Attorney General’s Office that categorized it as gambling.


The bill’s sponsor, state Sen. Paul Sanford, R-Huntsville, predicted the bill’s failure during a committee meeting two weeks ago, where the bill passed unanimously.

Sen. Paul Sanford speaks to reporters after a Senate Committee meeting on Feb. 28, 2018. (Samuel Mattison/APR)

Speaking to reporter’s after the committee meeting, Sanford said the decision to file the bill was mainly a philosophical belief that the practice shouldn’t be illegal.

Sanford, a fantasy sports player before its ban, said that fantasy sports are a way to bring people closer together and not a means to win money. The Huntsville senator is not seeking re-election.

The bill’s failure in the Senate follows its trajectory last year too. A similar version of the bill, also sponsored by Sanford, failed in the Senate during the final days of the 2017 Legislative Session.

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Since Sanford is retiring, it is unclear if the bill will even come back next session, or if it will even have a Senate sponsor.

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