By Chip Brownlee
Alabama Political Reporter
MONTGOMERY — Attorney General Steve Marshall has declined to issue an opinion on Gov. Robert Bentley’s Senate Special Election date — a request of State Auditor Jim Zeigler, an outspoken critic of the Governor.
Earlier this month, Zeigler requested an Attorney General’s Opinion on Bentley’s Special Election schedule. Marshall declined Zeigler’s request because he said the scheduling does not directly relate to Zeigler’s office.
“Because section 36-9-8 provides for the calling of the election by the Governor, the advice sought is not necessary to the present performance of some official act by the State Auditor,” Marshall wrote to Zeigler.
The AG’s office, Marshall wrote, is authorized to issue opinions to officials and bodies that relate to the present performance of a duty and cannot issue opinions on moot or private questions.
The question of the Special Election date, Marshall said, is moot because the Governor already called the election for the Senate seat. He declined to issue any further legal opinions.
In January, Bentley announced he would schedule the Special Election to replace now-Attorney General Jeff Sessions, who resigned his Senate seat earlier this month, to coincide with the 2018 statewide General Election — nearly two years after the seat was vacated.
Bentley appointed Alabama Attorney General Luther Strange to Sessions’ former post earlier this month, amid concerns that Bentley was trying to end a criminal investigation by getting Strange to Washington. Marshall has since appointed a supernumerary district attorney to oversee a criminal investigation into Bentley.
In his request to the Attorney General’s Office asking for an official Attorney General’s Opinion on Bentley’s scheduling decision, Zeigler said he sees the scheduling as a “double violation of State law.”
The election will be held nearly 22 months after Sessions’ resignation, which Zeigler believes contrasts with State law’s requirement that the election must be set “forthwith.” State law requires a “forthwith” special election any time a vacancy occurs more than four months before a general election.
“The claim of mootness is an easy out to keep from making the Governor follow the law,” Zeigler said Monday.
Bentley said he decided to hold the election in 2018 in line with the existing General Election to save the State $16 million and ensure higher turnout compared to low-turnout special elections.
“It will save millions of dollars according to the Secretary of State’s Office due to the costs associated with conducting statewide primary and general elections,” said Yasamie August, Bentley’s spokesperson. “Secondly, special elections generally have a lower voter turnout of around 25 percent, so the Governor determined it is best to have the Special Election coincide with the 2018 General election.”
Zeigler is not the only one challenging Bentley’s special election scheduling, though. Last week, State Rep. Chris England (D-Tuscaloosa), a former prosecutor, asked legislators to support him in fighting the Governor’s decision.
“The code section is clear,” England said. “The code section says that the election should be called forthwith, and with the vacancy forthwith, under any reasonable interpretation, stands for immediate, without any undue delay, within a reasonable amount of time.”
England was prompted to speak out last week after a legal adviser to the Governor gave a letter to legislators placing the blame for the long delay in holding the election on State lawmakers.
“It is beyond ridiculous,” England said. “After reading this letter you should be convinced of two things. One: The Governor is breaking the law. Two: He knows it.”
The letter cited a Federal court case that challenged State ballot-access laws. In the case, a Federal judge found that Alabama’s 3-percent requirement for signatures is overly burdensome on candidates during the short turnaround of a special election.
A line within the order said the Legislature could best settle the issue.
Bentley’s office, in the letter to legislators, said they could not speed up the process without help from the Legislature. Elsewhere in the Judge Myron Thompson’s order, however, he says that the Secretary of State should simply dispose of or alter the signature requirement in special elections to solve the issue.
The House Legislative Black Caucus has also passed a resolution encouraging the Governor to call an election sooner for the Senate seat. They agreed with Zeigler that his plan violates State law.
“The Governor’s role is to follow the law, all of our roles, we make the law and we’re supposed to follow it,” said Rep. Mary Moore (D-Birmingham), at a press conference about the resolution this month. “We’re not supposed to arbitrarily do something because we feel as though we have the power to do it. If laws were not important, then we wouldn’t make them.”
After Secretary of State John Merrill said the decision was up to Bentley and only a court ruling could force a change, the Black Caucus said they would consider filing a lawsuit over the date.
Earlier this month, the Legislative Reference Office — a nonpartisan resource of the Alabama Legislature — issued a memorandum echoing Zeigler and England’s conclusions.
“It appears that Section 36-9-8, Code of Alabama 1975, requires Governor Bentley to hold a special election to fill the vacancy of Senator Jeff Sessions without delay at some time prior to the 2018 General Election,” the memorandum from the LRS read.