By Chip Brownlee
Alabama Political Reporter
MONTGOMERY — State Auditor Jim Zeigler and a Democrat from Conecuh County have filed a lawsuit seeking a mandatory injunction requiring Gov. Robert Bentley to reschedule the special election for the US Senate seat vacated by US Attorney General Jeff Sessions.
Zeigler and Tommy Chapman, chair of the Conecuh County Democratic Executive Committee and former district attorney for Conecuh and Monroe Counties, filed the lawsuit in Montgomery County Circuit on Sunday.
Bentley is named as the defendant in his official capacity as governor. Zeigler and Chapman are named in their official capacities and as taxpayers and voters.
The lawsuit asks the Court to declare the scheduling of the special election for November 2018 as contrary to Alabama law and to issue an injunction to require a new election date.
“The whole thing stinks,” Zeigler said. “We’ve got a Bentley-appointed Senator instead of a peoples’ elected Senator. Under the illegal delay by Gov. Bentley, his anointed US Senator gets a free ride for almost two years before an elected Senator can take office.”
Last month, Bentley formally announced he would schedule the special election to replace Sessions, who resigned his Senate seat after being confirmed as US Attorney General, to coincide with the 2018 statewide General Election. The election will occur nearly two years after the seat was vacated.
Bentley appointed Alabama Attorney General Luther Strange to Sessions’ former post in February, amid concerns that Bentley was trying to end a criminal investigation by getting Strange to Washington. The Senate appointment was temporary, under Alabama law, and requires an election to select a permanent replacement.
After Strange was sworn in at the US Senate in DC, Bentley appointed then-Marshall County District Attorney Steve Marshall as Alabama’s Attorney General. A week later, Marshall appointed a supernumerary district attorney to oversee an active criminal investigation into Bentley, confirming suspicions that Strange’s office had been conducting an investigation.
Last month, Zeigler requested an Attorney General’s Opinion on Bentley’s Special Election schedule. Marshall declined to issue an opinion on 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.
Bentley has 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 fighting Bentley’s decision. State Rep. Chris England (D-Tuscaloosa) a former prosecutor, asked legislators in the House to support him in challenging Bentley’s decision.
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 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. They are not named as parties in this lawsuit.
Alabama law states that if a vacancy occurs more than for months from the next regular election, a special election shall be set “forthwith.” Disagreement has ensued over the interpretation of the law.
Bentley has argued that the law requires only the scheduling to be “forthwith,” and the actual election date can be later. Zeigler, England and others have argued that the actual special election date itself must be “forthwith.”
The Legislative Reference Office — a nonpartisan resource of the Alabama Legislature — issued a memorandum last month 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.
Zeigler attached the memorandum as supporting evidence in his lawsuit, which has yet to be scheduled for a hearing.