By Chip Brownlee
Alabama Political Reporter
MONTGOMERY — A March court hearing on Gov. Robert Bentley’s scheduling of the US Senate special election has been rescheduled for April 12.
On Friday, Montgomery County Circuit Judge J.R. Gaines rescheduled the March 21 hearing to April 12 at the request of the plaintiffs, State Auditor Jim Ziegler and former Conecuh County District Attorney Tommy Chapman.
Chapman, who is also serving as the plaintiff’s attorney, had a conflict with the March 21 hearing date. He was scheduled to begin a jury trial on March 20. The Governor’s attorney, John Neiman, agreed to the continuance motion.
The suit, brought by Zeigler and Chapman, who is also the chair of the Conecuh County Democratic Executive Committee, seeks a mandatory injunction requiring Bentley to reschedule the special election.
In February, after appointing then-Alabama Attorney General Luther Strange to the US Senate, Bentley announced he would schedule a special election to permanently fill the US Senate seat vacated by US Attorney General Jeff Sessions. The special election, according to Bentley’s proclamation, will coincide with the 2018 Alabama general election.
Zeigler and Chapman argue in their lawsuit that the special election date is a “double violation” of State law, which requires the special election to be set “forthwith.”
Alabama law states that if a vacancy occurs more than four months from the next regular election, a special election shall be set “forthwith.” Disagreement has ensued over the interpretation of the law.
Bentley, whose lawyer filed a response to the lawsuit last week, has argued that the law requires only the scheduling to be “forthwith,” and the actual election date can be later.
In the response, Bentley’s lawyer also wrote that a Federal court ruling and Federal law requires a larger time span between the announcement of an election and its date. They also wrote that the Legislature has not allocated budget funds to cover primaries, runoffs and the special general election if it were to be set as a stand-alone election.
“Unless the Legislature makes an appropriation for standalone elections, the soonest practicable date for the special elections would be contemporaneous with the other elections scheduled for 2018,” Bentley’s lawyer wrote.
Since joining the Union, only 10 US senators representing Alabama have vacated their seats. After the passage of the 1901 Alabama State Constitution, only five have been filled by gubernatorial appointment. Not one of those appointments lasted two years, as previous governors called for special elections to be held quickly after the seat was vacated.
Bentley appointed 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.
“Bentley and Strange think they have gotten away with this illegal election. They have not gotten away with it yet, and the people of Alabama will remember this come election time,” Zeigler said.
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.”
The Legislative Reference Office — a nonpartisan resource of the Alabama Legislature — issued a memorandum last month echoing Zeigler’s conclusion.
“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. On Sunday, Zeigler also announced that longtime Montgomery lawyer Doyle Fuller has entered the case as a lawyer for the plaintiffs.