By Chip Brownlee
Alabama Political Reporter
MONTGOMERY — Alabama’s new governor, Kay Ivey, is considering changes to former Gov. Robert Bentley’s timeline for the special election to permanently fill Jeff Sessions’ US Senate seat.
“She hasn’t made any decisions on that yet,” said Eileen Jones, Ivey’s spokesperson.
A court hearing is scheduled for Wednesday at 1:30 p.m. to hear a lawsuit against the special election date brought by State Auditor Jim Zeigler.
Bentley’s scheduling of the special election date to coincide with the 2018 statewide general election has drawn criticism from lawmakers and other elected officials, who have said the date is illegal and gives now-Sen. Luther Strange too much time in office before a vote of the people can take place.
In February, after appointing then-Alabama Attorney General Strange to the US Senate, Bentley announced he would schedule the special election for nearly two years later.
A lawsuit, brought by Zeigler and former Conecuh County District Attorney Tommy Chapman, who is also the chair of the Conecuh County Democratic Executive Committee, sought a mandatory injunction requiring Bentley to reschedule the special election. It’s unclear now if the lawsuit will transfer to Ivey.
Zeigler and Chapman argued in their complaint 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 month, 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.
That investigation ended Monday with Bentley taking a plea deal on two misdemeanor charges and resigning his office.
Bentley has said he decided to hold the election in 2018 in line with the existing general election in order to save the State $16 million and ensure higher turnout compared to lower-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 former 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.”
However, the Legislative Reference Office — a nonpartisan resource of the Alabama Legislature — issued a memorandum last month echoing Zeigler’s conclusion that the setting of the special election was improper.
“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.
It’s now Ivey’s call whether to reschedule the special election date.