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Judge dismisses McKay’s ballot challenge citing no jurisdiction

Brandon Moseley

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Thursday, Judge William Rhea dismissed Robert McKay’s lawsuit against House District 30 Republican nominee B. Craig Lipscomb (R) citing the lack of proper jurisdiction.

Former Ashville Mayor Robert McKay was narrowly defeated by Gadsden area architect Brandon Craig Lipscomb in the July 17 Republican primary runoff for House District 30. On Thursday, McKay sued: Lipscomb, Terry Lathan as Chair of the Alabama Republican Party, Thomas Albritton as Executive Director of the Alabama Ethics Commission, and John Merrill in his role as Secretary of State.

McKay asked the court to remove Lipscomb from the general election ballot because Lipscomb did not update his Statement of Economic Interests by the April 30 deadline. Lipscomb had however filed a 2016 Statement of Economic Interests when he qualified on November 30, 2017.

After Judge Rhea’s ruling that Lipscomb could remain on the ballot, Lipscomb told reporters, “I am pleased that the court overruled this frivolous lawsuit.”

Lipscomb emailed the press a more detailed statement afterward.

“In a Democracy, we choose our representatives at the ballot box and not in the judicial system,” Lipscomb wrote. “It is unfortunate that Mr. McKay chose to abuse our court system in a desperate attempt to override the will of the voters of District 30. We are pleased with today’s court decision to dismiss the frivolous lawsuit that he filed. Today, the Alabama court system worked as it should have. I am thankful for the overwhelming amount of support that my family and I have received, and I am looking forward to immediately returning to the campaign trail as the Republican nominee for the House of Representatives.”

In the hearing, McKay’s attorney, Fred Teague, argued that Lipscomb’s failure to file the 2017 Statement of Economic Interest until August 1 “is in violation of the law.”

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McKay’s original filing had asked the court not only to remove Lipscomb, but to replace him with McKay. That filing had been updated Tuesday striking the request to put McKay on the ballot.

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Judge Rhea told Teague, “My understanding of the law is that I would not have any authority in that regard.”

Lipscomb was represented by Montgomery area attorney Algert S. Agricola.

Agricola introduced a motion to dismiss McKay’s case arguing that for the court to remove Lipscomb from the ballot is prohibited by the statute. The statute precludes jurisdiction over matters with the legality, conduct or results of an election are challenged. The procedure for a legal contest are set by statute which sets a very strict deadline. The Republican primary runoff was on July 17. McKay had until noon of July 28 to file a contest and that would not be in circuit court but with the Alabama Republican Party. McKay did not do that. Instead, he waited until last Thursday which far too late.

Agricola cited a state Supreme Court case to bolster his argument. A case in which Agricola himself had been the attorney representing the client, whose effort to remove a candidate was rejected by a special Supreme Court.

“We say that there is not any need whatsoever for this court to have any hearing,” Agricola said. “Any order issued by this court would be null and void.”

“There has not been a failure to file here,” Agricola continued. “In fact, a statement of economic interest was filed by Mr. Lipscomb on November 30, 2017, when he qualified.” The procedures set by the Alabama Ethics Commission require that you file the Statement of Economic Interests simultaneously with the date that you file your qualification papers or before and that is what Mr. Lipscomb did.

“There is no failure to file here,” Agricola said. “Mr. Lipscomb was certified by the Alabama Ethics Commission on January 22.”

“Today is the last day, 76 days before the election, that either party could substitute a candidate for any reason,” Agricola concluded. “The last thing anybody wants is that this decision be carried over until tomorrow. We really need a decision today.”

Cynthia Ralston, with the Alabama Ethics Commission, said that the statute is clear and that the statement that Mr. Lipscomb filed on November 30 is current. He was certified as having met the requirements for ballot access and that is good for a year.

Brent Beal with the Alabama Secretary of State’s office said that this election includes federal races for Congress and that absentee ballots have to be in 55 days prior to the election and removing Lipscomb from the ballot at such a late date could delay printing those ballots for them to be available as required by federal law.

“We would ask that we not be put in that position,” Beal said.

Teague said that the fact is that filing a statement of economic interests must be current. This was addressed by the court in 2008. “Mr. Lipscomb filed his statement of economic interest for 2016. We would argue that that is not a current filing.”

Teague also argued that the court would have jurisdiction.

Agricola disagreed and repeated that the statute precludes jurisdiction over matters with the legality, conduct or results of an election.

Judge Rhea ruled simply, “This court does not have jurisdiction.”

Teague told reporters that there would be no appeal of this decision.

Brandon Craig Lipscomb (R) will face Jared Vaughn (D) for Alabama House of Representatives District 30 in the November 6 general election. House District 30 includes parts of St. Clair and Etowah Counties.

Afterward the Alabama Political Reporter talked with Chris Christie who is representing Vaughn. Vaughn, while an interested observer, was not a party to this lawsuit.

Christie told APR that the judge ruled incorrectly here and that the statute concerning challenging a primary was not relevant here. The question is whether Lipscomb should be on the general election ballot and Christie did not believe that he should be.

“We followed the rules,” Lipscomb told reporters.

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