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Weekly legislative report

Beth Lyons

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The Alabama Legislature reconvened on Monday, May 18, 2020 for the 21st and final day of the 2020 Regular Session. Under Alabama law, the Regular Session may last no longer than 105 calendar days which expired on May 18.

Since the adjournment of the Legislature on Saturday, May 9 for a 10 day break to await executive action, Governor Ivey signed both the General Fund Budget (SB157 by Senator Greg Albritton – Act No. 2020-168) and the Education Budget (HB187 by Representative Steve Clouse – Act No. 2020-169) as passed by the legislature. However, she returned SB161 by Senator Albritton which provided the authority for the expenditures of $1.8 billion CARES Act funds relating to the COVID-19 pandemic. The Governor’s Executive Amendment to the bill set out the categories for appropriations under the CARES Act including up to $300 million to state agencies for expenses directly related to the pandemic, up to $250 million to reimburse local governments, up to $300 million to support citizens, businesses, and non-profit organizations directly impacted, up to $250 million to support the delivery of healthcare services, up to $300 million for technology and infrastructure related to remote instruction and learning, and up to $200 million to the Department of Corrections. Both Houses concurred in the Executive Amendment, passed the few remaining local bills, adopted a few resolutions, and adjourned Sine Die.

As you know from following the news and prior Legislative Reports, this unusual Regular Session resulted in very few bills receiving final passage. At the beginning of the Session, it was expected that the issues of prison reform, lottery, and medical cannabis would receive major consideration and, possible passage. The Governor has indicated that she will call a Special Session later in the year.

Of the 856 bills introduced, over 700 did not receive consideration; many of these we will see again in a Special Session or the 2021 Regular Session.

Among the significant bills passed, other than budget bills, resolutions, Sunset, and local bills during the Session are:

HB147 by Rep. Sells
HB140 by Rep. Baker

To prohibit a municipality that does not already have an occupational tax from imposing an occupational tax unless authorized by local law.

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To clarity existing law and the definition of “cover” as it relates to alternative cover for solid waste landfills.

Act 2020-14
Act 2020-30
HB186 by Rep. Clouse
HB272 by Rep. Weaver
SB12 by Sen. Smitherman

HB66 by Rep. McClammy
HB202 by Rep. Poole
SB111 by Sen. Orr
SB140 by Sen. Singleton SB183 by Senator Sessions

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Various supplemental appropriations including an appropriation of $5 million to the Department of Public Health to be used for Coronavirus preparedness and response activities.

To revise deadlines for candidates to qualify for the November 3, 2020 general election to accommodate the dates of the 2020 Republican National Convention.

To expand the Missing Senior Citizen Alert Act to include missing and endangered persons suffering from a mental or physical disability who are at risk of bodily harm or death.

To authorize a municipality or county to establish a local redevelopment authority for property that is contiguous to an active US Air Force military installation

To substantially revise the Business and Nonprofit Entities Code to allow corporations to elect to become benefit corporations, allow for electronic filing, and update definitions.

To prohibit the manufacture, marketing, sale, distribution, use, and possession of synthetic urine or a urine additive to defraud an alcohol, drug, or urine screening test.

To provide for a Statewide Emergency Notification System.

To authorize a county to issue bonds to refund certain bonds previously issued by the county, and to ratify and confirm the validity of any refunding bonds originally issued prior to January 1, 2011.

Act 2020-36
Act 2020-39
Act 2020-40
Act 2020-72
Act 2020-73
Act 2020-84
Act 2020-85 Act 2020-121

Among the signification bills which did not pass but are expected to be introduced again are:

HB19 by Rep. Pringle To create the State Transportation Commission to coordinate and develop the activities of the Department of Transportation.

HB57 by Rep. Hall Adopts the procedures established by the federal First Step Act for the use of restraints on pregnant prisoners as Alabama law.

HB81 by Rep. C. Brown

HB83 by Rep. Hill

HB110 by Rep. C. Brown HB112 by Rep. C. Brown HB113 by Rep. C. Brown HB119 by Rep. Drummond
HB258 by Rep. Crawford
HB323 by Rep. England HB336 by Rep. Rogers
HB378 by Rep. Ingram HB382 by Rep. Greer
HB391 by Rep. Reynolds HB403 by Rep. Poole

A proposed Constitutional Amendment to provide that a person charged with a Class A felony, when the proof is evident or the presumption is great, and if no conditions of release can reasonably protect the community from risk of physical harm, be denied bail before conviction.

Authorizes a county to pay a provider of medical services any rate or fee agreed upon, or, when there is no agreed upon rate, at the current Medicare rate or fee schedule.
Designates the Dauphin Island Sea Lab’s Alabama Aquarium as the official Aquarium of Alabama.

Redesignates common fireworks as consumer fireworks and provide for the regulation of consumer fireworks.
Provides for additional offenses that would require mandatory denial of bail.

To raise the minimum age for the purchase, possession, or transport of tobacco products, or of electronic nicotine delivery systems or alternative nicotine products from 19 to 21.

Specifies that the definition of gross receipts, for the purposes of municipal business license taxes, does not include any excise tax imposed by the federal, state, and local governments.

Requires the Department of Corrections to make quarterly reports to the Joint Legislative Prison Oversight Committee.
Permits wagering on the results of certain professional or collegiate sports or athletic events, and to create the Alabama Sports Wagering Commission.

Provides that for eminent domain purposes, park and recreation facilities do not include trails for biking and hiking.

Establishes a procedure for the establishment of tourism improvement districts by counties and municipalities, excluding Class 2 municipalities.

Exempts airport authorities from sales and use taxes, and provide for a certificate of exemption.

A proposed Constitutional Amendment that establishes the Alabama Court Cost Commission to review all existing laws providing for the imposition of a court cost, and review a potential new court cost, to determine if it is reasonably related to the court system and to the amount expended in adjudicating the matter in question.

HB413 by Rep. Simpson HB418 by Rep. Clouse
HB464 by Rep. Mooney
HB508 by Rep. Mooney SB3 by Senator Elliott
SB48 by Senator Elliott
SB57 by Senator Ward
SB83 by Senator Jones
SB84 by Senator Jones
SB85 by Senator Jones
SB124 by Senator Marsh
SB127 by Senator Allen

To require courts in the state to take judicial notice of municipal ordinances of a Class 2 municipality.

A proposed Constitutional Amendment that establishes an Alabama Lottery, including instant tickets and multi-state lottery games, with the proceeds to be used for early childhood education and scholarships.
Provides for an exclusion from Alabama tax for federal tax credits, or advance refunds received from the federal Coronavirus Aid, Relief, and Economic Security Act.
Prohibits any public employee from participating in a strike during a state of emergency.

Provides for the expenditure of funds received by the Alabama Department of Conservation and Natural Resources, pursuant to the Gulf of Mexico Energy Security Act of 2006, for coastal conservation, restoration, and protection.
Authorizes the governing body of a Class 8 municipality with an incorporated arts council, main street program, or downtown development entity that is located primarily on an island to establish three entertainment districts within its corporate limits.

Requires governmental bodies to adopt rules allowing each citizen to inspect and take a copy of any public record upon request made in accordance with this act.

A proposed Constitutional Amendment that abolishes the Office of State Auditor and transfer duties and responsibilities to the Office of the State Treasurer.

Provides that any increase in water rates by a nonprofit corporation which provides water service to the public would be subject to approval by the Public Service Commission and require the nonprofit corporation to be audited by the Examiner of Public Accounts.
Provides that if an AdvantageSite economic development site is annexed by a municipality or is located in the police jurisdiction of a municipality, an employee employed on the site would not be subject to any occupational license tax.

Provides that any Class 1, 2, 3, 4, or 5 municipality that does not create and adopt a municipal plan or is not executing its plan in good faith is ineligible to receive grants from the Alabama Department of Economic and Community Affairs.

Expands the Alabama Memorial Preservation Act of 2017 and the jurisdiction of the Committee on Alabama Monument Protection, as well as increasing fines from a total of $25,000 to $5,000 per day.

SB142 by Senator Elliott
SB147 by Senator Melson SB151 by Senator Elliott
SB152 by Senator Elliott
SB165 by Senator Melson
SB172 by Senator Orr
SB237 by Senator Ward
SB239 by Senator Smitherman
SB275 by Senator Allen
SB277 by Senator Figures SB282 by Senator Albritton
SB288 by Senator Ward

Eliminates municipal authority beyond the corporate limits of each municipality and provide for a referendum to decide whether to reinstate police jurisdictions.

Re-designates common fireworks as consumer fireworks and provides for the regulation of consumer fireworks.
Requires the Department of Transportation to complete and publically post an economic impact study related to the toll project prior to construction and prior to the public hearing.

A proposed Constitutional Amendment that requires a referendum before a proposed toll may be fixed, charged, or collected, for the construction, renovation, or use of a public road, bridge or tunnel project on an existing interstate highway or a section thereof.
Authorizes and regulates the use of medical cannabis for certain medical conditions, and to authorize and regulate the cultivation, processing, testing, transporting and dispensing of medical cannabis.

Expands the right of some wireless providers to install their facilities on public rights-of-way, exempt these providers from certain zoning reviews and approval procedures, establish maximum rates and fees for permits, and exempts certain governmental entities which have ordinances or agreements regarding the industry.
Provides an inmate with a deduction in his/her sentence upon the successful completion of a qualifying academic, vocational, risk- reducing, or apprenticeship program.

Requires the Alabama Supreme Court to adopt a Judicial Actual Caseload Study as the appropriate study for determining the need for judgeships in each district and circuit court.

Specifies that the definition of gross receipts, for the purposes of municipal business license taxes, does not include any excise tax imposed by the federal, state, and local governments.

To specify that Robert E. Lee Day would be observed on the second Monday in October.
A proposed Constitutional Amendment that establishes an Alabama Education Lottery, establishes an Alabama Gaming Commission to supervise the conduct of bingo, charitable bingo, pari-mutual wagering and casino-style games, and enters into a compact with the Poarch Band of Creek Indians to operate 2 casinos in the state.

Requires the Department of Corrections to make quarterly reports to the Joint Legislative Prison Oversight Committee.

SB295 by Senator Givhan SB310 by Sen. Figures
SB330 by Senator Orr
SB333 by Senator Ward
SB334 by Senator Whatley
SB342 by Senator Elliott
SB345 by Senator Sanders-Fortier

Exempts airport authorities from sales and use taxes, and provides for a certificate of exemption.

To provide that the Director of the Alabama State Port Authority may appoint up to 11 executive level employees, to allow the Port Authority to enter into employment contracts with former employees for the transitional period following retirement, and provide that the commercial terms of certain contract entered into by the Port Authority are exempt from certain state laws limiting confidentiality.

Provides civil immunity for certain entities and individuals from certain damages claimed by individuals who allege that they contracted or were exposed to Coronavirus.
A proposed Constitutional Amendment that allows the Legislature to distribute any motor fuel excise taxes levied under the “Rebuild Alabama Act” to the Department of Commerce for a small business stimulus fund.

Provides that a state of emergency terminates after 14 days and may be extended only by a joint resolution of the Legislature, or, if the Legislature is not in session, by joint proclamation of the President Pro Tempore of the Senate and the Speaker of the House.

Provides for an exclusion from Alabama tax for federal tax credits, advance refunds, or loan forgiveness received from the federal Coronavirus Aid, Relief, and Economic Security Act.

Requires the Department of Corrections to determine inmates that are at high risk for severe complications from COVID-19 and release certain inmates from physical custody to community supervision or home detention.

Bills Introduced
Bills which have passed house of origin
Bills which have passed both houses
Bills which are pending action by Governor
Bills which have been vetoed
Constitutional Amendment Bills pending referendum Bills enacted.

 

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Bill Britt

Opinion | In Alabama, the past is prologue

Even after 200 years, Alabama’s political approach hasn’t changed much; the fundamentals established by its founders are still evident in everyday politics.

Bill Britt

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Like people, governments have pasts, and today’s fortunes are either furthered or frustrated by the things that came before. It might be said that even history leaves DNA.

Understanding Alabama’s past is essential to navigating its future because its government’s origins determine that the past is prologue.

Even after 200 years, Alabama’s political approach hasn’t changed much; the fundamentals established by its founders are still evident in everyday politics.

Those who observe Alabama’s governing process closely see the same structural problems impede progress year after year. Resistance to home rule and a regressive tax system are just two of the many roadblocks to a more prosperous state.

Some unresolved issues are due to a lack of leadership, but others are inherent within the state’s original governing procedures. Even the state’s architects’ elitist attitude is still prevalent with near total power given to a Legislature dominated by one-party rule. The earlier settlers’ prejudices are enshrined in every process of governing.

Failure to understand, acknowledge, and change the state’s historical patterns hinders advancement, leaving the state nearly dead last in every metric of success. It doesn’t have to be this way, but the cure is always met with fierce rejection because beyond admitting ingrained inequities, any change would upend 200 years of consolidated power.

When Republicans promised a new day in Alabama politics in 2010, some sincerely believed that change was possible. Still, after nearly a decade of Republican one-party rule, there isn’t a substantial difference in governing practice.

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It’s not because good people haven’t tried to make a difference; it’s that there are systematic flaws that thwart reformers while rewarding the status quo.

A region’s founders and its dominant settlers are the creators of what can be called a state’s DNA. Alabama’s government still reflects the make-up of its original colonizers.

Much of the Deep South was established by slave owners who intended to recreate a society based on the Caribbean colonies of Great Britain.

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In his 2011 non-fiction work American Nations: A history of the eleven rival regional cultures of North America, Colin Woodard shows how Deep South states were “Marked by single-party rule, the domination of a single religious denomination, and the enshrinement of a racial caste system for most of its history.” He also writes that these cultures supported regulation on personal behavior while opposing economic restraint.

Today, Alabama’s governance framework and, to a lesser degree, its society is much like the Deep South characteristics Woodard describes.

One Party rule.

A dominant religion.

A racial caste system.

And a willingness to impose regulations on personal behavior while opposing almost every economic restrictions.

Woodward’s findings mirror Alabama’s state government.

Alabama’s central governing power is based on a top-down fraternity where a privileged few hold the reins of authority with a whip hand ready to strike.

Even before statehood, Alabama was regulated by an upper class who built the territory’s economy slave labor. The same class gained even more control after statehood.

“By the antebellum period, Alabama had evolved into a slave society, which…shaped much of the state’s economy, politics, and culture,” according to the Encyclopedia of Alabama.

Slaves accounted for more than 30 percent of Alabama’s approximately 128,000 population when it was granted statehood in 1819. “When Alabama seceded from the Union in 1861, the state’s 435,080 slaves made up 45 percent of the total population,” writes Keith S. Hebert.

The state is currently home to approximately 4.9 million individuals. If 45 percent were slaves today, that would account for around 2.2 million people in bondage.

After the South lost the Civil War, Reconstruction ushered in an era where “a larger number of freed blacks entered the state’s electorate and began voting for the antislavery Republican Party,” according to Patrick R. Cotter, writing for the Encyclopedia of Alabama.

But the old establishment fought back and instituted the 1901 Constitution, which permanently ended any challenge to one-party rule and restored white supremacy in government.

A major feature of the new constitution was a poll tax and literacy tests and other measures to disenfranchise Black people and poor whites.

As Republicans reminded voters in the 2010 campaign cycle, Democrats controlled Alabama politics for 136 years. But these were not liberals; far from it. Alabama’s old Democratic Party for generations was home to racists, not radicals.

It was only over time that the Democratic Party became the diverse collation it is today.

With Republicans holding every state constitutional office and the Legislature, the one-party rule continues as it has throughout the state’s history; only the name has changed.

Looking back over the founding years of Alabama’s history, barbarity is searing, and the atrocities unimaginable. Yet, the fact remains that these early framers thought nothing of enslaving Blacks or treating poor whites as little more than chattel. It shocks our modern sensibilities as it should. Still today, the state continues in a system of government steeped in framers’ institutionalized prejudices.

Famously 19th-century British politician Lord Acton said, “Power tends to corrupt, and absolute power corrupts absolutely.”

Alabama’s fathers wanted a government that gave absolute power to the few at the expense of the many; that is as true now as it was then.

There is a path to a better government, but as Lord Acton also said, “Great men are almost always bad men.”

History may not repeat itself, but politics does, and that is why Alabama’s history is prologue for today.

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Environment

Opinion | Capping Alabama Power’s ash pond might be the best bad option

When you look at the actual, real-life options for this stuff — and I can’t believe I’m going to say this — but the plan from Alabama Power seems to be a fairly good one. 

Josh Moon

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It would be wonderful if coal ash didn’t exist. Had humans never figured out that you could blast the top off a mountain or send desperate men deep into the earth to find coal to be burned to produce power, I’m not sure we wouldn’t be substantially better off. Just think of the environmental damage and human deaths that we could prevent. 

But that’s not real life. 

In real life, we live by the kilowatt. And as a result, we’re left with tons and tons and tons of coal ash — the leftover, toxic remnants of all that coal we’ve burned to keep all those lights on. And something has to be done with all of it. 

Exactly what we want to do with it is the dilemma facing Alabama Power and state and federal regulators. And there seems to be no answer that doesn’t tick off somebody. 

You can’t just leave it in wet ash ponds anymore, because the EPA has essentially — and very appropriately — made that illegal. 

You can’t cap it in place — a process by which the water is sucked out and cleaned and the remaining coal ash is covered with a synthetic liner and then with synthetic turf — because environmental groups say that still leaves a risk that some contaminants will leach into the groundwater. 

You can’t haul it away to a landfill — where it would be dumped into a lined pit and later covered — because nearby residents hate it and environmental groups say the dumping can lead to airborne contamination that sickens nearby residents. 

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So, what do you do? 

No, really, I’m asking. What should we do with an ash pond like the one at Alabama Power’s Plant Barry? 

Plant Barry has been a major point of contention between the power giant and environmental groups, particularly the Mobile Baykeeper and the Southern Environmental Law Center, for years now. But the conflict, in this particular instance, isn’t quite as simple as the usual cost-v-environment arguments that usually dominate these situations. 

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Barry’s ash pond currently holds 21 million tons of coal ash. That’s a big ash pond. 

It is located just feet from the Mobile River, separated by a 21-foot dike. For years, environmentalists have predicted that the pond is one good hurricane away from a major environmental disaster. (That has proven to be mostly hyperbole. Hurricane Sally pushed the Mobile River level up 3 feet. That’s 18 feet below the top of the existing dike, and the water has never been within 15 feet of the top.)

Alabama Power has maintained that the coal ash is as safe as a big, arsenic-laden baby and that no weather event in 55 years has disturbed the material stored at the site. But the company, after recent EPA law changes, is moving to cap in place the pond — a process it says will virtually eliminate the potential for contamination. 

Not good enough, the environmental groups have said. They want the coal ash moved to some other location. 

What location? The moon, preferably. Or some other place where humans will never come in contact with it.

However, when you look at the actual, real-life options for this stuff — and I can’t believe I’m going to say this — but the plan from Alabama Power seems to be a fairly good one. 

Look, I know that several heads just exploded, but hold off on the emails and angry tweets for a minute or two and let me explain. 

First, coal ash is a problem no matter where it’s stored or how it’s stored. Is placing it in a lined landfill at another location safer than capping it in place at Plant Barry? Possibly, but several people — people who are experts in the field — disagree about the overall danger and about the types of dangers related to each option. 

For example, capping the ash in place poses a higher risk that toxins could, at some point in the future, leach into the groundwater. APCO officials, and their hired engineers and third-party experts, insist that the new engineering improvements made to the site will significantly reduce that likelihood, making it almost equally as safe as a lined site. 

The plan APCO has presented has been approved by the EPA and is being monitored by ADEM.

But let’s say that APCO decided to go with the approach that some environmental groups want — trucking all 21 million tons of coal ash, after it’s been dried out, to a lined landfill site somewhere else. (And no one has a good thought on where that somewhere else is, by the way.)

That would mean, according to APCO’s estimates, more than 30 years of moving this stuff, with semi-trucks leaving out of the site every six minutes and traveling to wherever. Along county and state roads. And then dumping this stuff in another community that I can guarantee you does not want it. 

Pardon me, but sending diesel trucks up and down the roads for three decades (or two decades, if we go by most optimistic projections) doesn’t sound very environmentally friendly either. Nor does it sound like a solution that will prevent complaints. It also sounds like a blown tire or missed turn away from being an environmental disaster somewhere else. 

Capping this ash in place at Barry will move it another 750 yards away from the Mobile River. It will result in the dike being raised another three feet, eliminating the risk of a flood-caused disaster by anything other than a 1,000-year storm. The site will feature new engineering to cut off groundwater leaching and it will be monitored continuously for leaking. 

That all sounds pretty reasonable. 

Look, I’m not recommending that APCO get an environmental award or anything here, but at the same time, I think it’s OK to say that they’ve chosen the best of several bad options.

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Governor

Lieutenant governor calls for end to mask order

“Masks should be voluntary, not mandatory. We have to Make America Great Again,” Ainsworth said.

Brandon Moseley

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Lt. Gov. Will Ainsworth speaks during a video message. (LT. GOVERNOR'S OFFICE)

During the presidential debate Tuesday, President Donald Trump argued for opening up the economy and a loosening of coronavirus restrictions. His opponent, Vice President Joe Biden, has said that he favors stronger measures to bring the virus under control. Alabama Lt. Gov. Will Ainsworth seized on the moment to support the president and added that Alabama’s mask mandate should not be extended.

“I agree with President Trump,” Ainsworth said. “Shutdowns don’t work. People want their schools open, their businesses operating, and their jobs protected. Masks should be voluntary, not mandatory. We have to Make America Great Again.”

Alabama Gov. Kay Ivey, with the support of Alabama State Health Office Dr. Scott Harris, imposed a statewide mask order on July 15 when the state’s coronavirus cases were peaking, hospitals were reaching a breaking point and COVID-19 deaths were soaring.

The governor has since extended that mandatory mask order. It is currently in place through Friday, Oct. 2,

The mask order is being credited by public health officials with improving the coronavirus situation in the state, allowing the state to open its universities and play both high school and college football seasons.

It is not known, at this point, whether Ivey will further extend the mask order.

White House Coronavirus Task Force Member Dr. Deborah Birx came to Alabama just last week and urged Ivey to extend the mask order. A number of epidemiologists and doctors in the state have come forward to echo that call to extend the mandate.

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Ainsworth was one of the first public officials to call for an economic shutdown to combat the coronavirus. He was also one of the first public officials to call for reopening the economy after the governor actually did order an economic shutdown.

The Alabama Department of Public Health announced 16 more COVID-19 deaths on Tuesday to take the state’s total death toll to 2,517. Alabama currently has 86,854 active cases of the virus.

The state remains under a statewide “safer-at-home” order. Citizens who don’t have to leave their home are urged not to leave their homes and practice social distancing and wear a mask when they do have to go out.

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At least 1,013,469 people worldwide have already died in the COVID-19 pandemic including 210,797 Americans.

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National

Today is the last day to fill out your 2020 Census

“Time is running out,” Alabama Gov. Kay Ivey said on Twitter. “Respond to the 2020 Census today.”

Brandon Moseley

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Tuesday, Sept. 30 is the last day to complete your Census so that you and your family can be counted in the 2020 Census. The Census is used to reapportion both Congress as well as the state Legislature and state school board. It is also important in how federal funds are re-distributed to states, counties and cities.

“Without every Alabamian being counted, Alabama will lose a Congressional seat, an Electoral College elector, and its share of federal funding,” said Congressman Mo Brooks, R-Alabama. “That’s why it’s so important for Alabamians to be counted in 2020.”

Congresswoman Martha Roby, R-Alabama, said in an email to constituents, “We are in the final stretch of the self-response phase of the 2020 Census, and it’s critical you participate. … Please be sure to do your part and complete your Census response before the upcoming deadline, and encourage your family and friends to participate as well.”

“Time is running out,” Alabama Gov. Kay Ivey said on Twitter. “Respond to the 2020 Census today.”

There are four ways to complete your 2020 Census:

  • Online at my2020census.gov. (Note: The Census ID number included on your original invitation letter is not required to complete the census online).
  • Call the U.S. Census Bureau toll-free at 844-330-2020. Telephone assistance is also available in multiple languages.
  • By mail: Return the paper form included with your invitation letter.
  • In person with a Census enumerator/representative that visits your home.

Any errors or under counts in this census will not be corrected for ten years. An under count could lead to lost federal funds for the state, towns and counties.

At this point, it appears that Alabama will lose at least one of our seven Congressional districts as well as one of our nine Electoral College votes based on the modest population growth in the last decade in Alabama and the poor census response rate.

The Census is mandated in the U.S. Constitution.

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