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Kellum holds onto Court of Criminal Court of Appeals seat

While there is still a general election on Nov. 3, Tuesday’s victory effectively re-elected Kellum to her third term as no Democrat or independent qualified to run for the race.

Brandon Moseley

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Judge Beth Kellum

Incumbent Alabama’s Court of Criminal Appeals Judge Beth Kellum won the Republican primary for her seat on the court, likely assuring that she will return to the court after the general election.

With 100 percent of precincts reporting unofficial results, Beth Kellum had 56 percent while challenger Will Smith received 44 percent.

“Thank you to everyone who made the effort to vote in today’s “pandemic election,“ Kellum said in a statement. “It has been one of the great honors of my life to represent you on the Court of Criminal Appeals for the past 12 years. It was a hard fought race, and I am thankful for the people of Alabama and for the trust you put in me to serve the great State of Alabama. I look forward to serving you for another six years!”

Smith conceded the race in a statement.

“This Sunday, one of the hymns we sang in church was Have Faith In God. The chorus of the song has played in my mind ever since. So first and foremost, I want to thank God for giving me faith and provision along the way of this campaign journey,” Smith said. “I want to thank the Republican voters who braved the unusual circumstances of this time to vote for me today. These conservative grassroots supporters have supported my campaign, defended my character and championed our sacred beliefs of faith and family and our American ideals of liberty, freedom and constitutional government.”

“I am forever grateful to my wife, Laura,” Smith continued. “She has been my rock and encourager. She has always been so supportive and understanding throughout the demands of this campaign journey. I love her and I am blessed to have her as my wife.”

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“I enjoyed traveling to the four corners of our great state and meeting so many of her wonderful people,” Smith added. “This race was one of grassroots conservatives against the big money interests of Montgomery which contributed over $80,000 to the incumbent. The results of the March 3rd Republican Primary showed me trailing the two-term incumbent by a margin of 43% to 37%. It was amazing we were within 6 percentage points of the two-term incumbent despite being outspent over 15 to 1 during the primary. Today, the voters spoke and re-elected the incumbent to her third term. I congratulate Judge Kellum on her victory tonight.”

Alabama Republican Party Chairman Terry Lathan issued a statement following Kellum’s win for the GOP nomination for the Alabama Criminal Court of Appeals.

“While we had two exceptional candidates for the Criminal Court of Appeals, Alabama Republican voters have selected a highly qualified legal mind to be their nominee for the Alabama Criminal Court of Appeals,” Lathan said. “Beth Kellum has proven herself to a be a strong judge during her previous two terms on the bench. Combined with her extensive legal career, we are confident Judge Kellum will win re-election and return to this seat on November 3rd. We look forward to her continued service with the upmost integrity and seriousness she has shown Alabama as a judge.”

“We extend our gratitude to Will Smith for his willingness to serve — not just in this position but in his previous post as a Lauderdale County Commissioner,” Lathan added. “He is a great example of a true statesman.”

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Kellum is an Alabama native who grew up in Vance in Tuscaloosa County. She graduated from Brookwood High School in 1977. She has a bachelor’s degree from the University of Alabama and a law degree from the University of Alabama School of Law.

Kellum was hired in 1985 by Attorney General Charles Graddick as an assistant attorney general. She worked in the criminal appeals division where she primarily prosecuted appeals before the Court of Criminal Appeals and the Alabama Supreme Court.

She later worked as a staff attorney for the Court of Criminal Appeals from 1987 until 1990. Kellum went into private practice with the Montgomery law firm of Robison & Belser, P.A., working on a wide variety of civil and criminal cases in state and federal courts.

In 1997, she went back to the Court of Criminal Appeals to work as a senior staff attorney for the newly-elected Judge Jean Brown. She worked as a senior staff attorney for the Alabama Supreme Court from 1999 until 2001, before returning to the Court of Criminal Appeals as the senior staff attorney for then newly-elected Judge Kelli Wise.

Kellum was elected to the Court of Criminal Appeals in November 2008 and was re-elected in 2014. While there is still a general election on Nov. 3, Tuesday’s victory effectively re-elected Kellum to her third term as no Democrat or independent qualified to run for the race.

Alabama is one of the few states to elect its judges in partisan elections.

Brandon Moseley is a senior reporter with eight and a half years at Alabama Political Reporter. You can email him at [email protected] or follow him on Facebook. Brandon is a native of Moody, Alabama, a graduate of Auburn University, and a seventh generation Alabamian.

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SCOTUS majority seems likely to uphold Affordable Care Act

The U.S. Supreme Court will return to hear more arguments in the case on Nov. 30.

Eddie Burkhalter

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The U.S. Supreme Court on Tuesday heard opening oral arguments in the Republican’s latest challenge to the Affordable Care Act, and a majority of the justices seemed to side with the lawyers defending the law.

Alabama Attorney General Steve Marshall joined other Republican state officials and the Trump administration in arguing that the portion of President Barrack Obama’s 2010 health care law, known as Obamacare, which mandated people buy health insurance or pay a tax, be deemed unconstitutional. The lawsuit argues that once that portion is found unconstitutional, the rest of the law should be struck down as well. 

If the ACA were struck down, at least 122,000 Alabamians and 21.1 million nationally would lose health coverage, according to a recent study by the Urban Institute. Trump made the ACA’s repeal a central part of his 2016 campaign and has continued to call for its demise, which would include the removal of protections for those with pre-existing conditions and portions of the law that allow young adults under the age of 26 to stay on their parents’ health insurance plans.

Congress in 2017 agreed to zero out the penalty from the individual mandate, which went away in 2019, but left the rest of the law in place. While the mandate to buy health care remains, there’s no penalty for not doing so. 

“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down, when the same Congress that lowered the penalty to zero, did not even try to repeal the rest of the Act,” said Chief Justice John Roberts to attorneys arguing for the plaintiffs during Tuesday’s hearing. “I think, frankly, that they wanted the court to do that, but that’s not our job.” 

Justice Brett Kavanaugh also expressed disagreement with plaintiffs’ arguments that the mandate could not be separated from the law. 

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“I tend to agree with you. This a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh said. 

Former Obama administration solicitor general Donald Verrilli Jr., who’s defending the ACA on behalf of the U.S. House, told the justices that Congress wanted the remaining portions of the ACA to stand, and agreeing with the Republicans’ theory that the individual mandate can’t be separated from the law would upend Congress’s wishes. 

“It would cause enormous regulatory disruption up in the markets, cast 20 million Americans off health insurance during a pandemic and cost the states tens of billions of dollars during a fiscal crisis,” Verrilli said. “There’s no basis for that result in text intent or precedent.” 

Kyle Hawkins, the Texas solicitor general arguing for the challengers Tuesday, said “the mandate as it exists today is unconstitutional.” 

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“It is a naked command to purchase health insurance. And as such, it falls outside Congress’s enumerated powers,” Hawkins said, adding that the mandate is “inseparable from the remainder of the law.” 

Justice Sonia Sotomayor questioned Hawkins as to the standing of his case against the ACA, asking him whether people who had not signed up for health care when there was a tax associated for not doing so, would now sign up despite such tax. 

 “There’s only a small number of people who would do it. That small number of people have to include Medicaid and CHIP recipients to affect you as the state at all,” Sotomayor said. “And they would, once they’re told there’s no tax, enroll now, when they didn’t enroll when they thought that there was a tax. Does that make any sense to you?” 

The U.S. Supreme Court in a previous challenge of the law in 2012 ruled the individual mandate constitutional, and that the tax is a power afforded to Congress. Conservative Chief Justice John Roberts joined the court’s four liberals in that ruling. 

Followers of the court are watching conservative Justice Amy Coney Barrett, President Donald Trump’s most recent pick, confirmed to replace the late Justice Ruth Bader Ginsberg, closely for indications she may side with Republicans’ argument. Barrett didn’t give hints Tuesday as to how she might rule in the case, however. 

The U.S. Supreme Court will return to hear more arguments in the case on Nov. 30.

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Poll watchers in Alabama report massive turnout, long waits and machine shortages

One observer spoke to multiple people in long lines who vowed that they are ready to wait all night if they have to.

Micah Danney

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People are waiting in long lines for hours to vote across Alabama today due in part to massive turnout and in some places due to crashing machines, too few machines or too few ballots, election observers say.

Jefferson County Commissioner Sheila Tyson is one of 85 pastors visiting polling sites in the state’s most populous counties. They are members of a national network of poll chaplains “bringing a moral and peaceful presence to polls” in coordination with attorneys.

“I have never seen this before. Never, and I have been involved in politics since I was 10, and I’m 59 now,” Tyson said of the turnout. Secretary of State John Merrill has also predicted record-breaking turnout.

Machines at a site in Pleasant Grove went down this morning, she said, so her group called the election protection hotline and someone came and fixed them.

Tyson wasn’t told what went wrong with them.

When she left the Jefferson County Courthouse at 9:30 a.m., she estimated that there were at least 1,000 people in line waiting to use six voting booths inside. Tyson then went to Jonesboro Elementary School in Bessemer, where she said there were 500 people in line waiting to use two voting machines.

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Tyson said she thought there should have been more machines provided at both sites due to the high expected turnout.

Statewide, issues with voting machines have been sporadic and not widespread, according to observers with the state Democratic Party. In Tuscaloosa County, however, some voters who never received their mail-in ballots have shown up to cast provisional ballots and been asked to come back later because not enough extras had been printed.

Tyson said she doesn’t see the lines deterring anyone. She’s seeing determination.

“The urgency, like it’s an emergency,” she said.

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One woman who needed to pick up her medication from the pharmacy told a pastor where it was and he went and got it. She stayed in line. 

People brought chairs, some are playing music and handing out water and snacks, and young voters are giving up their chairs for seniors, Tyson said.

Her group is in touch with a 106-year-old woman they have helped to vote by absentee ballot in past elections. She has insisted on walking into her polling place today, Tyson said.

She has spoken to multiple people in long lines who vowed that they are ready to wait all night if they have to.

“They’re not leaving,” she said.

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Aderholt fully supports Barrett’s confirmation process

Confirmation hearings began last week and a vote on her confirmation is expected in the next week just days before the general election.

Brandon Moseley

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Congressman Robert Aderholt

Congressman Robert Aderholt, R-Alabama, updated his constituents on the confirmation process for Supreme Court nominee Amy Coney Barrett. Aderholt said, “I do support her fully and I know she will defend life, protect the Constitution, and uphold our freedoms.”

Confirmation hearings began last week and a vote on her confirmation is expected in the next week just days before the general election.

“Senate Democrats are not seriously questioning Judge Barrett on her credentials, instead they have decided to attack her character and her beliefs,” Aderholt said. “I am disappointed to see this unfold on the national stage, but I think Judge Barrett stood strong and did well during this first week of hearings.”

“While I do not have a vote in her confirmation process, I do support her fully and I know she will defend life, protect the Constitution, and uphold our freedoms when she is officially sworn in as an Associate Justice on the Supreme Court,” Aderholt said.

Barrett is a Notre Dame graduate, has served on the U.S. Seventh Court of Appeals and is a former clerk for the late Supreme Court Justice Antonin Scalia.

“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate,” Barrett said. “His judicial philosophy is mine, too: A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”

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Barrett vowed to keep an open mind on any matter that comes before the court, though Democrats fear she is prepared to overturn Supreme Court precedent on abortion rights and the Affordable Care Act.

That the Republican controlled committee will recommend that Barrett be confirmed appears certain. A vote to confirm Barrett to the nation’s highest court by the full Senate could occur just days ahead of the Nov. 3 election.

President Donald Trump has been the president of the United States for less than four years but if Barrett is confirmed, then he will have selected one third of the U.S. Supreme Court. Barrett fills a place created by the death of the late Associate Justice Ruth Bader Ginsburg, who died in September.

Aderholt is in his 12th term representing Alabama’s 4th Congressional District. He faces Democratic nominee Rick Neighbors in the Nov. 3 general election.

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Lawsuit alleges “religious test” on Alabama voter registration form

Plaintiffs say the phrase “so help me God” amounts to a mandatory religious oath.

Micah Danney

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A lawsuit filed in federal court is challenging language on Alabama’s voter registration form, saying that the phrase “so help me God” amounts to a mandatory religious oath prohibited by the Constitution.

Alabama is the only state that requires voters to swear the truthfulness of their voter registration information by signing a form that includes those words without any option of a secular affirmation.

The lead plaintiff is Randal Cragun, an atheist who has sought to register to vote in Alabama since November 2019. He noticed that on the mail-in form that is downloadable from the secretary of state’s website, a warning states: “Read and sign under penalty of perjury,” and, “If you falsely sign this statement, you can be convicted and imprisoned for up to five years.” The declaration begins “I solemnly swear or affirm” and ends with “so help me God.”

Cragun contacted Secretary of State John Merrill’s office to ask how he could register without signing the declaration as it is written, according to the Freedom From Religion Foundation, which filed the suit on behalf of Cragun and three other plaintiffs. The next day, Cragun was told by the director of elections that no legal mechanism existed to provide an alternative, and that crossing out any portion would result in the application being rejected.

“It is deplorable that in our secular nation nontheistic citizens are encountering a religious test to register to vote,” said Annie Laurie Gaylor, co-president of FFRF. “No citizen should have to choose between their right to vote and their freedom of conscience.”

Before filing the lawsuit, the organization sent a letter to Merrill’s office saying that the oath violates the First Amendment. It cited Torcaso v. Watkins, in which the Supreme Court ruled that neither a state nor the federal government can force a person to profess a belief or disbelief in any religion.

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Merrill declined to comment until his office has been served with the lawsuit, but according to FFRF, he has maintained that the registration forms are “prescribed by statute” and “that any changes would require legislative action.”

The lawsuit alleges that his office has the authority to create and amend voter registration forms. In a statement, FFRF noted that in all other states, voters are provided either a secular registration form or are not required to submit an oath or affirmation.

The group added that government officials routinely allow people who must take an oath, including attorneys, jurors and witnesses, “to make a secular affirmation instead when they are unable to swear ‘so help me God’ as a matter of conscience.”

The plaintiffs are seeking a permanent injunction that prohibits the secretary of state from requiring voters who register to swear “so help me God” and that requires his office to provide voter registration forms that don’t include the phrase as a requirement. They are also asking for a declaratory judgment that Merrill has violated the Constitution by not providing a secular alternative.

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“The secretary of state has willfully excluded nontheist citizens from registering to vote and is coercing a statement of belief in a monotheistic god by requiring nontheists to swear a religious oath,” said Patrick Elliott, FFRF’s senior attorney in the litigation.

In its letter to Merrill, FFRF said that a constitutional ban on mandatory religious oaths is a “well-settled issue.” 

In a 1972 case, Nicholson v. Bd. of Comm’rs of Ala. State Bar Ass’n, the court ruled, “We hold that it is a violation of the Constitution for the state of Alabama to compel plaintiff to swear an oath invoking the help of God as a prerequisite to entering upon the practice of law.”

The suit’s three other plaintiffs are Chris Nelson, Heather Coleman and Robert Corker. 

It was filed in the U.S. District Court for the Northern District of Alabama, Southern Division. Steven P. Gregory, of the Birmingham-based Gregory Law Firm, is local counsel. FFRF associate counsel Liz Cavell is also involved in the case.

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