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Defense attorneys call for AG to drop charges against Selma police officers

Brandon Moseley

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Attorney General Steve Marshall

Attorneys Julian McPhillips Jr. and David Sawyer are holding a news conference in Montgomery Thursday to again ask Alabama Attorney General Steve Marshall to drop charges against three Black Selma Police Officers who were re-indicted on felony charges of lying to the attorney general.

McPhillips and Sawyer say that Marshall’s actions caused the three Selma Police Officers — Jeff Hardy, Tori Neeley and Kendall Thomas — to all be re-indicted, a move that the defense attorneys call unprecedented.

“For almost two years, Assistant Attorney General Andrew Arrington, assigned to the case, has refused to specify what the lie is, or was,” McPhillips and Sawyer wrote. “There has been no particulars as to any crime alleged, such as time, place, persons, things, and other details.”

McPhillips and Sawyer also are asking Marshall to stop issuing motions to recuse African-American judges in Lowndes County from the case. The first judge was Judge Collins Pettaway.

In July, the Court of Criminal Appeals granted the AG’s motion to remove Pettaway.

The AG’s office has said that the officers are being accused of “lying about the condition of the evidence room” and “lying about whether they were not allowed to re-enter the evidence room until they received permission from the Attorney General.”

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The officers allegedly said the evidence room was “left in disarray” and the attorney general’s office said, “oh no, it was not in disarray.” Such differences are a matter of opinion, and not the subject of a criminal indictment, McPhillips says.

“Such a petty dispute, driven apparently by rivalry, jealously, and/or racism from the Attorney General’s Office is unbecoming the highest law enforcement office in Alabama,” charged McPhillips.

Now, the attorney general’s office is seeking to remove Judge Marvin Wiggins — who is also African-American and was just recently assigned to the case.

The attorneys say that before calling this news conference, they tried twice to speak with Marshall about their concerns in this case but were rebuffed both times.

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McPhillips and Sawyer are renewing their call on Marshall to dismiss the cases against the law enforcement officers, because the charges “are frivolous, irresponsible, racially discriminatory, and counter-productive to good law enforcement.”

McPhillips and Sawyer promise to reveal even more of the “unseemly details” at the news conference with all three policemen present and speaking in their own defense.

If Marshall refuses to dismiss the case, McPhillips and Sawyer are calling upon him to immediately cease all efforts to remove Wiggins.

The defense attorneys stated that this second recusal request is unfounded, highly racially prejudicial, discriminatory and unsavory.

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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(STOCK PHOTO)

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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(STOCK PHOTO)

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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(STOCK PHOTO)

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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