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House District 10 election challenge court hearing Monday

A motion to dismiss filed by Rep. David Cole will be argued in Madison County Circuit Court on Monday morning.

Libertarian Elijah Boyd, Republican David Cole, and Democrat Marilyn Lands.

The challenge to David Cole’s election as Alabama House District 10 representative makes its first stop in circuit court Monday morning, as the parties gather to argue a motion to dismiss filed by Cole. 

There will apparently be plenty to discuss. 

Last week, both sides filed motions in the case arguing for and against the motion to dismiss. Cole’s attorneys argued that plaintiff Elijah Boyd, the Libertarian candidate, failed to provide the court with “proper security,” since he didn’t provide the court with money, and that the filing wasn’t in the proper venue since the Alabama House of Representatives has jurisdiction over election contests involving its members. 

Boyd’s attorney answered that filing, calling the arguments “curious,” by noting that Boyd followed the instructions of the court when providing “security” for the filing and that, as pointed out in their opposition to Cole’s motion to dismiss, the Alabama constitution sets out a clear process for election challenges, which begins with a filing in the in the circuit court of the county where the election was held. 

In addition, Boyd’s filing says that the assertion by Cole that the circuit court plays no role in the process is fundamentally wrong. Boyd’s filing says that the Legislature has adopted the rules of civil procedure and expressly allow for written depositions. 

“The  Legislature’s incorporation of the Rules of  Civil  Procedure regarding depositions necessarily involves this Court in the interpretation and enforcement of those rules,” Boyd’s filing states. “This Court, therefore, will almost certainly be called upon to resolve the parties’ inevitable objections to the taking and substance of the depositions and to potentially resolve motions to compel and to enforce attendance of Cole and any non-party witnesses. Indeed, without this Court’s involvement, how else would the  “rules concerning the taking of depositions in civil actions” be applied and enforced? Does  Cole  seriously  contend  that  the  entire  Alabama  House  of  Representatives  must consider and rule on every potential objection raised to every deposition question?”

Monday’s hearing is the result of a challenge to Cole’s election last month on the basis that he didn’t meet the residency requirement to run for office. 

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APR reported in October that Cole didn’t appear to live in House District 10 prior to the deadline for filing, and that he still maintained – and appeared to live at – a residence in House District 4 as recently as last week. 

Cole used the address of a family friend when filing to run for office in Nov. 2021. When asked about the discrepancy, Cole told APR, through a campaign spokesperson, that his family had moved to the friend’s house two days prior to the filing deadline. 

That would have left Cole, his wife and three children living in a four-bedroom, 3,000-square foot home with the family friend and his wife. And the Coles would have done this as their own four-bedroom home sat empty. 

Despite his campaign providing APR with lease documents showing that Cole rented an apartment in District 10 in September, the Coles still own the home in District 4 and have been observed at the home on numerous occasions over the last few months.

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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