Tommy Tuberville can actually be kicked off the ballot before he ever becomes governor, according to established Alabama law.
Last week, APR editor-in-chief Bill Britt wrote extensively about the legal process that can be undertaken to remove Tuberville from office if he should win the race for governor later this year. As most everyone is aware by now, Tuberville has serious issues meeting the state’s requirement that he reside in Alabama for the seven years prior to running for governor – a fact so widely accepted at this point that hardly anyone attempts to argue that he can meet the requirement, choosing instead to argue that the state’s judges and lawmakers will ignore the law.
Britt cited a number of statutes and detailed the process that could be used to remove Tuberville (or pretty much any constitutional officer or state lawmaker). Having reported extensively on the David Cole saga a couple of years ago (he was the state rep who got caught living outside of the district for which he ran), I am fairly familiar with the extensive legal process that must be followed. Everything Britt wrote lined up with what occurred in the Cole case.
The challenge would be filed in circuit court, which would handle the gathering of evidence and managing the early portions of the case, and then would ultimately be heard by a joint session of the state legislature. That body, which contains a supermajority of Republicans, would be the ultimate decision maker.
But as longtime sports broadcaster Lee Corso would say, not so fast, my friend.
Because there is another way. A way that happens before the election. A way that doesn’t involve the party.
As Britt wrote, the first challenge Tuberville will face will come in the form of a ballot challenge filed by his Republican opponent, Ken McFeeters. McFeeters told APR that he plans to file that challenge as early as later today.
That challenge will be heard by the Alabama Republican Party’s executive committee. McFeeters will present his evidence. It will be valid and he’ll be able to prove fairly convincingly that Tuberville can’t meet the residency requirement. (I am confident of that fact, because at this point simply using the reporting from APR, al.com and various other news outlets would be enough.)
It will almost certainly be ignored by the ALGOP executive committee, because they care far more about politics than they do about law and order.
The most serious challenge that Tuberville will face, though, will come in May, shortly after the primary (assuming that he is the party’s nominee). That’s when a challenge – known as a “quo warranto” action – will be lodged by a state resident. (I have no idea who will file it, but there is a 100-percent chance that it will be filed.)
The reason this is the most serious challenge that Tuberville will face is because it is not one that will be heard by a partisan committee or a legislative body with a Republican supermajority. This one will be heard by a court. And it will feature all the rules of evidence – including depositions and the demand for documents, including tax returns (or the lack thereof) – that goes along with any standard court case.
And at the end of it, someone wearing a black robe and who’s sworn to uphold the laws of Alabama will make the final determination.
Such a challenge is actually the preferred method, according to a number of Alabama Supreme Court decisions, for determining such a question, because it occurs prior to the ineligible candidate taking office. In fact, in the 2006 case, Reed v. State ex rel Davis, the court actually stated: “it is well established that the remedy [of quo warranto] lies to challenge a person’s right to hold office based on grounds of ineligibility.”
Numerous other rulings by the Alabama Supreme Court establish this method as preferred and proper, and lay out why it is. Most notably, the court treats a nominee as a “quasi-official” who must meet the statutory requirements of the office.
The filing of the quo warranto challenge will have to occur in Montgomery County, which is yet another blow for Tuberville. The slate of circuit court judges in Montgomery will not be interested in partisan politics and will not entertain needless delays, understanding that the final decision on the case must be filed prior to the November election.
That means, even if Tuberville’s legal team seeks to run out the clock on the ultimate decision, it most likely will not be able to delay key discovery decisions concerning documents that could further expose the fact that he can’t meet the state’s residency requirements. For example, one of the first set of documents any challenger will likely seek are Tuberville’s Alabama tax returns, assuming there are any, from the previous seven years.
If those returns, or lack thereof, show he can’t meet the seven-year requirement, that could be a monumental turning point for both voters and how he’s viewed by the legislature should any post-election challenge be filed.
The same could be said for all discovery and depositions filed in the case. Depending on what they show, they could all turn public opinion for or against him in this case. Because while it’s one thing to assume that a candidate can’t meet the requirements, it’s quite another to see it in black and white.
This challenge is also the most serious avenue for the Republican Party, because unlike the post-election challenge or the party challenge with the executive committee, should Tuberville lose the quo warranto challenge, he cannot be replaced on the ballot. Votes for him, assuming his name is on the ballot, will not count and the Democratic challenger would most likely be the winner. (The party can replace Tuberville for various other causes, such as health-related issues, but not after losing in court.)
So, that’s what we’re all in for – a solid 12 months of court battles and arguments over meeting one of the most basic requirements of this state’s election laws. That a candidate for the highest office in Alabama actually live in Alabama.
