The appeal filed Tuesday in the challenge to United States Senator Tommy Tuberville’s eligibility for governor does not ask the Alabama Supreme Court to decide where Tuberville lives or whether he meets the Alabama Constitution’s seven-year residency requirement.
Instead, it asks whether the plaintiffs used the proper legal procedure to bring that question before a court before the general election.
Attorney Barry Ragsdale filed the appeal for Brook Lynne Dorgan and Justin Jude LeBlanc. They are challenging Montgomery County Circuit Judge Brooke Reid’s July 9 dismissal of their lawsuit.
In a docketing statement, the plaintiffs identified the issue as whether the circuit court had subject-matter jurisdiction to hear their claims. Put simply, they are asking whether Reid had legal authority to hear the case they filed.
But that description does not fully capture the narrow and unsettled question before the Supreme Court.
Reid did not find that Alabama courts lack authority to determine whether a candidate meets the constitutional qualifications for governor. She rejected that broader position, writing that the suggestion courts lack such authority, when properly invoked, was “lacking in merit.”
Instead, her ruling turned on the legal procedure the plaintiffs chose: quo warranto.
What is quo warranto?
Quo warranto traditionally determines whether someone is unlawfully holding or exercising a public office.
Tuberville does not hold the office of governor. He is the Alabama Republican Party’s certified nominee for governor.
That distinction is central to the appeal.
The plaintiffs initially sought both quo warranto and declaratory relief, including a claim against Secretary of State Wes Allen. They voluntarily dismissed the declaratory claim before the hearing, leaving quo warranto as their only cause of action.
Tuberville’s attorneys argued that the plaintiffs could not use quo warranto because he is not yet an officeholder. They also cited Alabama election laws that sharply restrict when courts may intervene in election disputes and provide separate procedures for contesting a party nomination.
The plaintiffs responded that they were not asking the court to overturn the Republican primary. They sought a judicial determination of whether Tuberville, as a certified nominee, meets the constitutional qualifications for the office he seeks.
Article V, Section 117 of the Alabama Constitution requires a governor to have been a “resident citizen” of Alabama for at least seven years immediately before the election.
The plaintiffs allege Tuberville does not meet that requirement.
Reid did not decide whether the allegation is true.
What Reid decided
Reid found no Alabama case directly addressing whether quo warranto may be used against a certified nominee before a general election.
Alabama courts have described a certified nominee as having a form of “quasi-officer” status. But Reid found no decision establishing that a nominee is a public officer for purposes of the quo warranto statute.
She distinguished the case from those involving people who had already been elected, appointed or begun exercising an office’s powers.
Reid also considered an Alabama Supreme Court decision suggesting that a candidate’s eligibility might be challenged after a primary but before a general election by combining quo warranto with a request for mandamus or prohibition.
But that language appeared in a footnote, arose from different circumstances and has not been expressly reaffirmed in a later case. The plaintiffs proceeded only on quo warranto after dismissing their declaratory claim.
Reid limited her conclusion carefully.
She wrote that no Alabama decision expressly endorses or rejects using quo warranto to challenge a certified nominee’s eligibility before a general election. She acknowledged that the public interest favors resolving constitutional-eligibility questions before voters cast ballots and recognized “a very strong argument” that such an action should be available.
But Reid concluded that a circuit court could not extend quo warranto beyond its existing application without direction from a higher court.
She dismissed the remaining claim, finding that the circuit court lacked jurisdiction over quo warranto “at this time.”
Reid also noted that declaratory or injunctive relief might still be available. Her ruling did not foreclose every possible pre-election challenge. It held only that this claim, brought through this procedure, could not proceed.
What the Supreme Court must decide
The appeal gives the Alabama Supreme Court an opportunity to answer the question Reid said state law has left unresolved:
Can quo warranto be used to challenge a certified nominee’s constitutional eligibility before the nominee has been elected and taken office?
That is not the same as asking whether Alabama courts can ever hear the dispute over Tuberville’s residency.
The practical question is whether quo warranto is available before voters cast their ballots or only after a candidate has been elected or begun exercising the powers of the office.
The Supreme Court could affirm Reid and find that quo warranto does not apply to a certified nominee. That would end this lawsuit without deciding whether Tuberville meets the residency requirement.
The justices could reverse and find that a certified nominee has sufficient legal status for quo warranto to apply. The case would then likely return to Montgomery County Circuit Court for further proceedings.
The court could also issue a narrower ruling defining quo warranto’s reach or clarifying a certified nominee’s legal status without deciding Tuberville’s eligibility.
The justices are unlikely to determine whether Tuberville has lived in Alabama for the constitutionally required seven years. Reid dismissed the case before discovery, an evidentiary hearing or any factual finding on his residency. The Supreme Court has no developed evidentiary record to review on that issue.
What happens next
The plaintiffs requested that the full circuit court record be sent to the Supreme Court and ordered a complete transcript of the proceedings before Reid.
The notice of appeal begins the appellate process but does not lay out the plaintiffs’ full legal argument. Their brief will explain why they believe Reid misapplied Alabama law and what they want the Supreme Court to do. Tuberville’s attorneys will then have an opportunity to respond.
The docketing statement reduces the dispute to a sentence about subject-matter jurisdiction. The briefs will reveal the precise arguments on both sides and whether the plaintiffs seek a broad ruling or one limited to the case’s unusual facts.
For now, the immediate question is whether Alabama’s quo warranto law permits a judge to consider that question before voters choose their next governor.
