A constitutional qualification that cannot be enforced in time is not much of a qualification at all.
That is the problem now confronting Alabama.
The Alabama Supreme Court has expedited the legal challenge involving Tommy Tuberville’s eligibility to serve as governor. The justices clearly recognize that time matters.
But expedited may still not mean fast enough.
If Alabama reaches the point where the election calendar makes meaningful relief impossible before any court determines whether a candidate satisfies the Constitution, this case will have exposed something far more troubling than a dispute over one candidate. It will have exposed a weakness in the way we enforce the Constitution itself.
Under the Supreme Court’s order, challengers Brook Lynn Dorgan and Justin Jude LeBlanc must file their opening brief by August 7. Tuberville then has 14 days to respond, followed by seven days for the challengers to reply.
If everyone uses all the allotted time, briefing could continue until August 28.
But Alabama’s election calendar is moving faster.
Under state law, when death, resignation, revocation “or otherwise” creates a vacancy in a party nomination, the party may select a replacement. For a statewide office, however, the party must file that replacement with the secretary of state no later than 76 days before the election.
For the November 3 general election, that deadline is August 19.
Another critical date comes five days later. Alabama law requires parties to finalize their nominations 71 days before the general election. After that point, changes cannot require officials to reprint ballots, and a party cannot simply replace a candidate who withdraws or whom officials disqualify after the deadline.
That deadline is August 24.
Consider where Alabama could find itself.
The ordinary statutory window for replacing a nominee could close August 19. Tuberville might not file his response brief until August 21. The broader ballot deadline arrives August 24. The challengers could file their reply August 28.
Even then, the parties may have completed only the briefing on whether another court can hear the case.
We still may not know whether Tuberville satisfies the Constitution.
That distinction is everything.
The challengers are not simply asking the Alabama Supreme Court to examine the evidence and decide whether Tuberville has been an Alabama resident for the seven years required to serve as governor. The immediate question is whether they can use quo warranto to bring that constitutional issue before a court before the election.
Montgomery County Circuit Judge Brooke Reid dismissed the case without reaching the merits of Tuberville’s residency. She found no controlling Alabama precedent that squarely authorizes a quo warranto proceeding against a certified nominee who has not yet won election or assumed office.
But she also found no precedent that expressly prohibits such a proceeding.
More importantly, Reid recognized what she described as a “very strong argument” that a court should be able to determine constitutional eligibility before voters cast their ballots. She concluded that an appellate court must decide whether to extend quo warranto in that manner.
Now it must.
But even if the challengers win their appeal, that does not necessarily mean a court will answer the residency question. The Supreme Court could reverse Reid and return the case to Montgomery County Circuit Court.
The litigation that has never occurred would then begin: discovery, documents, testimony, an evidentiary hearing, a factual determination of domicile and perhaps another appeal.
By then, the deadlines that make meaningful pre-election relief possible could be long gone.
That is where this stops being simply a procedural problem.
It becomes a constitutional one.
Strip away Tommy Tuberville’s name. Strip away the Republican Party. Strip away Doug Jones and the Democratic Party. Reverse every political interest involved.
The principle cannot change.
This is not about helping Republicans keep a nominee on the ballot or helping Democrats remove one. It is about whether Alabama means what its Constitution says.
Article V, Section 117, establishes the qualifications for governor. Among them is a requirement that the person elected governor must have been a resident citizen of Alabama for seven years.
That is not a recommendation, a preference or ceremonial language left over from another time.
It is a constitutional requirement.
No court has found that Tuberville fails to meet it. That point matters.
But another point matters just as much: No court has determined that he meets it.
That is precisely why there is a case.
The challengers have raised a serious legal question about whether a candidate for Alabama’s highest executive office satisfies one of the qualifications that the state Constitution expressly imposes. Yet Alabama may conduct the election before the legal system ever reaches that factual question.
That should trouble us regardless of the name on the ballot.
We also cannot ignore the ethical obligation involved.
It is not an obligation to rule against Tuberville. It is not an obligation to rule for his challengers. It is certainly not an obligation to produce an outcome favorable to one political party or another.
The obligation is more fundamental.
When the Constitution establishes qualifications for exercising public power, government institutions have a responsibility to provide a meaningful way to determine whether a candidate has satisfied those qualifications.
Meaningful means more than eventually.
A ruling that comes only after the available remedy has disappeared may settle a legal question, but it may no longer enforce the Constitution.
That distinction matters in a constitutional society.
We sometimes talk about constitutional government as though having a written constitution is enough.
It is not.
A constitutional society exists only when the rules in that document bind us even when they are inconvenient—especially when they are inconvenient.
The Constitution must bind the candidate we support as firmly as the candidate we oppose. It must bind Republicans and Democrats alike. It must bind officeholders, courts, political parties and voters.
Otherwise, constitutional government becomes little more than a set of principles we honor when they produce the result we prefer.
That is not the rule of law.
The rule of law requires something harder. It requires us to accept that some rules stand above political convenience, partisan advantage and electoral preference.
It also requires institutions capable of enforcing those rules before events make enforcement meaningless.
Otherwise, constitutional requirements slowly become suggestions—not because anyone repealed them, not because the people amended them and not because a court declared them invalid, but because the machinery of government never found the moment to enforce them.
That is a dangerous place for any constitutional society to arrive.
The Alabama Supreme Court deserves credit for recognizing that this appeal requires urgency. The court granted expedited consideration, warned that it would disfavor extensions and suspended the ordinary extension provision.
The justices plainly understand that the clock is running.
But there is a difference between moving quickly and moving quickly enough.
That difference may determine whether Alabama receives a meaningful answer before choosing its next governor.
The tragedy would not be that one candidate wins and another loses. The greater failure would be allowing the election calendar to answer a constitutional question that the courts never reached.
Elections do not override constitutions. Political parties do not override constitutions. Deadlines should not be allowed to quietly override them either.
A constitution is not truly tested when its commands are easy to follow. It is tested when following them is inconvenient, politically dangerous or disruptive.
That is when the rule of law either means something—or it does not.
Alabama is rapidly approaching that test.
The question before us is larger than Tommy Tuberville, larger than this governor’s race and larger than any political party.
It is whether a constitutional requirement still means anything if the state cannot determine whether a candidate has met it until it is too late for the answer to matter.
