State Auditor asks for Attorney General opinion on Senate Special Election date

By Chip Brownlee
Alabama Political Reporter

MONTGOMERY — State Auditor Jim Zeigler is not satisfied with Gov. Robert Bentley’s decision to hold a Special Election for Sen. Luther Strange’s seat in November 2018, nearly two years after it was vacated by the resignation of now-Attorney General Jeff Sessions.

On Friday, Zeigler sent a request to the Attorney General’s Office asking for an official Attorney General’s Opinion on Bentley’s scheduling decision, which Zeigler says is in “double violation of state law.”

Bentley, who appointed Strange Thursday to the US Senate, announced in early January that he would schedule the required special election to be held in conjunction with the statewide general election in November 2018. The election will give Alabamians the opportunity to permanently replace Sessions, who resigned his office last week after being confirmed as the US Attorney General.

The election will be held nearly 22 months after Sessions’ resignation, which Zeigler believes contrasts with State law’s requirement that the election must be set “forthwith.” State law requires a “forthwith” special election any time a vacancy occurs more than four months before a general election.

“No reasonable person would consider 22 months as being forthwith and no court has so held,” Zeigler wrote in his request. “There is no practical or legal impediment to a setting of the special election forthwith.”

Bentley said he decided to hold the election in 2018 in line with the existing general election to save the State $16 million and ensure higher turnout compared to low-turnout special elections.

“It will save millions of dollars according to the Secretary of State’s Office due to the costs associated with conducting statewide primary and general elections,” said Yasamie August, Bentley’s spokesperson. “Secondly, special elections generally have a lower voter turnout of around 25 percent, so the Governor determined it is best to have the Special Election coincide with the 2018 General election.”

Zeigler called the $16 million estimate an “exaggerated claim” that doesn’t take into account other likely statewide referenda or elections as a result of the 2017 Legislative Session that could also be held on the same date.

His request for an official opinion was delivered to then-Acting Attorney General Alice Martin, but now must be considered by Attorney General Steve Marshall, whom Bentley appointed Friday after Strange’s ascension to the Senate.

“By this attorney general’s opinion that the setting announced is illegal and instead must follow the law, you will give the voters of Alabama the opportunity to vote for a U.S. Senator sooner rather than after almost two years of an appointed senator,” Zeigler said.

The State Auditor, who has been a Bentley critic for years, said the scheduling could result in litigation, as well, which the Attorney General could prevent through his opinion.

Zeigler, a Republican, isn’t the only official with a problem over Bentley’s scheduling. Rep. Chris England, a Democrat, isn’t too happy either.

“Unless we are within four months of the 2018 General Election, we must have a special election to replace the Governor’s temporary appointment,” England said. “It appears to be clear to me that you can’t wait until 2018. The law requires a special election.”

Email Chip at cbrownlee@alreporter.com or follow him on Twitter at @chpbrownlee.