By Bill Britt
Alabama Political Reporter
Montgomery County Circuit Judge J. R. Gaines on Tuesday set an injunction hearing arising from a lawsuit challenging the legality of Gov. Robert Bentley’s calling a Special Election to fill the US Senate for 2018, which will be nearly two years after it was vacated by Jeff Sessions who became the US Attorney General this year.
The suit, brought by State Auditor Jim Zeigler and Tommy Chapman, chair of the Conecuh County Democratic Executive Committee and former District Attorney for Conecuh and Monroe Counties, is seeking a mandatory injunction requiring Bentley to reschedule the Special Election.
Judge Gaines set the injunction hearing for March 21, at 8:30 a.m. at the Phelps-Price Justice Center, Courtroom 4-B.
Last month, Bentley announced the Special Election to replace Sessions, to coincide with the 2018 statewide General Election citing numerous reasons for delaying the process.
In the interim, Bentley appointed Alabama Attorney General Luther Strange to Sessions’ post setting off a firestorm of criticism as it appeared Bentley was trying to thwart a criminal investigation by giving Strange his dream job. Strange’s Senate appointment is temporary under Alabama law and requires an election to select a permanent replacement.
However, the suit questions Bentley’s assertion that “forthwith” means two years.
On Monday, March 13, Bentley filed his answers with the court and among the many arguments proffered was a challenge on which word “forthwith” modifies in the statute. Writing, “forthwith” in the statute modifies the word “order” not “held” and thus does not consider that the plain language of the statute requires the Governor to issue his order “forthwith” rather than hold the election “forthwith.”
Ala. Code 36-9-8 reads in part, “Whenever a vacancy occurs in the office of Senator of and from the State of Alabama in the Senate of the United States more than four months before a general election, the Governor of Alabama shall forthwith order an election to be held by the qualified electors of the state to elect a Senator of and from the State of Alabama to the United States Senate for the unexpired term.”
Bentley’s team of lawyers also cite Absentee Voting, lack of current funding in the State budget for a standalone special election, and the order issued by the US District Court for the Middle District of Alabama in Hall v. Merrill to make their case.
Since joining the Union, only 10 US Senate seats representing Alabama have been vacated. After the passage of the 1901 Alabama State Constitution, only five have been filled by gubernatorial appointment. Not one of those appointments lasted two years, as previous governors called for Special Elections to be held quickly after the seat was vacated.
Before tapping Strange, Bentley held a beauty pageant-style interviewing process, including a Survey Monkey questionnaire, asking members of the State’s Republican Party Executive Committee for input on the appointment of Sessions’ successor.
Strange’s false denial of an ongoing investigation of the Governor (when there was one) coupled with Bentley’s history of hostility toward Strange is enough to keep the “chatter-class” in a wealth of conspiracy theory. Add to that Bentley’s adamant refusal to set a Special Election before 2018, and the rumors of a quid pro quo arrangement become even more suspect to the enquiring minds on Goat Hill.
Chip Brownlee contributed to this report.
