Warm Southern Breeze

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History Repeats Itself: How Alabama’s Anti-Crossover Voting Law Violates the Constitution

Posted by Warm Southern Breeze on Monday, December 10, 2018

Alabama Political Reporter news writer Brandon Mosely wrote in a story headlined “Alabama secretary of state releases updates on crossover voting,” and published December 7, 2018, that “the Secretary of State’s office announced Thursday that it has discovered 398 violations of Alabama’s new crossover voting rules in the 2018 election cycle.

“At the conclusion of the 2017 United States Senate Special Election Run-off, the Alabama Secretary of State’s Office reviewed a formal, routine election report indicating that 140 individuals had been given credit for voting in the Democrat primary election on August 15th and then voting in the Republican run-off election on September 26. This action, termed crossover voting, is an action which would violate the State’s new crossover voting law (Act No. 2017-340).

“… under Alabama law it is illegal to vote in both a party primary and then vote in another party’s primary runoff. In the general election, voters are allowed to vote for candidates from both parties and/or independent or minor party candidates. 66 percent of Alabamians straight party voted in the 2018 election. Alabama does not have party registration, so any voter is allowed to participate in the party primary of their choice.”

He cited Act No. 2017-340, which as summarized on the state legislature’s website as, “Act 2017-340, SB108, amends Section 17-4-2.1, Code of Alabama 1975, relating to voting, to allow the Secretary of State to use electronic poll books instead of printed lists of qualified voters.  The act also prohibits any voter from voting in a primary runoff election unless the voter voted in the preceding primary election of the party for which the runoff election is being held.”

A PDF image of the actual document, which was signed by the Governor Kay Ivey, May 22, 2017, 1:30PM, may be found here>http://arc-sos.state.al.us/PAC/SOSACPDF.001/A0012111.PDF.

The act, which originated as SB108 (Senate Bill) and was sponsored by Senators Tom Whatley, Cam Ward, Clyde Chambliss, Tripp Pittman, Bill Holtzclaw and Senate President Pro Tempore Del Marsh – all Republicans – states in part that the law will “prohibit a voter from voting in a primary runoff election unless the voter voted in the preceding primary election of the party for which the runoff election is being held.”

The purpose of the bill (now law as Code of Alabama 1975,17-4-2.1(9)) was ostensibly to strengthen an already-strong GOP. The state’s top elected officials – Gov, Lt Gov, Att’y Gen, Sec’y of State, Sec’y of Ag & Ind, Treasurer – are all Republicans.

The law states that, “(9) When used in a primary election or primary runoff election, provide for the recording and subsequent printing or exporting of electronic data of names and electronic signatures of the voters participating in the primary election or primary runoff election of each political party.”

When interviewed about the new legislation, Sen. Whatley said, “It helps the Democrats choose Democratic candidates, it helps the Republicans choose Republican candidates. It just prevents the cross-over voting so you get a pure general election with a Democrat and a Republican.”

Alabama is now only one of eight states in the Union that allows “straight party” voting – meaning that one mark may be made to vote for all members of a certain political party, regardless whether or not a candidate of that party is campaigning for the office.

Portion of a Sample Ballot for Tuscaloosa County, Alabama, via the Secretary of State

Straight party voting is problematic because if a voter chooses a party in which no candidates are campaigning, then no one would get elected to fill the office. In voting terminology, that is called an “undervote,” which refers to no vote being cast for an office. Effectively, when a voter casts a “straight party” ballot, in which every office has a candidate, that voter does not cast a vote. This sample Alabama ballot for Tuscaloosa County shows the problem.

Alabama’s Eastern neighboring state of Georgia abolished “Straight Ticket Voting” in 1994.

The reason the law violates the Constitution is that it forbids voting, and denies actual, and prospective voters opportunities to cast ballots, and forces one to declare affiliation with a political party. In essence, it requires one to adhere to a party, rather than to a candidate.

Requiring voters to pledge political party allegiance is problematic, because increasingly, voters are no longer identifying with candidates by party, but by the candidates’ stance upon issues of concern to voters. So when the state forces voters to identify with a party, it effectively not merely disenfranchises otherwise eligible voters from voting, it criminalizes voting. Such efforts are considered by many to be modern-day throwbacks to Jim Crow era laws which effectively prevented Blacks from voting.

This problem is rooted in, and exemplified by the 1986 debacle between Charlie Graddick, and Bill Baxley, both gubernatorial candidates that year. Both men had previously been the state’s Attorney General, and both men were campaigning to be the Democratic nominee for the General Election.

Graddick was then the Attorney General, and Baxley was the Lt. Governor.

Because the Democratic Party dominated statewide elections then, whoever won the Democratic Primary was practically certain to become Governor.

The campaign was pure “mud slinging,” though some truths emerged. For example, the Chicago Tribune wrote June 25 that “Baxley charged Graddick with injecting racism into the campaign and also called Graddick a ”coward” for backing out of the last of three scheduled television debates last Sunday.”

There is some truth to that claim, because a Graddick television ad from that campaign characterized Baxley as “Liberal,” while it portrayed Graddick as “Conservative,” and said “Baxley’s controlled by the special interests – the AEA, the union bosses, the Black politicians, and the trial lawyers.” The AEA is Alabama Education Association (a Professional organization he monikered as a teachers “union”), and the “union bosses” in large part referred to the now-late Paul Hubbert (1935-2014), who for years had been the AEA President, and a very powerful political influencer in the state. See this video – in case the link doesn’t start where it should, fast forward to the 1:16 mark.

Graddick, who later became a Republican Circuit Court Judge in Mobile County, barely defeated Lt. Gov. Bill Baxley in the runoff in the 1986 Democratic primary for governor.

The Spokane, Washington newspaper Spokesman-Review published a story about the ordeal in their June 25, 1986 edition on page A3.

However, Baxley accused Graddick of courting “crossover” voters, meaning that he accused Graddick of courting and encouraging known Republican voters to participate in the Democratic Primary run-off election, and vote for him. And indeed, some some Republican officials called for crossover voting and ran ads to encourage it. He then filed suit with the Alabama Supreme Court accusing Graddick of violating party rules.

The day before the Democratic Primary run-off election, on June 23, in his official capacity as Attorney General, Charlie Graddick sent State Election Officials a letter on letterhead asserting that the Democratic Party’s anti-crossover rule was unconstitutional.

The next day was Primary Election Runoff Day, and Graddick won by 8,756 votes out of almost one million votes cast.

Then, two African American voters, Jerry and Dejerilyn Henderson, filed a lawsuit on behalf of all Black voters in the state claiming that Graddick’s efforts had effectively changed voting procedures to stop enforcement of the no-crossover voting rule.

Until 1978, crossover voting hadn’t been a problem because Republicans hadn’t held statewide primaries. And in 1979, the State Democratic Party passed a rule that prohibited anyone who voted in a Republican primary from voting in a succeeding Democratic runoff. State law at the time gave parties the authority to determine who could vote in their primaries, and the Democrats’ rule against crossover voting had been pre-cleared by the U.S. Justice Department, as required by the Voting Rights Act of 1965. Until 1986, the no-crossover voting rule hadn’t caused any problems.

About 33,000 people voted in the June 3 Republican primary. The plaintiffs – Jerry and Dejerilyn Henderson, et al – compared voters’ signatures from the GOP primary and the Democratic runoff and estimated that about 13,000 voters had crossed over.

Longtime State Representative, now political observer and columnist Steve Flowers wrote about the matter that until then, political candidates of one party didn’t ask for the support of others not affiliated with their chosen party, and noted that “Brewer would have never led Wallace in 1970 without Republicans. Fob would have never won the Democratic Primary and thus become governor in 1978 without Republican voters. Basically, Alabama had been a no party state. We still have no party registration law. So how do you police people weaving in and out of primaries without a mechanism in place for saying you are a Democrat, Republican or Independent?”

Natalie Davis, a Political Science professor at Birmingham-Southern College, who also conducted polls, including for Graddick, was called as an expert witness, and testified that based upon her pre-runoff polling data, 84% of crossover votes would have gone to Graddick. Other experts testified similarly.

That corroborated finding established the possibility that Graddick had won because of crossover votes. However, Graddick argued that the no-crossover rule was unconstitutional because it denied people of the right to vote, and that the procedure prescribed by the Democrats for enforcing the rule – questioning voters at the polls – had not been pre-cleared by the Justice Department.

The State Supreme Court Justices rejected his arguments, and ruled that he had violated the Voting Rights Act by trying to block enforcement of the no-crossover rule, and in effect, caused a change in voting procedure that was not pre-cleared by the Justice Department.

The State Supreme Court case is Ex Parte Baxley, and appears in 496 So. 2d 688 (1986). Ex parte judicial proceedings are typically reserved for urgent matters where requiring notice to others, most often the other party, would subject one party to irreparable harm.

In pertinent part, the August 7, 1986 court ruling read:
“On or about 9:30 a.m. on July 1, 1986, Baxley filed a contest of the primary election with the SDEC {State Democratic Executive Committee} pursuant to Code 1975, § 17-16-70. This contest alleged malconduct by Graddick and his campaign, conspiracy, and illegal votes all in violation of Code 1975, § 17-16-71(1), (3), and (5).

“Before Baker {John Baker, Chairman of the SDEC} announced the results of the tally on June 28, Kennith Pike and Nellie Pike, on that same day at 10:25 a.m., filed a contest of the election alleging that illegal votes had been cast.

“In response to the contests, Baker appointed a subcommittee to hear and determine them.

“On July 1, Graddick filed a motion with the SDEC to dismiss the contests. On July 14, 1986, the Democratic subcommittee held the first hearing on the Pike and Baxley contests, but did not rule on Graddick’s motion to dismiss the contests. It set its next meeting for July 21, 1986, but that meeting was continued until July 28, 1986.

“On July 24, Graddick filed a petition for a temporary restraining order, a writ of prohibition, and other extraordinary and equitable relief against Baker, the SDEC, the Pikes, Baxley, and members of the subcommittee appointed by Baker to hear the contest. The petition sought to halt the election contest proceeding and all discovery by Baxley. Judge Jack Carl issued ex parte a temporary restraining order forbidding the SDEC from holding hearings on the contests and stopping depositions scheduled by Baxley. The other defendants were likewise enjoined. The court set a hearing on the petition on July 29. This Court issued an order staying the temporary restraining order and requiring Judge Carl to conclude the matter and issue a final order by 5 p.m. on July 31. On July 31, Judge Carl {Circuit Court Judge Jack Dabney Carl} entered a judgment finding in favor of Graddick and against the defendants.

“The defendants appealed this judgment and also filed a motion to vacate the judgment.

“*690 Judge Carl made no findings of fact nor did he state any conclusions of law. He merely held in favor of Graddick. Graddick’s petition sought to halt the election contest proceeding before the SDEC subcommittee on four grounds.

“We vacate the judgment of the trial court and direct the SDEC to proceed with a resolution of this matter without further delay.”

So, in essence, by vacating the judgment, the State Supreme Court tossed out Judge Dabney’s ruling, and ordered the Alabama State Democratic Executive Committee to decide the matter. The party could either 1.) hold another election – a costly proposition to the state, and time was of the essence, or 2) decide the matter among themselves. They chose the latter option.

After examining voter registrations and records of attendance at polling places – particularly in Republican-leaning counties like Mobile, where Graddick lived – the Party decided that the 10,000 vote lead enjoyed by Graddick was comprised of a significant number of Republican cross-over votes which violated party rules, and nominated Baxley.

Subsequently to the entire ordeal, the State Democratic Party decided to eliminate wording atop their primary ballots which ostensibly bound the voter to support the party and its candidates. The Republican party did no such thing.

But something interesting happened along the way.

The Republican nominee for Governor, a relatively unknown Primitive Baptist preacher, chicken egg farmer, and Amway salesman, whose highest political office ever held was as Probate Judge of an almost all-White county, was elected Governor.

That man was Guy Hunt.

And then, a twist happened.

As the first elected Republican Governor since Reconstruction in Alabama, he was later indicted in the midst of his second term for violating State Ethics Laws, theft (misappropriating campaign finances for personal use), and conspiracy – all felony charges – and ousted from office following conviction. Charges of using the state-owned jet to fly him to various preaching meetings where he was featured the featured speaker, were earlier dropped.

One can see plainly how modern history has repeated itself in the indictment of a sitting governor in the midst of a second term with the removal of Governor Robert Bentley, also a Republican.

Thus began the ascendancy of Alabama’s Republican party.

Which again, brings us to the matter of cross-over voting.

It’s eerie, if not ironic, that some of the State’s political party players apparently haven’t learned a thing from their previous experiences, because they’re repeating the same mistakes that the State Democratic Party had earlier made – requiring allegiance to party, rather than to a candidate.

Conceivably, a powerful lawyer with moxie could challenge the state’s law. But it’s doubtful that one will. At least for now.

Until then, stay tuned!

A final note: Charlie Graddick and Bill Baxley remain friends, and when interviewed in 2014 about their 1986 challenges, Graddick said, “He and I were friends before the race, during the race we were friends and we’ve been friends pretty much since that time.”

Stay friends!


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