Robert Bentley
MONTGOMERY – A bipartisan lawsuit has been filed against Gov. Robert Bentley claiming he illegally delayed a special election for the U.S. Senate seat now held by Bentley appointee Luther Strange.
State Auditor Jim Zeigler, a Republican, and retired District Attorney Tommy Chapman of Evergreen, a Democrat, say Bentley clearly defied the law when he delayed the senate election until the November 2018 election cycle.
The suit, e-filed Sunday in Montgomery County Circuit Court, asks for a declaratory judgment that the Bentley setting is illegal and an injunction requiring him to reset the election as soon as possible. No hearing date has been set.
Bentley’s appointment of former state Attorney General Luther Strange to the U.S. Senate should have required a special election as soon as possible under Alabama law, Zeigler said.
“The whole thing stinks,”
State Auditor Jim Zeigler (R)
said. “We’ve got a Bentley appointed senator instead of a peoples’ elected senator.”
“Under the illegal delay by Gov. Bentley, his anointed U.S. Senator gets a free ride for almost two years before an elected Senator can take office,” Zeigler said.
Bentley’s appointment of Strange is “a dark cloud over Alabama,” Zeigler said. Strange’s office was believed to have Bentley under investigation since accusations were made by Bentley’s friend and former head of law enforcement, Spencer Collier, almost a year ago.
A separate investigation by the Alabama House impeachment committee was halted Nov. 3 at Strange’s request. He said his office was doing “related work.”
Luther Strange
Strange had announced he would run for the vacant U.S. Senate seat but would not apply for appointment by Bentley. He then proceeded to interview with Bentley for the job.
After Bentley appointed Strange to the senate seat, Strange told a news conference that he never said he was investigating Bentley.
The House Judiciary Committee still has the Bentley impeachment on pause due to Strange’s request.
The suit cites state law that requires a special election date to be set without delay if a U.S. Senate seat becomes vacant more than four months prior to the next election, which would be in November 2018.
Strange is to serve until an election is held to fill the seat for the remainder of Sessions’ term, which ends in January of 2020.
The suit cites a Feb. 13 finding by the Legislative Reference Service that the governor is required to set the special election “without delay.” (Lawsuit and LRS Memo attached)
- 36-9-8, Ala. Code 1975
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. If the vacancy occurs within four months of but more than 60 days before a general election, the vacancy shall be filled at that election. If the vacancy occurs within 60 days before a general election, the governor shall order a special election to be held on the first Tuesday after the lapse of 60 days from and after the day on which the vacancy is known to the governor, and the senator elected at such special election shall hold office for the unexpired term.
Media Release/Hope Curry, CPM
Executive Assistant
to Jim Zeigler
State Auditor
State Capitol
Lawsuit:
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA
JIM ZEIGLER ) As a taxpayer and voter and ) As State Auditor of Alabama ) ) TOMMY CHAPMAN ) As a taxpayer and voter and ) As Chairman of the Democratic ) Executive Committee of Conecuh County ) ) Plaintiffs ) Civil No. 2017- ) vs. ) ) HON. ROBERT BENTLEY, ) As Governor of Alabama ) In his official capacity ) ) Defendant. )
BIPARTISAN COMPLAINT AGAINST ILLEGAL SETTING OF U.S. SENATE SPECIAL ELECTION
This bipartisan civil action seeks (1) a declaration that Governor Robert Bentley’s
scheduling of a special election for November 2018 to fill the U.S. Senate seat formerly held by
Senator Jeff Sessions is contrary to Alabama law, and (2) a mandatory injunction requiring Gov.
Bentley to schedule the election in conformity with § 36-9-8, Ala. Code 1975.
I. Parties
1. Plaintiff Jim Zeigler is a citizen, voter and taxpayer of the state of Alabama residing at 500
Adams Avenue, Montgomery, Alabama. He is the elected State Auditor, a statewide
constitutional officer who by law appoints Voter Registrars in each county. Those
Registrars compile the voter lists for regular and special elections.
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2. Plaintiff Tommy Chapman is a citizen, voter and taxpayer of the state of Alabama residing
in Evergreen, Alabama. He is the retired District Attorney for Conecuh and Monroe
Counties. He is Chairman of the Democratic Executive Committee of Conecuh County
and has been for 25 years. He was elected District Attorney as a Democratic nominee.
3. Defendant Robert Bentley is Governor of Alabama. He is a resident and voter of Alabama.
II. Background
4. On, February 14, 2017, upon being confirmed as Attorney General of the United States,
Jeff Sessions resigned the office of United States Senator from the State of Alabama, thus
creating a vacancy in that office.
5. On the same day, Gov. Bentley appointed Hon. Luther Strange as temporary United States
Senator from the State of Alabama.
6. Governor Bentley then scheduled an election to fill the vacancy occasioned by the Sessions
resignation to be held at the same time as the November 2018 general election cycle.
III. Relevant Law
7. Section 36-9-8, Ala. Code 1975,1 clearly and specifically mandates three scenarios for the
setting of a special election for U.S. Senate:
Scenario One: If the vacancy occurs within 60 days of a regular election, the special
election shall be set on the first Tuesday after 60 days from the date of the vacancy.
Scenario Two: If the vacancy occurs within four months of a regular election but not within
60 days of it, the election shall be held at the time of the regular election.
1 See Appendix A for the text of § 36-9-8.
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Scenario Three: If the vacancy occurs more than four months from the next regular
election, the special election shall be set forthwith.
8. Because the vacancy in the U.S. Senate seat occurred 21 months before the next regular
election scheduled for November, 2018, Scenario Three governs, and Governor Bentley
has a ministerial duty to schedule an election to fill the vacant seat forthwith. Instead,
Governor Bentley, in defiance of the statute, has used Scenario Two, which applies only
when the vacancy occurs within four months of the next regular election.
9. The official agency which gives legal advice and guidance to the Alabama Legislature,
the Legislative Reference Service, researched this issue and reached the same position
as the plaintiffs in this action. The LRS issued a detailed Memorandum on February 17,
2017 that found:
It appears that Section 36-9-8, Code of Alabama 1975, requires Governor Bentley to hold a special election to fill the vacancy of Senator Jeff Sessions without delay at some point prior to the 2018 General Election. (The Memorandum of the Legislative Reference Service is attached as part of this Complaint in Appendix B and is incorporated hereinto by reference.)
CAUSE OF ACTION
10. Plaintiffs have standing as Alabama voters whose franchise is being diminished by the
refusal of the Governor to set an election according to law to fill the vacancy in the U.S.
Senate. Rather than being able to vote for a replacement U.S. Senator in a timely manner,
they must suffer a Bentley appointee to hold the seat for nearly two more years. As
aggrieved voters and based on the facts stated in ¶ 1-9, plaintiffs have a cause of action for
declaratory and injunctive relief to compel Governor Bentley to follow Alabama law as set
forth in § 36-9-8, Ala. Code 1975.
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RELIEF REQUESTED
Plaintiffs request the following:
1. A declaratory judgment that § 36-9-8 requires Governor Bentley to schedule an election to
take place as expeditiously as possible to fill the U.S. Senate seat vacated by Senator
Sessions resignation.
2. Preliminary and permanent injunctive relief ordering Governor Bentley to schedule an
election to take place, forthwith, for the purposes of electing a United States Senator from
the State of Alabama to fill the unexpired term of former Senator Jeff Sessions.
3. That the Court order such additional and further relief as may be appropriate.
4. That the Court will retain jurisdiction over this matter until after defendant Bentley complies
with this Court’s orders and actually calls the special election for U.S. Senate as ordered,
because the Governor has defied Alabama law and defied the opinion of the Legislative
Reference Service.
L/S__ William T. Chapman ___
William T Chapman, Attorney for Plaintiffs Tommy Chapman, Attorney-at-Law PO Drawer 860, Evergreen, AL 36401 251-578-2220 TChapmanLaw@att.net CHA014
