Will a Special Election to Replace Commissioner Nodine Be Legal?

According to a recent article in the Press-Register by Dan Murtaugh, Mobile County plans to hold a special election to fill a vacancy on the Mobile County Commission. That vacancy is expected in the event current District 2 commissioner Steve Nodine is convicted at his impeachment trial scheduled for June 8th. But, is a special election to fill that vacancy constitutional?

The paper reported Monday, "Mobile County Probate Court Judge Don Davis and a spokesman for Gov. Bob Riley both said that the seat would remain vacant until the winner of the special election takes office. No one would be appointed in the interim." State law it seems provides the vacancy be filled by a special election held 60 to 90 days after the presumed removal and or resignation of Commissioner Nodine.

The law cited in the article is Act 2006-342 and it was signed by Gov. Riley in April of 2006. The new law was born out of the legal wrangling that ensued over Riley's appointment in 2005 of Juan Chastang to the Mobile County Commission. The appointment was illegal in the minds of least three members of Mobile County's legislative delegation, Yvonne Kennedy, James Buskey and William Clark. The three legislators filed suit, the ultimate aim of which was to invalidate Chastang's appointment and force a special election.

The case became know as Riley v Kennedy and it went all the way to the Alabama Supreme Court, which ruled in Riley's favor. That decision was appealed to Federal District Court which ruled in favor of Kennedy. Another appeal and the case came before the United States Supreme Court. In it's decision Justice Ruth Bader-Ginsberg writing for the 7-2 majority effectively affirmed the governors authority under state law as it then existed to appoint a replacement to any vacancy that arose on the Mobile County Commission.

While Riley v Kennedy was going through the courts however, legislation was passed and signed by the Governor that repealed the law which provided for an appointment in the event of a vacancy and replaced it with Act 2006-342, which proscribed a special election instead. According to Alabama Attorney General Troy King the new law essentially reinstated a 1985 law that had also provided for a special election. The 1985 law was Act No. 85-237. Under it current Mobile Mayor Sam Jones was elected to his first term on the Commission in 1987, representing District-3.

A fellow named Willie Stokes sued to invalidate Jones' election. Stokes contended that a special election in Mobile County violated §§ 104(29) and 105 of the Constitution of Alabama because it was a local law pertaining to elections, which is prohibited and, because a general law already existed laying out the process for filling a vacancy. In 1988 Alabama's Supreme Court sided with Stokes ruling Jones' election unconstitutional because it violated the section of the constitution that prohibits special laws that conflict with the general law. In other words state law said the governor is to appoint a replacement in the case of a vacancy on the Mobile County Commission and Mobile County could not have it's own law to the contrary.

The Supreme Court however, did not address Stokes's contention that the 1987 special election violated § 104(29) of the Alabama Constitution which prohibits special, private, or local law for the conduct of elections, period. In 2006 the legislature passed and the governor signed a law specifically for Mobile County which seems to have done just that. Also, the law Governor Riley signed, 2006-342, is essentially the same law the state's Supreme Court struck down in 1988. Ultimately, to settle the controversy over Sam Jones' election and subsequent removal, then Governor Guy Hunt appointed Jones to the District 3 seat.

The question all this raises is, in the absence of an amendment to the state's constitution, sections 104 & 105, how can a special law such as the one passed in 2006 be any more constitutional than the one the state's high court struck down in 1988?

By Dan Murtaugh
3 Republicans consider run for Stephen Nodine's seat
Press-Register

Riley v Kennedy
United States Supreme Court
March 24th, 2008

Troy King
Jurisdictional Statement
Alabama Attorney General