With the flip of a coin... a Class C Misdemeanor
Updated: Jun 28, 2022
This is not the first time Lee County has suffered Secretary of State John Merrill’s malpractice.
In 2018, an Alabama Gazette article (State School Board Races: worthy inquiry to Secretary Merrill? - Alabama Gazette) exposes the fact “our Secretary of State eliminated an election to install Felon Hubbard’s preferred replacement” [Joe Lovvorn], SoS Merrill allowed ineligible State School Board Candidates [Tracie West – District 2 & Adam Jortner - 2nd District] on Lee County primary ballots to determine who will be on the [actual] general election.
In 2022, Secretary Merrill has once again inserted himself into another Lee County voting controversy. This time with respect to the AL Senate District 27 Republican 2022 Primary race between incumbent Tom Whatley and Auburn City Councilman Jay Hovey.
The primary is NOT an ELECTION. It determines the nominee for the [general] election, held on November 8, 2022 in the State of Alabama.
Election official Secretary Merrill has inserted himself as a proxy to the ALGOP, to run cover and shield the ALGOP Republican Party election officials. Arguably, to take the heat off the Republican Party election official ALGOP State Chair John Wahl, email@example.com. Wahl, who abandoned his duties as chair of the state executive committee (not casting the deciding vote to establish the Republican ‘nominee’ for November 8, 2022 [actual] election) according to Alabama Code 17-13-21.
If, in any primary election held under the provisions of this chapter, there shall be a tie vote cast, then such tie shall be decided by the chair of the state executive committee, if the office is an office other than a county office, and by the chair of the county executive committee, if the office is a county office.
(Acts 1975, No. 1196, p. 2349, §35; §17-16-39; amended and renumbered by Act 2006-570, p. 1331, §59.)
On June 25, 2022, the Alabama Republican Party State Committee declared the race a tie. Because this is a report, most readers are not aware that Ms. Patsy Kenney’s (May 24 Provisional Ballot (DMV error in Voter Registration)) republican primary vote was originally not counted. The Kenny vote was accepted during the June 25, 2022 hearing in order to make the AL Senate District 27 republican primary race a tie.
Now, instead of the voters determining the candidate, (because we have a tie) the ALGOP State Chair John Wahl will determine the Republican candidate ‘nominee’ for the November 8, 2022 [actual] election. The responsibility and duty lie with ALGOP State Chair John Wahl to break the tie in a Republican primary. However, the ALGOP State Chair John Wahl deferred his legal responsibilities to SoS John Merrill on June 25, 2022.
If there is a ‘tie’ in the November 8, 2022 election, then Secretary Merrill can have his coin at the ready. Until the November 8, 2022 [actual] election however, Secretary Merrill as well as other election officials (ALGOP State Chair John Wahl) face Class C Misdemeanor charges as per Alabama Code 17-17-3.
Neglect of duties by election official.
Any election official who wilfully and knowingly neglects, fails, or refuses to perform any of the duties prescribed in this title, shall be guilty, upon conviction, of a Class C misdemeanor. No person shall be deemed an election official until the person takes an oath to well and truly discharge the duties of such office, to the best of his or her ability, or until he or she shall have performed some of the duties pertaining to such office. The failure or refusal of any person to accept office or to discharge and perform the duties of such office at any time after appointment thereto and prior to taking the oath of such office shall not be deemed a violation of this section.
(Code 1896, §4683; Code 1907, §6811; Code 1923, §3929; Code 1940, T. 17, §324; §17-1-5; amended and renumbered by Act 2006-570, p. 1331, §85.)
The Primary is not an election, it is a determination of nominees for an election. Never argue with a definition. Definitions matter for reasons such as this.
If this were an election, casting of “a lot” would be apropos (as per Alabama Code 17-12-23).
How tie vote decided.
THIS SECTION WAS AMENDED BY ACT 2022-337 IN THE 2022 REGULAR SESSION, EFFECTIVE APRIL 13, 2022. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT.
In all elections where there is a tie between the two highest candidates for the same office, for all county or precinct offices, it shall be decided by lot by the judge of probate of the county in the presence of the candidates; and in the case of the office of circuit judge, senator, representative, or any state officer not otherwise provided for, the Secretary of State shall, in the presence of the Governor, and such other electors as may choose to be present, decide the tie by lot.
Any judge of probate who is a candidate in the race in which there is a tie or openly participated in the promotion of candidates in the election which resulted in a tie shall not decide the outcome of the election. The presiding circuit court judge in the county shall replace the probate judge and break the tie by lot.
(Code 1876, §297; Code 1886, §395; Code 1896, §1652; Code 1907, §428; Code 1923, §518; Code 1940, T. 17, §3; §17-1-3; amended and renumbered by Act 2006-570, p. 1331, §56; Act 2022-337, §1.)
Since this is NOT an election but rather a primary, the ALGOP appear to be using Secretary Merrill as a proxy to engage in malfeasance in determining the nominee for the [actual] election on November 8, 2022.
The Lee County Bulletin (https://www.leecountybulletin.com/) have requested documentation from the ALGOP’s (https://algop.org/) Press Team (205)-212-5900, regarding a Press Release thought to have come out immediately following the June 25, 2022 hearing regarding contested election results for District 27 AL Senate seat. As of the time of publication, there has been no response from the ALGOP.
The Lee County Bulletin has shown video of inducement of cross-over voting. Just fifteen (15) days prior to the May 24, 2022 Primary, one Republican candidate (Elijah Beaver) induced cross-over voting for his race for Lee County Circuit Judge Lee County Voters: Beware of Induced Crossing (leecountybulletin.com).
In response to cross-over voting and the “tie”, incumbent Senator Tom Whatley responded to a New York Times story:
“I am greatly disturbed by the New York Times story and the victory lap that is being taken in the press and on social media by Democrats who purposefully crossed over in our election to disrupt the Republican Party. Our campaign has identified 681 people in Senate District 27 who have never voted in a Republican Primary prior to the May 24, 2022 election. Of those 681 people, 422 people have voted in multiple Democrat Primaries since 2016 and for the first time in 2022, just voted in the Republican Primary. The overwhelming majority of those 422 voters, a total of 398 people, are from Lee County, the only county that my challenger won. Now more than ever we are seeing our elections violated and the process hijacked by bad actors committing fraud to ensure that they weaken the Republican Party. If it is the will of the Republican voters to vote me out of the office, then so be it. However it is clear that Liberal Democrats are involved in our party’s process of electing candidates which will only benefit their beliefs and values and not the beliefs of Conservative Republicans. If I am returned to office, I promise I will make election integrity my number one priority in the next session by re-introducing party registration in our state. I sponsored the bill, now law, that banned cross over voting in our run offs and my record of demanding accountability and transparency in our election process is clear.”
Easy to imagine many Hovey voters will NOT be voting for him in the [actual] election this November. Some Lee Countians are rumbling about a ‘write-in’ campaign if the Election officials at the ALGOP and AL SoS do not follow the Alabama Code. Time will tell the best course of action.
The still undetermined AL Senate District 27 ‘nominee’ for the Republican Party (ALGOP) will face Democrat candidate Sherri Reese of Opelika this November 8, 2022 in the [actual] election.
**Updated information [June 27, 2022]
AL voter Patsy Kenney, with Bryan M. Taylor of Brachus Brom & Taylor LLC Attorneys at Law responds to the Alabama Law Enforcement Agency (ALEA) regarding Mrs. Kenney's Provisional Ballot.