McInnish v. Bennett
| Decision Date | 21 March 2014 |
| Docket Number | 1120465. |
| Parties | Hugh McINNISH and Virgil H. Goode, Jr. v. Jim BENNETT, Alabama Secretary of State. |
| Court | Alabama Supreme Court |
L. Dean Johnson, Huntsville and Larry Klayman of Klayman Law Firm, Washington, D.C., for appellants.
Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen., and James W. Davis and Laura E. Howell, asst. attys. gen., for appellee.
W. Spencer Connerat III, pro se, as amicus curiae, in support of the appellants.
Dave Ireland, pro se, and Kevin Cannon, pro se, as amici curiae, in support of the appellants.
Nathaniel Oleson, Ramona, California, for amicus curiae United States Justice Foundation, in support of the appellants.
Jim Zeigler, Mobile, for amicus curiae Alabama Republican Assembly, in support of the appellants.
Scott Rille, pro se, as amicus curiae, in support of the appellants.
Albert W.L. Moore, Jr., Independence, Missouri, for amicus curiae Albert W.L. Moore, Jr., in support of the appellants.
Thomas A. Woodall and Barry A. Ragsdale of Sirote & Permutt, P.C., Birmingham, for amicus curiae Alabama Democratic Party, in support of the appellee.
I concur with this Court's no-opinion affirmance of this case. However, I write specially because I respectfully disagree with Chief Justice Moore's dissent to the extent that it concludes that the Secretary of State presently has an affirmative duty to investigate the qualifications of a candidate for President of the United States of America before printing that candidate's name on the general-election ballot in this State. I fully agree with the desired result; however, I do not agree that Alabama presently has a defined means to obtain it.2
Initially, Chief Justice Moore addresses certain threshold issues, including the timeliness of the plaintiffs' challenge to presidential-ballot access for the general election in 2012. Here, the Secretary of State asserted the affirmative defense of laches, arguing that the plaintiffs had impermissibly delayed in asserting their challenge to President Obama's ballot access. See Rule 8, Ala. R. Civ. P. “ ‘ “To establish the application of the doctrine of laches, [a defendant] ha[s] to show that [the plaintiff] delayed in asserting his right or claim, that his delay was inexcusable, and that his delay caused the [defendant] undue prejudice.” ’ ” Ex parte Lightwave Techs., L.L.C., 971 So.2d 712, 720 (Ala.2007) (quoting Ex parte Grubbs, 542 So.2d 927, 929 (Ala.1989) ).
Chief Justice Moore concludes in his special writing that the plaintiffs' challenge, brought 5 weeks after Barack Obama was selected as the Democratic Party nominee for President of the United States and only 26 days before the general election, did not constitute “inexcusable delay.” As to the merits of this proceeding, I cannot agree that there was not inexcusable delay and undue prejudice amounting to laches. “ ” State ex rel. Norrell v. Key, 276 Ala. 524, 525–26, 165 So.2d 76, 77 (1964) (quoting 29 C.J.S. Elections § 141 (emphasis added)). The evidence suggests that the Secretary of State had expressed to the plaintiffs and their representatives well prior to the primary and as early as February 2, 2012, that she3 had no duty to investigate the eligibility qualifications of a presidential candidate. Barack Obama was nominated as his party's presidential candidate at the Democratic National Convention on September 5, 2012. For this election, ballots were required to be printed and delivered to the absentee-election manager of each county by at least September 27, 2012. See § 17–11–12, Ala.Code 1975. The plaintiffs did not file their petition challenging Barack Obama's ballot access until October 11, 2012, approximately eight months after being apprised of the Secretary of State's position that she had no affirmative duty to investigate and two weeks after the ballots were to be printed and delivered to the various counties. The failure by the plaintiffs to at least file their petition challenging ballot access during the intervening time between Barack Obama's nomination as his party's presidential candidate and the time in which the ballots were due to be printed and delivered to the various counties constitutes, I believe, “inexcusable delay” on the part of the plaintiffs. The prejudice that would have ensued from such a late challenge, if successful, would have been twofold: first, assuming it could have been accomplished from a practical standpoint, the reprinting and distribution of general-election ballots would have come, at that late date, at great financial cost to the State; and second, and just as important, the reprinted ballots would differ from absentee ballots already sent to the members of our military and other citizens overseas. This would not be a proper way to conduct such an important election.
Moving beyond the merits of the matter before us, and with due regard to the vital importance to the citizenry of the State of Alabama that the names of only properly qualified candidates appear on a presidential-election ballot for election to the highest office in our country, I write specially to note the absence of a statutory framework that imposes an affirmative duty upon the Secretary of State to investigate claims such as the one asserted here, as well as a procedure to adjudicate those claims. The right of a lawful and proper potential candidate for President to have ballot access must be tempered and balanced against a clear process for removal of an unqualified candidate. Nothing in this process should be left to guesswork, or, with all proper respect, to unwritten policies of the Secretary of State, and certainly not without a disqualified candidate having a clear avenue for judicial review consistent with the time constraints involved and due-process considerations.
As noted above, Chief Justice Moore concludes in his special writing that the Secretary of State has an affirmative duty to investigate the qualifications of a candidate for President of the United States of America before printing that candidate's name on the general-election ballot in this State. Although logically the Secretary of State, being the chief elections official of the state, should be vested with such a duty, under our present constitutional and statutory framework addressing elections, including presidential elections, not only is that not the case, but the Secretary of State would be bereft of written authority for such an action and ill equipped from a practical standpoint to carry out such an important duty.
The Office of Secretary of State is a constitutional office whose general duties are prescribed in Ala. Const.1901, Art. I, § 134, as follows:
The general duties and scope of the Secretary of State's office are codified in § 36–14–1 et seq., Ala.Code 1975. Section 17–1–3, Ala.Code 1975, provides that the Secretary of State is the chief elections official in the State and, as such, shall provide uniform “guidance” for election activities. It is, however, a nonjudicial office without subpoena power or investigative authority or the personnel necessary to undertake a duty to investigate a nonresident candidate's qualifications, even if such a duty could properly be implied.
Section 17–9–3, Ala.Code 1975, provides:
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