The contentious issue over the recommendation by Federal District Judge Keith Watkins of his intention to appointment a special master to oversee Alabama's compliance with the Help America Vote Act (HAVA) got a hearing Wednesday morning in Federal Court.
Judge Keith Watkins denied motions by Democratic Party Chair Joe Turnham and Alabama Democratic Conference Chair Joe Reed to intervene in the case and appointed Governor Bob Riley special master to oversee the process.
On Thursday the New York Times ran an editorial calling the hearing "a one-sided proceeding that felt a lot like a kangaroo court" and said the "Justice Department is giving the impression that it is less concerned that elections be lawful and fair than that they come out a particular way."
And gubernatorial candidate Lucy Baxley said in a press release that "assigning duties to the Governor, who is seeking re-election, comes across as a power-grab which further adds to the image he is gaining by flaunting his big money ties."
At Wednesday's hearing, the judge said that things had basically proceeded in a "non-partisan" fashion in the case and that the HAVA Committee, bi-partisan and composed of 23 individuals, was the "model to implement."
Judge Watkins said he had "no interest" in interfering in the functioning of the Office of the Secretary of State and stated that until a July 20th hearing, when the secretary of state "indicated a preference" for a special master the Court had not yet decided to appoint one.
The judge said that Turnham and Reed had both "failed to explain to the Court how this process could be interfered with under the noses of" a group of people including 67 probate judges, clerks, the Democratic House and the Democratic Senate and "this Court."
For his part, Turnham said after the ruling that it was "predictable. We filed late; we knew there were going to be objections to late party filing. But I think we have gotten into the conscience of the public that the process should be more open and more inclusive. The appointment of a special master should have been a broader stakeholder group than inputted into the appointment of a special master. The party did not object to the special master appointment, to the ruling the other day. What we fear is there's been no statement of how this particular new system could impact minorities and disadvantage voters. This is not a state where things have gone smoothly for the last half century."
The judge said Governor Riley could "acquire the experience" needed to get the job done and in appointing Riley he "gave great weight to the fact that the parties have approved of the appointment of the governor." He indicated he was also influenced by the approval of the Alabama Probate Judges Association. He says a written ruling on the appointment will be issued in about seven days.
Judge Watkins said one issue was the funding and development of the computer system and said he generally felt the $12.4 million dedicated to the project should be distributed for this purpose. He gave Secretary of State Worley 30 days to complete financial accounting that would give a more precise number as to the funds available. He did say he would give her more time if it was needed.
The federal judge said the task of actually transferring the data from county officials into the state data base "will be a monumental task."
In his order denying the motions of Turnham and Reed, the judge said "the Court is not convinced that the movants have met any of the criteria as they must to become intervenors." The judge will issued a more detailed opinion later. He did allow attorney Edward Still to speak on behalf of both men at Wednesday morning's hearing.
Still called the appointment of the governor to the role of special master "a shift in power between the two officials" (the secretary of state to the governor). Saying he was concerned that "a federal court is redistributing this power...and it is not being done by elected representatives."
Still also said he was concerned about the governor turning over his power as special master to another person and talked about other states in which the federal government had filed suit because of failure of the states to set up a compliant voter registration system. He said the governor's office had no expertise in "running a voter registration system." He also voiced concerns over partisan implications and said the Republican Party "has an interest in ballot security" which Still alleged "usually winds up targeting Democratic voters" specifically he mentioned the poor and the elderly. And he alleged the Justice Department and the Alabama Attorney General's Office were "meeting in private and determining the governor was the best person to run voter registration."
Robert Popper, speaking for the DOJ, said "there had to be a breakdown" in the system to "force implementation." He said "situations differ from state-to-state" because of different vendors, challenges, and laws and said HAVA implementation was "not a horse race" and not meant to frustrate the electoral events that do occur.
Popper said implementation of the voter database was "akin to building a bridge" and "not like redistricting where every line you put down hurts one party or the other." He voiced surprise at "suggestions that partisan considerations would be entered into with the Court" and said he did not know what to make of the idea that "DOJ is beholden to a Republican president." He added it was unfair for opponents of the appointment of Governor Riley as Special Master to "say DOJ is enforcing the law in a way that helps one state but hurts another" and remarked he believed Alabama was the only state that had not as yet selected a vendor for the database implementation process.
Representing the Secretary of State, Nancy Worley, from the Office of the Attorney General was Winfield Sinclair who said the secretary could not implement the HAVA plan according to the timeline outlined by the court. "No one can dispute Alabama is non-compliant in the Voter Registration System "(VRS). Sinclair refuted Still's notion that there would be a problem with the shift in power from the secretary of state to the governor saying any shift of power would be temporary and limited. He acknowledged the governor was a Republican now but said in January the position could conceivably be held by a Democrat.
Sinclair said party affiliation was "immaterial" and the HAVA was "designed to make the VRS list accurate" and noted the Mr. Still "does not suggest more dead Democrats vote than dead Republicans" which brought a retort from Judge Watkins who opined, "According to Earl Long, Dead people have rights too."
Mr. Sinclair rebuffed Mr. Still's contention that the AG's office and the DOJ were colluding in secret saying, "My relationship with Mr. Popper has not always been warm and fuzzy" indicating evidence of that could be found in the record.
Speaking for Governor Riley, Mr. Ken Wallis said that "almost everyone involved in this issue is a politician" because the issue "directly related to politics." However, Wallis said the requirements of the special master are "not political, not partisan in any way...none of us involved in this matter should allow it to become political." Wallis indicated all the primary parties in the law suit supported the governor's appointment and said the "governor will accept it humbly" but that Riley had "not sought or recommended his appointment as special master" but that the governor believed "he would be the most appropriate person to bring the state into compliance." Wallis indicated Governor Riley would "furnish a high level of information" to the public on the implementation process and that Riley would use 1-2-or-3 highly qualified individuals to manage the program, including former Secretary of State Jim Bennett.
The governor issued a statement Wednesday afternoon saying that he did not seek the appointment but accepts it and says that he will work in a non-partisan manner. He said in the statement, "It is inexcusable that our state isn't already compliant when virtually all other stares are. Some have unfortunately attempted to inject partisan politics into this issue. Nothing I do as special master will have any impact at all on the 2006 elections because none of the requirements will take effect until after November. In fact, if my opponent wins in November, she will become the special master."
During the hearing, Secretary of State Nancy Worley had some strong words for the idea that Governor Riley may appoint former Secretary of State Jim Bennett to manage the compliance process. Worley said she had spent 3.5 years cleaning up what she referred to as Bennett's "financial mismanagement and office mismanagement" and stated that she had no confidence in the "integrity of a system" that the former secretary of state would manage.
Outside the federal courthouse Mr. Bennett said, "Ms. Worley is apparently delusional. There's not much rationality you can bring to a comment like that (regarding Worley's comments that Bennett had a 'checkered financial past'). Forty years ago I had some financial difficulty when I was in the advertising business, but that's a long time ago and I would put my credit rating up against Ms. Worley's any day of the week."
Bennett went on to say that he thought Worley's comments were "inappropriate and totally political. The whole idea here is to keep the voter registration system out of partisan politics and she's been doing her dead level best to inject it which I think is wrong and we ought to move on."
Judge Watkins told Ms. Worley,"I've made my decision on who the special master is going to be." Subsequently he told Worley that he was "not going to (let her) use this as a bully pulpit" and stated the "governor will have to answer to the Court."
Worley also took issue with her attorneys saying, "At times when we have had discussions...they have not accepted my input or my suggestions because they had to take this back to their employer" (the attorney general).
Later in the proceedings Judge Watkins said he would "make some provision" for the participation of the secretary of state in the process, "but it will not be as a part of the HAVA Committee."
Joe Turnham says, "The people that the governor choses should be a bi-partisan group. We have not seen any evidence that that's going to be the case. I think Ms.Worley made some statements inside about her inablitity to really have her thoughts throughout the process represented by Troy King an appointee of the governor. By law she had to accept his legal counsel and I think there's also some concern over who the governor is going to pick to run the program. The concern is not so much about Jim Bennett, but that nobody else has been asked about their input into this. why couldn't we have Representative Ken Guin as an individual co-master in this particular effort, who's a Democratic state official?
Both the plaintiffs and the defendants in the case recommended the appointment of Governor Bob Riley for the job which sparked the motions to intervene in the case by Turnham and Reed.
Reed, through attorney Edward Still filed a motion to intervene as an Alabama voter and in his official capacity as Chair of the Alabama Democratic Conference
In the Reed Motion to Intervene it says,"Both as a voter himself and as Chair of the Alabama Democratic Conference, Reed has an interest in seeing that African-American voters do not lose further confidence in the registration system and in the electoral system in Alabama. As the Court is probably familiar, the prior gubernatorial election in Alabama between former Democratic Governor Siegelman and now Governor Riley was rife with controversy much like that which resulted after the Bush and Gore election which led to the passage of HAVA. In both cases, Democratic voters, many of whom were African-Americans, believed that they were disenfranchised by a system that was flawed and.or corrupt...The appointment of the Republican Governor in what will appear to many to be a collusive action by the various Republican officials involved in this action to ensure that the effort is controlled by Republicans will only further serve to undermine African-American voters' confidence which is already fragile in this state."
Earlier on Tuesday, August 1, 2006, the defendants filed a response to Turnham's motion to intervene and stated "Joe Turnham should be heard as an individual voter, but he should not (be) permitted to intervene in the case at bar."
"The Defendants do not oppose Movant Turnham being heard, recognizing, of course, that the Court might have to impose some limits should others wish to be heard in their capacity as voters. As to Movant Turnham's official capacity as Chair of the Democratic Party, the State fails to see how this provides him any greater right or reason to be heard on the non-political issue of who the Court should appoint to be its Special Master."
In his filing the Attorney General says to allow Turnham to intervene in the case "allows every Alabamian, and maybe every American, to have a right of intervention in this case (or, for that matter, in any case in which a citizen claims that partisan politics somehow adversely affects his ability to vote). The only legal impediment to a flood of motions to intervene in this case would be the fact that any further motions would soon be untimely."
The filing refers to Turnham's contentions as "illogical." King says the "appointment of the Governor as the special master does not logically equate with the Republican Party 'controlling' the statewide voter registration system." He goes on to say the "State finds it hard to understand how alleged 'Republican control' of a statewide, computerized voter registration system designed to remove ineligible voters from the rolls would disadvantage the Democratic Party. Such an unsupported allegation is irresponsible."
"The State notes that while the intervenor suggests there has been collusion, or potential collusion, between the people's representatives, Movant Turnham provides no proof whatsoever that such collusion exists. Conclusory allegations of fact are, and should be, disfavored in the law."
The Attorney General finishes his filing with "While the State regrets the fact that Movant Turnham has chosen to inject politics into this litigation, the State does not object to his being heard as an individual voter."
The government in its motion says that Turnham's Motion to Intervene should be denied by the Court. The government says there is no evidence of collusion between the United States and the Defendants in this matter - other than that both have suggested the appointment of Governor Bob Riley, and through him Jim Bennett, as the special master."
On July 25th, the defendants through Attorney General Troy King recommended the appointment of Governor Riley as Special Master. King said in the filing the appointment was "most logical and appropriate." King cited Riley's role as chief administrative officer of the state; the governor's number of subordinate officials "who will be integral to the implementation of the new voter registration system" and the governors "relationships with many local election officials and other who will be involved in the implementation process." King also said because of internal staffing this process would be "more economical for the state." Finally, King argued "In the event that legislative action is required the Governor is in the best position to pursue such action..."
Also on July 25 the government in its proposed order recommended the governor for the job.
Following this, state Democratic Chair Joe Turnham filed a motion on July 27th to intervene in the case. Among his claims "None of the existing parties to this lawsuit can adequately represent the particular political and associational interest of Democrats in Alabama...and of voters in general who have an interest in ensuring the partisan politics do not taint the development of the single statewide computerized voter registration system or otherwise create distrust in Alabama's electoral systems."
Turnham also says in his filing Secretary of State Worley is "represented by the Republican Attorney General's office and, upon information and belief, is not at liberty to express her own positions in her official capacity as duly elected Secretary of State in this lawsuit."
Riley should not be appointed according to Turnham because the "Governor has no special expertise in voter registration matters; also "removal of the election-related task from the duly elected state official charged with completing the task and elected, in part, to do so and assigning the task to a state official from the opposing political party who is facing a contested election himself will instill doubt in the minds of voters regarding the fairness of the registration system itself; furthermore, the appearance of impropriety and bias to the public will create certain doubt in the minds of some as to the fairness of the centralized computer system which is to be developed given that:
(a) the Justice Department that brought this lawsuit is controlled by the Republican President and the Justice Department suggested the Republican Governor;
(b) the Attorney General, who represents both Defendants in this case and who specifically suggested that the Republican Governor serve as Special Master, is a Republican official;
(c) the Governor to whom the appointment may be made is a Republican official (facing election in November against a Democratic contender); and
(d) the elected Democratic official (a Constitutional office-holder) from whom the duties are being stripped and who was elected to undertake this duty, among others, related to state and federal election is, upon information and belief, just one of many Secretaries of State in the country who have not been able to meet the federally-mandated deadlines set out in HAVA."
Turnham alleges the action of appointing Governor Riley gives an "appearance" of a "partisan attempt to affect the Democratic Secretary of State negatively in the upcoming election, while affecting the Republican Governor and other Republican candidates positively."
Turnham says in the filing the action gives a "perception that there is a vested interest on the part of the Republican Party to control the computerized voter registration system to its own ends." He goes on to say that "may or may not be the case," but that the appointment "would undermine any possibility or appearance that this effort will result in a system controlled by the Republican Party for purposes of furthering partisan political ends."
On July 28, 2006 the Alabama Probate Judges Association filed a motion to ask that Turnham not be allowed to intervene in the case. The motion says "this is not a political issue...The APJA believes it would be ill-advised to allow any party to inject partisan political issues into this case whether that effort comes from Republicans, Democrats, Libertarians, or any other organization. "
Additionally, the filing states that, "Any attempt to discredit the election officials and voting system of the state of Alabama should not be given any credibility by this Court. The partisan nature of the pending motion to intervene underscores the need for the State HAVA Committee to have the primary role in advising the special master in the course of carrying out the Court's orders. The HAVA Committee is bipartisan...The Alabama Probate Judges Association considers any motion to intervene on the basis of political issues to be ill-advised and should be denied."
The U.S. Government filed suit against the state and Secretary of State Worley on May 1, 2006 for failure to comply with certain sections of HAVA. The government has also filed suit against other states.
On May 30, 2006 U.S. District Judge Keith Watkins issued his oral findings on the case and on June 7, 2006, Judge Watkins issued a memorandum and order granting Declaratory Judgment and Preliminary Injunction. Judge Watkins says the State of Alabama was not in compliance with HAVA, saying the state "has not had in the past and currently does not have a computerized statewide voter registration system that meets the requirements of Section 303 of HAVA."
Judge Watkins stated in his conclusion the defendants were not in compliance specifically "with respect to having a single, uniform, official, centralized, interactive computerized statewide voter registration list in elections for federal office...and with respect to voter registration forms and matching procedures in elections for federal office."(The government subsequently on 7/20/2006 announced approval of voter registration forms.) The judge also ordered the defendants to "develop promptly a HAVA compliance plan" and set out the requirements and objectives of the plan.
The Secretary of State filed the HAVA compliance plan on June 29, 2006 and various respondents filed responses to the submitted plan.
On July 20, 2006 a hearing was held before Judge Watkins having to do with the proposed plan. Judge Watkins heard arguments on HAVA compliance at it related to the November 2006 general election. In the subsequent order of July 21st, "The Court found that, under the circumstances, the defendants have achieved a reasonable level of HAVA compliance with respect to the November 2006 general election. The potential for disruption of the November 2006 general election substantially outweighs any benefit of taking further action with ALVIN."
The judge sustained the objections to the proposed plan and denied the defendants' proposed timeline. He ruled the Court "will adopt the defendants' HAVA compliance plan generally with certain modifications of the timeline and non-substantive provisions" and ordered that "HAVA compliance must be achieved by Defendant State of Alabama on or before August 31, 2007" and laid out benchmarks for accomplishing that task.
The judge then went on to discuss issues related to the 2008 primary election and said the U.S. had "objected to the plan's unhurried timeline with no set deadline" and that the "United States further requested that the Court appoint a Special Master to administer the HAVA compliance plan."
Reported by: Helen Hammons
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