By TODD STACY, Alabama Daily News
MONTGOMERY, Ala. – Jay Hovey, the Auburn city councilman who defeated incumbent State Sen. Tom Whatley by one vote in the May 24 Republican primary election, has formally requested that the Alabama Republican Party reconsider its June 25 decision to declare the race a tie after counting a previously invalidated provisional ballot.
Meanwhile, Whatley is asking to put the issue to rest with an ALGOP-ordered coin flip to determine the nominee and commitment from all parties not to challenge the results.
At a hearing to consider a contest to the primary election results, the party’s Candidate Committee decided to count the provisional ballot of Patsy Kenney, who says she was denied the opportunity to register to vote at a state driver license office. A day after the party’s decision, the Alabama Law Enforcement Agency issued a statement clarifying that Kenney did not sign the appropriate form to obtain a driver license and therefore was not registered to vote.
Alabama Secretary of State John Merrill confirmed to Alabama Daily News Tuesday that Kenney was not a registered voter for the May 24 primary election but became one after registering at her polling place.
Attorneys for Hovey say this “new evidence” calls for the party to reconsider the vote to count Kenney’s ballot and declare the race a tie.
“This public statement from ALEA was not available to either party previously,” the motion for a rehearing states. “On rehearing, the Committee should find that the provisional ballot in question was not due to be counted, and Hovey’s one-vote victory… should be accepted as correct.”
Joel Blankenship, an attorney for Whatley, said the party should continue with the plan announced Saturday.
“We stand by the decision of the Alabama Republican Party,” Blankenship said. “Let’s flip a coin.”
Whatley on Wednesday proposed some conditions for the event. In an emailed statement, Whatley said both candidates should agree to accept the outcome of the coin flip, not challenge the decisions of the state party and not engage in a write-in campaign should they lose the contest.
Whatley said he strongly agreed with the party’s decision to count Kenney’s ballot.
“Ultimately, the ballot was delivered to the Steering Committee for them to open and decide. The decision to count it was correct,” Whatley said. “Win or lose the coin toss, helping a constituent like Mrs. Kenney have her ballot counted was the correct thing to do and I am glad to have served her as her state senator.”
Requests for a comment from the Alabama Republican Party were not returned Wednesday.
Chairman John Wahl told ADN on Tuesday that the committee listened to arguments from both sides when considering its decision.
“The ruling we made reflects the best decision we could have made with the information provided to us,” Wahl said.
He would not say whether that information included the fact that the ballot in question was from someone not registered to vote until after the election.
Bryan Taylor, an attorney for Kenney, argues that her registration status is irrelevant to whether her ballot should be counted because the state made a mistake in processing her registration.
“The issue is not that Ms. Kenney did not complete her driver’s license application,” Taylor said. “The issue is that ALEA personnel at the driver’s license office asked her if she wanted to register, she said yes, and subsequently that sent her away without her driver’s license because she needed a vision exam, and they failed to tell her that her voter registration would not be processed.”
ALEA has disputed that characterization of the agency’s actions.
“… Case law across the country is almost universal on this point: If a voter is asked at the DMV if they want to register to vote, and they say yes, and they leave the DMV believing they have been registered because personnel did not inform them otherwise, their vote should count,” Taylor said.
Sherri Reese is the Democrat running in Senate District 27, which includes Lee County and parts of Russell and Tallapoosa counties.
See Hovey’s formal motion for a rehearing below.