Circuit judge dismisses registrars, keeps Oswalt and city on notice in voter fraud complaint

Reading Time: 4 minutes

A candidate-initiated complaint asking for an investigation of alleged wrongdoing in the special election to fill Phenix City’s vacant District 2 seat has been found to have merit.

Russell County Circuit Court Judge Michael Bellamy issued a five-page order Monday regarding the matter of District 2 candidate Vickey Carter-Johnson v. Russell County Board of Registrars, The City of Phenix City and Baxley Oswalt, defendants.

Basically, the court order says the case has merit, and the alleged fraud and illegal voting allegations will be investigated. The order will be forwarded to the Russell County District Attorney, the Alabama Attorney General’s Office and to the U.S. Attorney for the Middle District of Alabama so that they can investigate. Also, the court will consider “impaneling” a special grand jury to investigate the allegations. Further, the judge’s order dismisses the Russell County Board of Registrars from the complaint, stating the board isn’t “the proper party in an election contest.”

Regarding Johnson’s lawsuit amendment that named two additional defendants, Bellamy’s order noted that neither The City of Phenix City nor candidate Baxley Oswalt has filed a response as of the time of the judge’s order, filed Dec. 11. Also, the order states the court finds that the city “has investigated and is attempting to address the alleged illegal votes by sending notice to person [sic] who may be voting from a business rather than a residence or domicile […]”

Further, the order states the plaintiff’s petition “is a notice of a possible election contest as a result of alleged illegal votes and that same notice is given to the candidate Baxley Oswalt and the City of Phenix City. […]”

Finally, the order states, that “to summarily dismiss the action against candidate Baxley Oswalt would not be just […]” and says the notice of alleged illegal voting “shall not be heard until after a person is elected as to provide a speedy and inexpensive determination of this matter.”

Meanwhile, it’s five days until Phenix City’s District 2 special election run-off Dec. 19.

In court Dec. 7, defending the registrars were legal counsel from the Attorney General’s (AG) office. Representing Johnson, the plaintiff, was attorney Joseph Wiley Jr. Also present at the hearing were: City Attorney Jimmy Graham; City Police Chief Ray Smith; local attorney Chan Gamble; Johnson’s Dec. 19 opponent, Baxley Oswalt; an assistant attorney from the District Attorney’s Office; and at least six other people in the audience.

During the hearing, both Graham and Oswalt confirmed to the judge that neither the city, nor Oswalt as an individual, had been served papers relating to the plaintiff’s amendment to add them as additional defendants in the case. The amendment had just been filed the day before – in the early afternoon of Dec. 6.

Multiple cases were cited by the judge, Wiley and an AG attorney during the Dec. 7 hearing.

In short, the AG lawyer submitted that based on previous court case rulings, the state can’t be sued in the manner being attempted — thus, the case should be dismissed. She also submitted that since no winner was declared, there couldn’t be an election contest.

The city certified on Nov. 21 the election results, showing need for a run-off; the plaintiff filed for an election contest Nov. 27 claiming “intentional wrongdoing,” asking that the proper people be notified, an investigative hearing be held and the matter be addressed for the short-term and long-term on behalf of Russell County’s electors.

Wiley, the plaintiff’s lawyer, submitted during the hearing that if a case isn’t seeking monetary damages affecting the state treasury, the state can be sued, and noted that protection of voters is the heart of the matter. Regarding his client’s election contest, Wiley cited that the law requires such formal complaints be filed within five days after the election result has been declared.

At one point, the judge asked the AG lawyer what the AG’s Office could do to assist on the meaning of the word “domicile,” and the lawyer replied that an appropriate official might write for a formal opinion – which the city attorney said the city was already in the process of doing. When invited into the court dialogue, the DA’s representative said all he could contribute was that he’s been asked to do research. Regarding the judge’s inquiry of whether a possible relative of the DA’s might be involved in the matter, which might pose a conflict of interest, the representative appeared not to know the answer.

Meanwhile, in response to the judge asking about a remedy, the AG lawyer suggested that the run-off proceed, then if need be, an election challenge.

Bellamy noted the court was not encouraging prosecution, but that it does want to see justice.

During court dialogue, the police chief confirmed 30 of at least 80 named disqualified electors voted in the first election; the judge said in his order that number of votes “[…] could be sufficient to change election results […]”

By now, at least 80 people should have received letters from the city notifying them of their challenged voter status regarding their ability to vote in the city’s run-off.

State law allows for challenged voters to contest the challenge, vote provisionally, and prove their right to cast a vote. If those votes are deemed legal, they will be counted in the final election results.

Regarding provisional ballots, the law describes the process when a voter’s status is challenged in municipal elections: Code of Alabama Section 17-10-2 says when verifying provisional ballots when a voter’s name doesn’t appear on the official eligible voters list at the polling place where the voter tried to vote, the county Board of Registrars is to verify “[…] that the voter is registered to vote at an address located within the municipal corporate limits or district within which he or she seeks to vote.”

Facebook livestreams through other local broadcast media Monday around noon showed the National Association for the Advancement of Colored People (NAACP) held another media conference. The NAACP re-asserted its continued interest in being a watchdog over the voter fraud allegations in Phenix City.

According to the livestream, an NAACP spokesman said the organization was challenging what it sees as “voter fraud,” “suppression” and “disenfranchisement.”