According to a press release from Baldwin County Probate Judge Tim Russell, the election for a new form of government in the city of Fairhope, scheduled Tuesday, Oct. 2, will be changed to correspond with the general election scheduled Tuesday, Nov. 6.
Russell was not immediately available for comment, but said the order was “issued in accordance with the opinion of” Baldwin County District Attorney Robert Wilters and Alabama Secretary of State John Merrill.
The order comes more than a week after an opinion from the Alabama Office of Attorney General declared both the election and petition spawning it “valid.”
Wilters said he was contacted by Russell yesterday about confusion over the timing of the election. Citing Section 11-43A-3 of the Code of Alabama, Wilters explained that the city’s proclamation calling the election was submitted after the statutory deadline to do so.
“We consulted with the secretary of state’s election people and probate judge’s attorney, David Whetstone, and it appears the proclamation that would set the election was not done in a timely fashion,” he said. “The city had 10 days after receiving the probate judge’s certification of the signatures on the petition, which they got on July 13, and within 10 days they were to have by proclamation set the date of election. That was not done within 10 days, it was done maybe 15 to 20 days later. So when that didn’t happen, the statute clearly says the jurisdiction to set the election reverts back to the probate judge and he shall set the election on the next general election, if that election is within 120 days of the certification of the petition. So Nov. 6 will be Day 117, so [Russell] had nothing else he could do.”
John Bennett, deputy chief of staff for the Secretary of State’s Office, issued a statement reading “The Alabama Secretary of State’s Office was requested to review a matter brought to our attention by Baldwin County Probate Judge Tim Russell. At Judge Russell’s request, the Secretary of State’s office reviewed certain facts related to the proposed special election after which, and as concurred to by David Whetstone – the Probate Judge’s legal counsel, it was determined that the city of Fairhope did not issue the proclamation in the required 10-day period for calling a special election as directed by the Code of Alabama (11-43A-1, et seq., Ala. Code). Since the standard in the code was not met in this instance, according to state law, the county chief election official shall determine the date of election. The state law requires the election in this case to be held on the same day as the 2018 General Election – November 6, 2018.”
Fairhope City Clerk Lisa Hanks said the city was never advised about the 10-day time frame. Rather, a letter from Russell delivered to her office on July 13 required simply to “set the election from 40 to 90 days from the receipt of the letter.” Oct. 2 would have been 88 days.
“During a meeting this morning the Judge of Probate, Attorney David Whetstone for Probate Judge, Chief of Staff David Brewer for Secretary of State, SOS Attorney, District Attorney, and one of his assistants all agreed that the main issue that caused the election to be delayed was that the Certification of the Petition was delivered on July 13, 2018 which was within the 120 days and it is required for the election to be held at the next general election,” Hanks clarified via email.
“I think there was a little confusion on every end,” she said, admitting this is the first special election she has presided over in her 12 years with the city.
Because absentee ballots already submitted include an affidavit stating a specific reason why the voter will not be present for the Oct. 2 election, Hanks said those ballots are void. She will send letters to anyone who has submitted an absentee ballot thus far, instructing them to fill out a new absentee ballot or vote at the polls Nov. 6.
Further, while next week’s election would have occurred at a single polling place, Hanks said the Nov. 6 election encompasses seven precincts. Voters registered within Fairhope city limits will be given two ballots at their normal precinct, one specifically for the referendum on council-manager form of government.
Chuck Zunk, spokesman for the grassroots Fresh Start Fairhope group that gathered more than 800 signatures over the summer to force the election, said they were “disappointed” with Russell’s decision, but it would allow them five more weeks to promote their message. Meanwhile, a forum scheduled Sunday at Rock Creek Clubhouse has been canceled.
“We are going to take several days to create a strategy for success in November, and I’m very confident that if we all continue to work together we will accomplish our goal,” Zunk wrote in an email.
Meanwhile, Mayor Karin Wilson said, “I am disappointed that the special referendum scheduled for Tuesday will not take place. Citizens took the extraordinary step to go door-to-door gaining signatures, as required by law, to have a voice in the future of their city. The referendum election date was noticed and advertised and now, a few days before the election, suddenly extended to the general election. What is further concerning is how this delay came about, first in a special-called meeting by council to research the election and at the eleventh hour the city attorney, without my knowledge, contacted the probate judge. Per usual, I was the last to know.”
The City Council currently serves at-large in a strong council-weak mayor system, where the mayor is not a voting member. If the referendum passes, it will establish a council-manager form of government with a city manager supervising the day-to-day operations of the city. The manager would be governed by a five-member city council comprised of the mayor, an at-large city council person and three single-member districts.
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