Secretary of State John Merrill has turned over a list of 647 names of individuals who cast crossover votes in the Sept. 26 GOP U.S. Senate primary runoff to election officials in dozens of counties in the first wave of voters to run afoul of Alabama’s newest voting regulation.
In 2016, the Alabama Legislature enacted a new law that prohibits crossover voting, which happens when someone who votes in a party primary election swaps affiliation to vote in a runoff election for the opposite party’s candidate.
As the only runoff election was between two GOP candidates, the 647 individuals identified by Merrill’s office this week more than likely voted in the Democratic primary in August and then failed to sit out the Sept. 26 contest between Roy Moore and Sen. Luther Strange.
In all, there were 41 counties that reported instances of crossover voting and at least seven crossover votes that occurred in Mobile County. While some of the other counties reported just a single violation, the majority reported somewhere between two and nine.
Jefferson County was a major outlier, which reported 380 violations — more than every other Alabama county combined. Other counties with high numbers of crossover violations included Madison (63), Montgomery (34), Chambers (22), Shelby (19), Morgan (16) and Walker (14).
In all, Merrill said, crossover violations represented one-tenth of 1 percent of total votes cast during in the runoff election.
While casting a vote in the wrong political race might seem innocuous, the 2016 law that formally prohibited the practice defines it as voter fraud — a class C felony with potential penalties of up to five years in prison and $15,000 in fines.
While some critics have called those punishments harsh, Merrill said any decision about prosecution or punishment stemming from the data he turned over would be made by local district attorneys or the Alabama Attorney General’s office, like other criminal matters.
“Here’s the deal. It’s the law, and because of that, we’re charged with enforcing it, but we don’t determine the penalties,” Merrill said. “That’s determined by the prosecutors and jurists responsible for hearing each of the cases.”
Merrill said he’d assume prosecutors would make a distinction between someone who was intentionally trying to manipulate the outcome of an election and someone who might have voted in the wrong race “to make a point.”
However, Merrill said it would be “inappropriate” to comment on whether any of the reported incidents indicated any concerted effort to affect the runoff last month because that information remains “part of an ongoing investigation.”
Because it’s the first time the new law has been enforced, it’s unclear how prosecutors in the 41 affected counties will proceed when and if that information is reviewed, verified and turned over to prosecutors in those counties.
Mobile County District Attorney Ashley Rich told Lagniappe this week that her office had yet to receive any information pertaining to voters who violated Alabama’s crossover voting prohibition, intentionally or otherwise.
However, if that happens, Rich said her office would “launch an investigation into the complaint” and proceed as in any other allegation of criminal conduct.
“If we see that we have probable cause to believe that a crime has been committed, we’ll prosecute,” Rich said. “If not, we’ll close the case.”
While the state’s voyage into these uncharted waters is in its early stages, Merrill said his office tried to ensure poll workers around the state were prepared for the change prior to the September election.
“Training was provided for those workers to prepare for the change,” he said. “It was also posted when you went to each polling site that if you voted in the Democratic primary, there wasn’t a race for you on Sept. 26.”
While the idea of charging crossover voters with a felony in criminal court has been met with criticism, Merrill said the media attention has also raised awareness around the state about the law itself.
“People are seeing that this will not be tolerated,” he said. “Nor should it be. It’s the law.”