Controversy Over New Alabama Crossover Voting Law

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Alabama’s new law prohibiting crossover voting in primary runoffs – and the Secretary of State’s full-throated support, including jail time for violators – is creating controversy. has more:

The ACLU of Alabama says it is “stunned” by Alabama Secretary of State John Merrill’s statements about crossover voters, including comments attributed to Merrill in an interview with ThinkProgress.

Merrill said those who knowingly and willingly violated the law should go to prison and pay a hefty fine, according to the publication.

“I want every one of them that meets that criteria to be sentenced to five years in the penitentiary and to pay a $15,000 fine for restitution,” Merrill said in the article.

Merrill told it was important to stress that he meant willful violators, including those who might have broken the law to make a point.

“The point is that anybody that knowingly and willfully violated the law intentionally, that did not agree with the law, that wanted to show that the law was not a good law in their estimation, thought the law may have been a stupid law, thought the law shouldn’t have been enforced, if they had that mindset, and they elected to violate the trust and the confidence of the electoral process by not being a qualified elector and still voting, even though they had voted in the Democrat primary and knew they were not supposed to be eligible to vote.

“If they did all of those things, then I think they should be identified. If the investigation warrants that they are culpable, they should be indicted and they should be prosecuted to the fullest extent of the law, period.”

Illegal or fraudulent voting is a Class C felony under state law. Class C felonies carry prison sentences of one to 10 years and fines of up to $15,000.

The law was enacted earlier this year and was in place for the first time during the contentious Republican U.S. Senate primary:

Merrill previously said his office had compiled a list of 674 people believed to have violated the crossover ban in the Sept. 26 runoff between Roy Moore and Sen. Luther Strange for the Republican nomination in the special election for the U.S. Senate.

Merrill said he sent the list to county officials and asked them to verify the names by Nov. 6. He said when he had the verified list, he would turn it over to prosecutors. He said it was up to prosecutors to decide whether to pursue charges and that it was his responsibility to report the names of violators.

“I’m not the one that determines whether or not somebody gets prosecuted,” Merrill said. “All we do is the investigation at the level that we can, and then we turn it over to the people that we believe, based on the information that we have, need to be prosecuting people who are culpable.

“The determination on prosecution takes place by the district attorney or from the attorney general’s office.”

The Legislature passed the ban on crossover voting this year and it was in effect for the first time for the Moore-Strange runoff. The law prohibits voters who participate in one party’s primary from crossing over and voting in the other party’s ensuing runoff.

Not surprisingly, supporters and critics of the law have very different views on what’s at issue:

ACLU of Alabama Executive Director Randall Marshall said Merrill is taking the wrong approach.

“We find it surprising that election officials, who must have had the voting records available to them, would have permitted any crossover voting,” Marshall said in a press release. “This was a new law, in effect for the first time. Rather than contemplating prosecution, government officials should have proactively taken steps to ensure that crossover voting could not occur.”

“The state’s ‘gotcha’ approach to voting rights is counterproductive,” Marshall continued. “We hope the crossover law does not result in discouraging voters in the general election because it does not affect who can vote or who you can vote for on December 12.”

The law does not apply to general elections, like the one Dec. 12, but only to primary runoffs.

Merrill said it was inaccurate to describe the steps he’s taken as a “gotcha” approach. He said he wasn’t talking about people who broke the law unintentionally or because of a mistake made by a poll worker.

As to Marshall’s point that election officials should have done all they could to educate voters about the new law and put the procedures in place to implement it, Merrill said he’s confident that happened…

Sen. Tom Whatley, R-Auburn, who sponsored the crossover ban bill, said he supports Merrill’s approach.

“I would just tell you that I’m glad we got that bill passed and it is, as Secretary Merrill is showing you, it is protecting the integrity of our election system which is at the core, one of the chief values of our society,” Whatley said. “And as to the prosecution, I’m glad he’s turning those over and that will be an individual decision on the local district attorneys and the attorney general on how to proceed with those cases.

I will admit to a healthy dose of skepticism about calling this an “election integrity” issue; presumably, each of the voters here was eligible to vote and properly registered. The underlying policy here is the protecting the idea of party affiliation in primary and runoff elections – an issue, you may remember, that arose during the “loyalty pledge” battles in states like Virginia in 2016. I’m generally loathe to threaten people with jail time for casting a vote – and really nervous about doing so to protect the “integrity” of a political party. That said, if a state like Alabama really feels such a policy is necessary, it should make sure it is informing voters of the law and doing all it can to ensure that no one violates it, unwittingly or otherwise. You can bet that will be an issue if and when prosecutions move forward under this new law. Stay tuned …

1 Comment on "Controversy Over New Alabama Crossover Voting Law"

  1. I wonder about the constitutionality of prohibiting crossover voting. People ought to have a choice of both a repug or dem as a representative.

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