After weeks of uncertainty it now appears that University of Alabama students will be hauled into court to testify under oath as to whether they legitimately cast their votes in the Tuscaloosa School Board race. Although the trial will begin on October 31, students who voted illegally will find it difficult to disguise themselves as actual residents of District 4.
The Tuscaloosa News has reported that the: legal challenge to the results of the District 4 Tuscaloosa City Board of Education election is going to trial after all. Tuscaloosa County Circuit Court Judge James Roberts ruled Thursday that incumbent Kelly Horwitz had met the legal requirements of Alabama law to move forward with her challenge. In the same order, Roberts dismissed a motion on behalf of board member-elect Cason Kirby to disallow the challenge. The trial is scheduled to begin at 9 a.m. on Oct. 31.
In Case No. CV-2013-901093.00 of HORWITZ KELLY (Plaintiff) V. KIRBY CASON, (Defendant ) it was stipulated that the attorneys for Kelly Horwitz has met the burden of proof necessary to contest the election:
An “election contest is strictly statutory, and the statute must be strictly observed and construed.” Washington v. Hill, 960 So. 2d 643, 646 (Ala. 2006). Ala. Code §17-16-48 states: No testimony must be received of any illegal votes or of the rejection of any legal votes in any contested election commenced under the provisions of this article unless the party complaining thereof has given to the adverse party notice in writing of the number of illegal votes and by whom given and for whom given, and at what precinct or voting place cast, or the number of legal votes rejected, and by whom offered, and at what precinct or voting place cast, which the party expects to prove on the trial. Such notice must be served personally or left at the residence or usual place of business of the adverse party at least 10 days before the taking of testimony in reference to such votes.
At a minimum, the contestant’s list complied with the notice requirements of §17-16-48 by providing the alleged number of illegal votes (397), by whom (the individuals listed) and for whom the vote was given (the contestee), and the voting place where the vote was cast (Calvary Baptist Church Annex). The contestant argues that by providing the required information under §17-16-48 as well as reasons why each vote is illegal, she has both met and exceeded the requirements of §17-16-48.
Before the October 17 ruling on the legal challenge Kirby’s attorney Andy Campbell had been dismissive of the challenge, as reported by Stephanie Taylor in the Tuscaloosa News:
Andy Campbell, the attorney representing District 4 school board member-elect Cason Kirby asked a judge to dismiss Kelly Horwitz’s election contest, calling it a “fishing expedition” based on “speculation and innuendo.”
“What we have in this case is a trial in the newspaper. Accusations are flying around with no evidence,” Campbell, when asking the judge not allow the challenged student voters to be subpoenaed, said. “I ask the court not to turn this into a three-ring circus.”
“Character assassination is what this is,” he said. “They’re attempting to disenfranchise a group of students, the Greek students, because they don’t like how they voted.”
Contested elections in the past have been hard to overturn. An earlier unsuccessful challenge was the subject of the December 28, 1997 Tuscaloosa News article “Election Contested”:
What is a resident? That has become the central issue that could decide whether Councilman Lee Garrison retains the Tuscaloosa City Council District 4 seat he won by 84 votes in the August election. Opponent Don Brown contested the election claiming Garrison benefited from the illegal votes, largely cast by students who don’t need residency requirements.
A University of Alabama senior and former Inter-fraternity Council President, Garrison and his forces registered hundreds of college students to vote. One of the issues became whether students or permanent residents could control the district election.
While Brown’s forces did not challenge enough votes to make up the difference in Garrison’s margin of victory, his attorneys have been successful in putting voters, mostly students, on the witness stand. They were questioned about where they consider their primary residence and some were required to reveal who they voted for.
Virtually nonexistent residency requirements leave the outcome completely in doubt. Should circuit Judge Bernard Harwood overturn Garrisons victory, a lengthy appeal is expected.
Kelly Horwitz’s challenge to the School Board election results may finally be a step in overturning the tyranny of The Machine. The outrageous machinations this year of a small group of University of Alabama Greek leaders have been widely reported. The Machine may have over-stepped the boundaries of civil behavior to the extent that its attempt to manipulate a local election may actually fail. An opinion piece “Machine’s silence worth a thousand words” by Asher Elbein appeared In the campus newspaper The Crimson White:
On Monday, the very day when Kelly Horowitz filed a brief alleging fraud in the Tuscaloosa municipal elections, we woke to find our residence halls covered in fliers. Each purported to be an announcement for a public meeting held by Theta Nu Epsilon, and each was emblazoned with a pair of crossed keys and a grinning skull. The Machine apparently was going on a recruitment drive, and the whole campus was invited.
Honestly, that’s what should have tipped everybody off that it was a hoax. The free pizza and beer was pretty obvious, sure, and the UA Still Stands hashtag was a dead giveaway. But the real sign was the laughable idea that the Machine has any interest in mixing with the rest of the campus. The Machine reacts to inclusivity like a cockroach reacts to the bathroom light: a hurried dash into shadows and a frantic squeeze into the slimiest crack it can find.
Theta Nu Epsilon doesn’t hand out refreshments unless you buy them with votes. Theta Nu Epsilon doesn’t want the whole campus to show up to anything. Theta Nu Epsilon doesn’t care about what you have to say.
Here’s what Theta Nu Epsilon does care about: In 1976, cloaked men burned crosses on sorority lawns after Cleo Thomas – to this day our only black SGA president – beat the Machine-backed candidate. In 1986, members of the Machine broke into an independent candidate’s office and left one of his staffers in the hospital after he was allegedly jumped outside his dormitory. In 1993, a candidate running against the Machine was attacked with a knife. In 2004, a freshman from a Machine sorority was driven off campus by threats, including a warning she related to The Crimson White: “You ****ed up the day you decided to start thinking against us.” In 2013, a formerly Machine-backed candidate for the Tuscaloosa Board of Education elections won with an overwhelmingly greek vote – votes that are now being challenged as coerced at best and fraudulent at worst.
Much of the above isn’t proven, of course. It’s hard to make things stick to the Machine. It’s hard to get them to even acknowledge their own existence. Theta Nu Epsilon is, after all, a secret society. It works best in the dark, with secret meetings and secret ballots and secret emails. If the Machine were real, its members would have to account for their behavior. They would have to take responsibility.
You know, I was going to write something sarcastic this week. I was going to have a little fun with this. But this is both too serious and too pathetic to make fun of. Our campus is run by children playing at cloak-and-dagger politics. They will go off into the world having learned that corruption is acceptable, accountability is for other people and you can get away with anything if you just keep quiet whenever you’re caught breaking society’s rules.
So we wake up in the aftermath of a stolen election with fake fliers everywhere. Theta Nu Epsilon says nothing. But its silence says everything.