This is an archived article and the information in the article may be outdated. Please look at the time stamp on the story to see when it was last updated.

HUNTSVILLE, Ala. (WHNT) – Attorneys for Dr. David Cole are asking the Alabama Supreme Court to intervene in a lawsuit filed against him that alleges he did not live in House District 10 a year before the November 8 election that he won.

Cole’s attorneys are also asking a Madison County Circuit Court to stay any proceedings in the case, pending the outcome of the Supreme Court’s review.

“Without a stay, Defendant/Contestee will suffer irreparable harm in the form of orders issued to him by this Court as requested by Plaintiff/Contestant Boyd where this Court lacks subject-matter jurisdiction to issue any such orders,” they argued in a court filing Tuesday. “ Defendant/Contestee has taken the oath of office as a member of the Alabama House of Representatives and is constitutionally immunized from orders issued by this Court.”

Cole, a Republican, won 52 percent of the vote, but Elijah Boyd, the Libertarian candidate who finished third in the race filed a lawsuit on Nov. 22. He alleges that Cole was ineligible to run for the Madison County seat because he failed to meet the state law requirement that he reside in the district for at least one year prior to the general election. Boyd is seeking to gather evidence in the case, including a deposition of Cole, before the matter is presented to the Alabama Legislature.

Cole’s campaign has said he and his family moved in with a friend prior to that date and subsequently moved into their own residence within the district. In responding to the lawsuit, Cole’s attorneys have not focused on that dispute, instead arguing that under state law an Alabama circuit court has no jurisdiction and that it is exclusively a matter for the Alabama Legislature.

“The Alabama Constitution reserves exclusive jurisdiction to the Alabama House of Representatives over a challenge to the ‘election, returns, and qualifications of its members.’ (‘Each house shall choose its own officers and shall judge of the election, returns, and qualifications of its members.’). Plaintiff/Contestant is not left without a remedy but his remedy lies with the legislative branch, not the judicial branch,” Cole’s attorneys argued in a motion to dismiss the lawsuit.

Madison County Circuit Judge Ruth Ann Hall issued an order Thursday rejecting the motion to dismiss.

Following Hall’s ruling Boyd’s attorneys asked the court to direct the circuit clerk to establish a commission, essentially the first step in a process that would allow them to take depositions in the case.

Cole’s attorneys then argued that such an order by the court wasn’t necessary because there was no sign the clerk would fail to issue a commission. And, they argued the court still didn’t have jurisdiction of the dispute – that it is up to the Alabama Legislature to resolve.

Boyd’s attorneys have said they agree the matter is ultimately up to the legislature, but the law also provides a process where they can gather evidence to present to the Alabama Legislature.

On Friday, Boyd’s attorneys asked the court to expedite the order for the clerk to issue a commission, to allow them to begin depositions – questioning people under oath. Boyd’s attorneys argued the Alabama Supreme Court has previously admonished lawyers for not working at an expedited rate in dealing with election disputes.

Tuesday’s filing by Cole’s attorneys also argues he “has a reasonable chance of success on the merits of his Petition for Write of Mandamus,” to the Alabama Supreme Court.