HUNTSVILLE, Ala. (WHNT) — A Madison County judge has refused to dismiss a lawsuit that alleges Dr. David Cole did not live in House District 10 for a year before the November 8 election that he won.
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.
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.
But what happens next is not yet clear.
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.