So, let me turn from cases where politicians may have made poor choices about where they own houses/attempts at being snarky about the problems with the Senate to a real question about residency and its relevance. The background is that the Alabama state constitution says the following about the qualifications to be governor of the state (emphasis mine).

The governor and lieutenant governor shall each be at least thirty years of age when elected, and shall have been citizens of the United States ten years and resident citizens of this state at least seven years next before the date of their election (Article V, Section 117)

There are legitimate reasons to think that Senator Tommy Tuberville, the Republican nominee and odds-on favorite to win the office, does not meet this requirement. A lawsuit was filed, and it finally made its way to the state’s supreme court.

As was expected, the court ruled that it could not rule on the matter. The Alabama Political Reporter (Alabama Supreme Court dismisses Tuberville residency challenge) summarizes:

The Alabama Supreme Court on Friday issued a ruling in the case challenging Tuberville’s residency, agreeing with a lower court’s opinion that such a challenge was not allowed under Alabama law and that no court has the standing to hear a challenge to a candidate’s eligibility. 

It is a decision that will have far-reaching consequences, essentially affirming that the only means of challenging the constitutional eligibility of candidates for statewide office is through party challenges and a post-election challenge heard by the Alabama Legislature.

“… our decisions in such cases have generally adhered to the rule that a primary-election contest brought under the primary-election contest statutes is the exclusive method authorized by law to challenge a party nominee’s qualification for office before the general election,” the ALSC opinion reads. “We conclude that the circuit court lacked subject-matter jurisdiction to consider the relators’ action and that it, therefore, properly dismissed the action.”

Part of this is based on a technicality.

The case before the ALSC had nothing to do with Tuberville’s actual eligibility, but was instead a complicated legal question concerning the responsibility of the courts in election challenges. Alabama law makes it rather clear that courts, in general, are to steer clear of election challenges, choosing instead to leave that responsibility to the individual parties and the voters. 

To get around that, the challengers in the Tuberville case filed what is known as a “quo warranto” action, which is allowable under Alabama law to challenge the constitutional eligibility of an office holder. However, that brought with it another obvious problem – Tuberville is not yet an office holder. 

The challengers, though, argued that Alabama law also recognizes a party nominee as a “quasi-state official,” and so he should therefore be subject to a quo warranto challenge. 

The tl;dr is that no one can challenge his eligibility for office until he is an officeholder.

While I understand the basic logic, I still find the notion somewhat flabbergasting, if not a tad insane.

By this logic, if a party nominated a 14-year-old non-citizen, they would have to be allowed on the ballot. If they won, they would have to be seated in the office, and then their eligibility could be challenged.

I find this to be off the chain. It strikes me as absurd that a constitutional provision that dictates eligibility for office can’t be adjudicated until a person is elected to office.

This is the kind of thing that makes me get incredibly frustrated by how lawyers and judges can take seemingly straightforward text and make the whole thing into a maddening game.

By the way, as I have noted before, I do not think that the seven-rule is some major, sacrosanct notion. But it just strikes me as incredible that a candidate shouldn’t have to demonstrate basic eligibility for office in whatever manner a state’s constitution and laws dictate. The notion that this is something for the party to do strikes me as both inadequate and fraught with conflict of interest issues.

In youth sports, which in some cases have very strict age requirements, you don’t let the kid play first, win the state championship, and then have to prove eligibility (and only if challenged).

Granted: Tommy Tuberville could have spent every single second of his entire life within the confines of Alabama, and he still would be a terrible choice for governor. But it still is inexcusable that he refuses to provide what should be easy proof, and yet not only refuses to do so, the state can’t make him.

Rules.

What are they for?

And yes, I am well aware that if Democratic nominee Doug Jones were in the same boat, I expect that the court might have had a different opinion.

The extra spice on top of it all is that the Tuberville camp is making it sound like the court ruled he was eligible, which was decidedly not the case.

“Nine court decisions. Nine wins. 9-0,” said Jordan Doufexis, Sen. Tuberville’s current chief of staff and his gubernatorial campaign manager. “Today’s Alabama Supreme Court decision is another reminder that people ought to stop listening to folks who don’t know Alabama law.

“For the past 7 years, Democrats and the Left-wing media have pushed a lie in an attempt to destroy Alabama’s senior United States Senator and keep him from becoming Governor,” Doufexis continued. “They doxxed him. They released his tax returns. They lied about his home, including his floor plan. They maliciously drug Coach’s family through the mud for their preferred candidate Doug Jones with ZERO evidence. And every time a court swatted down the attacks, they told you why it would be appealed and Tuberville would lose in the next court. They wasted Alabama taxpayers’ hard-earned dollars because they wanted to smear Coach’s name even though they knew this was all a lie because they had the facts all along.

“Well, we’ve now got 9 court decisions and ALL of them ruled in favor of Coach: 9-0. Alabamians have been lied to by Doug Jones from day 1. It’s time to quit playing games with our elections and let the people of Alabama have their say. Tommy Tuberville is a resident of Alabama. Tommy Tuberville is on the ballot. And the people of Alabama are going to remember it on November 3.”

On some very fundamental level, the whole thing drives me nuts because it just seems reasonable that a candidate should have to demonstrate eligibility to run for office, and if there are legitimate questions about those qualifications, then the courts should be able to look at evidence and rule. And, very specifically, a state supreme court ought to be able to apply the plain meaning of black-and-white text to such a situation.

Of course, having such views is probably why the current era is getting on my nerves so much.

The decision now leaves only a post-election challenge, assuming Tuberville is elected governor, as an option for anyone seeking to question Tuberville’s constitutional eligibility. But the likelihood of success of that challenge also seems rather grim. 

The post-election challenge would be managed by a circuit court, which would set rules for discovery and settle disputes, but the ultimate decision on whether or not the challenge is successful rests with the Republican-dominated Alabama Legislature. 

Call me a crazy academic who actually cares about democracy and the rule of law, but putting these kinds of decisions in the hands of partisan actors is a very bad idea.

Hopefully Senator Coach’s Florida home in Santa Rosa Beach didn’t take too much damage last night, as the house his son owns in Auburn is kind of small.