Following the signing of the Civil Rights Act of 1964, pro-segregationist Gov. George Wallace supported a slate of unpledged Democratic electors in that year’s General Election and had President Lyndon Johnson and Vice President Hubert Humphrey kept off the Alabama ballot.

That was the last time in the United States that a major political party’s candidate was kept off the ballot. Republican Barry Goldwater easily won Alabama, one of only six states he won in that year’s election.

Sixty years later, history could repeat itself in Alabama if President Joe Biden and Vice President Kamala Harris are kept off the general election ballot.

FILE – Alabama Secretary of State, Wes Allen speaks during the inauguration ceremony on the steps of the Alabama State Capital, Jan. 16, 2023, in Montgomery, Ala. A day after being sworn in last month, Allen sent a letter informing the Electronic Registration Information Center, a voluntary system known as ERIC, of the state’s exit after criticizing the program during his campaign. (AP Photo/Butch Dill, File)AP

Alabama Republican Secretary of State Wes Allen said on Tuesday he will not accept a provisional certification that would be updated once Biden is formally nominated, citing a 49-year-old Alabama state law that establishes the certification date “no later than the 82nd day” ahead of the election.

The only resolution, aside from a lawsuit: The Alabama supermajority GOP will have to support legislation during the waning days of the session that changes the deadline to 74 days.

Disenfranchisement

The situation, if unresolved, could get sticky for Alabama and resurrect painful reminders of the state’s past of Black voter disenfranchisement that led to omitting Johnson in 1964, and Harry Truman in 1948. Before then: Abraham Lincoln was omitted from the 1860 ballot.

“Once again, Alabama is going to pull down its political pants and moon the nation,” said Alabama political historian Wayne Flynt, a professor emeritus at Auburn University. “There really never has been anything beautiful about the performance. Just a bunch of drunk fraternity boys mooning sorority houses. Alabama, where Donald Trump will swamp the November ballot and perhaps win by the largest margin of any state, now proposes to do so by cancelling the ballot of a significant portion of the population.”

He added, “What exactly will Republicans accomplish by this other than confirm a widely distributed stereotype that stealing minority votes is part of Alabama’s political DNA?”

Derryn Moten, chairman of the history and political science department at Alabama State University in Montgomery, said the unpledged electors who kept Johnson’s name off the 1964 ballot loom large as a history lesson over what could unfold in Alabama.

“In this context, (Allen’s) pledge to keep President Biden’s name off the November 2024 ballot is a sad reminder of the state’s past poll tax, voter intimidation, white primaries, and one person and one vote,” Moten said.

Allen, on Tuesday, responded to the criticism that he simply intends to abide by existing law, no exceptions.

“On January 16, 2023, I took an oath to uphold Alabama law and that is what I am going to do,” Allen said. “My office will accept all certifications that comply with Alabama code section 17-14-13(b). That statute does not provide for ‘provisional certifications’ or any other exceptions.”

Some Democratic officials are confident that Biden and Vice President Kamala Harris will have their names appear on the ballot, including the president himself. Former Democratic U.S. Senator Doug Jones of Alabama said in a social media post Friday he doesn’t believe the efforts represent a “nefarious plot” by Republicans to keep the incumbent presidential candidate off Alabama ballots.

Bernard Simelton, the Alabama State NAACP president, told AL.com on Friday that while he believes Allen “is trying to flex his muscle,” he’s confident of the names will ultimately be placed on the ballot through a legislative action.

Legislation supported by state Sen. Merika Coleman, D-Birmingham, and Rep. Anthony Daniels, D-Huntsville, would change the state’s deadline for the certifications to allow Biden on the ballot this year.

The legislation would be similar to bills that got little fanfare, but which made one-time exceptions to adjust the certification timing in 2003 and 2015.

Richard Winger, publisher and editor of Ballot Access News, said there have been about a half-dozen states with similar issues since 2004. In every instance, he said, state lawmakers “quickly passed a bill that says for this coming year only, the deadline is moved.”

Winger said, “It seems that partisanship is so intense in this country we might not get this same result.”

2020 comparison

We the People rally

Former Alabama Secretary of State John Merrill (John Sharp/[email protected]).

Alabama last had the issue arise in 2020, and Democratic officials are pointing to how Republicans OK’d legislation to allow then-President Donald Trump on the ballot, and efforts by then-Republican Secretary of State John Merrill to allow for a provisional certification.

The Alabama Legislature passed a bill making a one-time change of the deadline for 75 days, which accommodated the Democratic Party in 2020, that wrapped up its convention on Aug. 20 that year. But the GOP did not finish its convention until Aug. 27, missing the 75-deadline.

Merrill, in comments to AL.com on Thursday, said that Allen and Michael Jones – both of whom were in the Alabama House at the time – voted to support the legislation granting provisional ballot access for Trump and Pence.

He said the best course of action this year is what the Legislature did in 2020. Merrill said he contacted then-state Rep. April Weaver, a Republican, about sponsoring legislation to allow the president to have his name submitted on a provisional certification.

“The obvious thing is what they did four years ago and get a legislator in the House and Senate and make it the same way for the Democratic Party,” Merrill said. “We took it to the Legislature to pass the bill. And that’s what we did.”

Allen, in response, said he wasn’t the officeholder in charge of elections in 2020, and that he took an oath to uphold Alabama law “and that is what I’m going to do.”

He said there is “no such thing as a ‘provisional certification’ under Alabama law.”

“The fact that my predecessor, John Merrill, chose to accept a ‘provisional certification’ when no such document exists under Alabama law, is irrelevant to my decision-making process,” Allen said. “I am guided only by the law as it exists today.”

Ohio’s influence

Frank LaRose

Secretary of State Frank LaRose speaks at an Ohio Statehouse news conference on Tuesday, Sept. 12, 2023. Behind him stand state Rep. Thomas Hall, a Butler County Republican, and state Sen. Michele Reynolds, a Columbus-area Republican. (Jeremy Pelzer, cleveland.com)

Alabama, unlike 1964, isn’t alone this time. In fact, Ohio was the first to raise the issue last week.

The timing of Allen’s letter on Tuesday to Alabama Democratic Party Chair Randy Kelley informing him about the law, came five days after GOP Ohio Secretary of State Frank LaRose cited a law in his state that requires presidential candidates be nominated no later than 90 days before the general election.

LaRose is urging Ohio lawmakers to pass a bill to give Biden ballot access because certification of his nomination is Aug. 7.

David Niven, a political science professor at the University of Cincinnati, said that is not an easy task in a state engulfed in political in-fighting.

“At this point, the Ohio legislature would have trouble crossing the street together when the walk sign comes on, much less action in a timely way to preserve democracy,” Niven said.

Allen denies what happened in Ohio influenced his letter on Tuesday. He also said that neither the Trump campaign nor anyone else influenced his decision.

“This issue was discovered internally,” he said.

A third state also discovered a state law with a certification deadline that doesn’t match up with the convention’s start dates. But Democratic Washington Secretary of State Steve Hobbs said he will allow for provisional certification so Biden can remain on the ticket which that state has done previous elections for both Republicans and Democrat.

Down ballot concerns

Don Siegelman, the former Alabama governor who was Secretary of State during the 1980s, said he believes the biggest concern with keeping Biden off the ballot could be in affecting turnout for down-ballot races, particularly in Alabama’s 2nd congressional district race that could be a close contest between the Democratic and Republican candidates. Alabama rarely has contested congressional races, but the U.S. Supreme Court ordered for the redrawing of Alabama’s congressional map last year to give Black voters an opportunity to have a second representative in the U.S. House. Alabama’s 7th congressional district has long been represented by a Black member of Congress and is a safe Democratic district.

The 2nd district primary runoffs are occurring on Tuesday featuring a Democratic contest between Shomari Figures and Daniels. On the Republican side, former state Sen. Dick Brewbaker is opposed by Caroleene Dobson.

Alabama congressional district 2

The Alabama Congressional District 2 candidates running in the two primary runoff races on Tuesday, April 16, 2024. From left to right: Republican Caroleene Dobson, Republican Dick Brewbaker, Democrat Shomari Figures and Democrat Anthony Daniels.John Sharp

Daniels, in comments Thursday, called the legislation allowing Biden ballot access “the right thing to do for Alabama voters.”

Figures said there is precedence from four years ago to allow Trump on the ballot. If state lawmakers do not do so for Biden this time, he said “it will be yet another blatant example of the extreme actions they will take to suppress votes and disrupt the democratic process in a second consecutive presidential election.”

Thomas Shaw, a political science professor at the University of South Alabama, said that if Biden is off ballots, it will require a “massive get-out-the-vote effort” for Democrats to overcome the ingrained strengths Republicans have in Alabama.

Democratic voters consist of only about 26% of Alabama’s population.

“If this issue creates enough drama to get Democrats that excited to go to the polls, then it will likely be such a big issue that both Republicans and Democrats will show up in large numbers thereby again nullifying Democratic efforts to get out the vote,” he said.

Court action

Winger, with Ballot Access News, said he doesn’t believe it will get to that point.

If needed, he could see the matter in Alabama and Ohio winding up before the U.S. Supreme Court, which has struck down efforts to keep major party candidates off ballots. That includes the March 4 decision in Trump v. Anderson in which the court determined that Colorado, or any state, could not determine the eligibility for federal office under Section 3 of the 14th Amendment.

Said Winger, “It seems that the Alabama Democratic Party could get that deadline declared unconstitutional.”

But the entire scenario seems implausible to older political observers who can recall a less polarized era when meeting obscure deadlines to certify a presidential candidate was considered formality.

From 1956-2020, in 12 of the past 17 prior presidential elections, at least one of the major parties held its convention entirely in the second half of August, or early September.

Siegelman, the Secretary of State from 1979-1987, said he cannot recall anyone quibbling over kicking Ronald Reagan off the 1984 ballot despite the Republican National Convention occurring 76 days before the general election that year. Reagan, with strong support in Alabama, trounced Democratic challenger Walter Mondale that November.

“In the old days, we just were not concerned about partisanship,” said Siegelman. “We just let things be and allowed voters to have their voice.”

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