Donald J. Bennett Sr., the certified winner of the Perry County Commission District 1 Democratic primary, asked a Montgomery judge Wednesday to stop the recount of that race less than 24 hours before it was scheduled to begin.
The petition for writs of mandamus and prohibition, filed at 12:09 p.m. in Montgomery County Circuit Court and assigned to Judge Greg Griffin, asks the court to vacate the Alabama Democratic Party’s June 25 decision ordering the recount, to prohibit the party from conducting it, and to stay all related proceedings while the court reviews the case. The recount is scheduled for 11 a.m. Thursday. No ruling had been entered as of Wednesday evening.
The filing names the Alabama Democratic Party and Albert Turner Jr., the incumbent commissioner who lost the May 19 primary to Bennett by one vote, as respondents.
Bennett’s petition does not ask the court to decide who won the election. Instead, it argues that the state party had no legal authority to order a recount at all. The party’s Contest Committee ruled June 25 that Turner’s formal election contest, filed May 29, missed Alabama’s 24-hour statutory deadline, but that his May 26 recount request was timely because it was delivered to Probate Judge Carlton Hogue, who also chairs the Perry County Democratic Executive Committee.
Bennett contends that conclusion is contrary to Alabama law. His petition states that Turner’s May 26 letter was addressed exclusively to “Carlton Hogue, Judge of Probate, Perry County Courthouse” and did not identify the county executive committee as the recipient, and argues that delivery of a document addressed solely to the probate judge did not satisfy the statutory requirement that a recount request be filed with the party committee. The petition further argues that statutory deadlines governing contests and recounts are mandatory and jurisdictional, that the party could not enlarge them through administrative interpretation, and that having found the contest untimely, the party had no authority to order a recount or to reserve continuing jurisdiction over the election.
The petition also addresses the dispute over two versions of Turner’s May 26 letter that surfaced at the state party’s June 15 hearing. Bennett alleges that the version presented to the Contest Committee had been altered by adding “DEC” beside Hogue’s title, that a motion to strike the altered document was denied, and that Turner acknowledged during the hearing which document had actually been submitted on May 26 after questions were raised concerning the documents’ authenticity.
The petition was signed by attorney Asherica M. Heard, who represented Hogue at the June 15 hearing in Montgomery.
Without court intervention, Bennett argues, the recount will proceed before any judge can determine whether the party lawfully exercised the authority it claimed, altering the status quo that has existed since he was certified as the nominee on May 26 with 398 votes to Turner’s 397.
The filing caps a week in which the posting of Turner’s $8,500 recount bond became its own running dispute. The Perry County Democratic Executive Committee met June 30 and set the bond at $8,500, payable within 48 hours of service, in a letter signed by Hogue as county party chairman. Turner, who had said after the state ruling that he would pay by cash or cashier’s check “so there won’t be any delay,” appeared July 1 saying he had the bond in hand but could not pay because Hogue had not completed service paperwork and was unavailable. When payment came Tuesday, it was by a check drawn on the Emerson Company, a firm Turner leads, rather than cash or campaign funds. Turner received a receipt at 9:30 p.m. Tuesday, and a post on his campaign page Wednesday morning said Hogue had verified the check at Marion Bank at 8 a.m. The state party’s June 25 order conditioned the recount on the provision of security in cleared funds.
In that post, about a day before Bennett’s petition was filed, Turner declared the fight all but over. “Now that the table is set, bond secured, let the process begin,” the post said.
If the recount proceeds and leaves the certified totals unchanged, Bennett keeps the nomination and Turner forfeits the $8,500. Because no Republican qualified in District 1, the Democratic nominee will take the seat in November.
