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Alabama Law Meant to Ensure Transparency in Judicial Elections Not Enforced for 16 Years

An Alabama law that became effective in 1996, designed to remove any appearance of impropriety in the funding of judicial election campaigns, has languished while all three branches of state government have failed to implement the statute, codified at Alabama Code §§ 12-24-1 and 12-24-2.

According to the Birmingham News, “The law is not complicated. Judges who accept significant campaign contributions from someone who has a case in their court would have to step down from hearing the case. The limits are $2,000 for circuit judges and $4,000 for appellate judges. If the law were enforced, it would be one of the most strict judicial campaign finance laws in the country and likely would have a dramatic effect on how judges in Alabama raise money for their campaigns.”

The statute also requires judges to file with the Secretary of State a list of their campaign contributors and the amounts of their donations. A report issued by the Brennan Center for Justice indicated that from 2000 to 2009, candidates for the Alabama Supreme Court spent almost double the amount spent by judicial candidates in the second-highest state.

Despite that anomaly, Alabama’s Attorney General has said he cannot act until the state Supreme Court adopts rules for enforcement of the law. The Supreme Court, however, has refused to issue the rules pending preclearance of the statute by the U.S. Department of Justice, and the Alabama Administrative Office of Courts will not enforce the law until rules are adopted. The state legislature has thus seen the law it enacted over 16 years ago effectively sidelined as a result.

According to state Senator Roger Bedford, who was chairman of the state Senate Judiciary Committee in 1995 when the statute was passed, “The purpose of the law was to try to remove the stigma of people giving contributions to judges and getting favorable results.... In our system of justice, there should never be such a concern.”

The initial roadblock to enforcement of the law was a question as to whether it was required to be pre-cleared by the U.S. Department of Justice under § 5 of the Voting Rights Act. The Alabama Attorney General initially submitted the law to the Justice Department but later withdrew it, asserting that the statute was not directly related to voting and thus did not require pre-clearance.

“The State of Alabama will enforce [the law], and the Attorney General of Alabama will not submit this law for pre-clearance,” the Attorney General’s office wrote at the time. That was also the position of subsequent Alabama Attorney General William H. Pryor, Jr., who now serves as a federal appeals judge in the Eleventh Circuit.

The Justice Department, in turn, advised then-Attorney General Jeff Sessions, now a U.S. Senator, that it “respectfully disagree[d]” and argued the statute must be submitted for review, though it was never resubmitted.

The federal courts have not been helpful, either. In June 2011, a three-judge federal district court panel noted that the statute had “not been enforced, not even once” since it was enacted. In dismissing a lawsuit challenging pre-clearance of the law by the
Department of Justice, the panel held that it did not have subject matter jurisdiction and thus dismissed the case. See: Little v. Strange, 796 F.Supp.2d 1314 (M.D.Ala. 2011).

Adam Skaggs, of the Brennan Center for Justice, said that laws that trigger automatic recusal of judges are difficult to enforce and should include a waiver that allows the other party to say they don’t think the judge should step down.

Another point, raised by Tommy Wells, past president of the American Bar Association, was that the statute would not be as effective without better disclosure requirements for all campaign contributions. “Unless you’ve got transparency, you can just walk around the [donation] limits,” he said. He also noted that the law would likely relieve attorneys who are constantly approached by judges asking them for campaign contributions and, further, would relieve judges from having to make decisions about whether or not they should recuse themselves from a case.

Only four other states require judges to recuse themselves if they have received a specified amount in campaign contributions from a party, including California, Arizona, Utah and New York.

The process in Alabama to ensure transparency in judicial elections has taken more than 16 years and is still unresolved, which clearly indicates there is no easy solution to the problem – nor will there be so long as there is no political will or interest by the state’s Attorney General, Supreme Court or legislature.

Sources: Birmingham News,,,

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Related legal case

Little v. Strange