Constitutional amendments by their nature aim to fix problems or shortcomings in a governing document. But many changes proposed to Alabama’s constitution this year target problems stemming from the heart of that document.
The framers of the 1901 Constitution wanted to deny the vote to Blacks and poor whites, drain local governments of what power they had and make state government – and particularly, the Legislature – the supreme authority in Alabama.
The constitution, ratified through fraud, achieved those goals, and it took federal intervention – following six decades of struggle by Black Alabamians − to restore voting rights in the state. But the centralizing features of the state’s governing document remain in place.
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The amendments on the ballot in November won’t cut down the knotty pine of the Alabama Constitution. Instead, they aim to prune some of the dead branches. Voters will decide whether to remove racist language from the Constitution, and whether to give counties and cities more power to spend money on economic development.
The proposals also include measures on violent felonies and the death penalty, and others touching on fierce local controversies over sewer rates. Below, a look at the amendments.
Federal laws and federal court decisions have nullified the racist disenfranchisement schemes of the framers of the Alabama Constitution. But racist language remains in the state’s governing document. The recompilation of the Constitution aims to address that.
The recompilation will strike language allowing slavery “for the punishment of crime.” That phrase became a legal foundation for Alabama’s notorious convict-labor system. It will also take out language that directed poll taxes to support schools.
The amendment would also remove language from a 1956 amendment, passed amid white hysteria over school desegregation, that would have illegally empowered the Legislature to allow children to “attend schools provided for their own race” and to intervene in schools in the name of “peace and order,” a code phrase used by segregationists to uphold the separation of schools on race.
Alabama’s racist past created an enormous chasm in health and wealth outcomes for whites and Blacks. Supporters of the recompilation acknowledge that the language change won’t address those issues. Attempts to reach Rep. Merika Coleman, D-Pleasant Grove, the sponsor of the initiative, were not successful. But Coleman said in November 2021 that the measure would mean a constitution that better represents Alabama.
“The document is supposed to reflect who we are as a state,” she said. “We’re Black, we’re white, we’re Democrats, Republicans, we’re rich, and we’re poor.”
The recompilation would also organize the state’s governing document, the longest in use in the United States, by topic. Supporters said they hope that would improve access to the document.
Amendment 1 would allow judges to deny bail to defendants charged with violent felonies after a hearing on the matter.
Legislators named the amendment Aniah’s Law for Aniah Blanchard, a Southern Union Community College student whose body was found in Macon County in November 2019, a month after Blanchard was abducted from an Auburn gas station. Lee County prosecutors have charged Ibraheem Yazeed with capital murder in Blanchard’s death. At the time of Blanchard’s disappearance, Yazeed was free on $295,000 bond on charges that he held two men at gunpoint, one of whom was near death after a beating.
Rep. Chris Brown, R-Hollinger’s Island, the bill’s sponsor, first filed the legislation before Blanchard’s death. It passed the Legislature in 2021. The amendment alters a constitutional provision that allows judges to deny bail for defendants charged with capital offenses, such as murder. Brown said he wanted to ensure that those charged with violent felonies would also fall under that jurisdiction.
“This is an effort to clear that up,” he said. “For prosecutors to have that tool to hold someone on bond who is an imminent threat.”
Under the amendment, judges could deny bail for 13 first-degree offenses, including murder; assault; kidnapping; rape; sodomy; domestic violence; human trafficking; burglary; arson; robbery; sexual torture; terrorism and aggravated child abuse.
Bail revocation would not be automatic. A judge would have to hold a hearing where both prosecutors and defense attorneys could present evidence in the matter before the judge made the decision.
The Alabama Constitution’s restrictions on local governments run like veins through the document. Section 94 of the constitution forbids local governments from giving money or a “thing of value” to an individual or corporation.
That became an issue when the federal American Rescue Plan Act (ARPA) routed money to county governments in Alabama. Many wanted to spend the funds on broadband projects, said Sonny Brasfield, the executive director of the Association of County Commissions of Alabama (ACCA). But the group felt the Section 94 language blocked that.
“We were very uncomfortable because of the thing of value restriction,” he said.
Amendment 2, approved by the Alabama Legislature earlier this year, would allow a local government to give federal money “to any public or private entity for the purpose of providing or expanding broadband infrastructure,” provided the local government authorizes the spending at a public meeting.
“There were some attorney general opinions that prompted it, because there were some grey areas in the law,” said Rep. Randall Shedd, R-Arab, the bill’s sponsor.
The state constitution gives the governor of Alabama the power to commute a death sentence to life imprisonment or issue a reprieve from an execution.
Amendment 3 would require any governor who stops an execution or commutes a death sentence to notify the attorney general and make a “reasonable effort” to contact a victim’s family through information provided by the attorney general. Under the amendment, not providing notification would void the reprieve or commutation.
The measure would restrict a power that Alabama governors seldom use. In 1999, a few days before leaving office, Gov. Fob James commuted the death sentence of Judith Ann Neelley, convicted of the rape and murder of Lisa Ann Millican, 13, in 1982. According to court testimony, Neelley also injected Millican multiple times with drain cleaner, shot her in the back and threw her body in a canyon in DeKalb County.
Neelley said she acted on orders from her husband, Alvin, who pleaded guilty to murder and aggravated assault in Georgia and was not tried in Millican’s case. The jury in Neelley’s case recommended a life sentence, but a judge overruled the recommendation and sentenced Neelley to death.
Neelley is currently incarcerated at Alabama Therapeutic Education Facility in Columbiana. Alvin Neelley died in prison in 2005.
Sen. Steve Livingston, R-Scottsboro, who sponsored the legislation, said Millican’s family approached him about it.
“I still think the family is trying to get closure with this, to be honest,” he said. “This young lady was only 13 years old. This was a three- or four-day event.”
The amendment would not otherwise limit or restrict the governor’s ability to grant reprieves or commutations. James is the only Alabama governor to have commuted a death sentence since executions resumed in 1983.
Mike Lewis, a spokesman for Alabama Attorney General Steve Marshall, wrote in an email that Marshall “strongly supports” the measure.
Amendment 4 would require any election law passed by the Alabama Legislature to have an “effective date” at least six months before a general election.
The measure would require election bills to take effect within the first week of May each year. The amendment could limit the time the Legislature has to pass election-related laws in some years.
State elections run two years apart from presidential elections, and the Alabama Legislature’s schedule varies for both. In state election years, the Legislature comes into session in January and can meet until mid-to-late April. In presidential election years, the Legislature convenes in February and can meet through mid-to-late May. The measure would take a month off the time legislators can pass election-related legislation in presidential election years.
Attempts to reach Rep. Jim Carns, R-Vestavia Hills, the amendment’s sponsor, were unsuccessful.
The amendment does not address measures that the governor or secretary of state may take on elections. In 2020, amid the COVID epidemic, Gov. Kay Ivey and Secretary of State John Merrill approved broad interpretations of medical excuses for casting absentee ballots. It led to the largest-ever number of absentee ballots being cast in recent years. However, the Legislature has since resisted efforts to make absentee voting easier.
Amendment 5 would remove language in the Constitution that gives probate judges power over “orphans’ business.” Sen. Will Barfoot, R-Pike Road, who sponsored the measure, said that the Alabama Law Institute requested the change.
“It was one of those recommended clean-up changes,” he said. “The Constitution used that archaic language.”
The Code of Alabama still contains a handful of references to orphans, though most surviving laws with the term date from before the 1980s.
Othni Lathram, the director of the Alabama Law Institute, said the language no longer reflects how the state legal system deals with minors. Probate judges handle adoption and guardianship matters, and still would if the amendment passed. But juvenile courts deal with legal matters relating to minors.
“It makes it clear there’s no inherent authority of the probate judge over juvenile judges,” Lathram said. “That’s a settled matter by case law.”
Like Amendment 2, Amendment 6 would cut through some of the ancient restrictions on local government spending.
Amendment 8, an early amendment to the Alabama Constitution, requires about 40 municipalities in the state to spend property tax revenue on paying off debt. The municipalities – including Birmingham, Huntsville, Selma, Auburn, Opelika and Anniston – must borrow money if they want to build major projects.
Amendment 6 would allow cities to use ad valorem taxes to pay for both public capital improvements and bond repayments.
Rep. Mike Ball, R-Madison, the sponsor of the amendment, said Huntsville city officials approached him with the idea of doing pay-as-you-go projects.
“They’d have to take out a loan, even if the money was available from that referendum,” he said.”
Kelly Schrimsher, a spokeswoman for the city of Huntsville, wrote in an email that city officials did not have specific projects in mind, but wanted the option to pursue big projects without having to pay interest on loans.
“Huntsville doesn’t want to be forced to carry debt for capital projects and would like to be able to apply these revenues toward the capital goods our citizens need,” she wrote.
The Alabama Constitution’s restrictions on local government spending also extended to restrictions on how county governments could court businesses. For decades, counties that wanted to pursue local economic development efforts had to have individual amendments put into the Constitution. Amendment 759 to the document added about 14 counties – including Jefferson, Mobile and Baldwin – at once. Amendment 772 to the constitution extended those powers to every county.
But the counties included under the pre-772 amendments could not borrow money for public-private partnerships without first getting approval from a judge. That, said Rep. Jeff Sorrells, R-Geneva, the sponsor of the amendment, could add tens of thousands of dollars in legal bills for some of those governments.
“A county commission was putting up a building, but before they could secure bonds for the building, they had to go before a judge to get validation that they could fall under 772 as well,” he said.
The amendment would get rid of that requirement. It would also declare any projects initiated under the terms of Amendment 772 valid, whether they were counties covered by 759 or individual constitutional amendments.
Brasfield said the amendment would affect about 40 counties in total. The current system, he said, was unwieldy.
“It slows down the process,” he said. “Many times in economic development, time can cost you jobs.”
Amendments 8 and 9 stem from intensely local – and intensely fierce – battles over sewer bills in two growing areas in Alabama.
Amendment 8, sponsored by Sen. Jabo Waggoner, R-Vestavia Hills, would bring some privately-owned sewer systems in Shelby County under regulation by the Public Service Commission, which would set rates for at least a time. Amendment 9, sponsored by Rep. Rich Wingo, R-Tuscaloosa, would give the PSC about four years to regulate private sewer systems in Lake View, a town straddling the border of Tuscaloosa and Jefferson counties.
Behind the amendments are years-long battles between sewer companies and residents who complain that the firms charge excessive fees for their services. Shelby County residents who use Southwest Water told ABC 33/40 in Birmingham in 2021 that their rates had more than tripled. Southwest Water said in a statement at the time it was following an agreed-upon rate structure and that it had reached out to the Shelby County Commission to address the issue.
Messages seeking comment were left with Waggoner and Southwest Water on Wednesday.
For years, Lake View residents have clashed with Mike White, the owner of Tannehill Sewer, a private sewer company in the area. In 2021, a federal jury in Tuscaloosa ordered the company to pay three families in the community $4.7 million. The families testified the company had billed them a total of $500,000, and that they were in fear of losing their homes.
Amendment 9 would put the private system under the regulation of the Public Service Commission from 2023 to 2027.
“It’s a statewide amendment, but it allows the people of the state of Alabama to protect the people of Lake View,” Wingo said. “This has been going on for years and years where people have been overcharged and taken advantage of.”
Messages seeking comment from White were left with Harry Long, an Anniston attorney representing him in a recent case.
Wingo also criticized Sen. Gerald Allen, R-Tuscaloosa, who he accused of trying to stop the measure. Allen said in a statement that his intent “was to get to the root of the problem, not to increase government regulation.”
“The town of Lake View should own and operate its system for its citizens,” the statement said.
Amendment 10 is a procedural amendment that travels with the recompilation provision on the ballot. Should the recompilation proposal and the amendment pass, any of the other nine amendments approved by voters will go into the constitution, rather than get attached at the end. It will also ensure that case law on the constitution remains in effect.
“It allows any simultaneously ratified amendment to be encompassed in the new constitution,” Lathram said.
Autauga
The Central and Daniel Pratt school zones in Autauga will decide whether to approve a 15-mill property tax increase. The proposal would add $150 to $170 a year on property tax payments for a house valued at $100,000. The money will go toward capital improvements.
Montgomery
Amendment 1 would require the Montgomery County Probate Judge to be a licensed attorney and would give the probate judge the “power and authority” of a circuit court judge, the highest non-appellate judicial rank in the state.
Amendment 2 would allow mayors in the county to participate in the state’s Employee Retirement System.
Elmore
Elmore County does not have any local amendments on the ballot.
Brian Lyman covers politics and state government for the Montgomery Advertiser. Contact him at 334-240-0185 or
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