Election scandal update: contesting an uphill battle

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TUSCALOOSA, Ala. (WIAT)- School board candidates Kelly Horwitz and Denise Hills are still considering their options following some irregularities and possible illegal activities in Tuesday’s municipal election.  Horwitz lost the District 4 seat to newcomer and recent University of Alabama graduate, Cason Kirby, by a slim margin of 72 votes.

Hills lost the board chairman position to former Tuscaloosa City Councilman, Lee Garrison, by 203 votes.  Hills explains that she will be happy to concede to Garrison once she is able to determine that the votes that led to his victory are actually legal.

The issues with the election began when Horwitz’s campaign supporters noticed that 11 people were listed as living at the same single-family home in her district.

City ordinances state that no more than 2 unrelated people can live in this type of home in the historic district.

“I didn’t want to jump to conclusions or point fingers until I can look at all of the evidence.  That’s how I’ve always operated as a board member,” Horwitz explained on Wednesday.  Horwitz supporters also noticed what they considered to be an unusually large number of student voters who had registered within the past 60 days.

However, things got even stranger on the day of the election when a University of Alabama student approached Horwitz supporters at the poll, including UA professor, Christopher Lynn.

He says the student explained that she had received an e-mail from her sorority, instructing her to vote for Kirby and Garrison.  The e-mail said members would be rewarded with a wristband that they could use at two bars for free alcoholic beverages.

“She was incensed that she felt they were trying to buy her vote,” Lynn explains.

CBS 42 obtained a copy of the e-mail.  It says that students who wear an “I voted” sticker are eligible for the wristbands.  While the e-mail tells students to vote for Garrison and Kirby, it does not indicate that the sorority had any way of distinguishing between a student’s votes and that they would simply receive a wristband for wearing a sticker.  Several other, similar e-mails from different sororities have surfaced.

The Alabama Beverage Control Board says that they contacted or attempted to contact three bars in downtown Tuscaloosa prior to election night.  Officials say they had heard about the bars opening a tab for voters and called to discourage the bars from participating.  ABC officials tell us they reached Innisfree Irish Pub and The Copper Top.

They attempted to contact 4th And 23rd, although the bar was closed at the time.  ABC officials say Innisfree and Copper Top employees told them that they were not planning to open tabs.  However, ABC officials say they were not present at the bars on election night.  The e-mail sent out to sorority members specifically mentions Innisfree and Moe’s Original Barbecue.  ABC officials say they did not contact Moe’s.

Lee Garrison recently responded to requests for comment on his Facebook page.  Saying, “Due to the fact that my newborn daughter was been moved to the ICU, I have more important matters to focus on than discussing election issues.  Please respect our privacy.  As far as I am concerned, the election is over and I am moving forward to work as Chair Elect once I am able to do so.  We won fair and I am 100% confident that will be what is determined if any allegations are investigated by the property authorities.”

The University of Alabama has also responded to questions regarding the student involvement in the election saying, “The University of Alabama believes participation in the democratic process provides an opportunity for our students to engage in their civic responsibility.  We certainly expect our students to protect the integrity of the election process, the privacy of each individual’s vote, and the ability of all individuals to vote their conscience.  We will continue to emphasize to our students that voting is a serious responsibility that  must not be taken lightly.  Any students who may be found to have violated the Student Code of Conduct will be referred to the Office of Student Conduct.”

As for the limos that were seen carrying students from campus to the District 4 polling site, the University responded, “We are unaware of any student lead transportation initiative for the recent Tuscaloosa city elections.”

Ken Smith, Executive Director for the Alabama League of  Municipalities, says if the candidates do decide to contest the election they are in for an “uphill battle.”  That’s mainly because they carry the burden of proof.

“What you are looking for is proof of either illegal votes that were cast or legal votes that were not counted.  There has to be enough evidence to show the numbers would have resulted in overturning the results of the election,” Smith explains.  “It’s difficult to do, because you actually have to have the proof of showing that the votes were illegal and then demonstrating which way they might have been cast so they would actually overturn the results of the election.”  Smith emphasizes, it is not enough to prove that there were illegal votes although there could still be non-election related consequences.  “There’s still some criminal processes.  It’s still a violation of criminal law depending what the illegal votes issue was that it might be grounds for going after someone criminally.”

Below is a copy of an email obtained by CBS42 that was sent by University of Alabama law professor Paul Horowitz, the husband of Kelly Horowitz. The email was sent to University of Alabama faculty and staff.

Dear President Miller and Faculty Senate Colleagues:

At the end of last year and the beginning of this year, we–and you especially, Steve, for which I applaud you–decided that one thing the Faculty Senate ought to do each year is pick a couple of issues or themes that deserve our sustained attention and efforts and which will serve the greater good of both the faculty and the entire university. A big one this year, it seems, is making the final push toward a smoke-free campus. That can be a worthy choice for a big-picture, sustained agenda item, I think, because 1) the issue has been around a long time, 2) it’s worth addressing for the good of the university, and 3) it is one of those issues that is talked about all the time, but on which concentrated effort is needed to definitively address the issue.

I write to suggest another item for our agenda, one that meets all those qualifications. That is the question of who runs our university and how. Simply put, the question is whether university is going be to a modern institution that honors fairness and the rule of law, or whether it will, in important respects, retain remnants of the kinds of views and behavior that this university has been burdened with and failed to definitively address for at least fifty years.

I should say up front that I am not a perfect person to raise this issue, since it involves my spouse, Kelly Horwitz, who has served on the city school board for the last four years and was purportedly defeated last night at the polls. (That result has not yet been conceded or finalized.) I acknowledge that I have a personal stake in the matter. But I also have a civic stake in it, and I have a professional stake in it as a full professor of this university. If my Senate colleagues, coming from another perspective, see the issue differently or less urgently, I certainly would understand. That is why I am sharing this suggestion with all of you: So that you can make up your own minds and chime in one way or the other.

I am not concerned in this space to criticize the result of the election(s) or any particular candidate. People of good faith can disagree on such matters. But the process is a different matter, and here I think all people of good faith would agree that there was a total breakdown in fairness and fidelity to the rule of law–one in which our university is unfortunately complicit.

Doubtless we will learn more in the coming days. But we might start with the following: 1) At least ten students of this university fraudulently registering to vote by giving an address at which they do not live. 2) The massive presence of signs for particular candidates on sorority and/or fraternity lawns on election day, in violation of intrafraternity and university rules. I am told that several students complained to the appropriate authorities about these blatant violations and were basically told to go away. 3) The likelihood–the certainty, really–of other fraudulent registrations and votes by students of this university. 4) The use of what appear to be widespread promises to trade drinks for votes, which may constitute criminal conduct under state law. And that, I’m afraid, is probably only the start.

Some or all of these and other actions constitute violations of university rules and of the student honor code. Those rules must be enforced. The university ought to be saying so today, loudly. It ought to launch a full investigation, seek disciplinary proceedings against students who violated the rules of the university or the laws of the state, and refer cases of law violation that it finds to state authorities. Violations of university and intrafraternity rules with respect to political signs should likewise be investigated, and punishment levied against those houses as appropriate. I am sure everyone will agree with me that this issue deserves our attention, and that it is our duty as the Faculty Senate to make sure the university does its job.

Of course, there is a broader issue here, and that is the seemingly endless question of the role of both the Greek system and, especially, the so-called “Machine.” I do not seek to tar members of the Greek system with a broad brush. The Greek system is certainly a longstanding part of the university, and I’m sure that many fine individuals, including friends of mine, participate in it. But neither can there be any question that the relationship between the university and the Greek system is not a healthy one.

As for the “Machine,” it is difficult to talk about an organization that takes such a lack of pride in itself that it continues to deny its very existence–while, every now and again, sending out one or two people to explain to the press that it’s really not a big deal. I suppose if it didn’t exist, it would by definition not be a big deal! But it does and it is. Its conduct yesterday was atrocious and illegal, and it besmirched the university–all of it, including its faculty and leadership–every bit as much as it did itself.

Both the Greek and Machine questions have of course come up many times before. But they have not been addressed with clarity, tenacity, and a willingness not to stop until the issue is fully and completely aired in the open and addressed forcefully. A smoke-free campus is a fine thing, no doubt. But so is bringing our university into the present in all kinds of other ways. In important ways, our university is corrupt. It seems to me that it is the duty of the Faculty Senate to arrest this corruption. Dealing with these issues is in my view an obligation, and one that we should take on–not just this year, but until we are done–as a signature issue of the Faculty Senate. I am asking you, Steve, and my other Senate colleagues, to make sure this happens.

I don’t doubt that many people who agree on this basic point will have different ideas about how to define the problem and what to do about it. That’s all to the good. But we should address it, soon, often, publicly, and with determination. May I suggest that one place to start would be to invite Chancellor Witt, President Bonner, and perhaps the chair of the board of trustees to appear publicly at a Faculty Senate meeting this year, together or, better still, individually. I think we have every right to ask them some hard questions, and that they have every obligation to appear and answer them.

I would add in that light that I am a little disturbed on two counts. The first has to do with the credibility of the university leadership. Both President Bonner and Chancellor Witt made sizeable donations to at least one of the Machine-backed candidates. We all remember last year’s events surrounding former President Bonner; I am still unconvinced that I have yet heard an honest explanation of those events, or that Professor Bailey’s sudden partial departure had nothing to do with his criticisms of some members of the Greek system. This too adds to the administration’s credibility gap. Many will also recall then-President Witt’s reply to a question about the horrendous lack of racial integration in our Greek system–fifty years after the official integration of the university–in which he said, “As independent social organizations, it is appropriate that all our sororities and fraternities–traditionally African-American, traditionally white and multicultural–determine their [own] membership.” This was, of course, a wholly inadequate answer. As a First Amendment scholar I praise freedom of association and take a broad view of its scope. But the right to fail to integrate the Greek houses, if it is a right, does not change the fact that it is utterly wrong not to do so, and that a university leadership that exercises no moral leadership on this issue is no leadership at all. Finally, and with respect, there is the question whether Chancellor Witt made any further, private promises to Mr. Kirby regarding financial support and other matters concerning his future. I am reluctant to mention that question because, precisely because of all the entrenched behaviors I discussed above, this town often runs on rumors instead of transparency. I hope this rumor was wrong. But it is understandable that in such an environment, rumors will fly, with a resulting lack of trust in the university leadership.

An even greater cause to be disturbed is the lack of will and resolve on the part of the university administration when it comes to issues involving, inter alia, the Machine. These issues arise from time to time, are not firmly addressed, and continue to haunt us on a regular basis–as yesterday’s law violations demonstrate. It is our job as the Faculty Senate not to rest until the university leadership, including President Bonner, Chancellor Witt, and the board of trustees, have shown a full measure of a quality they have seemed too often to lack: courage. Otherwise, people of good faith who give all their time and effort to making this university great will continue to have reason to wonder just who runs the university, and whether anyone does at all.

Again, I appreciate that I have a particular personal perspective on these issues. As a law professor, to be sure, I also have professional reasons to be outraged by violations of the law. But I do acknowledge a personal perspective here. I would not have shared all this if I thought that was all there was to it. I believe many of our colleagues on the Faculty Senate and elsewhere will agree with everything I said here–will, if anything, believe I was not harsh enough. Steve and other Senate colleagues, may I suggest that this university has a serious and longstanding problem with the Machine and its component parts, that the administration has failed to address it adequately, and that as a body we should put this on our short list of issues to be pursued vigorously and most definitely publicly.


Paul Horwitz
Gordon Rosen Professor of Law

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