By: Lydia Warkentin
As discussed in my previous blog post, Alabama passed a law in 2017 prohibiting crossover voting, which occurs when voters vote in the primary of one party and then the primary runoff of another party. The stated purpose behind the law is to keep members of one party from having an undue influence on the other party’s candidate. “It helps Democrats choose Democratic candidates, it helps Republicans choose Republican candidates,” said Senator Tom Whatley, who sponsored the bill.
The Democratic party already had a party rule banning crossover voting, but now, Alabama Democrats are speaking out against the law, as they are concerned with the felony penalties for violation of the law. After the Republican runoff on September 26, 2017, Secretary of State John Merrill collected a list of 647 voters who potentially violated the crossover ban and forwarded the list to the probate judges in each county for authentication. It’s a good thing Merrill did so, as Judge Alan King, a Jefferson County Probate Judge, said the list will decrease dramatically in number, as many of the people on the list did not vote unlawfully in the runoff, but were on the list due to a mistake. Apparently, in Jefferson County, Alabama’s largest county, where a reported 380 crossover votes were cast, a worker at one precinct crossed out the names of Democratic primary voters in advance to ensure that they would not be allowed to vote in the Republican vote that day, causing it to look like they had in fact voted in the Republican runoff. Merrill said, rightfully so, that this is exactly why he wanted to verify the list, but maintained his position of those who did knowingly and willingly violate the law, “I want every one of them that meets the criteria to be sentenced to five years in the penitentiary and to pay a $15,000 fine for restitution,” while also acknowledging that the ultimate decision as to whether or not to prosecute will be made by the district attorney or the attorney general’s office.
Some Democrats, despite their party having an internal rule against crossover voting, believe that the threat of prison time and a large fine will deter voter turnout. Democrats contend that their party rule is distinct from the state law because the party cannot make crossover voting a crime. Democrats assert that Republicans can also make such a rule and each party can then “handle their business as they see fit,” but that passing a law with criminal consequences is a very different matter that will impede on voter enthusiasm on election days.
The ACLU believes that Merrill is being too strict for a new law that was just recently put into action for the first time. The ACLU blames any crossover voting that did occur on the election officials, not the voters. Randall Marshall, Executive Director of the ACLU of Alabama, said in a press release,
We find it surprising that election officials, who must have had the voting records available to them, would have permitted any crossover voting. This was a new law, in effect for the first time. Rather than contemplating prosecution, government officials should have proactively taken steps to ensure that crossover voting could not occur.
The ACLU’s position makes sense—if Alabama enforces the strict penalties of violating the law, it seems rational to expect that the election officials would be on the lookout to prevent such violations. Merrill responded that election officials were in fact trained to look for crossover voting. Merrill’s response indicates that the people he hopes to see prosecuted did not unintentionally or mistakenly violate the law because of an untrained or incompetent poll worker, but rather were voters determined to crossover vote despite the new law.
Senator Whatley, seemingly unconcerned that the law will deter voter turnout, stands by the law as “protecting the integrity of [Alabama’s] election system, which is at the core, one of the chief values of  society.”