CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/5/2023 1

Validity of a Local Special Election 

Powell v. Alabama 

(L. Scott Coogler, N.D. Ala. 2:08-cv-1345) 

The federal case involved a dispute about whether a countycommission vacancy had been filled by gubernatorial appointment 

or by special election, both of which had occurred. The case included the question of whether the procedure for filling the vacancy required section 5 preclearance. As the next general election drew 

near, the plaintiff voluntarily dismissed the action because the governor’s appointee failed to qualify for the ballot. 

Subject: Filling vacancies. Topics: Section 5 preclearance; threejudge court. 

On July 29, 2008, Doris Powell, an Alabama voter in Jefferson County’s 

commission district 1, filed a federal action in the Northern District of Alabama concerning who had been named district 1’s commissioner after the 

previous commissioner was elected mayor of Birmingham in October 2007.1

Alabama’s supreme court had determined on June 30 that the governor’s 

November 21, 2007, appointee, was the commissioner.2

 The federal plaintiff 

wanted the winner of a February 5, 2008, special election, held the same day 

as the federal primary elections, to be the commissioner.3

Alabama’s supreme court reasoned that Act No. 784, the statute enacted 

in 1977 to permit Jefferson County to fill commission vacancies by special 

election, was invalid.4 A more general statute, section 11-3-1(b), specified 

gubernatorial appointment until the next general election.5 The general statute was amended in 2004 to apply “[u]nless a local law authorizes a special 

election.”6 Alabama’s supreme court, however, had determined in 2005 that 

the amendment allowed for only subsequently enacted local laws.7 In addition, a 2007 amendment repealing any local laws in conflict with the general 

law further invalidated Act No. 784.8

On May 27, 2008, the U.S. Supreme Court had determined that a 1985 

statute providing for special elections to replace vacancies in another county—on Mobile County’s commission—was never in force or effect, because 

1. Complaint, Powell v. Alabama, No. 2:08-cv-1345 (N.D. Ala. July 29, 2008), D.E. 1 

[hereinafter Powell Complaint]; see Eric Velasco, Lawsuit Seeks to Block Vote to Fill District 1 

Seat, Birmingham News, July 30, 2008, at 1B. 

2. Working v. Jefferson Cty. Election Comm’n, 2 So. 3d 827 (Ala. 2008); see Barnett 

Wright, Court Says Bowman Gets Commission Seat, Birmingham News, July 1, 2008, at 1A. 

3. Powell Complaint, supra note 1. 

4. Working, 2 So. 2d at 838–42. 

5. Id. at 829 n.2, 838–41. 

6. Id. at 829 n.2, 839. 

7. Riley v. Kennedy, 928 So. 2d 1013 (Ala. 2008); Working, 2 So. 2d at 839–40. 

8. Working, 2 So. 2d at 840–41. 
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2 Federal Judicial Center 10/5/2023 

Alabama’s supreme court had determined that the 2004 authorization of 

such statutes was prospective only.9

Powell’s action in the Northern District was preceded by an action filed 

on November 16, 2007, in the Middle District.10 In possible conflict with how 

the Supreme Court would later decide the issue, a three-judge Middle District court held on January 22, 2008, that a gubernatorial appointment in 

light of a statute calling for a special election required preclearance under 

section 5 of the Voting Rights Act.11 In the Northern District action, Powell 

claimed that the invalidation of Act No. 784 was not operable because the 

invalidation had not received section 5 preclearance.12

The Northern District’s court first assigned its case to Judge James H. 

Hancock, but he exercised his senior-judge privilege and recused himself.13

The court reassigned the case to Judge L. Scott Coogler minutes later.14

Two days after she filed the complaint, the plaintiff moved for a Rule 16 

status conference to expedite the case.15 On the day after that, Judge Coogler 

set a status hearing for five days later.16 Judge Coogler granted the plaintiff’s 

motion for the empaneling of a three-judge district court,17 and the circuit’s 

chief judge appointed the court on August 15, 2008.18

9. Riley v. Kennedy, 553 U.S. 406, 411, 420–22 (2008); see Mary Orndorff, Riley Upheld in 

Mobile Case, Birmingham News, May 28, 2008, at 1B. 

10. Complaint, Plump v. Riley, No. 2:07-cv-1014 (M.D. Ala. Nov. 16, 2007), D.E. 1; see 

Dan Murtaugh, Riley Appointment Faces Challenge, Mobile Register, Nov. 22, 2007, at A4; 

Barnett Wright, Riley Picks Ex-General to Replace Langford, Birmingham News, Nov. 22, 

2007, at 1A. 

11. Opinion, Plump, No. 2:07-cv-1014 (M.D. Ala. Jan. 22), D.E. 28, appeal dismissed, 555 

U.S. 801 (2008), and vacated on settlement, Order, Plump, No. 2:07-cv-1014 (M.D. Ala. Oct. 

28, 2009), D.E. 78; see Voting Rights Act of 1965, Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, 

as amended, 52 U.S.C. § 10304 (requiring preclearance of changes to voting procedures in 

jurisdictions with a certified history of discrimination and requiring that preclearance disputes be heard by a three-judge district court); see also Val Walton & Erin Stock, Riley’s Selection Needed OK, Judges Say, Birmingham News, Jan. 23, 2008, at 1A. 

12. Powell Complaint, supra note 1. 

13. Recusal Order, Powell v. Alabama, No. 2:08-cv-1345 (N.D. Ala. July 31, 2008), D.E. 4; 

Transcript at 3, id. (Sept. 3, 2008, filed Sept. 3, 2008), D.E. 37; Interview with Hon. L. Scott 

Coogler, Apr. 27, 2012. 

Judge Hancock died on July 24, 2020. Federal Judicial Center Biographical Directory of 

Article III Federal Judges, www.fjc.gov/history/judges. 

14. Docket Sheet, Powell, No. 2:08-cv-1345 (N.D. Ala. July 29, 2008); see Eric Velasco, 

Speed on Commission Seat Lawsuit Requested, Birmingham News, Aug. 1, 2008, at 2C. 

Tim Reagan interviewed Judge Coogler for this report by telephone on April 27, 2012. 

15. Rule 16 Motion, Powell, No. 2:08-cv-1345 (N.D. Ala. July 31, 2008), D.E. 5; see Velasco, supra note 14. 

16. Order, Powell, No. 2:08-cv-1345 (N.D. Ala. Aug. 1, 2008), D.E. 6 (noting that the 

hearing would be held in a courtroom with a court reporter). 

17. See Joseph D. Bryant, Federal Panel to Hear District 1 Lawsuit, Birmingham News, 

Aug. 7, 2008, at 4B. 

18. Order, Powell, No. 2:08-cv-1345 (N.D. Ala. Aug. 15, 2008), D.E. 15. 
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On August 27, the three-judge court denied Alabama’s motion to dismiss 

the case.19 At the three-judge court’s direction, Judge Coogler conducted a 

status conference on September 3.20 The plaintiff voluntarily dismissed the 

action on September 5 because the winner of the special election was the only 

candidate on the ballot for the November 4, 2008, general election.21 The 

governor’s choice failed to obtain enough signatures to qualify.22

Because events mooted the plaintiff’s concerns, the three-judge court 

never had to assemble in person, but they did meet by telephone.23

The action in the Middle District was settled on October 29, 2009.24

19. Order, id. (Aug. 27, 2008), D.E. 35. 

20. Transcript, supra note 13, at 3. 

21. Motion to Dismiss, Powell, No. 2:08-cv-1345 (N.D. Ala. Sept. 5, 2008), D.E. 39; see

Order, id. (Sept. 5, 2008), D.E. 41 (granting the motion to dismiss); see Eric Velasco, Lawsuit 

Over Election Dropped, Birmingham News, Sept. 6, 2008, at 1D. 

22. See Erin Stock, Bowman Is Ruled Ineligible for Ballot, Birmingham News, Aug. 30, 

2008, at 1D. 

23. Interview with Hon. L. Scott Coogler, Apr. 27, 2012. 

24. Final Judgment, Plump v. Riley, No. 2:07-cv-1014 (M.D. Ala. Oct. 30, 2009), D.E. 80; 

Stipulation, id. (Oct. 29, 2009), D.E. 79.