Rep. Mike Ball Requests Supreme Court Opinion on Legality of Senate Vote

MONTGOMERY, AL - During the Senate vote on the "Gambling Bill," several Senators attempted to raise constitutionality issue prior to the bill's passage in the Senate.

The conflict of interest objections overruled by the presiding officer who ruled that it was an issue for the courts to decide.

To date, Rep. Ball's resolution has been blocked by House leadership.

On Friday, April 16, Rep. Ball faxed a memo to House Rules Committee Chair, Rep. Ken Guin, requesting HR856 be considered by the full House, prior to any consideration or vote on SB380. The text of the memo is as follows. So far, there has been no response from Rep. Guin.

Dear Chairman Guin: I hereby request immediate placement of House Resolution 856 on the Resolutions Calendar for Wednesday, April 21, 2010. This resolution raises urgent constitutional questions regarding highly controversial pending legislation. As you know, the House of Representatives is poised to give final passage to Senate Bill 380, a proposed constitutional amendment to expressly legalize certain electronic gambling devices in this State. HR856 is a house resolution requesting an advisory opinion of the Alabama Supreme Court on the constitutionality of SB380, pursuant to Section 12-2-10, Code of Alabama 1975.

Specifically, I am concerned that all action on SB380 in the House has been and continues to be unconstitutional because the bill failed to pass the Senate with the required number of legal votes. Under Section 284 of the Constitution of Alabama of 1901, a proposed constitutional amendment may only be sent from one chamber to the other if, and only if, it receives the approval of three-fifths of all the members elected to the house in which it originates.

Although SB380 appears to have passed the Senate with 21 votes (exactly three-fifths of the Senate), at least one of those votes may have been cast illegally and unconstitutionally in violation of Section 82 of the Constitution. Section 82 prohibits legislators from voting on bills in which they have a personal or private interest. Senator Hank Sanders voted in favor of SB380. Without his vote, the bill would not have passed. Senator Sanders cast this vote despite having previously disclosed an apparent conflict of interest in a television interview.

It has been reported that Senator Sanders told a news reporter, "I think there needs to be a simple constitutional amendment that asks do you want it [so-called "electronic bingo"] or do you not want it, just simple. …My firm represents several charities that would like to do that. … They would like to operate their own facility."

If this conflict of interest is within the prohibition of Section 82 of the Constitution, then Senator Sanders was disqualified from voting on the bill, his vote was illegally cast, and the bill should never have been sent to the House of Representatives for consideration. This constitutional objection was raised from the floor of the Senate, but the Lieutenant Governor overruled it, declaring, "That's a matter for the courts." The Senate leadership may not be concerned about passing bills in accordance with the Constitution of Alabama. However, we in the House of Representatives pride ourselves on taking our constitutional oath of office very seriously.

If any of the 21 Senate votes on SB380 is void, the bill is not properly before the House of Representatives. Therefore, no further action should be taken on SB380 until we pass HR856 and receive a definitive answer from the Supreme Court on this important constitutional question. In addition to a tainted vote in the Senate, SB380 may also suffer another constitutional flaw. I am concerned that the ballot language provided for in SB380 violates Section 285 of the Constitution, which requires that the subject matter of any proposed constitutional amendment be "clearly indicated" on the ballot.

The proposed ballot language refers only to "bingo" and says nothing of electronic gambling devices, which this bill is specifically intended to legalize. Before this House takes action on SB380, it is important that we ensure the ballot language is constitutional in order to avoid the possibility of judicial invalidation of a vote of the people.

I understand that you, as an attorney, may also represent clients in the "electronic bingo" business. If this is the case, I would respectfully request that you disclose that interest as required by Section 82 of the Constitution and refrain from interfering with the House's immediate consideration of HR856

Respectfully Submitted, Rep. Mike Ball