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Inside Alabama Politics – October 7, 2020

Programing note

Exciting news! After several months of work, Inside Alabama Politics and Alabama Daily News will soon be merging websites. That means the next time you receive an IAP News Update email, it will direct you to the Alabama Daily News site, where your same subscription will allow you to enjoy the same scoops and inside talk we are known for.

This merger will allow us to bring readers even more exclusive content and publish it more frequently. While the IAP News Update will always remain a staple of coverage, subscribers will also be “behind the paywall” at Alabama Daily News to read exclusives and breaking news from the State House.

There’s nothing subscribers need to do and this website will remain up so readers can peruse the archives. In the next few weeks, expect an email alerting you as the switch becomes official. In the meantime, you can email Todd Stacy at [email protected] or Jeff Martin at [email protected] if you have any questions.

It’s a great time to be an Inside Alabama Politics subscriber!

Tallassee prison decision details

By Mary Sell, Alabama Daily News

The Alabama Department of Corrections this week said the construction of a new mega prison on land already owned by the state in Elmore County was not feasible.

Last week, Gov. Kay Ivey announced one of three new planned prisons will be near Tallassee, despite lawmakers’ and local leaders’ written request last month that vacant land on a current three-prison complex be considered.

Alabama Daily News asked ADOC about the request and ultimate site selection.

“As you know, our current correctional facilities – built decades ago – are dilapidated and structurally failing and were not designed to house or rehabilitate the inmate population currently incarcerated in Alabama,” ADOC spokeswoman Samantha Rose said. “Our correctional system is at a tipping point, and we must act now.

“Pursuant to the Request for Expressions of Interest, Request for Qualifications, and Request for Proposals, proposed site selection is the responsibility of the Developer Team. Critical due diligence was conducted to thoroughly evaluate and vet each proposed site option, including the possibility of selling state lands through the State Land Sales and Leasing Act. It was determined that option was not feasible due to a number of obstacles – the competitive bid requirements of the SLSLA and the potential of creating competitive advantages or disadvantages among the competing developer teams causing significant protest and litigation risk; a significant delay in schedule; and increased costs to the project overall.”

Sen. Clyde Chambliss, R-Prattville, was one of four lawmakers to sign the letter to Ivey advocating for the Elmore site. He said he got a phone call from Ivey prior to her announcement Friday.

“I appreciated the heads up,” Chambliss said about the Tallassee decision.

“I really don’t understand why that’s a better direction for the state, yet,” Chambliss said on Tuesday. “Maybe ultimately I will, but right now I still think state-owned property with existing infrastructure is kind of hard to beat.”

The three prisons in Elmore are the largest customer of the local water authority. If they close, as most existing prisons are expected to, when the three mega prisons open, that will mean a significant rate increase for remaining customers.

“We in Elmore County are shifting our focus to what we can do, what are our options available, to replace those water and sewer flows, specifically so that our residents don’t have huge increases in their monthly bills,” Chambliss said.

Meanwhile, Chambliss said leaders are looking for possible new, future uses for what is now Draper, Staton and Elmore Correctional Facility.

“It’s hard to sell used prisons,” said Rep. Mike Holmes, R-Wetumpka.

Sources close to the situation told Inside Alabama Politics that the state’s litigation risk was actually quite low and that advocates for the county met with the Governor’s office and ADOC about the bid process well before the RFP was issued.

“No evidence has been offered that selling the property through public auction at the site as mentioned would result in higher cost to the state,” one source said.

Contract Review, Review: Corrections’ increasing health spending; Tyson spill update

By CAROLINE BECK, Alabama Daily News

Department of Corrections

The Alabama Department of Corrections is increasing and extending its contract  with Wexford Health Sources, Inc. which provides medical and mental health care to ADOC facilities.

The contract is for a little over $179 million and a one-year extension to keep Wexford Health Sources’ services until Sept. 30, 2021.

ADOC Spokesperson Samantha Rose told Alabama Daily News that the modifications to the contract are due to needs caused by the COVID-19 pandemic and staffing requirements pursuant to the Braggs V. Dunn court order to increase mental health staffing.

The original contract with Wexford Health Sources was first entered into April 2018, Rose said. The total contract is $540.4 million.

Rose said of the $179 million, approximately $23 million is directly linked to increased costs associated with COVID-19 and the additional staffing required by the Braggs court order.

The Legislative Contract Review Committee also approved Thursday another ADOC contract with the The Moss Group to “provide assistance with implementation, planning, ongoing plan development, leadership development and assistance in establishing practices for male and female facilities.”

The $755,529 contract will last through Sept. 30, 2022.

The Moss Group is a criminal justice consulting firm based out of Washington D.C. A representative for the ADOC at Thursday’s contract review meeting said The Moss Group has been working with the ADOC since 2015 and that this new contract would be to begin their tactics statewide.

Sen. Arthur Orr, R-Decatur, voiced reservations to the contract, saying he doubted they were a sole source provider and that the state has already given the group a lot of money.

“It’s going to be good to see them gone because they’ve got millions of state dollars that we’ve spent on them in the last five years and doesn’t look like it’s going to end any time soon,” Orr said.

House of Representatives

The committee approved a $43,840 contract for the Alabama House of Representatives to implement a virtual voting console system.

This new system is needed in order to keep House members properly distanced in the chamber, which is not currently possible, because of the COVID-19 pandemic.

The contract with International Roll-Call Corp. will allow House members to vote on legislation from the House gallery or other areas in the State House through an iPad given to each member, a representative from the House told committee members.

This new software is being funded through CARES Act funding.

Pardons and Paroles

The Pardons and Parole Board had two new contracts that were both approved by the committee.

One was for AltaPointe Health Systems Inc. and it is for $294,108 and would last through Oct. 31, 2022.

AltaPointe would be providing evidence based criminal thinking interventions, drug/alcohol outpatient treatment, mental health counseling and re-entry services to the Mobile day reporting center.

A representative from the Pardons and Parole Board said their services are designed to reduce recidivism and help probation officers and parolees have a better success rate.

AltaPointe already provides similar services to other day reporting centers in the state. The parole board representative said AltaPointe can provide licensed professional counselors, substance abuse treatment counselors, licensed social workers and licensed psychologists.

Sen. Arthur Orr, R-Decatur, asked why the parole board could not hire their own employees to fulfill the services AltaPointe would provide.

The parole board representative said it would cost more to hire the needed employees.

The second contract that was approved is for $34,500 and is for services from People Optimum Consulting.

The parole board representative said their services would provide training and a certification process for probation officers to identify, understand and respond to certain signs of mental illness and substance abuse.

The program would be completely funded through a federal grant awarded to the parole board in 2016 for the Alabama Certain Enforcement Supervision (ACES) program.

Attorney General’s Office/ Mulberry Fork Spill litigation

The Alabama Attorney General’s Office amended a legal contract with Industrial Economics, Inc. in the ongoing litigation over the Tyson Foods Inc. and Mulberry Fork spill in 2019 that caused one of the largest documented fish kills in the state’s history.

Thousands of fish are estimated to have been killed when the wastewater was released from the River Valley Ingredients chicken rendering plant in Hanceville.

The attorney general filed a lawsuit in May, saying Tyson was negligent “by causing a public nuisance.

A pipe failure at the Tyson plant caused over 200,000 gallons of “insufficiently-treated wastewater” to flow into the Mulberry Fork of the Black Warrior River, leading to the death of around 175,000 fish, the attorney general’s office said.

The contract is for $50,000 and a one year extension. The group would provide an expert to analyze the loss due to the spill and determine the economic impact on affected counties and expert testimony if needed.

Mike Lewis, a spokesman for the Attorney General’s Office, told ADN a hearing in Walker County Circuit Court on Oct. 13 will consider Tyson’s motions to dismiss the case and for change of venue, both of which the state opposes.

Medical Examiner’s Board

A legal contract for the Alabama Medical Examiners Board was not approved by the committee and delayed for 45 days.

The new contract was for $170,000 and it was to hire attorneys from Lightfoot Franklin & White LLC to conduct a study, analysis and legal update of the board’s processes and operations and provide legal counsel.

Sen. Tom Butler, R-Madison, questioned why the board would need outside counsel to tell them what needs to be fixed on their own board.

“It just doesn’t seem like its needed,” Butler said. “The board has been with us for literally decades and suddenly they need someone from the outside telling them what they’re supposed to be doing?”

A representative from the board said they didn’t know any specific problem the board needed analyzing and that the board simply wants to make sure it is conducting business the best way they can.

The contract review committee can’t kill proposed contracts, but can delay them.

Orr proposes more teacher development days tied to pay increase

By Mary Sell, Alabama Daily News

Alabama’s public school teachers would have five additional professional development days under a proposal from Sen. Arthur Orr, R-Decatur.

The additional required development days would come with a salary increase for educators, said Orr, the chairman of the Senate education budget committee.

The state currently has seven mandated professional development days per year for teachers. Orr said several states with higher achieving educational systems have more days for educator training.

“We need to increase the number of (professional development) days in our state,” Orr said. “And as a result, increase the pay of our educators along with that for the extra work they’ll be doing.”

Orr said he plans to bring legislation in the 2021 session, which begins Feb. 3.

“I would see this bill as somewhat contingent on our having the budgetary capacity to provide additional compensation for the additional work to be performed,” Orr said.

Orr said it’s too early to know what revenue for the 2022 budget will look like. As long as there are no further COVID-19-related shutdowns that impact future sales and income tax collections, Orr thinks the Education Trust Fund will have the capability of supporting a pay raise related to the five additional days.

That pay increase would put Alabama educators’ salaries more on par with surrounding states, several of which pay several thousand dollars more per year.

That higher pay could help address Alabama’s teacher shortage by attracting and retaining more educators, Orr said. Since 2011, Alabama has seen a more than a 50% decline in the number of newly certified teachers.

Orr has discussed his proposal with State Board of Education member Cynthia McCarty, whose north Alabama district includes Morgan County and Calhoun County.

“Too often our teachers have had to sacrifice their days off to complete quality professional learning opportunities,” McCarty said. “For example, the high-quality LETRS training takes 10 days to complete, most done on weekends and summer days.

“We want our teachers, just like professionals in other industries, to get the highest quality of relevant professional learning available.  By adding days to the calendar, this will help all teachers to be able to achieve this.”

The state’s 2019 Literacy Act includes several professional development requirements.

The increase in professional development days would not impact students’ current 180-day academic year, Orr said. But it would mean better instruction from better-trained teachers, he said.

“I used to think that teaching methods or content in the middle and lower grades infrequently changed,” Orr said. “But like medicine, law, business, education is constantly changing too — both in content and in teaching methods—particularly the more advanced the students’ ages become. As a consequence, we need to make sure all our teachers regardless of what ages they are teaching are the best prepared that they can be.”

RSA: No significant increase in teacher retirements amid COVID-19

By Mary Sell, Alabama Daily News

In September, 274 county and city school employees retired, up from 135 in September of 2019 and 145 in September 2018, according to the Retirement Systems of Alabama.

August saw similar increases — 232 this year compared to 152 in August 2019 and 181 in August 2018.

Some school leaders earlier this year said high on their lists of concerns about this school year is how to find enough teachers and staff to cover the expected COVID-19-related leaves and retirements. https://aldailynews.com/as-school-year-approaches-leaders-worry-about-teacher-staff-shortages-protecting-vulnerable/

But despite the recent upticks, there’s been no significant increase in retirements at local schools, according to RSA, because numbers were down earlier in the spring and summer.

Between May and September, 2,264 local school employees retired, compared to 2,302 and 2,234 in the same time periods in 2019 and 2018.

For the entire Teachers’ Retirement System, which includes community colleges, universities and other education-related agencies in the state, there were 3,013 retirements between May and September this year, compared to 2,985 in 2019 and 2,951 in 2018, according to RSA.

Behind the Scenes in Ivey’s Mask Mandate Extension

By Will Whatley, Alabama Daily News

With Alabama’s mask mandate set to expire on Oct. 2, Alabama Gov. Kay Ivey faced a tough decision. Other Deep South governors, including Mississippi’s Tate Reeves and Tennessee’s Bill Lee, had recently allowed their statewide mask orders to expire. Georgia and Florida never had one, and rather relied on local municipalities to institute their own ordinances. Political pressure from within the state and without was clearly mounting to end Alabama’s mask order, or at least scale it back in scope.

On Sept. 30, she chose to extend it.

So what happened behind the scenes to bring Ivey to this decision?

The short answer is data. Alabama’s COVID-19 case numbers are relatively stable, but have also not dropped drastically as schools, churches and football have returned to be a part of people’s daily lives. As of Oct. 6, Alabama was averaging 715 new cases of COVID-19 daily. That’s way down from the July 20 peak of 1,849 new cases on average, but it is still enough to keep public health officials vigilant.

Officials within the Ivey administration speaking to IAP on a condition of anonymity said the governor and her advisers feared a spike in coronavirus cases if the mandate was lifted. Hopeful of a vaccine rollout, which President Donald Trump’s office said would come by November, the administration believed the prudent measure would be to extend the mask mandate.

“We couldn’t have predicted the stuff going on in the White House when we extended it, but obviously this issue is still real and while we want to learn how to live with it, it still needs to be taken seriously,” one official said. “Honestly, we have had a lot of outside business folks and people in the public email various folks on staff with the ‘thank you, we know it’s not easy or popular’ type message.”

That message was echoed by the health care community, which also urged Ivey publicly and privately to extend the order.

“Before the Fourth of July we were looking at up to 750-800 total patients a day, but after the summer holiday we saw upwards of 1,600 a day,” said the Alabama Hospital Association’s Danne Howard. “So we were thrilled that there wasn’t a similar spike after Labor Day, and we’re still looking at pre-July Fourth levels, but we don’t want to see those numbers increase. It’s clear that wearing masks and social distancing are having an impact.”

According to Howard, the hospitals have managed well in the midst of the pandemic along with routine patients, but there remains concern on the stress it presents on the system in regards to hospital staff. She added that with the flu season now upon us, it’s imperative that people continue to take precautionary measures to ensure the health and safety of themselves and others.

“If folks will continue to wear masks, that could make a huge difference and keep hospitals from being overwhelmed,” she said.

While many were pleased with the extension, many others weren’t. There was some pushback to Ivey’s extension, especially in conservative circles.

“Masks should be voluntary, not mandatory,” Alabama Lt. Gov. Will Ainsworth tweeted on Sept. 29., the day before Ivey extended the mask mandate. “We have to Make America Great Again.” Ainsworth has criticized Ivey’s response to the coronavirus almost since the beginning, at first calling on her to take it more seriously and later urging less intrusive government intervention, such as shut down orders and mask mandates.

Ultimately, it was Ivey’s decision to make; and one that now seems to have been prescient given what happened and continues to happen with COVID-19 transmissions in the White House, the U.S. Senate and the Pentagon.

The administration also had an eye towards Election Day when it considered the mandate extension, even though voters are legally required to wear masks at a polling location.

“We wanted as many folks wearing a mask to keep everyone safe as they vote,” the source said. “We are fully aware you can’t be denied to vote [if you don’t wear a mask], it was merely to keep folks aware and safe.”

Fun with Electoral Math

By Todd Stacy, Alabama Daily News

With less than a month to go until Election Day, it truly is the homestretch of this seemingly never ending presidential race. It has only been two weeks since my last column, and yet a ridiculous amount has happened affecting the contest between President Donald Trump and former Vice President Joe Biden. And while it might be fun to analyze all the news and how it might sway the race, any analysis I give would be out of date three hours after it published given how this news cycle is churning.

Instead, I’ll stick to what I promised: electoral math and the pathway each candidate has to winning the presidency.

Let me stop right here and acknowledge the obvious: as of this writing, Biden has a comfortable lead, not just in national polls, but in key battleground states as well. And yet, most states remain in reach for Trump and three weeks is an eternity in politics, as anyone who lived through 2016 can attest. There are still plenty of ways Trump can win this thing and more still that Biden can lose it, so my analysis assumes each has a shot in this race a month out.

Onto the maps.

Actually, one more thing. I’m going to stop again and say how much it bothers me that we are still doing the Red for Republicans and Blue for Democrats thing. Those colors are opposite of the traditional ideologies they represent. Red has historically been associated with left-leaning parties just as blue has been associated with right-leaning parties. They still get it right in Britain, but Tim Russert and Tom Brokaw ruined our palate forever. End rant.

I’ll start with what is the basic status quo of where we are electorally, with many states in the “safe” column for either side, some leaning one way but still in play, and four key battleground states up for grabs: Pennsylvania, Michigan, Wisconsin and Arizona. To win, a candidate must secure 270 electoral votes. That’s it.That’s the only number that matters.

On this base map, Trump would need 22 votes from the remaining states and Biden would need 37. How could each get to victory?

To get over the top, Trump needs to win any one of the following combination of states:

Pennsylvania and Michigan

Pennsylvania and Wisconsin

Pennsylvania and Arizona

Michigan and Wisconsin

Michigan and Arizona

Biden’s path is similar, but, in our base map of battleground states, there is no two-state combo that gets him there.

To get over the top, Biden needs to win any combination of the following:

Pennsylvania, Michigan and Wisconsin

Pennsylvania, Michigan and Arizona

Pennsylvania, Wisconsin and Arizona 

Or Michigan, Wisconsin and Arizona

If these states are truly tight on Election Day, Biden technically has a higher mountain to climb because, no matter what, he has to go 3 for 4, while Trump has a few 2 for 4 path. At the moment, however, it is not that tight.

The Real Clear Politics polling average shows Biden with an advantage in all four states:

  • Pennsylvania – Biden +6.6
  • Michigan – Biden +5.2
  • Wisconsin – Biden +6.0
  • Arizona – Biden +3.4

Okay, let’s get weird. There’s one scenario from our base map I didn’t include. That would be Trump winning Wisconsin and Arizona, while Biden wins Pennsylvania and Michigan. What happens then? You guessed it: a 269-269 tie in the Electoral College.

There are actually several scenarios that lead to a tie. My favorite, just for the chaos factor and how the map looks, is Trump winning only Wisconsin, but also winning Maine’s 2nd Congressional district, leading to another 269-269 tie. Maine, like Nebraska, awards two electoral votes to the overall winner in the state, then one electoral voter per congressional district. Maine’s 2nd District is fairly conservative, so this is a plausible outcome.

At the same time, Nebraska’s 2nd Congressional District is pretty moderate, so if it goes to Biden, it would put him over the top. (Play with your own Electoral College map at www.270towin.com).

What happens in the event of a tie in the Electoral College? First, the electors would meet and cast their votes. There are 32 states, including Alabama, with laws compelling their electors to cast their votes as they have been allocated; or, in other words, become “faithless electors” and cast a state’s votes for the other candidate. Many of those states allow for any such “faithless” votes to be cancelled, and a recent Supreme Court ruling suggests that any state could ultimately cancel the votes of faithless electors. So, the likelihood of an Electoral College vote different from the one certified by the states is low. Not zero, but low.

Assuming a tie remains after the Electoral College vote, the process then moves to Congress. Here’s where it gets really interesting.

Most anyone who took high school civics is aware that the vote to decide who the president is goes to the House of Representatives. And, as anyone who has seen Hamilton can attest, this has happened before and can get pretty hairy. That might lead you to think, given the Democrats’ strong control of the House, that the body would vote to make Biden president. However, Article II, Section 1 of the Constitution calls for that vote to be counted by state, with each state receiving one vote. That means a candidate needs a majority of 26 state congressional delegations to win. Right now, Republicans hold a majority of 26 state congressional delegations to Democrats’ 23. Neither party has a majority in Pennsylvania’s delegation. So, if the House voted as it is now, Trump would likely be the winner.

However, it’s not the current Congress that votes, but the one seated in January 2021 as a result of the 2020 elections. So, based on what happens in November, that GOP advantage in state delegations could change.

What about vice president? Okay, here’s where it gets really weird.

In the event of a tie, the Constitution calls on the Senate to decide who the vice president will be. Unlike the House, it is a simple roll call of senators rather than a state count. But, like the House, it is a vote of the next Senate, not the current one, and tight races in North Carolina and Montana are likely to decide the majority. Should Democrats prevail in those two states, they would likely control the Senate majority in 2021, and, with everybody voting as expected, elect Kamala Harris Vice President of the United States.

At the risk of being completely ridiculous, let’s explore the possibility that the tie isn’t broken in Congress. Florida only has one more Republican than Democrat in its delegation, meaning if one seat flips, so does the state’s vote for president. Pennsylvania could easily go Democratic. If both those happen, then Republicans and Democrats would be split evenly with 25 state congressional delegations a piece. The House would likely just keep voting until a winner emerged, but that could take a while.

Likewise, in the Senate, if Republicans win Montana and Democrats win North Carolina, there would be a 50-50 tie. But, even though it would be a new Senate, Vice President Mike Pence would still be in office and, based on my understanding of the Constitution, cast the tie breaking vote for himself.

I would say a tie in the Electoral College is unlikely – plausible, but unlikely. However, if a tie does happen, it becomes downright likely that we could end up with a Trump-Harris administration OR a Biden Pence administration. What a country.

And before you dismiss all this, remember what year it is. A major constitutional crisis would be par for the course for 2020.

Still, when they say everything is on the ballot this year, it’s true.

Potpourri

Maynard Cooper lobbyist and attorney Edward O’Neal is departing Montgomery after taking a general counsel position at a Colorado mining company. O’Neal has been a fixture at the State House for several years now and was well known as a bright, up-and-coming player in Alabama politics. No word on who will fill his shoes at Maynard, but IAP is told that Raymond Bell, who has extensive experience in state politics, could now have a larger role at the State House.

After three years at the Alabama Department of Mental Health, Holly Caraway McCorkle is leaving state government to become the executive director of the Alabama Council on Behavioral Healthcare. The Alabama Council for Behavioral Healthcare represents its members in the planning, development, and implementation of a comprehensive system of public mental health care.

Relatedly, Ada Katherine van Whye has departed the Alabama Department of Early Childhood Education after three years to take McCorkle’s position at the Department of Mental Health as Director of Legislative and Constituent Affairs.  Ada is a familiar presence at the State House and on social media with her #ForTheKids hashtag and likely will remain so, though it remains to be seen what new hashtag might be in the works.

Brandon Demyan has left Senate President Pro Tem Del Marsh’s office to pursue private sector opportunities in his hometown of Birmingham. State House insiders know Brandon as a policy wonk who has helped Marsh craft major legislation for the last five years. He’s also well known for his weekly Auburn athletics email updates, which we expect to continue.

In the Attorney General’s office, Clark Morris has been promoted to Assistant Chief Deputy AG for Criminal and Brad Chynoweth has been named Deputy AG for Civil, both big promotions that are part of a complete restructuring of the Attorney General’s office. Clark previously headed the Special Prosecutions Unit.

Congratulations all!

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