By MARY SELL and TODD STACY, Alabama Daily News

MONTGOMERY, Ala. – The Alabama resident whose provisional ballot made the Senate District 27 GOP primary contest a tie, as decided by a state Republican Party committee, was not a registered voter until May 25, a day after the primary.

Alabama Secretary of State John Merrill on Tuesday said Tallapoosa County election officials acted correctly when initially throwing out the provisional ballot of Patsy Kenney because she was not registered.

“The law says that was a ballot that should not count because it was cast by a voter who was ineligible to cast it,” Merrill told Alabama Daily News.

Kenney became registered after she filled out paperwork at her polling station, according to Merrill. Alabama does not allow residents to both register and vote on election day.

However, those who advocated that Kenney’s vote in the primary should count say she made the effort to register at a state driver license office and that her intent is enough.

“… Case law across the country is almost universal on this point:  If a voter is asked at the DMV if they want to register to vote, and they say yes, and they leave the DMV believing they have been registered because personnel did not inform them otherwise, their vote should count,” said Bryan Taylor, an attorney for Kenney, in a statement to Alabama Daily News. Taylor is a former state Senator.

Jay Hovey, an Auburn Council member, beat State Sen. Whatley by one vote in the May 24 Republican primary election. Whatley, a three-term incumbent, challenged that result with the party. Under Alabama election law, it is the parties who ultimately decide which candidates to certify for the general election ballot. 

The ALGOP steering committee agreed to count the ballot after attorneys argued the woman intended to register to vote through the Alabama Law Enforcement Agency when she attempted to get a driver’s license and thought she had registered. In a statement Sunday the party said Kenney’s vote for Whatley “was improperly excluded from the vote totals.”

“The committee heard arguments from both sides, we listened to that information, we looked into that,” Party Chairman John Wahl told Alabama Daily News. “The ruling we made reflects the best decision we could have made with the information provided to us.”

Wahl would not say whether that information included the fact that the vote in question was from someone not registered to vote until after the election.

Taylor, Kenney’s attorney, did not dispute that Kenney was not a registered voter at the time of the election, but said her intent to register is what matters legally.

“The issue is not that Ms. Kenney did not complete her driver’s license application,” Taylor, her attorney, said. “The issue is that ALEA personnel at the driver’s license office asked her if she wanted to register, she said yes, and subsequently that sent her away without her driver’s license because she needed a vision exam, and they failed to tell her that her voter registration would not be processed.”

ALEA disputed that characterization of the agency on Sunday, saying the individual in question still holds a current Georgia Driver License and didn’t sign the required paperwork to register to vote.

“Voter registration information from ALEA’s Driver License Division is only sent after the credential is issued and the customer signs the required voter declaration, which did not occur in this specific incident,” the ALEA statement said. “Voter registration information is filed nightly by ALEA’s Driver License Division to the Secretary of State’s Office to ensure each citizen’s voter registration is up to date.”

Counting Kenney’s ballot now makes the election a tie. Alabama law says that in the event of a tie in a primary, the state party chair can determine the winner. The law also says in a general election tie, the winner is decided “by lot.” 

Wahl has opted in this case to decide by coin flip. Asked if the plan for a coin flip to determine the winner will go on despite the statement from ALEA about the person’s registration status, Wahl said, “At this point, yes.”

A date for that game of chance has not been set. “I wanted it to be yesterday,” an exasperated Wahl joked.

Under state law, it’s Merrill who flips the coin. He said that because of scheduling conflicts between the candidates, the coin flip likely won’t happen until next week.

Sherri Reese is the Democrat running in Senate District 27, which includes Lee County and parts of Russell and Tallapoosa counties.