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Legal efforts to reinstate ousted Black Alabama mayor and council move forward

In 2020, Patrick Braxton was sworn in as the first Black mayor of Newbern, Alabama, in its 170-year history. He ran unopposed, the only candidate who filed the necessary paperwork and fee to qualify for mayor. No one, neither incumbent nor challenger, qualified to run for mayor or any of the five council seats in the election scheduled for Aug. 25, 2020.

Because he was the only candidate on the ballot, Braxton became mayor-elect on June 22, 2020, without a vote being cast. He was the only mayoral candidate to qualify for the 2020 municipal election. And beyond that, he was the only candidate in the town’s history to qualify for any municipal office in Newbern, the Southern Poverty Law Center has learned after months of research, public records requests and court filings.

Despite qualifying for office, Braxton and the Black volunteer town council he appointed were ultimately replaced by the white mayor and predominantly white council members who formerly held the seats, also without a vote ever being cast. Following guidance from the Alabama League of Municipalities, the lame-duck council members simply changed the election date from Aug. 25, 2020, to Oct. 6, 2020, reopened the qualification period and filed their qualification paperwork.

According to Braxton, they took these steps without telling anyone in the town or posting any public notice. So just as Braxton became mayor without any votes cast, they became the council-elect upon closure of the reset qualification period.

• TIMELINE: Newbern 2020 Election

For more than a century, Newbern has had what NAACP Legal Defense Fund Attorney Leah Wong called “a hand-me-down government, where office holders were passing power from one to another.”

The practice is a clear denial of due process for the citizens of Newbern, and it violates Section 2 of the Voting Rights Act of 1965, which prohibits racial discrimination in voting policies, Wong said. She represented Braxton at a May 6 hearing on an injunction requesting that Newbern’s first-ever proper municipal elections be held in November.

Nearly four years after Braxton became mayor-elect, he does not have access to the mayor’s office in the Newbern Town Hall. The council members he appointed, who were sworn in alongside him on Nov. 2, 2020, have also had their power taken away.

The predominantly white former council members, along with former Mayor Haywood “Woody” Stokes III, went through the motions of qualifying for office and having themselves sworn back into power, according to Braxton’s lawsuit. After getting detailed advice from lawyers with the Alabama League of Municipalities on resetting the council election dates, this shadow council then voted to fire Braxton and reappoint Stokes, who had been secretly sworn in as a council member, to his former office, according to the lawsuit.

Stokes, who did not respond to requests for comment for this story, has filed three requests for dismissal of Braxton’s lawsuit. Braxton and his attorneys have refiled their petition each time to comply with the judge’s orders denying parts of the petition while leaving the substantive due process claims intact.

In their response to Braxton’s latest amended complaint, attorneys for Stokes and the previous council make several arguments. First, they say that the Braxton-appointed council was invalid because Alabama law requires elections to be held. The Stokes council members claim they tried to do that when they rescheduled the Aug. 25, 2020, election. The law also states that the only time a council member can be appointed is to fill a vacancy, and then only incumbents can make the appointment.

Stokes’ attorneys also claim that Braxton could not have held office beyond 90 days because it was impossible for him to attend a council meeting with the required quorum. But in Newbern, following that reasoning, there were no incumbents. According to Braxton’s lawsuit and emails from members of Stokes’ council gained through public records requests, none of the town’s elected officers besides Braxton had ever qualified for the positions they held, let alone faced an election.

Stokes’ attorneys also deny the claim that Stokes and the other council members were motivated by race because, if what the Braxton lawsuit claims is true, they violated every Newbern citizen’s rights equally.

“ … If the facts the plaintiffs allege are taken in the light most favorable to plaintiffs and deemed true, defendants failed to provide notice to any residents, which would result in the prevention of all residents to participate in the election as either a candidate or voter, not just the Black residents of the town of Newbern,” according to the answer from Stokes’ attorneys to Braxton’s latest amended complaint.

Additionally, Stokes’ attorneys have claimed in court that Braxton cannot be mayor because he lives outside the city limits. Braxton said under oath that he rented a house in the city in 2019 and has met residency requirements, making him eligible to run for mayor.

“This is not how local democracy should work,” SPLC voting rights attorney Jess Unger said after visiting Newbern. “Alabamians deserve better. Newbern’s voters must be able to choose their mayor through free and fair elections. At the SPLC we understand that, regardless of the outcome of the legal case to resolve who is the town’s current mayor, Newbern’s voters deserve an end to this decades-long cycle of government without elections.”

The SPLC is not involved in Braxton’s legal effort, but it has offered to help the Newbern community improve election processes going forward.

Running for change

A lifelong resident of the Newbern area, Braxton said he made a decision in 2019 to actively pursue public office because of the government neglect he saw toward the Black community in Newbern.

A handyman by trade, he was active in the community. He served as a member of the volunteer fire department and helped out at the local church gym, opening and closing the facility for young people playing basketball.

He saw inequity in Newbern, especially when it came to how public services were allocated. Newbern’s population is 80% Black.

“When roads get fixed, it’s in the white neighborhood,” Braxton said.

What crystalized the lack of leadership for him, though, was the COVID-19 pandemic. Braxton said he brought in masks and supplies for people in need when the town didn’t provide any, even though federal funds were made available for that purpose.

“I still don’t know where any of the COVID money went,” he said.

The town of Newbern did not provide any financial documents, including contracts, check registers or receipts in response to a public records request from the SPLC. The town also did not provide any town contracts for services as the SPLC requested. It is unclear how the town spends taxpayers’ dollars.

a street in a small town surrounded by roughshod buildings
A street in downtown Newbern, Alabama. To the left is the volunteer fire station; on the right are the mercantile store, post office and town library. (Credit: Dwayne Fatherree)

‘An innocent mistake’

It would be almost a year after he was sworn in as mayor before Patrick Braxton learned the full depth of the maneuvers against him. He filed a lawsuit in November 2022 in the 4th Circuit Court of Alabama to reclaim his seat; the suit was moved to federal court in April 2023. The lawsuit claims state election officials in Alabama had either turned a blind eye or – in the case of the Alabama League of Municipalities, a non-governmental organization – provided legal assistance that led to the council filing paperwork to seek reelection after moving the election dates.

That allowed the council members to run for office even though they did not bother to qualify until after Braxton was declared mayor-elect. It also led to the council sidelining Braxton and his volunteer council, then ultimately firing Braxton, according to the lawsuit.

Lorelei Lein, the League’s general counsel at that time, proffered a plan based on a 2004 attorney general opinion on rescheduling an election canceled in Mobile due to a hurricane. She advised the outgoing Newbern administration to write a letter to the Alabama secretary of state and claim that an error had occurred requiring the election dates to be changed, but only for the unfilled town council seats. Instead of voting on Aug. 25, 2020, as planned, the new date would be Oct. 6.

“I think it’s important to note that the League had no part in setting these dates,” Lein said when interviewed for this story. “The League advised of a recommended process for conducting the election since the town had clearly failed to comply with the requirements for holding the election as required for August 2020. But other than offering our opinion and advice on what steps should be taken for the election of the council – not the mayor – the League played no role in how that advice was used or ultimately executed.”

According to Lein’s advice, that would allow qualification to reopen for those council seats. The lame duck council members, along with Stokes, could file their qualification paperwork and, if no one else qualified, assume office.

Emails from the Alabama secretary of state show that on Aug. 17, 2020, Newbern town attorney William Holmes sent a letter to the secretary of state, stating that due to “an innocent mistake” the town would move its municipal election. The same day, David Brewer, then-deputy secretary of state and chief of staff for then-Secretary of State John Merrill, reached out to Lein for guidance.

“Can they change the date of their election like this?” Brewer asked in his email.

In reply, Lein said the town council could change the date and call an election because the Aug. 25, 2020, election had not been advertised. She did not mention that at least one candidate had managed to qualify anyway and that the incumbents – none of whom had ever been put on a ballot – had failed to fill out their paperwork.

“No notice of municipal election was posted, and no qualifying forms were made available for the candidates qualified by the statutory deadlines,” Lein wrote. “Since the relevant deadlines have passed without these actions having occurred, the Code of Alabama does not appear to permit that the city can hold municipal elections on the legally mandated date in August, 2020.”

Lein retired from her position with the League at the end of 2023, after 22 years of service, 10 as general counsel.

The plan was fine until Braxton, unaware of the rescheduled council election, made it known he was appointing his own council members. They were sworn in with him on Nov. 2, 2020, at the Hale County Courthouse in Greensboro (Newbern is in Hale County and Greensboro is the county seat), to fill the vacant seats. On Nov. 12, 2020, the shadow council members held a swearing in at Holmes’ law office across the street from the Greensboro courthouse and subsequently filed their oaths of office.

For the next three months, the former council members notified Braxton of their meetings, but he did not attend. He already had his own council and, being unaware of the legal dodge that had been enacted, he said during the court hearing on May 6 that he saw no reason to deal with the former administration.

After 90 days, the former council members passed a resolution removing Braxton from office and subsequently appointing Stokes to his previous position as mayor. In the process, voters were completely stripped of any say in their municipal representation, according to the lawsuit Braxton filed.

The NAACP Legal Defense Fund is now representing Braxton in his federal lawsuit, which may be coming to trial as soon as September.

a playground
A park created for residents in what Patrick Braxton called the Black part of Newbern. “When roads get fixed, it’s in the white neighborhood,” he says. (Credit: Dwayne Fatherree)

Lack of oversight

In most states, all elections are under the sole control of the secretary of state’s office. While this is technically true in Alabama also, in fact the authority for most races in small municipalities races is deferred to the county probate judges, with statewide guidance and advice coming from the Alabama League of Municipalities either in response to questions from municipalities or from the secretary of state’s office.

As the SPLC sought information for this story, several employees with current Alabama Secretary of State Wes Allen’s office said they do not get involved in the process at the municipal level, nor do they have copies of records from those elections on file.

“We honestly would not have the room to keep them here,” said Candace Payne, an elections analyst for the Alabama secretary of state’s office.

The League is one of the three entities – along with the Alabama secretary of state’s office and the county probate court judges – that are required by law to receive the certified results of all municipal elections.

Unlike the secretary of state’s office or the probate judges, the League is not a state entity. It has no oversight authority over elections. As demonstrated in the Newbern case, however, it does provide guidance to municipalities as well as the secretary of state’s office. And, because it fills a vacuum that a lack of state oversight has created, the League does have a voice in how the state’s municipal elections are handled.

But that voice is not state law. In the federal court hearing on May 6, U.S. District Judge Kristi K. DuBose – herself a former deputy attorney general for the state of Alabama – called out the League’s legal reasoning and standing with regard to shifting the election dates.

“I don’t care what the League of Municipalities says,” DuBose said to attorney Rick Howard, who is representing Stokes and the former council members he appointed. “I want to know what the law states.”

In court on May 6, Howard was unable to cite the opinion used as a basis for Lein’s theory or any other state law backing his clients’ position.

Rob Johnston, the League’s director of legal services, formerly served as an elections attorney with the Alabama secretary of state’s office and was assistant general counsel during Lein’s tenure. When the SPLC asked about the legal advice given to the outgoing Newbern officials, he said he could not comment on pending litigation.

But when the SPLC pointed out that the League’s guidance to Newbern officials was issued prior to any lawsuits, he expanded his answer.

“To the extent that we can, we provide general legal advice to our members,” Johnston said. “With regard to Newbern, we would need to have the complete set of facts. Our response would depend on the questions asked.”

In general, Johnston also said that the League offers guidance for municipalities, but reiterated that as a non-governmental organization it has no oversight authority or legal power to enforce election law.

“The Alabama League of Municipalities provides general legal information to its members, and it treats everyone the same,” Johnston said. “The League provides information and instructions to its members for municipal elections. It has no oversight authority for running municipal elections, and it has no authority to enforce elections. The League takes a neutral stand on election outcomes. The League is eager to serve all its municipal public officials.”

According to Braxton, however, when he spoke with Lein while he was the sitting mayor of Newbern during a Conference of Black Mayors meeting in Montgomery in November 2020, her words were very different from the roadmap she provided his predecessors.

“Lorelei told me, ‘For the next four years you might as well just get along with them,’” Braxton said in an interview for this story. “She said, ‘I’m the one who put this council together.’ It was (the League’s) legal counsel that told them how to do this!”

Lein denied telling Braxton she had any say in the makeup of the council beyond advising the town officials on how to schedule an election. Neither Lein nor the League are named in Braxton’s lawsuit.

“The implication that I stated that ‘I’m the one who put this council together’ is incorrect, and honestly, hurtful and damaging,” Lein said. “I know I hugged Mr. Braxton’s neck at the end of our conversation and told him I understood his fears and frustration and offered my assistance as he moved forward as mayor. But whether or not the League’s advice was followed and the law ultimately complied with is not for me to opine on.”

The end result, differing stories aside, was that the former council, with former Mayor Stokes taking the fifth seat as council member, was sworn in and, three months later, voted to remove Braxton from office.

On Feb. 12, 2021, after the Stokes council voted to remove Braxton from office, Holmes sent an email to Lein thanking her for her help and asking for any guidance should any other steps be necessary. Braxton said he was surprised to learn that Holmes, the town attorney, aided in the effort.

“Up in Greensboro, he helped them draw up the little blueprint,” Braxton said about Holmes, who declined to comment for this story because the matter is in litigation. “If you’re the town lawyer and I’m the mayor, why am I not sitting at the table?”

Image at top: Patrick Braxton stands in front of the Newbern Town Hall in Alabama. He became the town's mayor-elect in June 2020 but was replaced by his white predecessor without an election. (Credit: Dwayne Fatherree)