Kelly Horwitz, former representative for District 4 on the Tuscaloosa Board of Education and the losing candidate in last fall’s school board elections, recently filed an appellant brief with the Supreme Court of Alabama contesting Judge James Roberts’ dismissal of her case against Cason Kirby.

Roberts dismissed the contest in November 2013 after finding that there were not enough potentially illegal votes to change the results of the election. Kirby, Horwitz’s opponent in the election, was sworn in on Nov. 4, 2013, and currently represents District 4 on the Board of Education.

According to an October 2013 Crimson White article, Horwitz contested the election results after widespread allegations of voter fraud and bribery, particularly within the UA Greek community. Kirby won the election by a margin of 87, with 416 votes to Horwitz’s 329. In her challenge of the election results, she contested 397 votes, 392 of which were cast by University of Alabama students. Horwitz alleged that voters had registered under addresses that were not their own and were bribed to vote with promises of free drinks and other incentives.

After reviewing affidavits from the 397 contested voters, Roberts dismissed the case, saying that there were no more than 70 potentially illegal votes, 17 short of the number needed to change the election results. Horwitz filed a motion to “Alter, Amend or Vacate” shortly after the dismissal.

In her brief to the Supreme Court of Alabama, Horwitz argues that Roberts erred at multiple points during the case. According to the brief, Roberts erred by finding that university students were automatically domiciled in District 4, failing to address 62 illegal votes in his final decision, limiting testimony to affidavits instead of live testimony, finding that a bribe must be explicitly conditioned on voting for a particular candidate to be considered misconduct and forbidding her from taking depositions.

Horwitz said she does not know how Roberts arrived at his final 70 vote tally.

“That’s not a number that we are able to reconcile with what we presented,” she said. “Just on residency alone, we arrived at that number.

“I thought it was important to have some clarity with respect to election practices for the sake of future local elections.”

Todd Campbell, an associate attorney for Kirby, said he believes Roberts was correct in his initial dismissal.

“We’ve done a thorough review of all the evidence, which includes a significant number of affidavits submitted by the voters which was directly addressing the domicile issues, and we believe the testimony from those affidavits shows that there were a number of students that were properly domiciled in District 4,” he said.

Campbell said they are asking the Supreme Court to affirm the trial court’s initial decision.

“We disagree with all arguments made by Kelly Horwitz and have briefed them in great detail,” he said. “Whether the Supreme Court finds maybe a different number here and there based on a different allocation, we don’t think any kind of difference would affect the outcome of how Judge Roberts decided the case.”

Robert Prince, an attorney who intervened on behalf of a number of Greek organizations during the election contest, was approached for comment by The Crimson White but did not respond by press time.

According to the office of Julia Jordan Weller, clerk for the Supreme Court of Alabama, no other briefs have been filed since Horwitz’s appellant brief on April 29. Campbell said the deadline for additional briefs was Tuesday, May 20, but that they requested seven days of additional time.

Campbell said Tuesday afternoon that they plan to file their responsive brief by that evening. An online edition of this story will be updated when that brief becomes available. After Kirby’s brief is filed, Horwitz and Kirby will both have several opportunities to respond through additional brief. Horwitz said her attorneys have not requested oral arguments in this case.

“I’d say by the end of June, all of the briefing should be complete,” Horwitz said.

There is no set deadline for the Supreme Court to reach a decision in this case.

(See also “Horwitz files motion to continue case“)