The top Senate official and the Senate minority leader argued Tuesday that Lt. Gov. Kay Ivey violated the Alabama Constitution by declaring there was a quorum present to conduct business in the state Senate when there was not.

“I personally viewed 18 folks in the chamber” and called the Senate to order, Ivey said. She said she would not have gaveled in the session without enough members present, would never begin without 18, and that sometimes members are talking or distracted and do not answer the roll call.

Lt. Gov. Kay Ivey

But, the roll call for the Senate indicates there were just 17 present and that includes a marking for a vacant seat.

“That’s the worst I have ever seen in my 37 years in the legislative process,” said Secretary of the Senate Patrick Harris, who oversees the daily operations of the Senate and its staff and who sat beside Ivey as parliamentarian before she hired one through her office. He continues to advise senators on the rules.

Harris said the role call indicates there were not enough members for a quorum and he said the journal of Senate activities would indicate there was not enough present for a quorum.

A majority of the 35 members in the Senate must be present for the chamber to conduct business. One seat is currently vacant although a candidate was elected to fill that seat in a special election, but has not joined his colleagues in the chamber.

“No matter how you look at it it’s illegal and unconstitutional,” said Senate Minority Leader Vivian Davis Figures, D-Mobile. “It’s going from bad to worse.”

Senate Minority Leader Vivian Davis Figures, D-Mobile, at a school safety hearing on Jan. 9, 2013. (Montgomery Advertiser, Amanda Sowards)

Senate President Pro Tem Del Marsh, R-Anniston, said he has no doubt there were 18 members in the chamber, but moved to adjourn for the day to stop any potential “ridiculous” lawsuits. The Senate did not pass any bills on Tuesday.

“The governor, to her credit, trying to let the work be done of the people, she saw 18 on the floor, she acknowledged a quorum,” Marsh said of Ivey.

Sen. Bobby Singleton, D-Greensboro, said “there were never 18 in this chamber.”

Almost every Democratic member was out of the chamber on Tuesday morning and some Republicans were in a joint Medicaid hearing elsewhere in the building. Republicans have a supermajority of 22 members.

“It angers me when people so blatantly go against their rules when they have the supermajority,” Figures said.

Senate President Pro Tem Del Marsh, R-Anniston

Marsh placed the blame with Republicans and reiterated his caucus has 22 members.

“I put the entire blame on the Republicans. We have 22 members in this body. There’s no excuse for us not having a quorum there at any time,” he said.

Ivey hired former deputy attorney general and state prison commissioner Richard Allen as parliamentarian before this session. In previous sessions, the secretary of the Senate sat next to the lieutenant governor as she presided over the Senate.

“He obviously advised her to violate the Constitution,” Harris said.

Before the beginning of the session, Harris said he was elected by all 35 members and expressed concerns about the lieutenant governor hiring a parliamentarian that might give biased or partisan advice.

Sen. Paul Sanford, R-Huntsville, questioned the ruling with the vacant seat being counted. After Ivey said she counted 18 members, Sanford did not contest it.

“I don’t think we were in session,” Harris said of Sanford questioning the ruling. “The roll says we were not.”

He said he believes anything passed on Tuesday would have been subject to legal challenge.

Harris said the vacant seat being marked was a mistake by the machine. Without that, though, he said there would have been 16 members marked present.

Harris said the action was a violation of the Constitution – not Senate rules, which was an issue in a recent Alabama Supreme Court ruling. When the Alabama Education Association filed a lawsuit challenging how the Legislature passed a school accountability bill, the state’s high court ruled that the judicial branch could not intervene in the rules of the Legislature.

“I don’t think it’s going to stop,” Figures said and said she believes that court ruling emboldened those in the majority.

“There’s no conscience when they do these things.”

Harris pointed out that Ivey recognized Sanford for his point of order, but did not recognize Singleton, a Democrat.

Harris said he has never seen a presiding officer declare the Senate in session when there was not a quorum.

Harris and Figures said then-Lt. Gov. Lucy Baxley would declare there was not a quorum and, by Senate rules, the Senate would adjourn until 10 a.m. the next day. Figures said that was a Democratic lieutenant governor with a Democratic Senate, but Baxley was fair.

– posted by Sebastian Kitchen