Alabama Advisory Opinions May 31, 1996: AGO 1996-227 (May 31, 1996)

AGO 1996-227.

Dear Mr. Bennett:

This opinion is issued in response to your request for an opinion from the Attorney General. Attorney General Jeff Sessions has recused himself in this matter and has designated and directed Deputy Attorney General William H. Pryor Jr. to respond to your request for an opinion of the Attorney General. Code of Alabama 1975, _ 36-15-17.

As a result of the recent litigation involving the 1994 election of Chief Justice and Treasurer, Roe v. Mobile County Appointing Board , 904 F. Supp. 1315 (S.D. Ala. 1995), Roe v. State of Alabama , 68 F.3d 404 (11th Cir. 1995), are election officials now required to count absentee ballots that lack the signatures of either a notary public or two persons 18 years of age or older?

In April of 1996 this Office declined to address this question because this issue was the subject of pending litigation. The United States District Court in Roe v. State of Alabama , CV No. 94-0885, has since declined to issue a preliminary injunction. Therefore, this Office will address your question.

The Alabama Supreme Court's decision in Roe v. Mobile County Appointing Board , No. 1940461 (Ala. March 14, 1995), stating that absentee ballots that are in substantial compliance must be counted was in response to a specific set of facts involving only the 1994 general election. In that situation, after the election officials had begun the counting process, they were advised by the Alabama courts to count any absentee ballots that were unwitnessed or unnotarized. That decision was never implemented by state election officials. The federal courts ruled that implementing that rule would violate the federal civil rights of the voters of Alabama. Roe v. State of Alabama , 43 F.3d 574 (11th Cir. 1995). After two appeals, extensive discovery, and a final trial, the federal courts found that the Alabama court decision was based on an erroneous factual predicate, and therefore, not entitled to deference. Roe v. Mobile County Appointing Board , 904 F. Supp. 1315 (S.D. Ala. 1995), Roe v. State of Alabama , 68 F.3d 404 (11th Cir. 1995).

We would also note that the Alabama Supreme Court's decision in Roe v. Mobile County Appointing Board has not been published in the official reporter. Rule 53, Alabama Rules of Appellate Procedure, provides that unpublished opinions of the Supreme Court have no precedential value and shall not be cited and used by any court of this state.

The "substantial compliance" rule established by the Odom v. Bennett decision entered by Judge Reese was approved in November 1994, under section 5 of the Voting Rights Act, by the U.S. Department of Justice. This preclearance was based on a rule change made pursuant to a temporary restraining order (TRO). The precleared change has never been implemented because the federal courts said the change would be unconstitutional. In addition, Judge Reese dismissed the Odom case and dissolved the preliminary injunction, which never went into effect. Accordingly, the "precleared change" has never been implemented, is based upon an unconstitutional ruling, and would not be applicable to the present election. See also , Code of Alabama 1975, _ 17-15-6 (orders of state courts exercising jurisdiction in the conduct of elections "shall be null and void and shall not be enforced by any officer or obeyed by any person"). Thus, we remain bound by the law which did not allow counting unwitnessed or unnotarized absentee ballots.

This Office is also aware that, for the upcoming primary election, all absentee voters have been instructed on the face of every absentee ballot envelope, "Note: Your signature must be witnessed by either: A notary public or other officer authorized to acknowledge oaths or two witnesses 18 years of age or older." Code of Alabama 1975, _ 17-10-7. The March 14, 1995, decision of the Supreme Court of Alabama did not even purport to authorize election officials to remove this language from the affidavit envelope. The absentee ballot process for the June 4 primary began over one month ago, and thousands of these ballots already have been delivered to the absentee election managers (typically the circuit clerks). Yesterday was the deadline for applying for an absentee ballot, so most of these ballots have been cast. In at least one county, the affidavit envelope also states that unwitnessed absentee ballots will not be counted. In this circumstance, under the Roe decision, the state election officials cannot count unwitnessed absentee ballots without violating the fourteenth amendment. Roe , 43 F.3d at 581 (changing the rule "would have the effect of disenfranchising those who would have voted but for the inconvenience imposed by the notarization/witness requirement").

If the unwitnessed absentee ballots are not counted, there are alternative processes, under state law, that may justify the counting of some of these ballots. In an election contest, for example, a candidate could prove through the voter's testimony that an absentee voter received and relied upon instructions from election officials that the substantial compliance rule would be followed. Current law would not forbid the state from then counting an unwitnessed absentee ballot in that context.

Based upon the foregoing, any unwitnessed or unnotarized ballots should not be counted with respect to the June 4, 1996, primary election.

I hope this sufficiently answers your question.

Sincerely,

WILLIAM H. PRYOR JR.

Deputy Attorney General

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