Alabama Advisory Opinions July 15, 1996: AGO 1996-264 (July 15, 1996)

AGO 1996-264.

Dear Ms. Duffey:

This opinion is issued in response to your request for an opinion from the Attorney General.

Questions have arisen concerning the manner of entering the name of a candidate for municipal office on the ballot in the upcoming election cycle. A candidate has requested to use his nickname, followed by his family or last name on the ballot. The candidate is registered to vote under his full legal name, not his nickname. May the candidate use only his nickname followed by his family or last name, or must he use his nickname inserted between his first name or initial and his family or last name?

The form of the ballots and statements of candidacy for municipal elections are established pursuant to Code of Alabama 1975, _ 11-46-25. Subsection (b) of _ 11-46-25 states:

"There shall be but one form of ballot for all the candidates for municipal office and every ballot provided for use at any polling place in a municipal election shall contain the names of all candidates who have properly qualified and have not withdrawn, as provided in subsection (g) of this section , together with the title of the office for which they are candidates." (Emphasis added.)

Subsection (g) provides:

"The mayor shall cause to be printed on the ballots the name of any qualified elector who has, by 5:00 P.M. on the third Tuesday in July preceding the date set for the election, filed a statement of candidacy , accompanied by an affidavit taken and certified by an officer authorized to take acknowledgments in this state that such person is duly qualified to hold the office for which he desires to become a candidate. Such statement shall be substantially in the following form:

"'State of Alabama, .......... county. I, the undersigned, being first duly sworn, depose and say that I am a citizen of the city (or town) of ........, in said county, and reside at ....., in said city (or town); that I have been or will have been on the date of the municipal election a resident of said city (or town) for a period of not less than 90 days; that I desire to become a candidate for the office of ....... in said city (or town) for the term of ..., 19...; that I am duly qualified or will be so qualified to hold said office if elected thereto and I hereby request that my name be printed upon the official ballot at said election.

"'(Signed) ..............

"'Subscribed and sworn to before me by said ..... on this ... day of ..., 19....

'(Style of Officer)......'"

(Emphasis added.)

Name, as used in this section, is not defined in this section or in any other provision of the law relating to elections and ballots. This office has previously held that a title such as "Dr.," "M.D.," or "Judge" should not be used on the ballot with a candidate's name unless necessary to distinguish candidates with the same or similar names. Opinion of the Attorney General to Honorable Sibyl Pool, Quarterly Report of Attorney General, Vol. 58, p. 100, and to Honorable John Brandon, Quarterly Report of Attorney General, Vol. 18, p. 311. These opinions were based upon case law holding that a person's legal name consists of one or more Christian or given names and one supreme or family name, and a title is not a part of one's name. In another opinion to Probate Judge William F. Killough, Talladega County, dated March 4, 1960, this office held that a person may adopt a nickname as a part of his name, and it may be printed as a part of the candidate's name on the ballot. The Alabama Supreme Court has held that a person, without abandoning his real name, may adopt any name, style, or signature by which he may transact business, execute contracts, issue negotiable paper, and sue or be sued. Ingram v. Watson , 211 Ala. 410, 100 So. 557 (Ala. 1924).

We note that candidates for municipal office must be qualified electors of the municipality in which they seek office. Code of Alabama 1975, _ 11-43-1. Thus, the name given in the statement of candidacy should be sufficient to aid in determining whether the person who files the statement of candidacy is a qualified elector. This does not necessarily mean that the names must be identical. If a candidate is known in the community by a certain nickname or form of his real or legal name, that name may be used with the candidate's last name or family name as the name to appear on the ballot. A candidate may use his legal name and put his nickname in quotes before his last name if he so chooses. Officials preparing the ballot may not know the candidate personally and, therefore, not know his nickname. To ensure fairness and to prevent any misunderstanding, the name signed by the candidate on the statement of candidacy is the name that should be printed on the ballot. Every candidate will have an equal opportunity to use a nickname should he choose to do so. Thus, candidates should sign their names legibly and may also print their names under their signatures so there will not be a mistake in the printing of the ballots.

We note that the election cycle for the 1996 municipal elections had begun when this request was received. The time for qualifying began on July 2, 1996, and the last day to qualify for the election is July 16, 1996. The ballots will need to be printed promptly thereafter. Accordingly, in an effort to treat all candidates equally and to obtain preclearance, this opinion should be applied prospectively. Each municipality should apply its current policy equally to all candidates for this election cycle. Most, if not all, municipalities have followed a policy of not allowing a nickname to be printed on a ballot unless it was in quotes after the first name and before the last name. Therefore, this opinion will allow a different policy to be followed, which should be submitted to the U. S. Justice Department for preclearance as a change in voting procedure. This office will submit this opinion and the necessary information to the Justice Department.

A candidate in a municipal election may use his nickname followed by his family or last name on the ballot. The name signed by the candidate on the statement of candidacy is the name that should be printed on the ballot. This opinion must be submitted for preclearance and should be applied prospectively. The current municipal policy with respect to names on the ballot should be applied equally to all candidates in the 1996 election cycle.

I hope this sufficiently answers your question. If our office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

JEFF SESSIONS

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/BFS

D/7.96/f