Alabama Advisory Opinions September 27, 1996: AGO 1996-326 (September 27, 1996)

AGO 1996-326.

Dear Mr. Bennett:

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

May independent candidates nominated by petition under Code of Alabama 1975, _ 17-7-1, who withdraw from the election select a substitute to be included on the ballot in their stead?

Code of Alabama 1975, _ 17-7-1, provides as follows:

"(a) The following persons shall be entitled to have their names printed on the appropriate ballot for the general election, provided they are otherwise qualified for the office they seek:

"(1) All candidates who have been put in nomination by primary election and certified in writing . . . on the day next following the last day for contesting the primary election for that office if no contest is filed. . . .

"(2) All candidates who have been put in nomination by any caucus, convention, mass meeting, or other assembly of any political party or faction and certified in writing . . . on or before 5:00 P.M. six days after the second primary election.

"(3) Each candidate who has been requested to be an independent candidate for a specified office by written petition signed by electors qualified to vote in the election to fill the office when the petition has been filed with the probate judge, in the case of county office and with the Secretary of State in all other cases, on or before 5:00 P.M. six days after the second primary election. The number of qualified electors signing the petition shall equal or exceed three percent of the qualified electors who cast ballots for the office of Governor in the last general election for the state, county, city, district, or other political subdivision in which the candidate seeks to qualify. . . .

"(c) The Secretary of State must, not later than 45 days after the second primary, certify to the probate judge of each county . . . the fact of nomination or independent candidacy of each nominee or independent candidate or candidate of a party who did not receive more than 20 percent of the entire vote cast in the last general election ballot preceding the primary who has qualified to appear on the general election ballot. . . ."

Neither this provision nor any other provision of the Code allows an independent candidate to select a substitute to be placed on the ballot in his place. The petition signed by the electors requests that the person named in the petition be placed on the ballot.

An independent candidate nominated by petition under Code of Alabama 1975, _ 17-7-1, may not withdraw from the election and select a substitute to be placed on the ballot in his stead.

In the case of independent candidates for president and vice-president who are jointly nominated by petition under Code of Alabama 1975, _ 17-19-2, and the vice-presidential candidate withdraws from the election, may the independent presidential candidate select a substitute to appear on the ballot as a replacement vice-presidential candidate and, if so, what would be the proper procedure for accomplishing this?

Code of Alabama 1975, _ 17-19-2, states:

"(a) When presidential electors are to be chosen, the Secretary of State of Alabama shall certify to the judges of probate of the several counties the names of all candidates for President and Vice-President who are nominated by any national convention or other like assembly of any political party or by written petition signed by at least 5,000 qualified voters of this state.

"(b) . . . Such certificates and petitions must be filed in the office of the Secretary of State no later than the last day of August next preceding the day fixed for the election. . . ."

Independent candidates for president and vice-president must comply with _ 17-19-2 in order to have their names placed on the ballot in Alabama. The law with respect to independent candidates for president and vice-president does not provide a method whereby the independent presidential candidate may select a substitute vice-presidential candidate to appear on the ballot. However, the law does appear to allow political parties to fill vacancies in its nominations. See also , Code of Alabama 1975, _ 17-16-41.

The right of an independent presidential candidate to make a substitution for a vice-presidential candidate who withdraws has been upheld by the federal courts.

In Anderson v. Firestone , 499 F. Supp. 1027 (N.D. Fla. 1980), the United States District Court held that an independent candidate for president who was not allowed to substitute a candidate for the vice-presidential candidate who had withdrawn was denied equal protection of the law because the state failed to provide the same or a similar mechanism for filling a vacancy created by the withdrawal of a person listed as vice-presidential candidate on the petitions when political parties were allowed by state law to fill vacancies in their nominations. The Court found that a state "has a legitimate interest in limiting the ballot to serious contenders who are truly independent and demonstrate substantial community support" but, in this case, the interest in having a uniform procedure for all presidential candidates outweighs the state's interest which can be accomplished in a less burdensome manner. Anderson at p. 1029. The Court stated that the same procedure should be provided for independent presidential candidates as provided to national party presidential candidates as a guarantee of equal protection. Accordingly, the Court held that procedurally the vice-presidential candidate named in the petition should certify to the state his withdrawal as a candidate, and the presidential candidate should certify the name of the substitution candidate.

Although it is not the policy of this office to give opinions on federal constitutional law, based upon the case cited above, the Secretary of State could provide a procedure similar to that provided for political parties that would allow an independent presidential candidate to make a substitution of the vice-presidential candidate. Failure to provide such procedure could lead to federal constitutional litigation in which the state likely would not prevail.

Based upon the equal protection argument in Anderson v. Firestone , the Secretary of State could provide a procedure similar to that provided for political parties that allows an independent presidential candidate to select a substitute vice-presidential candidate if the vice- presidential candidate named in the petition withdraws from the election.

I hope this sufficiently answers your questions. 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

B2/9.96/f