Alabama Advisory Opinions October 25, 1996: AGO 1997-024 (October 25, 1996)

AGO 1997-024.

Dear Representative Pringle:

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

1. Does Code of Alabama 1975, _ 17-10-10, require that the unopened, inner absentee ballot envelopes be deposited into a sealed ballot box until the closing of the polls? If not, based on what authority are the inner envelopes to be opened prior to the closing of the polls? On what authority are the sealed ballot boxes containing the inner envelopes to be opened prior to the closing of the polls?

2. If _ 17-10-10 does not require that the unopened, inner absentee envelope be deposited in a sealed ballot box until the closing of the polls, does the above described "procedure" adopted by the Alabama Electronic Voting Committee fall within that Committee's authority to adopt procedures "to achieve and maintain the maximum degree of correctness and impartiality of voting, counting, tabulating and recording votes by electronic vote counting systems?

3. Under Section 3.20(1) of the Committee "procedure" described above, poll officials in the specified jurisdictions purportedly are authorized to open their sealed ballot boxes prior to the closing of the polls and to open the inner envelopes taken from the previously sealed ballot boxes, provided that such inner envelopes have all "been placed in a sealed ballot box before the ballot box opened." If such ballot box is not required to remain sealed until the closing of the polls under _ 17-10-10, must the ballot box remain sealed with the inner envelopes inside it for any particular length of time before it may then be reopened by election officials? If so, for how long?

4. If the opening of sealed absentee ballot boxes, the opening of the sealed inner envelopes, and the reading by an electronic vote counter of the votes on the ballots in such envelopes prior to the closing of the polls does not violate _ 17-10-10, would those counties who tabulate absentee ballots by hand and those counties with less than 200 absentee ballots to be counted by an electronic counter be in violation of _ 17-10-10 to open their sealed ballot boxes, open the sealed inner envelopes counting absentee ballots and record the votes from the ballots contained in those envelopes prior to the closing of the polls, so long as the totals of such votes are not calculated?

Your request states that as permitted by Code of Alabama 1975, _ 17-24-1, et seq ., Mobile County uses what are commonly referred to as "electronic ballot counters" to count votes in primary and general elections. The electronic ballot counters used in Mobile utilize an optical scanning system.

An electronic voting committee was established pursuant to Code of Alabama 1975, _ 17-24-4. The procedure for implementing electronic voting is set forth in Code of Alabama 1975, _ 17-24-7, which states:

"(a) So far as practicable, the procedures for voting paper ballots and voting machines as prescribed in Chapters 8 and 9 of Title 17, shall apply to procedures followed pursuant to this chapter.

"(b) It shall be the duty of the committee to prescribe other procedures where necessary to achieve and maintain the maximum degree of correctness and impartiality of voting, counting, tabulating, and recording votes, by electronic vote counting systems provided by this chapter."

Pursuant to the above authority, the electronic voting committee on August 27, 1984, adopted "Procedures for Electronic Vote Counting," (Procedures) which were precleared by the U.S. Justice Department. This office has previously held that when Mobile uses an electronic vote-counting system the provisions of Code of Alabama 1975, _ 17-10-11, requiring one set of poll workers for each 200 absentee ballots do not apply because Section 3.20 of the Procedures is specifically applicable. Opinion to Honorable L. W. Noonan, Probate Judge, Mobile County, dated April 20, 1994, AG No. 94-00130.

Section 3.20 of the Procedures provides:

"Electronic ballot counters may be used to count absentee ballots. . . . Beginning not earlier than noon on election day, the absentee poll officials shall perform the duties prescribed in Section 17-10-11. Where more than 200 absentee ballots are to be counted on one electronic ballot counter, the absentee election manager may authorize poll officials to open the ballot box and begin processing ballots through the counter before the polls close provided that:

"(1) all of the sealed affidavit envelopes have been opened and checked in accordance with law and all inner envelopes containing the ballots have been placed in a sealed ballot box before the ballot box is opened and any ballots are processed, and

"(2) the absentee election manager takes security measures to prevent the vote totals from being printed before the polls close. The prohibition on counting before the polls close contained in Section 17-10-11 applies to any attempt to tally votes as the ballots are read into the electronic ballot counter."

Code of Alabama 1975, _ 17-10-10, provides the procedure for receipt of absentee ballots by the absentee ballot manager and for the counting of the ballots after the polls close and states:

"Upon receipt of the absentee ballot, the absentee election manager shall record its receipt thereof on the absentee list as provided in Section 17-10-5 and shall safely keep the ballot without breaking the seal of the affidavit envelope. On the day of the election, beginning at 12:00 noon, the absentee election manager shall deliver the sealed affidavit envelopes containing absentee ballots to the election officials provided for in Section 17-10-11, and such election officials shall call the name of each voter casting an absentee ballot with poll watchers present as may be provided under the laws of Alabama and shall open each affidavit envelope, review the affidavit to certify that such voter is entitled to vote and deposit the plain envelope containing the absentee ballot into a sealed ballot box. The absentee ballots shall upon the closing of the polls be counted and otherwise handled in all respects as if the said absentee voter were present and voting in person. As regards municipalities. . . ." (Emphasis added.)

Based upon the provisions of Code of Alabama 1975, __ 17-24-1, et seq ., when electronic vote counters are used, the procedures adopted by the Electronic Voting Committee are to be specifically followed. The procedures set forth in Section 3.20 do not violate the requirements of _ 17-10-10 that ballots not be counted until after the polls close because the ballots are processed through the counter but are not actually counted or totaled until after the polls close.

If more than 200 absentee ballots are to be counted on one electronic counter the absentee election manager may authorize poll officials to open the ballot box and began processing the ballots through the counter before the polls close. There is no time limit given with respect to when this must be done; however, this cannot be done until after noon and after all the affidavit envelopes have been reviewed, opened and the inner envelopes with the ballots have been placed in a sealed ballot box. It would appear that this procedure was adopted in order to facilitate the processing of the absentee ballots into the counter so that vote totals could be determined in a more timely manner after the polls close.

With respect to your 4th question, there is no procedure or statute that specifically authorizes counties which tabulate absentee ballots by hand or those counties with less than 200 absentee ballots to be counted by an electronic counter, to open the ballot box prior to the close of the polls and begin to record the votes.

When electronic vote-counting systems are used to count absentee ballots, the Procedures for Electronic Vote-Counting, adopted by the Alabama Electronic Voting Committee are to be followed.

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

P/10.96/f