Alabama Advisory Opinions March 11, 1997: AGO 1997-129 (March 11, 1997)

AGO 1997-129.

Dear Ms. Keat:

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

May homeless persons or "street people" who live under bridges or in parks and not in missions or homeless shelters register to vote?

The qualifications of electors are set forth in Amendment No. 579 of the Constitution of Alabama of 1901, which states:

"(a) Every citizen of the United States who has attained the age of eighteen years and has resided in this state and in a county thereof for the time provided by law, if registered as provided by law, shall have the right to vote in the county of his or her residence. The Legislature may prescribe reasonable and nondiscriminatory requirements as prerequisites to registration for voting. The Legislature shall, by statute, prescribe a procedure by which eligible citizens can register to vote."

The requirements for application for registration to vote are set forth in Code of Alabama 1975, § 17-4-122, which requires an applicant to complete an application form. The form and contents of the application are prescribed by the Alabama Supreme Court. The application requires an applicant to provide their residence address and give the location of the residence. The application also requires that a mailing address be provided if it is different from the residence address.

This office has previously held, relying upon court decisions, that residency or domicile is determined by where the voter evidences an intention to reside and where he actually resides. Opinion to Honorable Bennie C. Nolen, Chairman, Fayette County Board of Registrars, dated June 13, 1985, A.G. No. 85-00383; Opinion to Honorable Anna Lois Morris, Lamar County Board of Registrars, dated August 12, 1992, A.G. No. 92-00383.

The U. S. Supreme Court has held that the right to vote is guaranteed by the Fifteenth Amendment and is a fundamental right that deserves the strictest constitutional protection. Reynolds v. Sims , 377 U.S. 533, 562 (1964). Every citizen has a right to participate in elections on an equal basis with other citizens in the same jurisdiction and cannot be excluded unless the exclusion is "necessary to promote a compelling state interest." Kramer v. Union Free School District No. 15 , 395 U.S. 621, 627 (1969); Dunn v. Blumstein , 405 U.S. 330 (1972).

The right of homeless persons who did not live in shelters, welfare hotels or other traditional residences to register to vote was recognized by the United States District Court for the Southern District of New York in Pitts v. Black , 608 F. Supp. 696 (S.D.N.Y., 1984). In that case the court held that homeless persons who can identify a specific location within a political community, which they consider their home base and to which they return regularly and who have a place from which they can receive messages and be contacted, satisfy the residency requirements and should not be disenfranchised. Pitts at p. 709. The court noted that other jurisdictions have implemented policies whereby a homeless person must specify a residence location in a voting district and if mail is not deliverable to that location, the person must designate a mailing address where he may receive mail. If a mailing address is not provided, the registration application may be denied. The mailing location may be a homeless shelter that allows persons who do not reside there to receive their mail at the shelter, a friend or relative's address, or some other address where the person will receive mail.

Based upon the foregoing, it is the opinion of this office that homeless persons must be allowed to register to vote if they identify a location within a voting district as their residence or home base and provide a mailing address where they will receive mail.

Homeless persons must be allowed to register to vote if they identify a residence location in a voting precinct and provide a proper mailing address.

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

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

BP/BFS

K/2.97/f