Alabama Advisory Opinions April 03, 1997: AGO 1997-156 (April 3, 1997)

AGO 1997-156.

Dear Judge Kittrell:

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

Should Canons 1, 3A(6), and 7 of the Canons of Judicial Ethics have been submitted for preclearance under the Voting Rights Act

The Alabama Canons of Judicial Ethics were adopted December 15, 1975, effective February 1, 1976. It appears that these Canons have not been submitted for preclearance by the United States Attorney General as required by the Voting Rights Act of 1965, as amended.

Canon 1 provides:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 3A(6) states:

A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

Canon 7 generally requires a judge to refrain from political activity inappropriate to his judicial office. Concerning political conduct by a judge, Canon 7 states that it is desirable that a judge or a candidate for election to a judicial office endeavor not to be involved in the internal workings of political organizations, not engage in political activities of candidates other than those for judicial office, and not be involved in political fund solicitations other than his own. Recognizing that judges are subject to nomination and election by a political party, Canon 7 provides that when a judge is involved in internal workings or political activities, he must prevent political entanglements, considerations, or influences from being involved in the judicial process or judicial decision-making. Canon 7 requires a judge to resign from office when he is a candidate for a nonjudicial office. A judge is allowed to participate in political activity on behalf of measures to improve the law, legal system, or the administration of justice.

Canon 7 requires a judge to maintain the dignity of a judicial office; requires that the judge prohibit employees or officials subject to his control from doing what he cannot do under Canon 7; and prohibits the use of campaign funds for his private benefit. Finally, Canon 7 states that a candidate for judicial office not subject to the Judicial Inquiry Commission or Court of Judiciary is subject to the disciplinary procedures of the Alabama State Bar upon breach of any violations of the Canons.

Under § 5 of the Voting Rights Act, 42 U.S.C. § 1973(c), a covered state (such as Alabama) may not enforce "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, . . ." unless it first either: 1) obtains a declaratory judgment from the United States District Court for the District of Columbia that such qualification, prerequisite, standard, practice or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color; or 2) submits the qualification, prerequisite, standard, practice or procedure to the U.S. Attorney General, and the Attorney General either does not interpose an objection or affirmatively indicates that an objection will not be made. "Vote" and "voting" are defined in the Act to include "all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to [the Act], or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election." Section 14(c)(1) of the Voting Rights Act, 42 U.S.C. § 1973(c)(1).

The United States Supreme Court had determined that Congress intended that § 5 of the Voting Rights Act have the "broadest possible scope" reaching "any state enactment which altered election law of a covered state in a minor way." Allen v. State Board of Elections , 393 U.S. 544, 566-567 (1969).

In Presley v. Etowah County Commission , 502 U.S. 491, 502-503 (1992), the United States Supreme Court identified four types of changes that had been found subject to the preclearance requirement of § 5:

1) changes involving the manner of voting ( e.g ., the procedures for casting write-in ballots, and the location of polling places);

2) changes involving candidacy requirements and qualifications ( e.g ., changes in filing deadlines, a rule requiring public employees to take an unpaid leave of absence while campaigning for office, a rule prohibiting the independent candidacy of an individual who had voted in a party primary, and laws pertaining to the number of required signatures and required information in a candidacy petition for an independent candidate);

3) changes in the composition of the electorate that may vote for candidates for a given office ( e.g ., changes to at-large elections, annexations, reapportionment and re-districting); and

4) changes affecting the creation or abolition of an elective office ( e.g ., laws providing for the appointment of previously elected officials and increases in the number of city council members).

The Supreme Court noted that the first three categories involve changes in election procedures, while the fourth might be called substantive changes as to which offices are elective. Presley , 502 U.S. at 503. The Supreme Court cautioned that it was not implying that this list is exhaustive.

In its recent decision in Morse v. Republican Party of Virginia , 116 S. Ct. 1186, 134 L. Ed. 2d 347 (1996), the Court noted that it has consistently construed the Voting Rights Act to require preclearance of any change in practices that may bear upon the "effectiveness" of a vote cast, and that it has always held that rules concerning candidacy requirements and qualifications fall into this category because of the potential to undermine the effectiveness of voters who wish to elect particular candidates. Morse , 116 S. Ct. at 1198.

The Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, as amended, include the following examples of changes subject to preclearance:

(g) Any change affecting the eligibility of persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective offices.

(h) Any change in the eligibility and qualification procedures for independent candidates.

* * *

(k) Any change affecting the right or ability of persons to participate in political campaigns which is effected by a jurisdiction subject to the requirement of section 5.

Our research does not reveal any Alabama court ruling as to whether Canons 1, 3A(6), 7, or any of the other Canons come within a voting qualification or prerequisite to voting or standard, practice or procedure with respect to voting requiring preclearance. The Supreme Court of South Carolina in Matter of Peagler , 401 S.E. 416 (S.C. 1991), ruled that the Canons of the Code of Judicial Conduct, which provided that a judge should resign his office when he became a candidate for a nonjudicial political office, did not require preclearance. It is well established, however, that judicial elections and related political activities are subject to the preclearance requirements of the Voting Rights Act. See Clark v. Roemer , 500 U.S. 646 (1991).

Canon 1, requiring a judge to uphold the integrity and independence of the judiciary, and Canon 3A(6), prohibiting a judge from publicly commenting about a pending or impending court proceeding, do not affect or change voting, candidate requirements, or the composition, creation, or abolition of an elective office. These Canons do not affect the right of a judge or candidate for judicial office to participate in the political process. It is the opinion of this office that Canons 1 and 3A(6) are not subject to the preclearance requirements of Section 5 of the Voting Rights Act.

Canon 7 concerns political conduct and campaign conduct by a judge. The regulation of political and campaign actions of a judge by Canon 7 brings the Canon within the changes listed in Presley , supra , involving candidacy requirements and qualifications, which are subject to § 5 preclearance. Canon 7 also affects the eligibility of a judge to become or remain a candidate or officeholder and relates to the right or ability of a judge to participate in political campaigns under 28 C.F.R. § 51.13, the Procedures for Administration of Section 5 of the Voting Rights Act. It is the opinion of this office that Canon 7 involves a change subject to preclearance required by the Voting Rights Act.

Before it can become enforceable, Canon 7 of the Alabama Canons of Judicial Ethics must be submitted for preclearance under Section 5 of the Voting Rights Act.

I hope this sufficiently answers your question. If our office can be of further assistance, please contact James R. Solomon, Jr., of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

BP/LKO/ltp

K3.97/OP