Alabama Advisory Opinions July 11, 1997: AGO 1997-224 (July 11, 1997)

AGO 1997-224.

Dear Mr. Bennett:

This opinion of the Attorney General is issued in response to your request.

Is the correct date for the primary runoff or second primary the third Tuesday after the primary or the last Tuesday in June following the primary?

Your request states that there appears to be a conflict between ALA. CODE § 17-16-36(b) (1975), which places the date of the primary runoff "on the third Tuesday next thereafter following said primary election" and ALA. CODE § 17-16-6 (1975), which places the date of the runoff on "the last Tuesday in June." Periodically, these dates are in conflict depending upon whether there are four or five Tuesdays in June. In 1998, there will be five Tuesdays in June.

ALA. CODE § 17-16-6 (1975) provides for the time and place for holding presidential preference primaries and primary elections and states in pertinent part:

Presidential preference primaries and primary elections, except special primary elections, held at the expense of the state or counties, shall be held on the first Tuesday in June. When necessary, as provided in this chapter, a second or runoff primary election shall be held on the last Tuesday in June following said primary election.

The method of determining whether a second or runoff primary election is necessary is set forth in ALA. CODE § 17-16-36(b) (1975) which provides in pertinent part:

If no candidate receives a majority of all of the votes cast in such primary election for any one office or offices for the nomination to which there were more than two candidates, then there shall be held a second primary election on the third Tuesday next thereafter following said primary election. . . .

Prior to a 1985 amendment to § 17-16-6, both § 17-16-6 and § 17-16-36 provided that the primary runoff would be held on the third Tuesday following the primary election, which was held in September. Pursuant to Act No. 85-389, § 17-16-6 was amended to move the primary election to the first Tuesday in June and the runoff to the last Tuesday in June following the primary. Act No. 85-389 did not amend § 17-16-36(b) to correspond to the change in § 17-16-6.

Section 17-16-6 was last amended in 1990 by Act No. 90-699 in order to provide that presidential preference primaries shall be held at the same time as primary elections in years in which a President is to be elected. This amendment did not change the date of the primary runoff election. The last amendment to § 17-16-36 was in 1988 by Act No. 88-908, which amended several election law provisions relating to the reporting of election results by precincts and did not change the date of the primary runoff. When statutes on the same subject matter cannot be reconciled, the latest expression of the legislature must prevail. State v. Bryan , 231 So. 2d 118, 121 (1970).

Given that § 17-16-6 establishes the dates of the primary and runoff elections while § 17-16-36(b) establishes the procedure for determining when a runoff is necessary and the fact that the latest amendment to § 17-16-6 did not change the date of the runoff, the primary runoff should be held on the last Tuesday in June following the primary.

The primary runoff election should be held on the last Tuesday in June following the primary as provided in ALA. CODE § 17-16-6 (1975).

I hope this opinion answers your question. If this 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

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