Alabama Advisory Opinions July 22, 1997: AGO 1997-231 (July 22, 1997)

AGO 1997-231.

Dear Mr. Bennett:

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

If the Patriot Party merges into the Reform Party, will the newly combined Reform Party have ballot access without petition for the 1998 general election in those jurisdictions where the Patriot Party has qualified for such treatment?

As noted by the United States District Court for the Middle District of Alabama, state law "provides a two-track system by which a political party may have its name placed on a ballot for statewide and local elections: (1) a candidate of the party must have garnered at least 20% of the votes cast in the last general election; or (2) the party must gather one percent of the signatures of qualified electors who cast ballots for governor in the last general election." Libertarian Party of Alabama v. Wallace , 586 F. Supp. 399 (M. D. Ala. 1984); Opinion to Honorable Mark Thornton, Constable, Lee County, dated January 12, 1989, A.G. No. 89-00118.

The one percent requirement has been replaced by a three percent requirement pursuant to Act No. 95-786. The District Court further noted: "If the office sought requires a statewide vote, the percentage requirements apply statewide; but if the party is seeking only a local office, the percentage requirements apply to the local political unit only." The applicable statutes are ALA. CODE § 17-8-2.1, § 17-16-2 and § 17-16-3 (1975) (all cites are to the CODE).

Section 17-8-2.1 provides:

(a) No political party, except those qualified as a political party under Title 17, chapter 16, shall be included on any general election ballot unless:

(1) The party shall have filed with the Secretary of State or other appropriate official six days after the second primary election a list of the signatures of at least three percent of the qualified electors who casts [sic] ballots for the office of Governor in the last general election for the state, county, city, district or other political subdivision in which the political party seeks to qualify candidates for office; and unless

(2) The party shall have fulfilled all other applicable requirements of federal, state or local laws.

(b) The provisions of this section are supplemental to the provisions of Title 17, chapter 16, and other laws regarding the conduct of elections in Alabama, and shall repeal only those laws or parts of laws in direct conflict herewith.

Section 17-16-2 states:

An assemblage or organization of electors which, at the general election for state and county officers then next preceding the primary, casts more than 20 percent of the entire vote cast in any county is hereby declared to be a political party within the meaning of this chapter within such county; and an assemblage or organization of electors which, at the general election for state officers then next preceding the primary, casts more than 20 percent of the entire vote cast in the state is hereby declared to be a political party within the meaning of this chapter for such state.

Section 17-16-3 states:

In determining the total vote of a political party whenever required by this chapter, the test shall be the total vote received by a candidate of that party who received the highest vote total of any of the candidates of that party.

Your request states that in 1994, the Patriot Party of Alabama obtained more than 20 percent of the vote in some local jurisdictions, and thus, is qualified for ballot access in those jurisdictions for the 1998 election without the need to qualify by petition. The Patriot Party has stated that it intends to merge in some manner with the Reform Party of Alabama and wishes to run candidates under the Reform Party name. If the Patriot Party merges and becomes a part of the Reform Party, the political party that obtained ballot access no longer exists. Accordingly, the Reform Party, as a new and different party from the Patriot Party, would be required to qualify for ballot access by petition pursuant to § 17-8-2.1.

This opinion is based upon the facts presented in this request and is not intended to cover every possible way in which the Patriot Party could or might merge with another party.

If the Patriot Party merges and becomes a part of the Reform Party, the new party must qualify for ballot access by petition pursuant to § 17-8-2.1.

In light of the ruling in New Alliance Party v. Hand , 933 F.2d 1568 (11th Cir. 1991), as applied to existing provisions of the Ethics and Fair Campaign Practices Act, as well as the provisions of Act No. 97-651, when may minor party candidates begin raising money for participation in the 1998 general election?

In New Alliance Party of Alabama v. Hand , 933 F.2d 1568 (11th Cir. 1991), the Eleventh Circuit upheld the United States District Court's ruling which held unconstitutional the provisions of § 17-7-1(a)(2) and § 17-8-2.1(a)(1) relating to the deadline for minor party candidates to file their petitions for ballot access. Prior to a 1995 amendment to these provisions, the deadline was "60 days before the date of the first primary election." 1995 Ala. Acts No. 95-786. The Court found that this early deadline served no legitimate state interest since major party candidates were allowed a later date to conduct primary elections and name their candidates. The 1995 amendment established a new deadline, "six days after the second primary election," which is the date major parties must submit the names of their candidates who have been put in nomination by primary election. 1995 Ala. Acts No. 95-786; § 17-7-1; § 17-8-2.1.

In Patton v. Camp , CV No. 92V-885-N (M.D. Ala. August 31, 1992), the District Court, pursuant to a consent agreement, found that the provisions of § 17-7-1, with respect to independent candidates, were also unconstitutional in that independent candidates were required to file petitions for ballot access 60 days before the first primary election. In addition, the Court ruled unconstitutional that part of § 17-7-1 which required petitions by independent candidates to have a greater number of qualified electors' signatures than was required for petitions by minor party candidates.

Essentially, the courts have held that the State may not impose stricter requirements on minor party candidates and independent candidates than those imposed on major party candidates unless the requirements serve a legitimate State interest.

The law relating to the timing of campaign contributions is currently found at § 17-22A-7(b), as amended by Act No. 97-651. Act No. 97-651 took the provisions relating to campaign finance that had been added to the Ethics Law by Act No. 95-194 and put them into the Fair Campaign Practices Act. Act No. 95-194 was precleared by the United States Justice Department on September 15, 1995, and Act No. 97-651 was submitted for preclearance on June 20, 1997. Section 17-22A-7(b), as last amended, states:

Notwithstanding any other provision of law, including, but not limited to, Section 13A-10-61, a candidate, public official, or principal campaign committee may only accept, solicit, or receive contributions: . . .

(2) For a period of 12 months before an election in which the person intends to be a candidate. Provided, however, candidates for state office and their principal campaign committees may not accept, solicit, or receive contributions during the period when the Legislature is convened in session. For purposes of this section, the Legislature is convened in session at any time from the opening day of the special or regular session and continued through the day of adjournment sine die for that session. However, this subsection shall not apply within 120 days of any primary, runoff, or general election, and shall not apply to candidates or their principal campaign committees participating in any special election as called by the Governor.

Although a minor party candidate will not participate as a candidate in the June 1998 primary election, a minor party candidate's nomination for office must be submitted to the Judge of Probate for county offices and Secretary of State for all other offices six days after the primary election in order to be included on the general election ballot. Section 17-7-1(2). In addition, if required by § 17-8-2.1, the minor party must submit its petition for ballot access six days after the second primary election. Accordingly, minor party candidates are in a position similar to that of major party candidates. Given the minor party deadlines and the federal court rulings cited above, it is the opinion of this Office that minor party candidates are allowed to accept, solicit, and receive contributions for a period of 12 months before the primary election date. Minor party candidates for state office would also be subject to the limitations applicable during a regular or special Legislative session.

Minor party candidates may accept, solicit, and receive contributions for a period of 12 months before the primary election.

I hope this opinion answers your questions. 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

B7/7.97/f