Alabama Advisory Opinions January 13, 1998: AGO 1998-070 (January 13, 1998)

AGO 1998-070.

Dear Mr. Bennett:

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

May political parties qualify for ballot access pursuant to section 17-16-2 of the Code where they exceed 20 percent of the vote within a state senate district in a state senate race but not within either a county or the entire state?

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 percent 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. 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 Secretary of State, who is responsible for monitoring and implementing the level of support requirements, has also adopted the policy that if a party is qualified statewide it is also qualified, without further filings, for all local offices throughout the state.

Libertarian Party of Alabama v. Wallace , 586 F. Supp. 399, 400 (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The one percent requirement has been replaced by a three percent requirement. ALA. CODE § 17-8-2.1 (1995). The applicable Alabama statutes are cited below.

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 senatorial candidate for the Reform Party of Alabama (formerly the Patriot Party of Alabama) obtained more than 20 percent of the vote in the general election in the 18th Senate District. Section 17-16-2, which contains the 20 percent requirement, only refers to the county and the state and does not refer to districts or other political subdivisions of the State. Section 17-8-2.1, the three percent signature requirement, refers to state, county, city, district, or other political subdivisions.

The United States Supreme Court has held:

[w]hen a state election law provision imposes only "reasonable, nondiscriminatory restrictions" upon the First and Fourteenth Amendment rights of voters, "the State's important regulatory interests are generally sufficient to justify" the restrictions.

As previously stated, Alabama provides two methods by which a political party may have its name placed on the ballot. First, pursuant to Title 17, Chapter 16 of the Code of Alabama, a political party may be qualified as a political party for the county by receiving more than 20 percent of the votes cast in the county general election or as a political party for the state by receiving more than 20 percent of the votes cast in the state general election. If a political party does not have ballot access pursuant to the 20 percent requirement, a political party may obtain ballot access by obtaining a list of signatures of three percent of the electors who cast ballots for the office of Governor in the last general election for the state, county, city, district, or other political subdivision in which the party seeks ballot access. Section 17-16-2 does not authorize a political party to obtain ballot access for a senate district by receiving more than 20 percent of the votes cast in the senate district.

The State has a rational basis for treating senate district offices different from state and county offices, because the boundaries of senate districts change from time to time while state and county boundaries are fixed. Accordingly, this Office concludes that a political party qualifies for ballot access in a state senate district if it obtains the signatures of at least three percent of the qualified electors who cast ballots for the office of Governor in the last general election for that senate district.

Section 17-16-2 does not authorize a political party to obtain ballot access for a state senate district. A political party qualifies for ballot access in a state senate district if it obtains the signatures of at least three percent of the qualified electors who cast ballots for the office of Governor in the last general election for that senate district.

If the answer to question 1 is in the affirmative, may the precinct results from the 1994 senate race in Senate District 18 be utilized to establish ballot access for the 1998 race for House District 53; or, stated more broadly, may the vote obtained by a political party in a larger district, such as a congressional or state senate district, be applied to establish ballot access for other races in other political subdivisions or offices which are wholly contained within that congressional or senate district?

The answer to Question 1 also answers this question.

Does a political party's achievement of ballot status through section 17-8-2.1 provide ballot access for all jurisdictions subsumed within that political subdivision?

This Office understands that the Secretary of State has, in the past, followed a policy that if a political party obtains ballot access for state offices it is also qualified for ballot access for all local offices within the state without further filings pursuant to section 17-8-2.1. While section 17-8-2.1 does not specifically address this issue, the interpretation of the Secretary of State appears to conform with the intent of the legislature.

A political party that establishes ballot access for a state office pursuant to section 17-8-2.1 establishes ballot access for all political subdivisions within the state.

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

B11A/1.98/f