Alabama Advisory Opinions March 27, 1998: AGO 1998-118 (March 27, 1998)

Alabama Attorney General Opinions

1998.

AGO 1998-118.

Dear Mr. Carter:

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

QUESTIONS

1. Is it necessary for the absentee election manager in both the Birmingham and Bessemer divisions of Jefferson County to establish on-site absentee balloting locations in the two largest cities not containing a courthouse or courthouse annex in their respective divisions?

2. If the answer to question 1 is in the affirmative, may the absentee election manager in both the Birmingham and Bessemer divisions of Jefferson County continue to be responsible for accommodating only the electors who reside in their respective division of the county?

FACTS AND ANALYSIS

Your questions arise due to the amendment of section 17-10-3 of the Code of Alabama providing for on-site absentee balloting for persons who meet certain qualifications. Section 17-10-3 provides in pertinent part:

(c) Any qualified elector of this state who will be unable to vote at his or her regular polling place because of said elector's absence from the county of his residence on the day of any primary, general, special or municipal election may obtain and cast an absentee ballot by appearing in person at an on-site absentee balloting location within said county on . . .

(d) The on-site absentee balloting for which provision is made in subsection (c) shall be conducted at each courthouse, courthouse annex and the two largest towns or cities not containing the courthouse or a courthouse annex within each county

. . . .

ALA. CODE § 17-10-3 (Supp. 1997).

Jefferson County operates under a branch office system in which the county is divided into two separate divisions, the Birmingham division and the Bessemer division. 1915 Ala. Acts No. 490, 549. County offices and officers are separately established for both divisions; and where officers are elected, they must be elected only by the qualified voters residing within the territory located within their respective division. 1919 Ala. Acts No. 213, 62; 1984 Ala. Acts No. 84-604, 1238.

The deputy clerk for the Bessemer division is given the following duties and authority:

Such deputy clerk shall perform the same duties and exercise the same authority under the supervision of the circuit court when being held at said place as if he were the circuit clerk. Before entering upon the duties of his office such deputy clerk shall take and subscribe to the same oath of office, and enter into the same bond as circuit court clerks of the state, and shall be subject to the same liabilities. In addition to the duties and authorities hereinbefore in this section set out, such deputy clerk shall perform for said division of said court the duties of register of said court at said place.

ALA. CODE § 12-17-98 (1995). As the deputy circuit clerk for the Bessemer division, you state you are serving and have in the past served, as the absentee election manager for the Bessemer division. See , ALA. CODE § 17-10-2 (1995) (circuit clerk shall serve as the absentee election manager). You informed this Office that all elections for the Bessemer division, including absentee voting, have been conducted separate from the Birmingham division and solely within the jurisdiction of the Bessemer division. In other words, any voter from the Bessemer division that wished to vote by absentee ballot, obtained the ballot from the absentee election manager in the Bessemer division and could not obtain the absentee ballot from the absentee election manager in the Birmingham division.

Since Jefferson County operates under a two-division system and each division is treated as a separate county unit, it is the opinion of this Office that each division must continue to operate as a separate county unit for purposes of absentee voting. Any deviation from the election procedure that has been followed in Jefferson County would result in a change in voting procedure that must be precleared with the United States Justice Department under section 5 of the Voting Rights Act. 42 U.S.C. § 1973. The changes in absentee voting authorized by section 17-10-3 were precleared on February 4, 1997.

CONCLUSION

Accordingly, both the Birmingham and the Bessemer divisions must establish in their respective division of the county on-site absentee balloting locations in the two largest cities or towns that do not contain the courthouse or the courthouse annex. Furthermore, each absentee election manager should be responsible for accommodating only the electors residing within their respective division of the county.

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

C/3.98/f