Alabama Advisory Opinions July 29, 1998: AGO 1998-194 (July 29, 1998)

AGO 1998-194.

Dear Judge Isaac:

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

Should a probate judge place the names of candidates for county offices on the ballot when such candidates are the nominees of a political party that submitted a petition for ballot access on June 23, 1998, and filed its certificates of nomination on or after July 13, 1998?

Your request states that the Reform Party filed its petition for ballot access in Greene County with your office on June 23, 1998, but did not certify its nominees for county offices until July 13 and 14, 1998.

The Reform Party is not a political party qualified under Title 17, Chapter 16 of the Code of Alabama. The Reform Party's petition for ballot access, therefore, was filed pursuant to section 17-8-2.1 of the Code of Alabama. This section states:

(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 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.

Pursuant to section 17-7-1(c) of the Code of Alabama, it is the duty of the probate judge to prepare the ballot for the general election "with the names of each candidate qualified under the provisions of this section [17-7-1] printed on the ballot." ALA. CODE § 17-7-1 (1995) (bracketed material added). Section 17-7-1(a) provides in pertinent part:

(a) The following persons shall be entitled to have their names printed on the appropriate ballot for the general election, provided they are otherwise qualified for the office they seek:

* * *

(2) All candidates who have been put in nomination by any caucus, convention, mass meeting, or other assembly of any political party or faction and certified in writing by the chair and secretary of the nominating caucus, convention, mass meeting, or assembly and filed with the probate judge , in the case of a candidate for county office, and the Secretary of State in all other cases, on or before 5: 00 P.M. six days after the second primary election .

Pursuant to section 17-8-2.1 of the Code, the deadline for a political party to file a petition for ballot access for the November 1998 general election was July 6, 1998, six days after the second primary election held on June 30, 1998. This was also the deadline for a political party to file the names of its nominees for state and county offices.

These deadlines were established pursuant to a 1995 amendment to the Code after the previous deadlines (60 days before the date of the first primary election) were held unconstitutional by the Eleventh Circuit Court of Appeals in New Alliance Party of Alabama v. Hand , 933 F. 2d 1568 (11th Cir. 1991). 1995 Ala. Acts No. 95-786, 1872. The Court also found that these simultaneous deadlines did not pose an extra burden on the minor party/plaintiff beyond the burden of meeting both deadlines by an early date. Id . at 1574. After the previous deadlines had been held unconstitutional and in the absence of valid statutory deadlines, new deadlines for the 1992 and 1994 elections were administratively set by the Secretary of State's Office. See Opinion to Honorable Bobby Day, Probate Judge, dated October 6, 1992, A. G. No. 93-00017. The Justice Department on March 18, 1996, the same date on which the new deadlines set by Act No. 95-786 were precleared, retroactively precleared these administrative deadlines.

Statutes setting the time for filing a certificate of nomination are universally held to be mandatory and not directory. Vandross v. Ellisor , 347 F. Supp. 197 (D. S. C. 1972); State ex rel. Kusler v. Sinner , 491 N. W. 2d 382 (N.D. 1992); Ryshpan v. Cashman , 132 Vt. 628, 326 A. 2d 169 (1974); State ex rel. Englert v. Meier , 115 N. W. 2d 574 (N.D. 1962). Alabama has generally held that election laws are mandatory. Vickery v. King , 281 Ala. 303, 202 So. 2d 148 (1967). The Alabama Supreme Court has specifically held that section 17-16-11 of the Code of Alabama is mandatory. Bostwick v. Harris , 421 So. 2d 492 (Ala. 1982). Section 17-16-11 of the Code of Alabama is very similar in nature to sections 17-8-2.1 and 17-7-1 in that it sets the statutory deadline for filing a declaration of candidacy in the primary election. In determining whether a statute is mandatory or directory, courts have cited as a general proposition that "a mandatory statute is one which prescribes in addition to the requirement of performing the thing specified, the result obtained if the performance is not done . . ." J.M.V. v. State , 651 So. 2d 1087, 1092 (Ala. Crim. App. 1994). Both sections 17-7-1 and 17-8-2.1 provide that if the statutory requirements are not met, the candidate and/or the political party will not be included on the ballot. Accordingly, it is the opinion of this Office that the filing deadlines set forth in sections 17-7-1 and 17-8-2.1 of the Code of Alabama are mandatory rather than directory.

Your request referred to a purported administrative ruling made by the Secretary of State's Office that you assert extended the deadline imposed by section 17-7-1 for the filing of nominations of candidates by minor parties. This Office notes that no administrative rulings made by the Secretary of State's Office concerning an extension of filing deadlines for the 1998 general election have been precleared by the United States Justice Department. Whether an administrative extension of time was granted by the Secretary of State and whether parties reasonably relied on such an extension are questions of fact. This Office issues opinions based on law and does not make findings of fact. See ALA. CODE § 36-15-1(1) (Supp. 1997). This Office can advise you, however, that Alabama law requires nominations of candidates by minor parties to be filed with the probate judge or the Secretary of State in accordance with the statutory requirements. Unless otherwise directed by a court of law, a probate judge should not print the names of candidates on the general election ballot whose nominations were filed after the statutory deadline.

Based upon the foregoing, all petitions for ballot access for the November 1998 general election filed pursuant to section 17-8-2.1 and all nominations of candidates pursuant to section 17-7-1(a)(2) were required to be filed on or before July 6, 1998, the statutory deadline. Only those parties and candidates that have complied with these statutory deadlines are entitled to be included on the ballot for the November 1998 general election. Unless otherwise directed by a court of law, a probate judge should not print the names of parties or candidates whose nominations were filed after the statutory deadline on the general election ballot.

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

I/7.98/f