Alabama Advisory Opinions August 12, 1998: AGO 1998-200 (August 12, 1998)

AGO 1998-200.

Dear Mr. Bennett:

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

Does the Secretary of State have the obligation to evaluate any qualifications of the nominees of political parties and independent candidates for state offices prior to certifying such nominees and candidates to the probate judges pursuant to sections 17-7-1 and 17-16-40 of the Code of Alabama?

Section 17-16-40 of the Code of Alabama provides:

The Secretary of State shall, within 45 days after the second primary election, certify to the probate judge of each county in the state a separate list of nominees of each party for office and for each candidate who has requested to be an independent candidate and has filed a written petition in accordance with Section 17-7-1(a)(3), except nominees for county offices, to be voted for by the voters of such county.

Section 17-7-1 provides in pertinent part:

(c) The Secretary of State must, not later than 45 days after the second primary, certify to the probate judge of each county in the state, in the case of an officer to be voted for by the electors of the whole state, and to the probate judges of the counties composing the circuit or district in case of an officer to be voted for by the electors of a circuit or district, upon suitable blanks to be prepared by him or her for that purpose, the fact of nomination or independent candidacy of each nominee or independent candidate or candidate of a party who did not receive more than 20 percent of the entire vote cast in the last general election preceding the primary who has qualified to appear on the general election ballot. . . .

Your question concerns whether the Secretary of State has an obligation to evaluate any qualifications of the nominees for political office. The Code does not require the Secretary of State to determine whether each nominee meets all the qualifications for his or her particular office. Some of the qualifications, however, are within the Secretary of State's official knowledge. By official knowledge I mean knowledge gained from an official source arising from the performance of duties prescribed by law. For example, candidates are required to file statements of economic interest with the Ethics Commission. ALA. CODE § 36-25-15 (Supp. 1997). If the Ethics Commission provides the Secretary of State with formal notice of those candidates who have not filed statements of economic interest, the Secretary of State has official knowledge that the candidates have failed to meet a certifying deadline. Only those candidates meeting the filing requirements are entitled to be on the ballot. ALA. CODE § 36-25-15(c) (Supp. 1997). If the Secretary of State has official knowledge that a candidate has not met a certifying qualification, the Secretary of State should not certify the candidate.

Similarly, section 17-16-40 places a duty on the Secretary of State to certify only those independent candidates who have filed a written petition in accordance with Section 17-7-1(a)(3). The Secretary of State has the duty to ensure that the written petition filed by an independent candidate is in accordance with section 17-7-1(a)(3). This Office has previously determined that the Secretary of State is responsible for verifying signatures on a petition to run as an independent candidate. Opinion to Honorable Perry A. Hand, dated April 19, 1990, A.G. No. 90-00223. Section 17-7-1(a)(3) also requires each independent candidate to file a petition with the Secretary of State on or before 5: 00 p.m. six days after the second primary election. ALA. CODE § 17-7-1(a)(3) (1995). This Office has previously concluded statutes setting the time for filing a certificate of nomination are mandatory. Opinion to Honorable Earlean Isaac, dated July 29, 1998, A.G. No. 98-00194. Whether a petition by an independent candidate fulfills the requirements of section 17-7-1(a)(3) is within the official knowledge of the Secretary of State. Alabama law directs the Secretary of State to certify only independent candidates who have properly filed pursuant to section 17-7-1(a)(3).

Moreover, candidates who have been put in nomination by a primary election or by a caucus, convention, mass meeting, or other assembly of a political party must meet a statutorily established filing deadline. See ALA. CODE § 17-7-1(a)(1) & (2) (1995). If the candidate is required to file with the Secretary of State, it is within the Secretary of State's official knowledge as to whether the deadline was met. As stated above, if the Secretary of State has official knowledge that a candidate has not met a certifying qualification, the Secretary of State should not certify the candidate.

The Secretary of State does not have an obligation to evaluate all of the qualifications of the nominees of political parties and independent candidates for state offices prior to certifying such nominees and candidates to the probate judges pursuant to sections 17-7-1 and 17-16-40 of the Code of Alabama. If the Secretary of State has knowledge gained from an official source arising from the performance of duties prescribed by law, that a candidate has not met a certifying qualification, the Secretary of State should not certify the candidate.

QUESTION 2

If the answer to question #1 is in the affirmative, is it permissible for the Secretary of State to also notify the probate judges of the disqualification of those nominees of political parties and independent candidates for state office which have been determined to be disqualified and set out the reason for disqualification in order for the probate judges to be informed of the basis of the Secretary of State's decision in those instances?

FACTS, ANALYSIS, & CONCLUSION

As stated above, the Secretary of State should not certify a candidate when he has official knowledge that the candidate is not entitled to be on the ballot. The law does not prohibit the Secretary of State from informing the probate judges of his or her reason for non-certification.

QUESTION 3

If the answer to question #1 is in the affirmative, is the obligation to evaluate qualifications limited to a ministerial review based upon the facts within the Secretary of State's possession, or does it also extend to an obligation to investigate factual allegations concerning the qualifications of candidates for state offices?

FACTS, ANALYSIS, & CONCLUSION

As stated above, the Code does not require the Secretary of State to determine whether each nominee meets all the qualifications for his or her particular office. The Secretary of State does have an obligation to review qualifications based on facts within his official knowledge.

QUESTION 4

If the answer to question #1 is in the affirmative and the answer to question #3 provides a fact-finding obligation for the Secretary of State in reviewing the qualifications of candidates for state offices, is the investigation of factual allegations a judicial obligation of the Secretary of State requiring due process of law or an extension of the Secretary of State's ministerial duty?

FACTS, ANALYSIS, & CONCLUSION

As stated in question 3, the Secretary of State has no duty to investigate facts not within his official knowledge; therefore, this question need not be addressed.

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/WBM

B7.98/M