Alabama Advisory Opinions October 22, 1998: AGO 1999-022 (October 22, 1998)

AGO 1999-022.

Dear Judge Hambrick:

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

If a voter requested and had been issued an absentee ballot after meeting all the requirements and the voter has marked and returned the ballot by mail, then the voter subsequently dies, is that vote a valid absentee vote to be counted?

This Office is authorized to provide opinions to public officials when necessary to the present performance of an official act that the officer must immediately perform. ALA. CODE § 36-15-1(1) (Supp. 1998). Although your question involves a hypothetical situation, this Office will address this question at this time due to time constraints that would prevent a timely answer on election day.

Section 17-10-10 of the Code of Alabama provides the procedure for counting absentee ballots. This section states in pertinent part:

On the day of the election, beginning at 12:00 noon, the absentee election manager shall deliver the sealed affidavit envelopes containing absentee ballots to the election officials provided for in Section 17-10-11. The election officials shall then call the name of each voter casting an absentee ballot with poll watchers present as may be provided under the laws of Alabama and shall examine each affidavit envelope to determine if the signature of the voter has been appropriately witnessed. If the witnessing of the signature and the information in the affidavit establish that the voter is entitled to vote by absentee ballot , then the election officials shall certify the findings, open each affidavit envelope, and deposit the plain envelope containing the absentee ballot into a sealed ballot box.

No poll worker or other election official shall open an affidavit envelope if the affidavit printed thereon is unsigned by the voter (and unmarked), and no ballot envelope or ballot therein may be removed or counted. No poll worker or other election official shall open an affidavit envelope if the voter's affidavit signature (or mark) is not witnessed by the signatures of two witnesses or a notary public (or other officer authorized to acknowledge oaths) and no ballot envelope or ballot therein may be removed or counted. . . .

The absentee ballots shall upon the closing of the polls be counted and otherwise handled in all respects as if the absentee voter were present and voting in person. . . .

Pursuant to this provision of the law, it is the duty of election officials to count an absentee ballot if the voter signs the affidavit, the voter's signature is witnessed by a notary or two witnesses, and the information in the affidavit establishes that the voter is entitled to vote by absentee ballot. The information requested on the affidavit envelope, in addition to the voter's signature and the signature of a notary or two witnesses, includes the voter's county of residence, place of residence (address), voting precinct, date of birth, and reason for voting absentee. ALA. CODE § 17-10-7 (Supp. 1998). If an absentee ballot affidavit envelope complies with the requirements of section 17-10-10 of the Code, the ballot must be counted. It is not the duty of the absentee ballot election officials, nor do the officials have the information available to them, to determine whether a particular absentee voter has cast a legal vote.

The election officials and qualified electors of the precinct where the ballot is cast may, however, challenge an absentee ballot if they suspect the absentee voter is not entitled to vote. ALA. CODE §§ 17-12-1 to 17-12-8 (1995); ALA. CODE § 17-10-22 (Supp. 1998). If an elector or an election official believes a voter is not entitled to cast an absentee ballot because the voter died after casting the ballot, the elector or official may challenge that absentee ballot. The ballot should then be counted in accordance with the laws governing challenged ballots as cited above. The legality of the vote would be determined if an election contest were subsequently filed, with the party in the case of a primary election, or in circuit court after the general election.

It is the duty of election officials to count an absentee ballot if the voter signs the affidavit, the voter's signature is witnessed by a notary or two witnesses, and the information in the affidavit establishes that the voter is entitled to vote by absentee ballot. Election officials do not determine whether absentee voters are qualified to vote. If an elector of the precinct or an election official believes the voter is not entitled to vote because of death or other disability, the elector or election official may challenge the absentee ballot as provided in the statute.

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: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

H/10.98/f