Alabama Advisory Opinions January 05, 1999: AGO 1999-068 (January 5, 1999)

AGO 1999-068.

Dear Governor James:

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

Should I proclaim the amendment proposed by Act No. 98-284 as passed or failed since the amendment received a favorable vote of a majority of the votes on a countywide basis, but there is no indication of the vote on a citywide basis?

Local election officials ascertain the election results on a proposed constitutional amendment, and the returns are made to the Secretary of State's Office. ALA. CODE §§ 17-17-1 and --2 (1995). The Secretary of State, in the presence of the Governor and the Attorney General, opens the returns and ascertains the results. The results of the election on a proposed constitutional amendment must be made known by proclamation of the Governor. ALA. CODE § 17-17-3 (1995).

Act No. 98-284 proposed an amendment to the Constitution of Alabama to provide that the Legislature, by local act, may provide for the manner of selection of the members of the Board of Education of the City of Anniston in Calhoun County. Section 2 of the Act states:

Section 2. An election upon the proposed amendment shall be held in accordance with Amendment 555 to the Constitution of Alabama of 1901, and the election laws of this state.

Any proposed constitutional amendment which affects or applies to only one political subdivision within a county or counties shall be adopted as a valid part of the constitution by a favorable vote of a majority of the qualified electors of both the county and the political subdivision affected by the amendment who vote on the amendment. The proposed amendment may provide for a separate referendum in a political subdivision of less than a county if a simultaneous referendum is not possible because of conflicting voting precincts.

Pursuant to the specific language of Amendment No. 555, a proposed constitutional amendment that applies only to a political subdivision within a county is adopted as a valid part of the constitution only if the proposed amendment receives a favorable vote of a majority of the voters in both the political subdivision and the county. Act No. 98-284 proposes a constitutional amendment that affects only the City of Anniston, which is located in Calhoun County. Accordingly, for the proposed amendment to be adopted as a part of the Constitution, the amendment must have received a favorable vote of a majority of the voters in both Calhoun County and in the City of Anniston.

Your request states that no provision was made to conduct separate referendums in Calhoun County and Anniston as permitted by Amendment No. 555. Your request further states that there are voting precincts in Calhoun County located within the City of Anniston that include electors who are non-residents of the City of Anniston. Accordingly, the election officials did not certify whether the amendment received a favorable vote from the majority of the electors who reside in the City of Anniston. The officials did certify that the amendment received a favorable vote from a majority of the electors in Calhoun County. Since the proposed amendment must receive a favorable vote of a majority of the voters in both the county and the city, the Governor should not proclaim the amendment has passed on the basis of the county vote alone.

For the amendment proposed by Act No. 98-284 to be adopted as a part of the Constitution, the amendment must have received a favorable vote of a majority of the voters in both Calhoun County and in the City of Anniston.

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

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