Alabama Advisory Opinions January 25, 2000: AGO 2000-073 (January 25, 2000)

Alabama Attorney General Opinions

2000.

AGO 2000-073.

Dear Judge Bolin:

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

QUESTIONS

Are candidates in the primary election for nomination for circuit clerk in Jefferson County nominated countywide or only from the Birmingham Division?

If the practice has been to nominate the circuit clerk countywide, and it is your opinion that the clerk should be nominated only from the Birmingham Division, would this be a change in voting practice that would need to be precleared by the Justice Department?

FACTS AND ANALYSIS

The Circuit Court of Jefferson County is divided into two distinct divisions called the Bessemer Cut-Off and the Birmingham Division. 1919 Ala. Acts No. 213, 62. The Circuit Clerk of Jefferson County does not exercise jurisdiction over the precincts lying within the Bessemer Cut-Off but only has jurisdiction over the Birmingham Division. The office of Deputy Circuit Clerk exercises jurisdiction over the precincts lying within the Bessemer Cut-Off and is elected in the general election by the voters only in the jurisdiction of the Bessemer Cut-Off. Id.; ALA. CODE § 12-17-98 (1995) . The office of Circuit Clerk of Jefferson County, sitting at the Birmingham Division, is elected by the voters of the entire county in the general election and will be up for election in the general election in 2000. ALA. CODE § 17-2-2 (1995).

Local Act No. 98, approved June 18, 1951, provides for the nomination of the Circuit Clerk in primary elections in Jefferson County and states:

That candidates in primary elections for nomination for Clerk of the Circuit Court in Jefferson County, Alabama, shall be placed upon the ballots in such primary elections only in those precincts over which the Circuit Court holding at Birmingham, Alabama, has jurisdiction; that is to say, candidates for nomination in such primary elections for Clerk of the Circuit Court of Jefferson County, Alabama, shall run and shall be placed upon the ballots used in such primaries only in those precincts which are within the jurisdiction of said Circuit Court holding at Birmingham, Alabama.

1951 Ala. Acts No. 98, 320. The "Circuit Court holding at Birmingham" does not have jurisdiction over the precincts lying within the Bessemer Cut-Off. 1919 Ala. Acts No. 213, 62. Accordingly, pursuant to Act No. 98 of the 1951 Acts, candidates in primary elections for nomination for Circuit Clerk of Jefferson County should run only in the Birmingham Division.

According to the 1988 Republican Primary ballot for Jefferson County attached to your request, candidates for nomination for circuit clerk ran countywide in that primary election. You state that there are no ballots available from any other contested circuit clerk primary elections that indicate whether the circuit clerk was nominated countywide or only from the Birmingham Division.

Act No. 98 of the 1951 local acts clearly provides that candidates in primary elections for nomination for Circuit Clerk of Jefferson County should run only in the Birmingham Division. The available records show that the method of nominating the circuit clerk has been to nominate the circuit clerk from the entire county. Changing the method of nomination in the primary from nomination countywide to nomination only from the Birmingham Division is a change in voting practice that would require preclearance from the United States Justice Department pursuant to section 5 of the Voting Rights Act of 1965.

CONCLUSION

Pursuant to Act No. 98, 1951 Alabama Acts, candidates in primary elections for nomination for Circuit Clerk of Jefferson County should run only in the Birmingham Division. Since the practice has been to nominate the circuit clerk countywide, the change in practice must be submitted to the Justice Department for preclearance before Act No. 98 is implemented.

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: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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