Alabama Advisory Opinions May 09, 2000: AGO 2000-144 (May 9, 2000)

AGO 2000-144.

Dear Ms. Fuhrmeister:

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

Given the definition of "precinct" in the Code of Alabama, do constables run for election by beat and box, or are constables elected for each box within a beat?

Section 36-23-1 of the Code of Alabama provides in pertinent part:

(a) There shall be one constable for each election precinct in each county , to be elected as provided by law, who shall hold office for four years from the first Monday after the second Tuesday in January next after his election and until his successor is elected and qualified.

The definition applied to the term "precinct" has been confusing over the years. For example, the term "beat" has been used interchangeably with the term "precinct" and also to describe election subdivisions. See Opinion of the Attorney General to Honorable R. J. Stembridge, Probate Judge, Houston County, dated February 9, 1981, A. G. No. 81-00225. The definition of "precinct" found in the Code of Alabama has also been amended over the years. The definition of "precinct" is currently found in section 17-5A-2 of the Code of Alabama, which states in pertinent part:

For purposes of this chapter, the following terms shall have the definitions ascribed to them:

(1) Precinct. A geographical subdivision of a county having clearly visible, definable and observable physical boundaries which are based upon criteria established and recognized by the Bureau of the Census of the United States Department of Commerce for purposes of defining census blocks for its decennial census. A "precinct" shall be the smallest geographical area for purposes of holding national, state or county-wide elections. A "precinct" is also sometimes referred to as a "voting district" by the Census Bureau and other agencies.

County commissions, in coordination with the reapportionment task force, are required to establish precincts by defining the geographical territorial limits for each precinct and providing a legal description of those boundaries. ALA. CODE § 17-5A-3 (1995). These election precincts may be subdivided into voting districts so that no one voting district shall contain over 300 voters where paper ballots are used or 600 voters where voting machines are used. ALA. CODE § 17-5A-4 (1995). If the precincts are not subdivided into voting districts, additional boxes or voting machines must be used in each precinct for each 300 voters where paper ballots are used or each 600 voters where voting machines are used. Id. The voting boxes or machines in each voting place in a precinct must be designated according to groups of voters. ALA. CODE § 17-5A-5 (1995).

Based upon the definition of "precinct" provided in section 17-5A-2(1) and the requirements for creating precincts and voting districts within the precincts in chapter 5A of title 17 of the Code, a constable must be elected for each precinct and is not elected from each voting district or box or machine in a precinct. If the term election "beat" means election "precinct," then a constable would run for election by beat. A constable would not run for election by each separate box in a beat or precinct. CONCLUSION

One constable shall be elected for each election precinct, not for each separate box in a precinct.

QUESTION 2

If no person qualifies for constable in a particular precinct, must the office nevertheless be placed on the general election ballot to allow for write-in votes?

The Code of Alabama provides that one constable for each election precinct shall be elected at the general election "on the first Tuesday after the first Monday in November, 1980, and every fourth year thereafter." ALA. CODE §§ 17-2-2 and 17-2-4 (1995). Even if no person has qualified to run for the office of constable, the office should be listed on the ballot for the general election because write-in votes are allowed at the general election. ALA. CODE §§ 17-8-5 and 17-9-7(6) (1995); See Opinion to Honorable Annette Bozeman, Probate Judge, Marion County, dated January 28, 1981, A. G. No. 81-00182.

Even if no person qualifies for the office, the office of constable should be placed on the November 2000 general election ballot because write-in votes are allowed at the general election.

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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