Alabama Advisory Opinions October 03, 2000: AGO 2001-001 (October 3, 2000)

Alabama Attorney General Opinions

2000.

AGO 2001-001.

Dear Mr. Bennett:

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

QUESTION

Where a candidate is nominated by a political party and subsequently disqualified due to a failure to file a Statement of Economic Interests as provided in section 36-25-15 of the Code of Alabama, or a financial disclosure statement as provided in section 17-22A-21 of the Code of Alabama, may a political party fill the resulting vacancy in nomination with the same candidate?

FACTS AND ANALYSIS

Political parties have the authority to fill vacancies in nominations pursuant to section 17-16-41 of the Code of Alabama, which states:

The state executive committee, in cases where the office to be filled is not a county office, and the county executive committee, in cases where the office to be filled is a county office, but subject to the approval of and in accordance with the method prescribed by the state executive committee, where a vacancy may occur in any nomination, either by death, resignation, revocation or otherwise, or in case of any special election, shall have the power and authority to fill such vacancy, either by action of the committee itself or by such other method as such committee may see fit to pursue.

ALA. CODE § 17-16-41 (1995). This provision authorizes the political party to fill a vacancy in nomination in accordance with the manner prescribed by the political party. The failure of a candidate to timely file a statement naming his principal campaign committee has been held to result in a vacancy in nomination that the political party may fill pursuant to section 17-16-41 of the Code of Alabama. Megginson v. Turner , 565 So. 2d 247 (Ala. 1990).

Political parties have the authority to determine who shall be entitled and qualified to be candidates or otherwise participate in their primary elections so long as the political committees do not violate some statutory or constitutional provision. Knight v. Gray , 420 So. 2d 247 (Ala. 1982); Perloff v. Edington , 302 So. 2d 92 (Ala. 1974). The state and county executive committees certify the names of all candidates who have been put in nomination by primary election to the Secretary of State and the probate judge, respectively. ALA. CODE § 17-7-1 (1995). Those persons certified by the parties are entitled to have their names placed on the general election ballot "provided they are otherwise qualified for the office they seek." ALA. CODE § 17-7-1(a) (1995).

Section 36-25-15 of the Ethics Law provides, in pertinent part, as follows:

(c) Other provisions of the law notwithstanding, if a candidate does not submit a statement of economic interests in accordance with the requirements of this chapter, the name of the person shall not appear on the ballot and the candidate shall be deemed not qualified as a candidate in that election. Notwithstanding the foregoing, the commission may, for good cause shown, allow the candidate an additional five days to file such statement of economic interests. If a candidate is deemed not qualified, the appropriate election official shall remove the name of the candidate from the ballot.

ALA. CODE § 36-25-15(c) (Supp. 1999) (emphasis added).

If a candidate for nomination in a primary election fails to file a statement of economic interests, he is disqualified as a candidate, his name shall not appear on the ballot in that election, and a vacancy in nomination exists. If the political party were allowed to fill the vacancy in nomination with the same candidate who was disqualified, the disqualification provision of section 36-25-15 would be meaningless. The clearly expressed intent of the Legislature is that a candidate who has failed to file a statement of economic interests shall not be qualified to appear on the primary or general election ballot.

A candidate who fails to file a statement or report required under the Fair Campaign Practices Act (FCPA) before the election forfeits the election pursuant to section 17-22A-21 of the Code of Alabama. Davis v. Reynolds , 592 So. 2d 546 (Ala. 1991). Section 17-22A-21 of the FCPA states:

A certificate of election or nomination shall not be issued to any person elected or nominated to state or local office who shall fail to file any statement or report required by this chapter. A certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this chapter shall be revoked.

ALA. CODE § 17-22A-21 (1995).

If a candidate in a primary election fails to file a statement or report required by the FCPA before the primary election, that candidate is disqualified, a certificate of nomination shall not be issued to that candidate, and a vacancy in nomination is created. Again, if the political party were allowed to fill the vacancy in nomination with the same candidate who was disqualified, the disqualification provision of section 17-22A-21 would be meaningless. It is the clear intent of the Legislature that a person who has failed to file the required FCPA reports before the election is disqualified and should not be issued a certificate of nomination for the primary election or a certificate of election for the general election.

CONCLUSION

A political party may not fill a vacancy in nomination with a candidate who has been disqualified for failure to file a statement of economic interests pursuant to section 36-25-15 of the Code of Alabama or with a candidate who has been disqualified pursuant to section 17-22A-21 of the Code of Alabama for failure to file a statement or disclosure report required by the Fair Campaign Practices Act.

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

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