Alabama Advisory Opinions July 27, 2001: AGO 2001-232 (July 27, 2001)

AGO 2001-232.

Dear Judge English:

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

If a candidate's name appears on the ballot, but the candidate is disqualified for failure to file his statement of economic interests, are the votes cast for that candidate included in determining the total votes cast for the election?

Candidates are required to file Statements of Economic Interests pursuant to section 36-25-15 of the Code of Alabama, a provision of the Alabama Ethics Law, which states:

(a) Candidates at every level of government shall file a completed statement of economic interests for the previous calendar year with the appropriate election official simultaneously with the date he or she becomes a candidate as defined in Section 17-22A-2 or the date such candidate files his or her qualifying papers with the appropriate election official, whichever date occurs first. Such election official shall within five days forward the statement of economic interests of the candidate to the commission. Nothing in this section shall be deemed to require a second filing of the person's statement of economic interests if a current statement of economic interests is on file with the commission.

(b) Each election official who receives a declaration of candidacy or petition to appear on the ballot for election from a candidate and each official who nominates a person to serve as a public official shall, within five days of the receipt or nomination, notify the commission of the name of the candidate, as defined in this chapter, and the date on which the person became a candidate or was nominated as a public official.

(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.

An election was held by the Lee County Probate Judge on July 24, 2001, to elect a mayor and city council for the newly incorporated City of Smiths Station. See ALA. CODE § 11-41-5 (1989). One candidate for City Council Place 2, Gary Whitlock, did not file a Statement of Economic Interests with the Probate Judge's Office at the time he filed his qualifying papers. Mr. Whitlock's name appeared on the ballot because, at the time the ballots were printed and before the election, the Probate Judge did not have official notification from the Ethics Commission that Mr. Whitlock was disqualified. On July 24, 2001, the day of the election, the Ethics Commission officially notified the Probate Judge by facsimile that Gary Whitlock had failed to file his Statement of Economic Interests with the Ethics Commission and, therefore, Mr. Whitlock was disqualified as a candidate in the election. The Ethics Commission stated that Mr. Whitlock did not file his statement simultaneously with the date he became a candidate, he did not file the statement directly with the Alabama Ethics Commission, and he did not seek a timely extension for filing the statement.

The election results for City Council Place Two are as follows:

Morris Jackson 453

Thomas Melton 282

C.E. (Gene) Jordan 150

Gary Whitlock 135

If Mr. Whitlock's votes are included in the count of total votes cast for a total of 1020, then no candidate has a majority of the votes cast, and there should be a run-off between Mr. Jackson and Mr. Melton. If Mr. Whitlock's votes are not included in the count of total votes cast, then Mr. Jackson has received a majority of the votes cast, and a run-off will not be necessary.

The Alabama Supreme Court has held that "votes cast for a deceased, disqualified, or ineligible person, although ineffective to elect such person to office, are not to be treated as void or thrown away, but are to be counted in determining the result of the election as regards other candidates." State ex rel. Cleveland v. Stacy , 263 Ala. 185, 187, 82 So. 2d 264, 265 (1955). If the disqualified candidate receives the greatest number of votes, the election is declared null and void because of the disqualification of the winning candidate. Id .; see Opinion of the Attorney General to Honorable Casandra Horsley, Winston County Probate Judge, dated November 30, 2000, A.G. No. 2001-041.

Under the facts presented in your request, Mr. Whitlock was disqualified as a candidate at the time of the election on July 24, 2001. Mr. Whitlock did not receive the greatest number of votes; therefore, the election is not null and void. Mr. Whitlock's votes, however, must be counted as a part of the total number of votes cast to determine whether the candidate receiving the most votes received a majority of the votes cast in the election. Under the facts presented, a run-off election is required.

Votes cast for a candidate who is disqualified are not to be treated as void but must be counted in determining the total votes cast for the election.

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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