Alabama Advisory Opinions September 12, 2001: AGO 2001-276 (September 12, 2001)

AGO 2001-276.

Dear Mr. Nix:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Lanett.

QUESTIONS ONE, TWO AND THREE

Does a felony conviction prevent a person from being a qualified elector and thus a qualified candidate for the office of city council member?

Does a felony conviction in the courts of another state prevent a person from being a qualified elector and thus a qualified candidate for the office of city council member in the State of Alabama?

Assuming that the answer to Question 2 is in the affirmative, what steps need to be taken by a person to have his or her voting rights reinstated in Alabama for a felony conviction in another state? That is, does the Pardons and Parole Board of the other state have the authority to reinstate Alabama voting rights, or does the individual in question need to petition the Alabama Pardons and Parole Board for reinstatement of voting rights lost by virtue of a felony conviction in another state?

Section 36-2-1 of the Code of Alabama provides that certain persons are not eligible to hold office. Those persons include:

(1) Those persons who are not qualified electors, except as otherwise expressly provided;

* * *

(3) Those who shall have been convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery or any other crime punishable by imprisonment in the state or federal penitentiary and those who are idiots or insane.

Article VIII of the Constitution of Alabama, as amended by Amendment No. 579 of the Constitution, provides that no person convicted of a felony involving moral turpitude or who is mentally incompetent shall be qualified to vote until his civil and political rights have been restored or his disability removed. ALA. CONST. amend. 579. A person who has been disqualified from voting by reason of conviction may have the right to vote restored pursuant to section 17-3-10 of the Code of Alabama. That section provides in pertinent part:

Any person who is disqualified by reason of conviction of any of the offenses mentioned in Article VIII of the Constitution of Alabama, except treason and impeachment, whether the conviction was had in a state or federal court, and who has been pardoned, may be restored to his citizenship with right to vote by the State Board of Pardons and Paroles when specifically expressed in the pardon.

Based upon the foregoing, a person convicted of a felony involving moral turpitude, whether convicted in the State of Alabama or in another state, is disqualified from voting in Alabama and, therefore, disqualified from holding the office of city council member in any city in the State of Alabama. A person's right to vote and right to hold public office may be restored if that person receives a pardon that specifically restores civil and political rights. Sokira v. Burr , 580 So. 2d 1340 (Ala. 1991).

The Alabama Board of Pardons and Paroles (Board) has the authority to grant pardons in the State of Alabama. ALA. CODE § 15-22-36 (1995). The Board has adopted rules, regulations, and procedures relating to pardons. Article Eight of these rules provides that a person convicted in the state courts of Alabama must petition the Alabama Board of Pardons and Paroles for a pardon. Alabama Board of Pardons and Paroles Rules, Regulations, and Procedures , Article 8 (promulgated 3-21-2001) http://agencies.state.al.us/pardons/rules.html. If the Board grants a pardon, the Board will decide whether to restore any or all civil and political rights lost as a result of the petitioner's conviction. Article 8, section 7. A petitioner's civil and political rights are not restored unless the Board affirmatively voted to do so. Id.

The Board rules provide that the Board will also entertain petitions for pardon from convictions in the courts of the United States or of other states if the petitioner is a resident of Alabama at the time the petition is submitted and considered. Alabama Board of Pardons and Paroles Rules, Regulations, and Procedures , Article 8, Section 3 (promulgated 3-21-2001) http://agencies.state.al.us/pardons/rules.html. A person convicted of a felony in a state other than Alabama should apply for a pardon in the state in which the conviction occurred. If the pardon received from another state does not specifically provide that voting rights are restored, the person may apply to the Alabama Board for a pardon that restores the right to vote.

A felony conviction in the courts of another state prevents a person from being a qualified elector and a candidate for public office in Alabama. A person may vote and hold office in Alabama if his civil and political rights have been restored. A person convicted of a felony in a state other than Alabama should apply for a pardon in the state in which the conviction occurred.

QUESTION FOUR

What effect, if any, does a juvenile felony conviction in another jurisdiction have on voting rights in Alabama?

An order of disposition or other adjudication in an Alabama court in proceedings in which a child is alleged to be delinquent, dependent, or in need of supervision is not considered to be a conviction. ALA. CODE § 12-15-72 (1995). In addition, the identity and the records concerning a juvenile are not open to public inspection. ALA. CODE § 12-15-101 (1995). Accordingly, a person with a juvenile record in Alabama is not prohibited from registering and voting in Alabama. A person's qualifications to vote are determined by the law of the state in which the person resides, as long as these qualifications are permissible under the Constitution of the United States. United States v. Penton , 212 F. Supp. 193, 201 (M.D. Ala. 1962). It would therefore be reasonable that a person who was adjudicated as a delinquent as a juvenile in another state would be treated similarly in Alabama and would not be prohibited from voting. A person who was convicted of a felony in another state while a juvenile would not be treated similarly to a juvenile in Alabama who was adjudicated as a delinquent, but would be treated as a person with a felony conviction and would not be eligible to vote unless his voting rights have been restored.

An order of disposition or other adjudication in an Alabama court in proceedings in which a child is alleged to be delinquent, dependent, or in need of supervision is not considered to be a conviction and does not disqualify a person from voting in Alabama. A person with a felony conviction from another state, even if convicted while a juvenile, would not be eligible to vote unless his voting rights have been restored.

QUESTION FIVE

Does a pardon issued by the Alabama Board of Pardons and Paroles specifically mentioning an Alabama conviction serve to reinstate the voting rights of an individual lost due to a felony conviction in another state?

FACTS, ANALYSIS, AND

A pardon issued by the Alabama Board that refers only to the conviction in an Alabama court does not serve to reinstate the voting rights of a person lost due to a felony conviction in another state. The pardon issued by the Alabama Board must specifically state that the pardon is issued with respect to the conviction in another state.

QUESTION SIX

If the law of the State of Georgia does not require any affirmative action to have voting rights reinstated in that state after the sentence for a felony conviction has been served, is the State of Alabama required to honor such Georgia state law in determining whether voting rights in Alabama are reinstated?

The Full Faith and Credit Clause of the Constitution of the United States provides that the various states must recognize legislative acts, public records, and judicial decisions of other states in the United States. U.S. CONST. art. IV, § 1. Accordingly, a judgment or record shall have the same faith, credit, and conclusive effect in other states as it has by law or usage in the state from which the record originated. If a person who was convicted of a felony in another state has had his voting rights restored pursuant to the law in that state, the State of Alabama will recognize the restoration of those rights, and the person's right to vote will be considered restored in Alabama with respect to that conviction.

The State of Alabama will recognize the restoration of civil and political rights from another state.

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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