Alabama Advisory Opinions January 09, 2002: AGO 2002-118 (January 9, 2002)

AGO 2002-118.

Dear Mr. Bennett:

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

The Alabama Legislature is required to reapportion itself to conform with the shifts in population reflected in the federal Census every ten years. State law imposes a one-year residency requirement providing that a person seeking election to the State Senate or the State House of Representatives must have been a resident of the district he or she seeks to represent for one year preceding his or her election. State law further provides that if the district has not been established for one year preceding the election, a person seeking election may satisfy the residency requirement if they have resided in the district from which the new district was taken for one year prior to the election. When the Alabama Legislature reapportioned itself last year, several incumbent legislators found that the newly drawn district boundaries resulted in their residences no longer being in the district they represented. May a legislator, who has resided in the district from which the newly redrawn district was taken, meet the residency requirements contained in article IV, section 47, of the Constitution of Alabama by moving into that district within one year of the election?

FACTS AND ANALYSIS

Pursuant to Act Nos. 2001-727 and 2001-729, the Alabama Legislature reapportioned itself in accordance with the 2000 Census results. This Office understands that, in the process of redrawing the legislative district lines, certain district lines were drawn in a manner that resulted in incumbent legislators finding their residences no longer within the boundaries of their pre-reapportionment districts. You have asked whether these legislators may move into the newly created districts and still qualify to seek election.

The Alabama Constitution establishes the qualifications for service in the Alabama Legislature:

Senators shall be at least twenty-five years of age, and representatives twenty-one years of age at the time of their election. They shall have been citizens and residents of this state for three years and residents of their respective counties or districts for one year next before their election, if such county or district shall have been so long established; but if not, then of the county or district from which the same shall have been taken; and they shall reside in their respective counties or districts during their terms of office.

ALA. CONST. art IV, § 47.

The courts of this State have repeatedly explained the reason for the one-year residency qualification:

Alabama became a state in 1819, and every Constitution this state has had -- 1819, 1861, 1865, 1868, 1875 and 1901-- has contained a pre-election residential requirement of one year for legislators except the "carpet-bag" Constitution of 1868, and even that one required state senators to have resided in their district for one year.

It is clear from this history that "the intent and object originally intended to be accomplished" was that a legislator must have lived at least one year in the same district with the people he sought to represent in the legislature so that they could know him and he could learn something of their needs.

Butler v. Amos , 292 So. 2d 645, 646 (Ala. 1974).

Where, as here, due to legislative redistricting, new district boundary lines are established and new districts are created from old ones, the Legislature's intent can be satisfied by allowing a person who has resided in the district from which the new district is created for longer than one year to move into the newly created district and seek election. This Office has previously considered this very situation with reasoning that remains applicable:

It is the opinion of this office that should you move your residence into that area encompassed by "new" district 96 prior to the general election on November 2, 1982, you will have sufficiently met Alabama's constitutional residency requirements.

* * *

Under the reapportionment law, Act No. 81-1049, new district 96 will not come into existence until November 3, 1982. Since the new district which you wish to represent will not have been established for a year, under the exception clause of Section 47, it is required that you have resided for at least one year in the district from which the new district has been taken. The new district has been taken in part from old district 96. You currently reside in and represent old district 96. If you move to that area currently in old district 96, but also encompassed by what will be new district 96, you then will have met the residency requirements for you will have always resided in that district from which the new district was taken and when the new districts come into being you will be a resident of the district which you hope to represent.

In arriving at this conclusion, I am guided by the Alabama Supreme Court's view of the purpose of Section 47 of the Alabama Constitution which was set forth in Butler v. Amos , 292 So. 2d at 646:

"It is clear from this history that `the intent and object originally intended to be accomplished' was that a legislator must have lived at least one year in the same district with the people he sought to represent in the legislature so that they could know him and he could learn something of their needs."

The people who you seek to represent are principally those who you already represent and who have come to know you. Your change of residence in accordance with this opinion will be consistent with the object originally intended to be accomplished by Section 47 of the Constitution of Alabama, 1901.

A.G. Opinion No. 82-00081 to Honorable J. E. Turner, Member, Alabama House of Representatives, dated November 18, 1981.

In Knight v. Gray , the Alabama Supreme Court discussed this opinion and declined, without overruling it, to follow it. Knight, 420 So.2d 247, 248 (Ala. 1982). Your question, and the one under consideration in Knight, are clearly distinguishable. In Knight , the Court deferred to the narrower application of section 47 given by the Alabama Democratic Party and concluded that the narrower application, "for purposes of its party primary," was not "foreclosed" by section 47. Knight, 420 So.2d at 248. In fact, in Knight , the Court expressly declined to state whether "we would agree with this opinion in the context of an independent candidate's running in the general election." Id. at 250. Here, no application of section 47 of any sort has been imposed by a political party. It is the opinion of this Office that the conclusions in A. G. Opinion No. 82-00081 to Representative J. E. Turner are correct statements of Alabama constitutional law.

Where there is a newly created legislative district (taken from the territory that once comprised another district), anyone who has resided in the old district for one year and who moves into the new district satisfies the one-year residency requirement of section 47 of the Constitution of Alabama to qualify to seek election in the new district.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Troy King of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

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