Alabama Advisory Opinions March 12, 2002: AGO 2002-172 (March 12, 2002)

AGO 2002-172.

Dear Representative Carns:

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

QUESTIONS

1. Under the provisions of the present election laws, if each qualified political party timely submits a prospective poll workers list to the appointing board, what is the minimum number of poll workers from each political party a county appointing board must appoint to each voting place in a primary election and a general election to comply with Alabama law?

2. If one or both of the two qualified political parties does not submit a list to the appointing board, or submits an incomplete list, or submits a list that does not cover every voting place, what, if anything, does the law require the appointing board to do in primary and general elections to ensure bipartisan representation of poll workers at these voting places?

FACTS AND ANALYSIS

Poll workers or election officers are appointed by an appointing board composed of the judge of probate, sheriff, and clerk of the circuit court. ALA. CODE § 17-6-1 (1995). The appointment must be made not more than 20 days nor less than 15 days before the date of any election. Id . Section 17-6-1 provides that three inspectors and two clerks shall be appointed for each voting place. Id . If electronic vote counters are used, however, at least one inspector and three clerks are appointed as poll workers, and additional poll workers may be appointed as necessary. Procedures for Electronic Vote Counting Systems, 307-X-1-.10.

The appointing board makes appointments for the general election from lists furnished to the board by qualified political parties as provided in section 17-6-6, which states as follows:

Each political party or organization having made nominations may, by the chairman of its state or county executive committee or nominees for office, furnish the appointing board a list of not less than three names of qualified electors from each voting place, and from each of said lists an inspector and clerk shall be appointed for each voting place; provided, that where there are more than two lists filed, the appointments shall be made from the lists presented by the two political parties having received the highest number of votes in the state in the next preceding regular election, if each of said parties present a list.

ALA. CODE § 17-6-6 (1995).

If no lists are furnished by the political parties, section 17-6-9 of the Code provides as follows:

If no lists are furnished as provided in Section 17-6-6, the appointing board shall appoint inspectors, two of whom shall be members of opposing political parties, if practicable, and shall appoint clerks from opposing political parties, if practicable.

ALA. CODE § 17-6-9 (1995).

The appointment of poll workers for the primary election is made pursuant to section 17-16-17 of the Code of Alabama, which states as follows:

Each candidate for nomination may, at least 25 days before the primary, present to the county executive committee of his party a list of election officers desired by him for any one or more of the districts, wards or precincts, and his county committee shall, so far as practicable, make up, from the list so presented to it, a list of names of election officers, six in number, for each district, ward or precinct, which it will nominate to the appointing board of the county for appointment as officers to conduct the primary election. The county committee shall present the list so made up by it to the appointing board of the county which appoints the election officers to conduct elections for state and county officers in November, or at any other lawful time, which appointing board, from the list so presented to it by the county committee, shall, if there be on said list the names of sufficient persons who are legally eligible, select and appoint the officers to conduct the primary election, observing the above rule as to representation wherever more than one party enters the primary; and, in the latter case, if a county committee has not given a sufficient number of names for a box, then the appointing board shall supply the deficiency from electors of that party. In the event the persons selected as officers fail to appear at the polling place on the day of the primary election at least one hour before the polls are scheduled to open, then their places shall be filled by such of those who have been named by such appointing board as do appear; and, in the event none so named appear by then, the voters present and qualified to participate in such primary election may, from among themselves, select officers to conduct such election in such district or precinct, and such substituted persons shall have the authority to conduct such elections and to be paid for their service in the same manner as if they had been originally appointed. All officers serving in such primary elections shall take the same oath required to be taken by officers of regular state elections and shall be subject to the same restrictions, limitations, penalties and conditions.

ALA. CODE § 17-16-17 (1995).

With respect to general elections, it is clear that once the two qualifying political parties submit each of their lists of electors for poll workers, that "from each of said lists an inspector and clerk shall be appointed for each polling place." ALA. CODE § 17-6-6 (1995) (emphasis added). The necessity of representation of both parties at each polling place is made even clearer by a reading of the language in section 17-6-9. This section provides in the event parties do not furnish their lists under section 17-6-6, the appointing board shall nevertheless, if practicable, appoint poll workers from each of the two major parties.

The United States Court of Appeals for the Eleventh Circuit ruled that there was no violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution considering the fact that the Walker County appointing board applied section 17-6-6 in the general election by appointing at least one Republican poll official at each polling place. Vintson v. Anton , 786 F. 2d 1023 (11th Cir. 1986). The Court of Appeals, in interpreting the clarity and purpose of this section's language, recognized that the State is authorized "in accordance with our constitutional tradition [to] rely upon the confrontation at the polling place of alert representatives and advocates of conflicting and clashing partisan beliefs as an effective means to prevent fraudulent practices and promote the public interest in honest electoral procedures and effective popular government." Id . at 1026.

The law is not as clear with respect to primary elections. In a controversy dealing with the appointment of poll workers in primary elections, the Alabama Supreme Court stated that, although not clearly written, the primary election statute, section 17-16-17 of the Code, did not require the appointing board to appoint poll workers in equal numbers from each party's proposed list for the primary election. Mobile County Republican Executive Comm. v. Mandeville , 363 So. 2d 754, 756 (Ala. 1978). The United States Court of Appeals for the Eleventh Circuit, following the construction in Mandeville, found that the failure of the appointing board to appoint an equal number of Republican election officials in a general election did not violate any federal statutes or any constitutional rights, including the right to vote and the right to associate to advance shared political beliefs, nor was there a showing of purposeful discrimination against members of the Republican Party. Harris v. Conradi , 675 F. 2d 1212 (11th Cir. 1982).

Although the law with respect to primary elections is not as clear as the law for general elections, it is the opinion of this Office that the courts, following Vintson, would find that the rationale for the appointment of poll workers from both parties for the general election also applies to the primary election. The purpose of a primary election is to allow the political parties to select their nominees for the general election. See ALA. CODE §§ 17-16-1 & 17-16-5 (1995). To exclude either party from the process established by the Legislature for the benefit of the parties would frustrate the purposes of the primary process. Thus, when two qualified political parties are conducting primary elections, the requirement for representation from both parties to serve as poll workers seems obvious. Accordingly, it is the opinion of this Office that at least one representative from each of the two political parties having received the highest number of votes in the state in the preceding regular election must be appointed to each polling place, if practicable, for the primary election and the general election. This requirement applies when the parties submit lists to the appointing board and also when no lists or incomplete lists are submitted.

In a general election, if lists are submitted by the political parties, Alabama law requires that at least one poll worker shall be appointed from each qualified political party for each voting place. If lists are not submitted by the parties for the general election, at least one poll worker shall be appointed from each qualified political party for each voting place, if practicable. In a primary election, regardless of whether the political parties submit a list, at least one poll worker shall be appointed from each qualified political party for each voting place.

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

62555v2/37550