Alabama Advisory Opinions May 10, 2002: AGO 2002-231 (May 10, 2002)

AGO 2002-231.

Dear Mr. Johns:

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

Preparation of the ballots and the voters' list being the responsibility of the probate judge, not the county commission, what is my duty in proceeding with preparation of ballots and the voters list? In short, can I prepare ballots and the voters' list to include the county commission action of March 5, 2002, without Justice Department preclearance? FACTS AND ANALYSIS

On March 5, 2002, the Baldwin County Commission voted to change and alter the configuration, boundaries, and designation of voting precincts in Baldwin County. These changes were submitted to the Justice Department by the county commission on March 27, 2002, and received by the Department on March 28, 2002. Preclearance from the Justice Department may not be received until as late as May 28, 2002, which is only six days before the primary election.

The change in precinct boundaries requires that some voters be reassigned to a newly created precinct and polling place. In addition, there are several actions that must be taken by the probate judge prior to the election and prior to the May 28 date on which preclearance is anticipated. Some of the deadlines are as follows. By April 23, 2002, the probate judge must furnish a list of qualified voters to the absentee election manager. See ALA. CODE § 17-10-5 (1995). You state that this was done but the list does not reflect the commission changes of March 5 because preclearance was not received. Absentee ballots must be delivered to the absentee election manager by April 25, which has not been done because of lack of preclearance of the changes. See ALA. CODE § 17-10-12 (1995). On May 9, you published a list of qualified electors, but this list does not reflect the changes in precincts.

Any changes in voting procedures or practices must be submitted to the United States Justice Department for preclearance before implementation of those changes. Changes subject to the preclearance requirements of Section 5 of the Voting Rights Act are ineffective until they are precleared by the federal authorities. N.A.A.C.P. v. Hampton County Election Comm'n , 470 U.S. 166 (1985). Accordingly, the changes made by the Baldwin County Commission on March 5, 2002, cannot be implemented until they have been precleared.

The United States Justice Department has sixty calendar days from receipt of the submission in which to interpose an objection to a change. 42 U.S.C. § 1973c. The sixty-day period, with respect to the changes in precincts made by the Baldwin County Commission, will not run in time for the changes to be timely implemented for the June 4, 2002, primary election. Accordingly, the ballots and the voters' list should be prepared by the probate judge without regard to the changes made by the county commission on March 5, 2002.

Changes subject to the preclearance requirements of Section 5 of the Voting Rights Act are ineffective until precleared by the United States Justice Department. The primary election to be held on June 4, 2002, in Baldwin County should be conducted without regard to the changes adopted by the Baldwin County Commission on March 5, 2002, because the changes have not received preclearance.

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

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