Alabama Advisory Opinions May 29, 2002: AGO 2002-244 (May 29, 2002)

AGO 2002-244.

Dear Senator Langford:

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

1. Does Alabama law permit "split precincts" where multiple legislative districts are contained within a single election precinct?

2. Does this procedure, if different from how elections were conducted prior to November 1964, require preclearance under Section 5 of the Voting Rights Act of 1965?

3. If Alabama law permits split precincts, what is the correct procedure to follow when there are split precincts like those in Montgomery County? In particular, can the probate judge assign voters from multiple legislative districts to the same voting machine or machines?

FACTS AND ANALYSIS

Election precincts are established by the county commission in each county pursuant to section 17-5A-1, et seq ., of the Code of Alabama. ALA. CODE §§ 17-5A-1 to 17-5A-10 (1995). "Precinct" is defined as follows:

A geographical subdivision of a county having clearly visible, definable and observable physical boundaries which are based upon criteria established and recognized by the Bureau of Census of the United States Department of Commerce for purposes of defining census blocks for its decennial census. A "precinct" shall be the smallest geographical area for purposes of holding national, state or county-wide elections.

ALA. CODE § 17-5A-2 (1995). Voters who live within these geographical boundaries are assigned to vote at a polling place within these boundaries.

The Code of Alabama does not require the precinct lines to be congruent with the district lines. Generally, precinct lines are drawn by the county commissions to correspond to county commission district lines. Thus, all voters who vote at a particular precinct vote in the same county commission district. Congressional, legislative, and board of education district lines are not drawn by the county commissions, nor are these district lines required to be congruent with county precinct lines. The term "split precincts" is not defined, nor does it appear in the Code of Alabama. The term "split precincts" has been used to refer to those voting precincts wherein the lines for congressional districts, legislative districts, and/or board of education districts cross the precinct lines. In those precincts, the voters may live in different congressional, legislative, and/or board of education districts. Accordingly, some voters in a split precinct would cast votes for candidates in one legislative house district, for example, while other voters in that precinct would cast votes in another legislative house district. Because the district lines for various offices such as legislative districts, congressional districts, board of education districts, and county commission districts are not identical, the precinct lines in most counties cannot be drawn in a manner that avoids "split precincts."

The current precinct lines for Montgomery County were adopted by the Montgomery County Commission on January 7, 2002, and were precleared by the United States Department of Justice on April 11, 2002.

Counties are authorized to adopt the use of electronic vote-counting systems. ALA. CODE § 17-24-1, et seq. (1995, Supp. 2001). The statutes establishing the electronic vote-counting provisions were adopted pursuant to Act No. 83-200, which received preclearance under Section 5 of the Voting Rights Act on May 13, 1983. In addition, a committee was established with the authority to adopt procedures applicable to the use of electronic vote-counting systems. ALA. CODE § 17-24-7 (1995). These procedures, originally adopted in the 1980s, were amended on February 7, 2002, and these amendments were precleared on May 13, 2002. Montgomery County has, for many years, used an electronic vote-counting system that has been approved for use pursuant to these provisions and procedures. For the past several elections, Montgomery County has had "split precincts" and has used the same voting machine for the different districts voting in those precincts.

An electronic vote-counting system, such as the one used in Montgomery County, must meet certain statutory requirements to be approved by the Alabama Electronic Voting Committee. Section 17-24-3 provides, in pertinent part, that the system shall:

(2) Permit each voter to vote at any election for all persons and offices for whom and for which he or she is lawfully entitled to vote;

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(9) Be capable of accumulating a count of the specific number of ballots tallied for a precinct; and accumulating total votes by candidate for each office, and accumulating total votes for and against each question for such precinct.

(10) Be capable of tallying votes from ballots of different political parties from the same precinct, in the case of a primary election.

ALA. CODE § 17-24-3 (1995). These provisions authorize the use of a machine that can be programmed to count votes from voters who vote in the same precinct but are assigned to different districts, such as legislative, congressional, or board of education districts.

This Office has been informed that the electronic vote-counting machines used in Montgomery County are programmed to count votes cast in a "split precinct." When a voter checks in at the polling place, he or she is given a slip of paper that lists the primary and the legislative, congressional, board of education, or other districts in which the voter is entitled to vote. This paper is given to the election official stationed at each machine who then sets the machine for that voter based upon that voter's ballot information. The machine will allow the voter to cast votes only for those districts in which the voter is entitled to vote. Therefore, it the opinion of this Office that voters from multiple districts voting in one precinct can vote on the same voting machine.

The county commission establishes election precincts. Multiple congressional, legislative, and/or board of education districts may be contained within one election precinct, referred to as a "split precinct." The current election precincts for Montgomery County were precleared on April 11, 2002. Voters in a "split precinct" may vote on the same electronic vote-counting machine when the machine being used meets the requirements of the Electronic Vote Counting provisions.

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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