Alabama Advisory Opinions November 08, 2002: AGO 2003-030 (November 8, 2002)

AGO 2003-030.

Dear Secretary Bennett:

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

Whether, in the absence of a duly filed election contest, Alabama law permits the breaking of the seals of mechanical voting machines in order to conduct a recount pursuant to section 17-9-38 of the Code of Alabama of any or all precinct returns?

In your letter of request, you provide the following facts:

As you know, Governor Siegelman announced last evening his intention to seek a statewide recount of all ballots cast in the 2002 gubernatorial election and his intentions to seek a hand recount of all ballots cast in that election in Baldwin County. We understand from media reports that Governor Siegelman intends to request these recounts through petitions by a voter in each county to that county's canvassing board.

All but one of Alabama's counties utilize electronic voting machines. In 63 counties, including Baldwin County, an electronic optical scan machine, where paper ballots marked by voters are fed into the counting machine, is employed.

After ballots are inserted into those optical scanning machines, the ballots are collected in a sealed compartment of the machine.

Three counties use a machine where a vote is electronically recorded when a voter presses a designated place on the machine's ballot. The voters in those counties do not record their votes on any paper ballot.

In one county, mechanical lever-based voting machines are still employed.

Under standard election procedures, all voting machines of all types are sealed once results from the machine are obtained following the closing of the polls.

As the state's chief elections officer, I anticipate that I will be receiving inquiries from a number of county election officials seeking guidance as to the recounts that will be sought.

Your first question asks whether the seals that have been placed on mechanical voting machines can be broken to conduct a recount of the votes cast on that machine. It is my understanding that only one county in Alabama still uses such mechanical voting machines. A recount of the ballots cast on mechanical voting machines would have to be conducted in accordance with section 17-9-38 of the Code of Alabama, which provides as follows:

Any person now authorized by law may apply to the body which, under the general provisions of law, now have charge of and control over ballot boxes, for an order to break the seals of a voting machine for the purpose of recanvassing the vote should same become necessary , whereupon all the other provisions of this title shall be followed in making such recanvass and the machine shall be resealed as herein provided.

The threshold question who has standing to request a recount was answered in a 1982 opinion to then Secretary of State Don Siegelman. In that opinion, this Office answered that question as follows:

The statute gives the right to apply for a recount to "any person now authorized by law." The voting machine law provides little insight as to who that means. A recount is, however, a form of post election relief, as is an election contest, so the phrase may be interpreted to mean any person who is entitled to post election relief. Standing to contest a general election is given to any qualified elector. Sections 17-5-1, § 17-15-20, Code of Alabama . . . These same requirements should apply to the initiation of recounts, also.

This opinion also answered the question who has the authority to authorize a recount:

The statute grants this authority to "the body which, under the general provisions of law, now have charge of and control over ballot boxes." . . . In general elections, the sheriff is the appropriate authority. Section 17-13-4, 17-13-5, Code of Alabama , 1975. Id .

Thus, any qualified elector of the county can petition the sheriff of the county for an order to break the seal on a voting machine for the purpose of recanvassing the vote. State law provides no procedure, however, by which a single elector may request sheriffs of counties in which he or she does not reside to recount all of the ballots cast in a statewide election.

The operation of section 17-9-38 of the Code of Alabama is further limited to instances where such a recanvassing is "necessary." Those three instances where such a procedure is "necessary" and, therefore permitted, are enumerated in section 17-9-31:

(1) For obtaining the results of an election when the election officials have failed to make a return, but only after the fact of failure to make a return has been certified to the circuit court having jurisdiction in that county and an order to break the seals to obtain the results of an election has been issued by that court;

(2) For the hearing of a contest conducted in accordance with law;

(3) For the purpose of a grand jury investigation, upon the order of a court having jurisdiction in the county in which the machines are used.

The second and third reasons for breaking the seals on mechanical voting machines are self-explanatory. An example of a "fail[ure] to make a return" under section 17-9-31(1) would be where voting officials at a particular polling place in a county using mechanical voting machines fail to make a return of the results of some or all of the voting machines at their polling place, whether intentionally or by mistake. Section 17-9-31(1) would permit the seal on those machines to be broken based on court order to obtain the results from those machines.

The seals placed on mechanical voting machines in Alabama elections may not be broken unless one of the three specifically enumerated reasons set forth in section 17-9-31 of the Code of Alabama is present. QUESTION TWO

Whether, in the absence of a duly filed election contest, Alabama law permits the breaking of the seals of electronic voting machines and ballots in order to conduct a recount pursuant to section 307-X-1-.21 of the Alabama Administrative Code of any or all precinct election returns? FACTS AND ANALYSIS

Your second question involves the application of Alabama Administrative Code Section 307-X-1-.21 (eff. Mar. 14, 2002), which provides procedures for a recount in counties using electronic voting systems. Section 307-X-1-.21 provides as follows:

(1) Any person may petition a county canvassing authority for a recount of any or all precinct returns for offices in the election that the person was a qualified elector. The time period for requesting a recount begins with the production of the certificate of result and ends forty-eight (48) hours after the official canvass of county returns. This county canvassing authority is the county canvassing board in general elections and the county executive committee in a party primary. The petitioner must be prepared to pay the cost of the recount and should be required to give security to cover these costs. The county canvassing authority is to set the amount of the security based upon an estimate of actual costs. There being a public interest in fair and accurate elections, these costs shall be kept to a minimum by using county personnel or volunteer workers whenever possible. However, the recount must be conducted under the supervision of a trained and certified poll official and/or Probate Judge of the County where the recount is conducted so long as the recount is not for the election of a Probate Judge. Representatives of opposing interests shall be given at least twenty-four (24) hours notice and shall be invited to participate in the recount.

(2) The recount should be conducted as simply as the type of equipment and local conditions permit provided that the following minimum safeguards are observed. The box or envelope holding the ballots shall be delivered unopened to the supervising official in charge of the re-count. A representative of the county canvassing authority having custody of the ballots shall be present during the recount. The marksense ballot counter shall be re-tested before the recount. The recount shall consist of reading the ballots through the counter. Any ballot that was counted in the original election but is rejected by the counter in the recount shall be counted by hand. Representatives of opposing interests have the right to participate in the hand count, and any unresolved disputes over the interpretation of the voter's choice may be appealed to the canvassing authority.

(3) When the recount has been completed, the ballots shall be returned to their container along with a printout of the recount results. The ballot container shall be sealed and signed by the inspector conducting the recount and the representative of the county canvassing authority having custody of the ballots.

(4) If the recount produces a change in precinct totals of sufficient magnitude to alter the result of the election, the outcome shall constitute grounds for an election contest as now prescribed by law. If the recount of the resulting contest alters the result of the election, the cost of the recount shall be borne by the county.

In Ex parte Woodward , 738 So. 2d 322 (Ala. 1998), the Supreme Court of Alabama addressed a petition for a writ of mandamus in a case concerning the validity of section 307-X-1-.21 of the Alabama Administrative Code. In that case, the Jefferson County Canvassing Authority had decided to conduct a recount of the votes cast in the general election for sheriff of Jefferson County, before an election contest was filed, under to section 307-X-1-.21. Id. at 323. Mike Hale, the candidate with the most votes in the initial vote tally filed an action in the Circuit Court of Montgomery County and obtained a temporary restraining order, and later a preliminary injunction, against the canvassing board to prevent the precontest recount from proceeding. Id.

The Court observed that section 307-X-1-.21, which was promulgated under section 17-24-7(b) of the Code of Alabama, "specifically authorize[d] the acts Hale sought to have enjoined." Id. The Court stated that the regulations and statutes must be read together:

Section 17-24-7(a) incorporates, so far as is practicable, provisions of Chapters 8 and 9 of Title 17 dealing with voting procedures. Section 17-24-7(b) authorizes the Alabama Electronic Voting Committee . . . to promulgate "other procedures where necessary to achieve and maintain the maximum degree of correctness and impartiality of voting, counting, tabulating, and recording votes, by electronic vote counting systems provided by this chapter."

The merits of Hale's challenge to the validity of § 307-X-1-.21 turn on whether § 17-24-7(b), with its reference to "voting, counting, tabulating, and recording votes," deals sufficiently with a broader subject-matter than the reference to "procedures of voting paper ballots and voting machines as prescribed in Chapters 8 and 9 of Title 17" . . . so as to displace provisions of Chapter 8 and 9 that expressly prevent the precontest recount allowed by § 307-X-1-.21. While § 17-24-10 saves provisions of Chapter 9 of Title 17 from repeal, it does so only to the extent that the provisions of Chapter 24 do not conflict.

After summarizing the merits of the case, however, the Court decided to "make no determination at this juncture as to the merits." Id. The Court merely concluded that Hale had not established that he would be irreparably injured by a precontest recount under section 307-X-1-.21, and thus was not entitled to preliminary injunctive relief. Id. at 323-24. Justices Almon, Shores, and Kennedy dissented. Id. at 324. Two of the dissenters concluded that "Section 17-24-7(b), plainly read, is not a statute that `authorizes' the adoption of administrative regulations allowing for the unlimited breaking of the seals of electronic voting machines." Id. at 325 (Kennedy, J., joined by Shores, J.). In addition, Justices Kennedy and Shores concluded that "§ 307-X-1-.21 cannot function to allow a recanvassing under these circumstances, because it is in direct conflict with § 17-9-31 and § 17-8-35." Id. They concluded that none of the three reasons set forth in section 17-9-31 involved recanvassing. Id.

As explained above, although section 17-9-31 does not expressly mention recanvassing or recounting, it must be read in pari materia with section 17-9-38, which does authorize recanvassing/recounting of votes. Section 17-9-31, which was enacted fourteen years after section 17-9-38, limits the circumstances in which the seals on mechanical voting machines may be broken for the purpose of a recanvass or recount. The Supreme Court noted in Woodward that "Section 17-24-7(a) incorporates, so far as is practicable, provisions of Chapters 8 and 9 of Title 17 dealing with voting procedures." 738 So. 2d at 323. Thus, section 17-24-7(a) incorporates the limitations on breaking of seals in section 17-9-31 into the "procedures followed pursuant to this [the electronic voting systems] chapter."

Contrary to the dissent in Woodward , however, this Office concludes that section 307-X-1-.21 of the Alabama Administrative Code need not be interpreted to conflict with section 17-9-31. The Supreme Court has held that "a court, whenever possible, should avoid a construction of a regulation that would raise doubt as to the regulation's validity . . . ." Newsome v. Trans Int'l Airlines , 492 So. 2d 592, 596 (Ala. 1986); see generally 2 Am. Jur. 2d Administrative Law § 239, at 258 & n.87 (1994) (citing Newsome ). When properly interpreted, section 307-X-1-.21 provides a mechanism for electors to obtain a recount that comports with the restrictions of section 17-9-31 of the Code of Alabama, as incorporated by section 17-24-7(a).

Section 307-X-1-.21(1) provides that "[a]ny person may petition a county canvassing authority for a recount of any or all precinct returns for offices in the election that the person was a qualified elector." This provision is consistent with the interpretation this Office gave to section 17-9-38 in Opinion No. 82-052 regarding persons with standing to request a recount under that statute. The right to "petition . . . for a recount" does not imply, however, an unfettered right to obtain the relief requested. If that were so, full recounts could be demanded as a matter of course for no legitimate reason whatsoever. The regulation merely authorizes an elector in a county using an electronic vote counting system to petition the county canvassing authority for a recount. It remains the canvassing authority's duty to determine whether the voter is entitled to a full recount requiring the breaking of the seals placed on the ballots or electronic voting equipment.

In determining whether an elector is entitled to a full recount involving the breaking of the seals placed on ballots or voting equipment, the canvassing authority must look to section 17-9-31 to determine whether any of the three statutory criteria are met. In the case of a petition presented by an elector of a county for a pre contest recount, the second justification for breaking the seals (an election contest) obviously would not apply. The third justification, a grand jury investigation, also would not apply to an elector's request for a precontest recount. The first justification provided in section 17-9-31 for breaking seals to conduct a recount could apply to an elector's petition under section 307-X-1-.21, however. The first reason given in section 17-9-31 for breaking the seals to conduct a recount is to "obtain[] the results of an election when the election officials have failed to make a return."

Ala. Code § 17-9-31(1). If an elector petitioned the county canvassing board for a recount under section 307-X-1-.21 alleging that election officials had failed to make a return, the canvassing authority would be authorized, after a court order has been obtained, to break the seals and to conduct a full recount under section 17-9-31(1). In that situation, the procedures described in section 307-X-1-.21(2) & (3) would govern the recounting of ballots after the seals were broken based on a court order.

For example, if an elector reported to the county canvassing authority on the day after election day that he had discovered a sealed box of ballots at the place where he voted that apparently had not been delivered to the central counting location for inclusion in the county vote total, and the canvassing authority confirmed that the sealed box of ballots in fact had not been counted, the canvassing authority would be authorized under section 17-9-31(1) to certify that fact to the circuit court in order to obtain a circuit court order to break the seal on those ballots and count those votes. The same reasoning and procedure would apply to an electronic data pack that had been sealed in error without being downloaded for inclusion in the county vote total.

This Office concludes that this construction of section 307-X-1-.21 and section 17-9-31 of the Code of Alabama, which requires that seals only be broken under a court order, is consistent with section 17-24-7(b) of the Code of Alabama, which authorizes the promulgation of procedures for electronic vote counting systems. Section 17-24-7(b) requires that such procedures "achieve and maintain the maximum degree of correctness and impartiality of voting, counting, tabulating, and recording votes, by electronic vote counting systems . . . ." In particular, the requirement of a court order before seals may be broken under section 17-9-31(1) ensures the " impartiality of . . . counting, tabulating, and recording votes." (Emphasis added.)

In situations in which the county canvassing authority determined that an elector did not satisfy the criteria established in section 17-9-31 for breaking seals on ballots or machines, or in which the court refused to enter an order to break the seals under section 17-9-31(1), the county canvassing authority could provide more limited relief to the elector pursuant to section 307-X-1-.21. Section 307-X-1-.21(2) provides that a "recount should be conducted as simply as the type of equipment and local conditions permit."

In a case where a county canvassing authority was not authorized to break the seals on ballots under section 17-9-31, the canvassing authority could nonetheless conduct a recount pursuant to section 307-X-1-.21 utilizing all of the unsealed election materials available to it. For example, the canvassing authority could verify its mathematical computations to ensure that all totals from all precincts were accurately reflected in each candidate's vote total. This recount of unsealed materials would not be affected by section 17-9-31.

In the absence of a duly filed election contest, Alabama law permits the breaking of the seals of electronic voting machines and ballots to conduct a recount under section 307-X-1-.21 of the Alabama Administrative Code only where the breaking of seals is authorized under section 17-9-31 of the Code of Alabama. In cases where the breaking of seals is not authorized under section 17-9-31, a county canvassing authority may conduct a recount under section 307-X-1 .21 of the Alabama Administrative Code utilizing all of the unsealed election materials available to it. QUESTION THREE

Whether, in the absence of a duly filed election contest, Alabama law permits the hand counting of ballots in order to conduct a recount of any or all precinct returns.

It is our understanding that your third question concerns the hand counting of ballots in those counties using electronic vote counting systems. In the absence of a duly filed election contest or grand jury investigation, see section 17-9-31(2) and (3) of the Code of Alabama, the hand counting of ballots is authorized in one narrow instance. As discussed in the Facts and Analysis section of Question Two, when the county canvassing authority is authorized to break the seals of electronic voting machines and ballots under section 17-9-31(1), section 307-X-1-.21(2) provides as follows:

The box or envelope holding the ballots shall be delivered unopened to the supervising official in charge of the re-count. A representative of the county canvassing authority having custody of the ballots shall be present during the recount. The marksense ballot counter shall be re-tested before the recount. The recount shall consist of reading the ballots through the counter. Any ballot that was counted in the original election but is rejected by the counter in the recount shall be counted by hand. Representatives of opposing interests have the right to participate in the hand count, and any unresolved disputes over the interpretation of the voter's choice may be appealed to the canvassing authority.

In the absence of a duly filed election contest or grand jury investigation, ballots used in an electronic vote counting system may not be recounted by hand unless the county canvassing authority is authorized to break the seals on ballots and machines under section 17-9-31(1) of the Code of Alabama and where a ballot that was counted in the original election has been rejected by the electronic vote counting machine in the recount.

To summarize, this Office finds that:

(1) In the 66 counties that use electronic voting systems, recounts may be conducted using all unsealed election material;

(2) In all 67 counties, a recount of sealed material can occur only upon a finding that a voting machine or precinct failed to make return and a court then orders the seal to be broken to allow that machine or precinct to return its count of votes;

(3) In the one county that does not use an electronic voting system, there is no provision of law that allows a recount of unsealed material; and

(4) It is a crime to break a seal without following the procedure in section 17-9-31.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact me.

Sincerely,

Bill Pryor

Attorney General

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