Alabama Advisory Opinions November 19, 2002: AGO 2003-036 (November 19, 2002)

Alabama Attorney General Opinions

2002.

AGO 2003-036.

Dear Judge Bolin:

This opinion of the Attorney General is issued in response to your request. QUESTION 1

Based upon the language in sections 17-10-10 and 17-10-11 of the Code of Alabama, shall absentee ballots postmarked before the day of the election and received after the day of the election be canvassed and tabulated?

FACTS AND ANALYSIS

The circuit clerk of Jefferson County, who is the absentee election manager for Jefferson County, indicated by letter dated November 13, 2002, to the Jefferson County Canvassing Board (includes the probate judge, the sheriff, and the circuit clerk) that on November 8, 2002, all absentee ballots that were postmarked as of the day before the November 5, 2002, election, but received in her office after the date of the election, were counted. She requested that the Canvassing Board reconvene and amend the certification to include those vote totals.

Your request provides the following additional information:

Records in the Office of the Probate Judge of Jefferson County show that such absentee ballots were not counted for the November 7, 2000, general election (the records for said election being the only ones still retained and available). The aforesaid absentee election manager has stated that such ballots were not counted for the June 4, 2002, primary election and the June 25, 2002, primary run-off election; additionally, the absentee election manager in the Bessemer Division of Jefferson County did not count absentee ballots received after the election.

Your request also states that, pursuant to section 17-14-1 of the Code of Alabama, the canvassing board for Jefferson County met at 12:00 noon on Friday, November 8, 2002, for the purpose of canvassing and making a correct statement of the votes of the several precincts in Jefferson County. A lawyer for one of the candidates and the absentee election manager raised the question of these absentee ballots at this time, and after a discussion, those votes were not included in the declaration of election results certified by the canvassing board. The certificate of results was served upon the Secretary of State on November 8, 2002, and a copy was forwarded to the Governor pursuant to section 17-14-22 of the Code of Alabama.

After the canvassing, you state that the absentee election manager recalled some of the polling officials who had previously been appointed to serve as election officials for the counting of absentee ballots in the Birmingham Division of Jefferson County, and on the afternoon of November 8, 2002, the absentee ballots in question were counted separate from those counted on November 5, 2002.

The procedure for the counting of absentee ballots is found in section 17-10-10 of the Code of Alabama. This section provides in pertinent part as follows:

On the day of the election, beginning at 12:00 noon, the absentee election manager shall deliver the sealed affidavit envelopes containing absentee ballots to the election officials provided for in Section 17-10-11.

* * *

The absentee ballots shall upon the closing of the polls be counted and otherwise handled in all respects as if the absentee voter were present and voting in person.

Ala. Code § 17-10-10 (Supp. 2002) (emphasis added).

Poll workers for the counting of absentee ballots are appointed pursuant to section 17-10-11 of the Code of Alabama, which states, in pertinent part, as follows:

(a) For every primary, general, special or municipal election, there shall be appointed three managers, two clerks and a returning officer, named and notified as are other election officials under the general election laws of the state, who shall meet, at the regular time of closing of the election on that day, in the office of the clerk or register for the purpose of receiving, counting and returning the ballots cast by absentee voters. The returns from the absent box shall be made as required by law for all other boxes.

Ala. Code § 17-10-11 (1995) (emphasis added).

Sections 17-10-10 and 17-10-11 clearly provide that absentee ballots shall be counted and the returns made on the date of the election, just as ballots are counted for those persons who are voting in person at the polls on election day. There are no provisions that provide for the counting of absentee ballots received after the date of the election.

The confusion concerning this issue seems to arise from the language in section 17-10-23 of the Code of Alabama. This section states, in pertinent part, as follows:

No absentee ballot shall be opened or counted if received by the absentee election manager by mail, unless postmarked as of the date prior to the day of the election, or, if received by the absentee election manager by hand delivery, unless so delivered to the absentee election manager not later than 5:00 p.m. on the day prior to the election.

Ala. Code § 17-10-23 (Supp. 2002). This section requires that hand delivered ballots must be received by 5:00 p.m. on the day before the election. This section also requires that absentee ballots that are sent by the mail must be postmarked as of the date prior to the day of the election. This section does not address when the absentee ballot must be received by the absentee election manager. Accordingly, other provisions of the elections laws must be read in pari materia with this section to determine when the absentee ballots that are properly postmarked must be received to be counted.

As set forth above, sections 17-10-10 and 17-10-11 provide that absentee ballots shall be counted and the returns made on the date of the election, just as ballots are counted for those persons who are voting in person at the polls on election day. An absentee ballot postmarked as of the day before the election, but received on Wednesday after the election, cannot be counted and returned as all other ballots are counted and returned on election day.

Furthermore, your request states that it has not been the practice of the absentee election mangers in past elections to count those absentee ballots that are postmarked prior to the day of the election, but received after the day of the election. Accordingly, any change in this practice must be precleared under section 5 of the Voting Rights Act of 1965 before it can be implemented. 42 U.S.C. §1973c (1994).

CONCLUSION

Absentee ballots postmarked prior to the day of the election, but received after the day of the election, are not to be counted and canvassed. QUESTIONS 2 & 3

Should your opinion to Question One be in the affirmative, what is the end-point post-election after which no further such ballots shall be canvassed and tabulated?

Further, should your opinion to Question One be in the affirmative, may the certificate of results declared by the Board of Supervisors be amended to reflect such votes? FACTS, ANALYSIS, AND CONCLUSION

Given our answer to Question One, Questions Two and Three need not be addressed. QUESTION 4

If your opinion to Question One is in the negative, would the same opinion apply to absentee ballots cast by uniformed services voters and overseas voters pursuant to Title 42, U.S.C §1973ff (2002)? FACTS AND ANALYSIS

Federal law provides for a federal postcard application for voter registration and voting by absentee ballot for absent uniformed services voters and overseas voters in elections for federal office. 42 U.S.C.A. § 1973ff (2002). Alabama law recognizes this right and specifically references the right of absent uniformed services voters and overseas voters to vote by absentee ballot.

Ala. Code § 17-10-3 (Supp. 2002). The federal law does not, however, establish a deadline for receipt of these absentee ballots or extend a state's deadline for the receipt of absentee ballots from military and overseas voters. Accordingly, uniformed services voters and overseas voters who cast an absentee ballot in Alabama must comply with Alabama's election law deadlines for absentee ballots.

CONCLUSION

Absentee ballots cast by uniformed services voters and overseas voters postmarked prior to the day of the election, but received after the day of the election, are not to be counted and canvassed.

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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