Alabama Advisory Opinions August 12, 2003: AGO 2003-212 (August 12, 2003)

AGO 2003-212.

Dear Secretary Worley:

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

QUESTION 1

What is the proper and legal definition of "current," as enumerated in Act 2003-381?

Act 2003-381, referred to as the Voter Identification Law, became effective on June 24, 2003, and received preclearance from the United States Department of Justice on August 7, 2003. The word "current" is used in section 1 of the act as follows:

(b) Each elector shall provide identification to an appropriate election official prior to voting. A voter required to show identification when voting in person shall present to the appropriate election official either of the following forms of identification:

(1) A current valid photo identification.

(2) A copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.

The word "current" is not defined in the act. Under the established rules of statutory construction, words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used, that language must be interpreted to mean exactly what it says. Ex parte Cove Properties, Inc ., 796 So. 2d 331, 334 (Ala. 2000); Ex parte T.B. , 698 So. 2d 127, 130 (Ala. 1997).

As the Supreme Court of Kansas noted many years ago, "[c]urrent is defined in Webster's Third New International Dictionary, Unabridged as follows: `* * * presently elapsing * * * occurring in or belonging to the present time * * * in evidence or in operation at the time actually elapsing * * * most recent . * * *.'" Laird & Co. v. Cheney , 414 P.2d 18, 24 (Kan. 1966) (emphasis added) (quoting Webster's Third New International Dictionary 557 (1961)). An Illinois court similarly observed that "`current' is defined as `passing in time or belonging to the time actually passing; new, present, most recent .' It has been so defined in the cases." Kozak v. Retirement Bd. of Fireman's Annuity & Ben. Fund of Chicago , 425 N.E.2d 1371, 1373 (Ill. App. 1981) (emphasis added) (quoting Random House Dictionary of the English Language, Unabridged Edition 355 (1966) and collecting cases).

The United States Code and the Code of Federal Regulations similarly define the term "current" to mean "most recent" in various contexts in which the term is used in the same manner it is used in Act 2003-381. See 16 U.S.C. § 6203(8) (2000) (defining "current cabin user fee" to mean "the most recent cabin user fee"); 33 C.F.R. § 164.70 (2002) (defining "current edition" to mean "the most recent published version"); 40 C.F.R. § 144.61(b) (2002) (defining "current plugging cost estimate" to mean "the most recent of the estimates"); 40 C.F.R. § 264.141(b) (2002) (defining "current closure cost estimate" to mean "the most recent of the estimates"); 40 C.F.R. § 265.141(b) (2002) (same). Several Alabama administrative regulations do the same. See Ala. Admin. Code r. 335-14-5-.08(2)(d), (f), ( l )(4) (eff. Mar. 15, 2002); Ala. Admin. Code r. 335-14-6-.08(2)(c), (d), (i)(4) (eff, Mar. 15, 2002); Ala. Admin. Code r. 810-2-7-.06(3)(a)(1) (eff. Mar. 2, 1998).

Thus, as used in section 1(b)(2) of Act 2003-381, the term "current," used in reference to a photo identification, utility bill, government check, paycheck, or other government document means "most recent." A "current utility bill" would be the most recent bill received from the utility company, a "current . . . bank statement" would be the most recent statement received from the bank, a "current . . . paycheck" would be the most recent paycheck received from one's employer, and so on.

The term "current," as used in Act 2003-381, means the most recent.

QUESTION 2

What is the proper and legal definition of "valid," as enumerated in Act 2003-381?

The term "valid" is used in the act as follows:

(1) A current valid photo identification.

(2) A copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter. The term "other government document" may include, but is not limited to, any of the following: a. A valid identification card issued by a branch, department, agency, or entity of the State of Alabama, any other state, or the United States authorized by law to issue personal identification. b. A valid United States passport. c. A valid Alabama hunting or fishing license. d. A valid Alabama permit to carry a pistol or revolver. e. A valid pilot's license issued by the Federal Aviation Administration or other authorized agency of the United States. f. A valid United States military identification card. g. A certified copy of the elector's birth certificate. h. A valid Social Security card. i. Certified naturalization documentation. j. A certified copy of court records showing adoption or name change. k. A valid Medicaid card, or an Electronic Benefits Transfer Card (formerly referred to as a "food stamp card").

The term "valid" is not defined in the act; thus, the established rules of statutory construction must be followed as set forth under Question 1, and the term must be given its natural, plain, ordinary meaning. The Court of Criminal Appeals has held that "[t]he term `valid' means in law having legal strength, force, and effect . . . ." Bennett v. State , 46 Ala. App. 535, 537, 245 So. 2d 570, 572 (1971). Essentially, the same definition is set forth in the 1990 edition of Black's Law Dictionary and in Webster's Third New International Dictionary. See Black's Law Dictionary 1150 (6th ed. 1990) (citing Bennett ); Webster's Third New International Dictionary 2569 (1961). Other courts have given the term "valid" a similar definition. See Caulkins v. Petrillo , 513 A.2d 43, 45 (Conn. 1986) (quoting Webster's ); State ex rel. Hayburn v. Kiefer , 624 N.E.2d 699, 700 (Ohio 1993) (ordinary meaning of "valid" is "having legal force"); Ranger Ins. Co. v. Bowie , 574 S.W.2d 540, 542 (Tex. 1978).

Thus, as used in Act 2003-381, the term "valid," in reference to a photo identification, government issued identification card, United States passport, hunting or fishing license, pistol permit, pilot's license, military identification, social security card, or medicaid or medicare card means having legal strength, force, and effect.

The term "valid," as used in Act 2003-381, means having legal strength, force, and effect.

QUESTION 3

If a voter presents a utility bill from July 2003 (or one that is several months old), should he or she be allowed to vote? What is the line of demarcation establishing current?

FACTS, ANALYSIS, AND CONCLUSION

As stated under Question 1, current means the most recent. Thus, using common sense, a voter must present his or her most recent utility bill. All utility bills are not sent on a monthly basis. In some cases, the bills may be sent on a bimonthly basis or possibly a quarterly basis. Accordingly, if a voter presents a utility bill that he or she states is the most recent bill received, the voter has met the requirements of presenting a current utility bill.

QUESTION 4

If a voter presents a driver's license with address A, but has recently moved to address B, and failed to update his or her driver's license, does this change the validity of the identification card?

FACTS, ANALYSIS, AND CONCLUSION

As stated under Question 2, "valid" means having legal strength, force, and effect. A driver's license that contains a person's previous address does not invalidate the license. See Ala. Code § 32-6-1 (1999) (validity and expiration of a driver's license).

QUESTIONS 5 & 6

If a driver's license (or any similar date-sensitive card) is tendered as proper identification, is the poll worker responsible for confirming the expiration date enumerated upon each license? If the poll worker is charged with such responsibility, what procedures, if any, should be followed by the worker? (Is there a process that should be employed? What efforts of documentation and related instruments should be drawn and/or drafted for this and related processes?)

Should we have the Department of Justice review, for preclearance, such documents if the documents are necessary for accurate and prudent recording?

A driver's license has an expiration date. In addition, there is "[a] grace period of 60 days after expiration date of a driver's license . . . for the purpose of driver's license renewal and the driver's license shall be valid for this time period."

Ala. Code § 32-6-1(b) (1999). A poll worker, when presented with a driver's license, should observe the document to determine that it has not expired for more than 60 days and that it is in force and effect. For other "similar date-sensitive card[s]," which typically would not have grace periods to extend their validity, a poll worker should observe the document to determine that it has not expired and that it is in force and effect.

The act does not specify a specific procedure to be used by the poll workers. The act does not require that poll workers document that proper identification was presented or record the type of documentation presented. The act simply requires that a voter present identification that the poll workers must observe to determine that it meets the requirements of the act, and if it does, the person is permitted to vote. If it does not meet the requirements, the person may vote by a challenged ballot or provisional ballot when applicable. (The change to provisional voting for state and county elections, as authorized by Act 2003-313, has not been precleared at this time.) Because there are no documents or other procedures required by the poll workers in this instance, there are no other documents or procedures that should be submitted to the Department of Justice for preclearance.

Act 2003-381 requires a voter to present identification that the poll workers must observe to determine if it meets the requirements of the act. If the identification meets the requirements, the person is permitted to vote. If it does not meet the requirements, the person may vote by a challenged ballot or provisional ballot. The act does not require poll workers to document the identification process.

QUESTIONS 7, 8, & 9

What will qualify as "other government documents"?

Can you provide the Secretary of State with a complete, comprehensive, and accurate listing of any and all documents that should be considered "other government documents"? For example, shall a poll worker accept a post card from the Alabama Department of Travel and Tourism as a government document, if addressed to the voter at his or her current address? Shall a poll worker accept a letter from the Internal Revenue Service or a traffic ticket issued by a police officer or state trooper as a government document? Shall poll workers be instructed to accept correspondence mailed by an elected official, congressman, senator, or other public agency? Will a transcript from an institution that is educational in nature and state-supported (i.e. community college, college/university, or vocational school) be acceptable as a form of identification?

If a document is of the "other government document" variety, what circumstances would require certification of the document? How will poll workers and local election officials discern whether a record is correctly certified?

Neither this Office, nor any other office, has the authority to provide or create a list of documents that would be considered "other government documents" that would be acceptable forms of identification under Act 2003-381. The Legislature provided a list of documents that may be included as acceptable forms of identification, but did not limit the list to only those documents. The "other government document" must contain the name and address of the voter. In addition, each of the acceptable documents provided in the list requires that the document must either be a valid or certified document issued by a government agency. Mail received from a governmental agency or official is not ordinarily considered a valid or certified government document. A transcript from a public institution may be considered an acceptable "other government document," if the transcript is a certified copy and contains the voter's name and address. An indication that a document or a copy of a document is certified must appear on the face of the document. Poll workers may determine whether the document presented is certified by looking at the document and finding a statement on the document that indicates it is a certified copy. This may be done by a signature of an official with a statement that this is a certified copy or a true and accurate copy of the record.

Act 2003-381 does not authorize the creation of a complete list of documents that qualify as "other government documents" that are acceptable forms of identification.

QUESTION 10

We request that an index of all documents/records that should be legally accepted by local poll workers and election officials be catalogued by your office to assist in the reduction of potential voter fraud, misunderstanding, and future legal problems.

The Legislature did not authorize the Attorney General, the Secretary of State, or any other public official or entity to create a catalogued index of records or documents that are legally acceptable forms of identification under Act 2003-381. The Legislature has provided examples in Act 2003-381 of specific documents that are acceptable and has provided a rule as to other types of documents that are acceptable.

A catalogued index of legally acceptable forms of identification is not created with respect to Act 2003-381.

QUESTION 11

Per the previous question, if an elector presents a birth certificate as a form of identification, and the poll worker or election official determines that the birth certificate is not properly certified, what action, if any, should be employed by the poll worker or election official to record the reason for disallowing the tendered form of identification. Should an elector be forced to cast a challenged ballot under these conditions?

FACTS AND ANALYSIS

If a voter presents a form of identification that is not certified and does not meet the requirements of a legally acceptable form of identification, as set forth in Act 2003-381, the voter, pursuant to section (e) of Act 2003-381, shall be permitted to vote by a challenged ballot (or provisional when applicable). The Act does not require or authorize the poll workers to record the reason for disallowing the tendered form of identification. If the voter does not have identification, he or she shall be permitted to vote if the voter is positively identified by two poll workers as a voter on the poll list who is eligible to vote. The two poll workers are required to sign their names on the list where the voter signs his or her name. 2003 Ala. Acts No. 2003-381, sect. 1.

Poll workers are not required to record the reason that a tendered voter identification is not acceptable.

QUESTION 12

What procedure, if any, should be employed if a dispute arises between poll workers as to whether a tendered document qualifies as proper identification? In the event of such an occurrence, what means, if any, should be employed by the local election official or poll worker to preserve a copy or recordation of the tendered form of identification?

FACTS, ANALYSIS, AND CONCLUSION

If the poll workers assigned to a specific polling place cannot agree that a tendered document is an acceptable form of identification as required by Act 2003-381, the person attempting to vote may vote if he or she is positively identified as a voter on the poll list by two election officials who sign the voters list where the voter signs; the person may be permitted to vote a challenged ballot; or leave the polling place without voting and return with an acceptable identification. The law does not require the election officials to preserve or record a copy of the tendered identification document.

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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