Alabama Advisory Opinions November 26, 2003: AGO 2004-034 (November 26, 2003)

AGO 2004-034.

Dear Mr. Davis:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Tuskegee.

What course of action is legal and proper under section 11-43A-2 of the Code of Alabama with respect to verifying the number of voters and the signatures on a petition calling for a referendum?

A number of citizens of the City of Tuskegee have signed and submitted a petition requesting that a public referendum be held to change the form of government for the City of Tuskegee from mayor-council form to city manager-council form under section 11-43A-2 of the Code of Alabama. This section states as follows:

The filing of a petition signed by 10 percent or more of the number of qualified voters who voted in the last general municipal election held in such municipality , asking that the question of the adoption of the council-manager form of government for such municipality be submitted to the qualified voters thereof, with the judge of probate of the county in which such municipality is located, shall mandatorily require an election to be held as herein provided. Whenever such a petition purporting to be signed by at least 10 percent of the number of qualified voters who voted in the last general municipal election held in such municipality shall be presented to such judge of probate, he shall examine such petition and determine whether or not the same is signed by at least 10 percent of the number of qualified voters who voted in the last general municipal election held in such municipality , and if such petition is signed by the requisite number of voters to require such an election, he shall within 15 days from the receipt of such petition certify such fact to the mayor or other chief executive officer of the municipality for which such election is so petitioned, and the certificate of the judge of probate as to the sufficiency of said petition shall be final.

The last general municipal election held in the City of Tuskegee was held on August 22, 2000. Your request states that the City cannot locate the official list of qualified voters for that election; therefore, it is impossible to certify whether the petitioners voted in the last general municipal election.

Section 11-43A-2 of the Code of Alabama does not require that the petitioners must have actually voted in the last general municipal election. The law requires that the petitioners be qualified electors of the municipality and that the number of valid signatures on the petition must equal at least 10 percent of the number of qualified voters who voted in the last general municipal election.

This interpretation is consistent with the interpretation of section 17-8-2.1 of the Code of Alabama, that has similar language regarding petition requirements. See Opinion to Honorable Lamar Turner, Henry County Probate Judge, dated August 24, 2000, A.G. No. 2000-220. Section 17-8-2.1 of the Code of Alabama, which establishes the petition requirements for minor political parties, requires "a list of the signatures of at least three percent of the qualified electors who cast ballots for the office of Governor in the last general election for the state, county, city, district or other political subdivision in which the political party seeks to qualify candidates for office."

Ala. Code § 17-8-2.1 (Supp. 2002). This Office stated that the persons who sign the petitions are not required to have actually voted in the last general election. Turner at 2.

This Office has also stated that in verifying signatures on a petition, the probate judge may include in the total signature count those persons who are registered voters at the time the petition is verified. Opinion to Honorable John L. Beard, Judge of Probate, Marshall County, dated November 25, 1981, A.G. No. 82-00102. Thus, a person signing the petition is not required to be a registered voter at the time the person signs the petition, as long as he or she is a registered voter when the verification process takes place.

The list of qualified voters from the August 22, 2002, municipal election in Tuskegee is not required for the probate judge to verify the signatures on the petition. The total number of votes cast in that election is, however, needed to determine the number of signatures required for the petition. These numbers should be available from the minutes of council meeting in which the results of the 2000 election were canvassed.

Ala. Code §§ 11-46-46 and 11-46-55 (1992). The signatures on the petition must be compared to the current list of registered voters for the City of Tuskegee for purposes of determining whether the person is a registered voter of the City.

The qualified electors who sign petitions filed under section 11-43A-2 of the Code of Alabama are not required to have actually voted in the last general municipal election. The number of signatures on the petition must equal at least 10 percent of the total number of qualified voters who voted in the last general municipal election held in the municipality. The total number of votes cast should be recorded in the minutes of the council meeting in which the results of the 2000 election were canvassed.

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

BP/BFS/CJS

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