Alabama Advisory Opinions March 09, 2005: AGO 2005-083 (March 9, 2005)

AGO 2005-083.

Dear Ms. Worley:

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

1. Even though it has been a common practice for many decades, does the Secretary of State have statutory and/or constitutional authority to certify the proposed ballot language of a statewide constitutional amendment to every probate judge in Alabama?

2. If you opine that the Secretary of State does not have a statutory or constitutional obligation to certify the language of a proposed statewide constitutional amendment for ballot preparation and printing to every probate judge in Alabama, may the Secretary of State, the State of Alabama's chief election official, as a practical and administrative accommodation, continue to provide a certification(s) and/or an amended certification(s) of the ballot language of proposed statewide constitutional amendments to every probate judge?

Section 17-16-11 of the Code of Alabama directs the Secretary of State to certify the names of candidates to the probate judges. Section 17-16-11 provides, in part, as follows:

The Secretary of State shall, not less than 50 days prior to the date of the primary election, and not less than 25 days prior to the primary election in the 1992 election cycle only, certify to the probate judge of every county in which the election is to be held the names of the opposed candidates for nomination to federal, state, circuit, or district offices, the state Senate, House of Representatives, and all other opposed candidates to public or party office, except candidates for county offices.

The law is silent, however, with respect to the certification of the ballot language of proposed statewide constitutional amendments. Neither the Code of Alabama nor other prevailing legal authority provides clear guidance and/or specific deadlines to the Secretary of State regarding the certification of the ballot language of statewide constitutional amendments. It is the understanding of this Office that it has been the common practice of the Secretary of State to certify the names of candidates and constitutional amendments to each probate judge for ballot preparation and printing.

The fundamental rule of construction is to ascertain and give effect to the intent of the Legislature in enacting the statute. Ex parte Ala. Dept. of Mental Health and Mental Retardation , 840 So. 2d 863, 867 (Ala. 2002); Gholston v. State , 620 So. 2d 719, 721 (Ala. 1993). In construction of statutes, legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained. Bama Budweiser v. Anheuser-Busch , 611 So. 2d 238, 248 (Ala. 1992); Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County , 589 So. 2d 687, 689 (Ala. 1991); Shelton v. Wright , 439 So. 2d 55, 57 (Ala. 1983).

The Secretary of State is the "chief elections official in the state" and is required to "provide uniform guidance for election activities. . . ." Ala. Code § 17-1-8 (Supp. 2004). State law already requires the Secretary of State to certify to the probate judges the names of candidates with opposition, except candidates for county offices. Ala. Code § 17-16-11(b)(1) (1995). Similarly, the Secretary of State is in the best position to maintain needed ballot uniformity by certifying the ballot language of statewide constitutional amendments to every probate judge. The legislative directive that the Secretary of State provide "uniform guidance for election activities" indicates a legislative expectation that the Secretary of State will certify the ballot language of proposed statewide constitutional amendments to the probate judges to achieve uniformity.

Your request also notes that it has been a practice of the Secretary of State, as a practical and administrative accommodation, to certify the ballot language for proposed statewide amendments. Any deviation from this practice could be considered a change in a standard, practice, or procedure with respect to voting that must be precleared by the United States Department of Justice under section 5 of the Voting Rights Act of 1965. 42 U.S.C. § 1973c (2000).

Therefore, it is the opinion of this Office that the Secretary of State has authority to certify the ballot language of proposed statewide constitutional amendments to the probate judges.

The Secretary of State has authority to certify the ballot language of proposed statewide constitutional amendments to the probate judges.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Rushing Payne of my staff.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/BFS/WRP

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