Alabama Advisory Opinions August 16, 2005: AGO 2005-174 (August 16, 2005)

AGO 2005-174.

Dear Judge Proctor:

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

Does the cost of providing data packs and memory cards for the statewide recount of Amendment 2 of the 2004 General Election constitute an expense of conducting an election to be reimbursed to the county by the State pursuant to sections 17-21-5 and 17-13-12(d) of the Code of Alabama?

As stated in your request, in the recent statewide recount of Amendment 2, as authorized by section 17-13-12 of the Code of Alabama, the counties throughout the state were required to recount all the ballots cast in that election regarding Amendment 2. You informed this Office that, to perform this recount, data packs and memory cards must be furnished to the election officials to be used with the electronic vote-counting devices to tabulate the votes for and against statewide Amendment 2 and also to determine the number of under-votes and over-votes for the amendment.

Section 17-13-12 of the Code of Alabama provides, in pertinent part, as follows:

(a) When in a general election, the election returns . . . reflect . . . any ballot statewide measure is defeated by not more than one half of one percent of the votes cast for . . . the ballot measure, as certified by the appropriate election officer, a recount shall be held unless the defeated candidate submits a written waiver for the recount as provided herein:

. . . .

(d) The expenses of a recount conducted pursuant to subsection (a) shall be a state charge if the recount is held for an election for a federal, state, circuit or district office, or the state Senate, state House of Representatives, or any other office that is not a county office. The expenses of a recount conducted pursuant to subsection (a) shall be a county charge if the recount is held for an election for county office.

Section 17-13-12 is clear that if a recount is conducted for any office other than a county office, the State shall pay for the expenses of the recount. In this case, the recount is for a statewide ballot measure, not a state, federal, or county office. This section does not specifically state whether the State pays for the expenses associated with a recount for a statewide ballot measure. The intent of the Legislature that the State pays for the expenses associated with any statewide recount versus a county recount is evident from the recount requirements in section 17-13-12 read in conjunction with the requirement for reimbursement of expenses to counties in section 17-21-5 of the Code of Alabama.

Section 17-21-5 of the Code of Alabama states that "[t]he State of Alabama shall reimburse a county for all sums expended by the county in payment of expenses incurred in holding and conducting an election at which only amendments to the Constitution affecting the State of Alabama as a whole are voted upon." Ala. Code § 17-21-5 (1995). It was concluded in a previous opinion of this Office that, pursuant to section 17-21-5 of the Code, Henry County was entitled to full reimbursement from the State for expenses incurred in holding and conducting the November 1992 election at which there was voting only on statewide proposed amendments. Opinion of the Attorney General to Honorable J. T. Harpe, Judge of Probate, dated September 13, 1993, A.G. No. 93-00335. Expenses associated with the statewide recount of Amendment 2 are part of the expenses incurred in holding and conducting the election for Amendment 2.

"Expenses," as used in sections 17-21-2 through 17-21-6 of the Code of Alabama, are defined in section 17-21-1. Included as expenses are "the costs of ballots , supplies, and other materials required by law to be furnished to election officials. In those counties and municipalities where voting machines are used, such voting machine shall not be considered as ballots, supplies, or materials as herein used." Ala. Code § 17-21-1(3) (1995) (emphasis added). Thus, the cost of the voting machine is not a cost that can be reimbursed under section 17-21-5 of the Code. The data packs and memory cards are a part of the supplies or materials that must be furnished to the election officials to be used in the voting machines or electronic vote-counting devices. The data packs and memory cards are necessary to meet the requirements of section 17-24-3(b) of the Code of Alabama, which is part of the 1983 Election Reform Act. Ala. Code § 17-24-1 to 17-24-22 (1995 & Supp. 2004). It is the opinion of this Office that the expense of providing data packs and memory cards is a part of the "costs of ballots, supplies, and other materials" required to be furnished to election officials and is, therefore, included in the expenses required to be paid by the State to the county as set forth in sections 17-13-12(a) and (d) and 17-21-5 of the Code of Alabama.

The expense of providing data packs and memory cards used in voting machines or electronic vote-counting devices for the recount of Amendment 2 of the 2004 General Election is included in the expenses of conducting an election required to be reimbursed by the State to the county under sections 17-13-12(a) and (d) and 17-21-5 of the Code of Alabama.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/LKW

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