Alabama Advisory Opinions March 27, 2006: AGO 2006-074 (March 27, 2006)

AGO 2006-074.

Dear Judge Reid:

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

Who is qualified to serve as the absentee elections manager when the presiding circuit judge is on the ballot?

Does it make a difference if the presiding judge has opposition?

In your letter of request, you stated the following:

The Circuit Clerk of Baldwin County will be on the ballot for reelection in 2006. As presiding judge, it will be my duty to appoint someone to serve in the event she has opposition.

Ms. Still has filled this position in the past when the clerk did not choose to do so.

Ms. Still has a part-time position as the person who schedules and postpones citizens who have been called for jury duty in Baldwin County. She is paid by the Baldwin County Commission, and she works under my supervision.

The position of absentee election manager is the responsibility of the circuit clerk when the county registrar declines to serve or the county has no registrar.

Ala. Code § 17-10-2 (1995). As you aptly stated in your request, it is the responsibility of the presiding circuit court judge to appoint someone to serve as absentee election manager when the circuit clerk is serving as the absentee election manager and he or she becomes a candidate for an elective office and has opposition.

Ala. Code § 17-10-13 (1995). Section 17-10-2 of the Code of Alabama, which outlines the appointment process and qualifications of an absentee election manager, states more particularly as follows:

In each county there shall be an "absentee election manager," who shall fulfill the duties assigned by this chapter. The register of the county shall, at his option, be the absentee election manager. If the register declines such duties, the circuit clerk of the county, at his option, shall be the absentee election manager. If neither the register nor the circuit clerk of the county assumes the duties of absentee election manager, the presiding circuit judge shall thereupon appoint an absentee election manager, who shall be a person qualified by training and experience, who is a qualified elector of the county and who is not a candidate in the election to perform the duties assigned by this chapter. The presiding circuit judge shall designate the place or office where such duties shall be performed. Such place or office shall be open on the days and during the hours as that of the register prior to each election. Any person so appointed shall have all the powers, duties and responsibilities of the clerk or register for the purposes of this chapter, including the power to administer oaths. Such powers, duties and responsibilities shall terminate at the end of the day of the election. The absentee election manager, clerk, register or register in chancery shall be entitled to the same compensation for the performance of his duties as is provided in Section 17-10-14.

Ala. Code § 17-10-2 (1995).

Section 17-10-2 states that the presiding judge must appoint someone "who [is] qualified by training and experience , who is a qualified elector of the county and who is not a candidate in the election." Id. (1995) (emphasis added). Conversely, when the circuit court judge is a candidate, there is no statutory procedure for the judge to recuse or have someone else appoint the absentee election manager. Thus, state law is silent with regard to whether the candidacy of the presiding circuit court judge, with or without opposition, impacts the ability of the judge to appoint a qualified absentee election manager.

The qualifications and duties of the absentee election manager are set out in sections 17-10-1 through 17-10-26 of the Code of Alabama.

Ala. Code §§ 17-10-1 to 17-10-26 (1995, Supp. 2005). Because qualifications for an absentee election manager are static and do not depend on the candidacy of the presiding circuit court judge, it is the opinion of this Office that, regardless of the presiding circuit court judge's candidacy, it is the responsibility of the presiding circuit court judge to appoint a qualified person to serve as absentee election manager in conformance with section 17-10-2 of the Code of Alabama.

Ala. Code § 17-10-2 (1995). Whether Ms. Still is qualified for the position of absentee election manager, however, is a factual determination that this Office is unable to make.

It is the responsibility of the presiding circuit court judge, regardless of his or her candidacy, to appoint a qualified person to serve as absentee election manager in conformance with section 17-10-2 of the Code of Alabama.

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

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/MMG

112350/91651