Alabama Advisory Opinions June 06, 2006: AGO 2006-101 (June 6, 2006)

AGO 2006-101.

Dear Mr. Bates:

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

Given the changes made by Act 2006-354, must a voter now fill out one application to vote absentee in the primary election and a separate application to vote absentee in any primary runoff election?

Under Alabama law, "applications for absentee ballots are required for elections which are more than 30 days apart."

Ala. Code § 17-10-5(c) (Supp. 2005). This provision does not apply to individuals voting pursuant to the Uniformed and Overseas Citizens Absentee Voting Act. 42 U.S.C. § 1973ff, et seq. (2003, Supp. 2005). For those voters, "[u]nless otherwise indicated by the military or overseas voter, an application for an absentee ballot by such voter shall remain valid through the next two regularly scheduled general election cycles for federal office."

Ala. Code § 17-10-5(d) (Supp. 2005); s ee also 42 U.S.C. § 1973ff-3(a) (2003).

Traditionally, any primary runoff election followed within 30 days of the primary. Sections 17-16-6 and 17-16-36(b) of the Alabama Code each provided that the primary would be held on the first Tuesday in June and any runoff, if required, would be held on the last Tuesday in June. Under that system, there were always either three weeks or four weeks between the two elections, that is, there were always 21 days or 28 days between the two elections. Accordingly, a voter could fill out one application to obtain absentee ballots for both the primary election and the primary runoff election.

Act 2006-354 changes all this. UOCAVA requires that the states "permit uniformed services voters and overseas voters . . . to vote by absentee ballot in general, special, primary, and runoff elections for Federal office." 42 U.S.C. § 1973ff-1(a)(1) (2003, Supp. 2005). The Department of Justice filed a lawsuit against the State of Alabama alleging that Alabama was not complying with this requirement of UOCAVA. To comply, Act 2006-354 moved the date of the primary runoff election so that there would be more time for mailing ballots around the world to UOCAVA voters and back to Alabama. Specifically, Act 2006-354 put six weeks between the primary election and any primary runoff election.

As six weeks is more than 30 days, a consequence Act 2006-354 is that a voter must fill out one application to vote absentee in the primary election and a separate application to vote absentee in any primary runoff election, unless he or she is a UOCAVA voter. This result is compelled by the plain language of section 17-10-5(c), which provides that, except as to UOCAVA voters, "applications for absentee ballots are required for elections which are more than 30 days apart."

Ala. Code § 17-10-5(c) (Supp. 2005). Because, pursuant to Act 2006-354, the primary election and any primary runoff election are more than 30 days apart, separate applications are required. This requirement, however, cannot be implemented for the 2006 primary election cycle.

Voters across the state began applying for absentee ballots for the 2006 primary election cycle more than a month ago. To avoid confusion for voters and for election workers, the Department of Justice asked the federal court before which the UOCAVA lawsuit was pending to order that the state accept a single application from a voter who wants to vote absentee in both the primary election and the primary runoff election. The court entered an order to that effect on May 25, 2006. Accordingly, for the 2006 primary election cycle, a voter may use a single application to request absentee ballots for both the June 6 primary election and the July 18 primary runoff election.

After the 2006 primary election cycle, if the Legislature does not act to change the law, then separate applications will be required of voters who wish to vote absentee in both the primary election and in any primary runoff election. This will be a change for voters who are accustomed to completing only one application. When the State of Alabama makes a change that affects voting, as this does, it must submit the change for federal review, pursuant to Section 5 of the Voting Rights Act. 42 U.S.C. § 1973c (2003). This change was submitted to the Department of Justice ("Department") for review, and in the course of that review, the Department asked for a description of how this change would be implemented.

After consulting with various officials, the state described that it anticipated the change would be implemented as follows. A voter would be allowed to take more than one application at a time. A voter would be able to submit his or her two applications at the same time, either by hand-delivery or by enclosing both applications in the same envelope. Should a voter request that the absentee ballot manager send the voter an application for the primary election cycle, the absentee ballot manager would send the voter two applications.

For the 2008 primary election cycle, which would be the first primary election cycle for which two applications are required, notices would be posted and available anywhere that applications are available. Additionally, if a voter requests that the absentee ballot manager send the voter an application for an absentee ballot during the primary election cycle, then, for 2008, in addition to sending two applications, the absentee ballot manager would send a copy of the notice. A copy of the notice is attached to this opinion.

For the 2006 primary election cycle, a voter may use a single application to request absentee ballots for the June 6 primary election and for the July 18 primary runoff election. Unless the law is changed, after the 2006 primary election cycle, a voter will be required to fill out one application to vote absentee in the primary election and a separate application to vote absentee in any primary runoff election, unless he or she is a UOCAVA voter.

If this Office can be of further assistance, please contact Misty S. Fairbanks of my staff.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/MSF

Attachment

138244/94033