Alabama Advisory Opinions November 22, 2010: AGO 2011-12 (November 22, 2010)

AGO 2011-12.

Dear Judge King:

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

Where the 72-hour deadline for commencing the automatic recount provided for in section 17-16-20 of the Code of Alabama falls on a holiday, and the following three days are either a holiday, a day on which the office in which the act must be done is closed, or a Sunday, when does the 72-hour time period for commencing the recount expire?

In your request, you state that the election returns for the November 2010 general election reflect that in the race for Jefferson County Circuit Judge, Place 20, one of the candidates was defeated by not more than one half of one percent of the votes cast for the office. Section 17-16-20(a) of the Code provides for an automatic recount when any candidate, including a judicial candidate, is "defeated by not more than one half of one percent of the votes cast for the office ... as certified by the appropriate election officer." Ala. Code § 17-16-20(a) (2006). Section 17-16-20(b) further provides that "[a]ny recount held pursuant to subsection (a) shall be commenced ... within 72 hours after certification of the results of a state election by the state canvassing board." ALA. CODE § 17-16-20(b) (2006).

The state canvassing board is scheduled to meet on November 22, 2010. The results of the election you reference will be certified that day. Thus, the 72-hour time period for commencing the recount would expire on November 25, 2010, which is Thanksgiving Day. Moreover, you state that the following day, Friday, November 26, 2010, is an official holiday in which Jefferson County offices will be closed. The next two days, November 27 and 28, fall on a Saturday and Sunday.

Section 1-1-4 of the Code contemplates the manner in which time should be computed. The section provides that in instances where the last day an act must be done falls on a Sunday, a legal holiday, or a day on which the office in which the act must be done is closed, the last day is excluded, and the next succeeding working day is counted as the last day. Accordingly, it is the opinion of this Office that the 72- hour time period for commencing the recount in question expires on Monday, November 29, 2010. See, generally, opinion to Honorable Nancy Worley, Secretary of State, dated November 10, 2004, A.G. No. 2005-016; and opinion to Honorable Beth Chapman, Secretary of State, dated October 29, 2008, A.G. No. 2009-010.

Where the 72-hour time period for commencing the automatic recount provided for in section 17-16-20 falls on Thanksgiving Day and the following three days are either a holiday, a day on which the office in which the act must be done is closed, or a Sunday, the 72-hour time period for commencing the recount expires on the next business day or, in this case, Monday, November 29, 2010.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Jean Brown, Legal Division, Secretary of State's Office.

Sincerely,

TROY KING

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

TK/JB

1057821/147445