Alabama Advisory Opinions July 15, 2016: AGO 2016-044 (July 15, 2016)

Advisory Opinion Text

Honorable John H. Merrill

Secretary of State

State Capitol Suite S-105

600 Dexter Avenue

Montgomery, Alabama 36130-4650

Municipal Elections - Qualifications - Age Requirements - Elections - Ballots -Candidates

Section 11-46-25(g) of the Code of Alabama does not authorize an individual to have that individual's name printed on the ballot for the desired municipal office as a qualified elector when the individual is only 17 years of age as of the last day to qualify to run for the office of city council.

A municipality may not utilize a statement of candidacy that contains language that materially alters what is expressed in section 11-46-25(g).

Dear Mr. Merrill:

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

QUESTIONS

Does section 11-46-25(g) of the Code of Alabama authorize an individual to have that individual's name printed on the ballot for the desired municipal office as a qualified elector when the individual is only 17 years of age as of the last day to qualify to run for the office of city council?

May a municipality utilize a statement of candidacy that contains alternate language from what is expressed in section 11-46-25(g)?

FACTS AND ANALYSIS

Your request states that you have received an inquiry as to whether an individual who is 17 years of age as of the last day to qualify may run for the office of city council. This individual would turn 18 years of age before the day of the election and would, at that time, be duly qualified in all respects to hold the office for which the individual desires to become a candidate.

Section 11-43-1 of the Code of Alabama broadly sets forth the qualifications of mayors and councilmen. Ala. Code § 11-43-1 (2008). This provision generally states that a councilman is required to be a qualified elector and live in the city and area of the individual's precinct, ward, or area while in office. The provision expressly states as follows:

Every mayor, councilman, and officer elected by the whole electorate of the city or town shall be a resident and qualified elector of the city or town in which he shall have been elected and shall reside within the limits of the city or town during his term of office. The councilmen shall be qualified electors of said city or town, residing within the limits of the ward from which they shall have been elected and shall reside within the limits of said ward during the term of their office.

Id.

Generally, a qualified elector is any person 18 years of age or older who does not suffer from any of the disqualifications set out in article 8 of the Recompiled Constitution of Alabama. See, generally, Ala. Code § 17-3-30 (2006). Any person who is 17 years of age on the day registration closes, but will turn 18 on or before the election day is permitted to register to vote. Opinion to Honorable Nell Hunter, Chairperson, Board of Registrars, dated May 6, 2005, A.G. No. 2005-124. As such, a person that is otherwise eligible to be a qualified elector, but who is 17 years of age, is able to, with the passage of time, cure the defect of being "underaged" and become a qualified elector prior to an election. Id.

The crux of your issue is whether an individual must meet all the requisite requirements for ballot access on or before the close of qualifying or may some requirements be fulfilled after the day and time set for qualifying. Stated differently, you seek guidance as to whether age is a condition to qualification. Previously, this Office has noted instances where a prospective candidate was ineligible to have that individual's name printed on the ballot because of that individual's inability to meet specified qualifications prior to the qualification deadline. Opinion to Honorable Gregory A. Nicholas, Attorney, Town of Good Hope, dated August 16, 2000, A.G. No. 2000-212; opinion to Honorable Tim Mitchell, Judge of Probate, Marshall County, dated March 7, 1997, A.G. No. 97-00126; and opinion to Honorable Lamar Turner, Judge of Probate, Henry County, dated August 14, 1996, A.G. No. 96-00291;

Section 11-46-25 of the Code of Alabama states as follows:

(g) The mayor shall cause to be printed on the ballots the name of any qualified elector who, by 5:00 P.M. on the third Tuesday in July preceding the date set for the election, has filed a statement of candidacy, accompanied by an affidavit taken and certified by an officer authorized to take acknowledgments in this state that such person is duly qualified to hold the office for which the person desires to become a candidate. Such attachments shall be substantially the following form:

"State of Alabama,______________County. I, the undersigned, being first duly sworn, depose and say that I am a citizen of the city (or town) of___________, in said county, and reside at ___________, in said city (or town); that I have been or will have been on the date of the municipal election a resident of said city (or town) for a period of not less than 90 days; that I desire to become a candidate for the office of _____________in said city (or town) for the term of______years at the election for such office to be held on the________day of_________, 2_____; that / am presently a qualified elector of the city (or town) of________; and I hereby request that my name be printed on the official ballot at said election. (Signed) ____________________ Subscribed and sworn to before me by said _____on this______day of______, 2______ (Style of Officer)___________

Ala. Code § 11-46-25(g) (Supp. 2015) (emphasis added).

Under the established rules of statutory construction, words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used, a court is bound to interpret that language to mean exactly what it says. Ex parte Cove Properties, Inc., 796 So.2d 331, 333-34 (Ala. 2000). Section 11-46-25(g) states that the "mayor shall cause to be printed on the ballots the name of any qualified elector who, by 5:00 P.M. on the third Tuesday in July preceding the date set for the election, has filed a statement of candidacy." Ala. Code § 11-46-25(g) (Supp. 2015) (emphasis added).

In 2010, the Legislature changed the language in the statement of candidacy in section 11-46-25(g). Ala. Code § 11-46-25(g) (2008). The previous statement of candidacy was ambiguous with respect to the age requirement for candidates at the time they qualify to run for municipal office. That provision required a prospective candidate to affirm that he or she was "duly qualified or will be so qualified to hold said office if elected thereto." Id. That wording was changed to the present version, which states that the person is 'presently a qualified elector of the city (or town)." Ala. Code § 11-46-25(g) (2006) (emphasis added). Accordingly, it is the opinion of this Office that the Legislature made it patently clear that an individual is required to be a qualified elector as of the last day of qualifying.

Previously, this Office has answered a similar question. Opinion to Honorable Mike Bolin, Judge of Probate, Jefferson County, dated April 12, 1996, A.G. No. 96-00183. This opinion considered whether a person may be a candidate for election on a primary ballot to a party office if that person is not a qualified elector. In answering the question negatively, the Bolin opinion explained that, "[c]learly, a candidate must be an elector, and to be an elector, one must meet the qualifications specified by law regarding such things as age, residency, and the like." Id. at 2 (emphasis added). Therefore, the name of the individual in question should not be printed on the ballot.

In your second inquiry, you question whether a municipality may use a statement of candidacy that changes the wording on the form from "I am presently a qualified elector of the city" to reflect that the candidate swears or affirms that the individual is duly qualified to hold the office for which they desire to become a candidate. Section 11-46-25(g) allows the use of a statement of candidacy form that is substantially the same as the information provided in the section. The proposed alteration, however, removes the affirmative statement that the prospective candidate is a qualified elector at the time of qualifying. A statement of candidacy that removes such an acknowledgment would no longer substantially comply with the statement requirements set out in section 11-46-25(g).

This Office does not opine on the constitutionality of the statute, but instead merely interprets the current provision of law.

CONCLUSION

Section 11-46-25(g) of the Code of Alabama does not authorize an individual to have that individual's name printed on the ballot for the desired municipal office as a qualified elector when the individual is only 17 years of age as of the last day to qualify to run for the office of city council.

A municipality may not utilize a statement of candidacy that contains language that materially alters what is expressed in section 1 l-46-25(g).

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

Sincerely,

LUTHER STRANGE Attorney General

G. WARD BEESON, III Chief, Opinions Section