Alabama Advisory Opinions August 13, 2018: AGO 2018-046 (August 13, 2018)

Advisory Opinion Text

Honorable Michael Armstead

Choctaw County Probate Judge

117 South Mulberry Avenue

Butler, Alabama 36904

Elections - Ballots - Candidates -Superintendents of Education Certifications

A political party may not substitute an individual on the general election ballot for the office of Choctaw County Superintendent of Education when the party failed to place the name of a candidate in nomination for that office.

Dear Judge Armstead:

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

QUESTION

May the Republican Party substitute an individual on the general election ballot for the office of Choctaw County Superintendent of Education when the party did not certify a candidate for this position in the primary election?

FACTS AND ANALYSIS

You informed this Office that on July 2, 2018, the Chairman of the Choctaw County Republican Executive Committee wrote you a letter regarding the party's desire to substitute a candidate pursuant to section 17-13-23 of the Code of Alabama. Ala. Code § 17-13-23 (Supp. 2017). In this letter, the party provided you with a Declaration of Candidacy for this proposed candidate for the office of Choctaw County Superintendent of Education. The letter noted that this candidate had recently submitted to your office a certificate of administration and supervision, which is required pursuant to section 16-9-4 of the Code of Alabama. Ala. Code § 16-9-4 (2012).

This letter further explained that on February 8, 2018, the Executive Committee disqualified a "Republican candidate," who qualified to run for the office of Choctaw County Superintendent of Education because this person had failed to file a certificate of administration and supervision with your office prior to the close of the qualifying period. Based on the omission by this initial candidate, the party decided not to certify the name of any candidate to you pursuant to section 17-13-5(b) of the Code of Alabama. The party, however, now asserts that it is authorized to nominate a candidate for county superintendent of education pursuant to the holding in Harris v. Weatherford, 459 So.2d 876 (Ala. 1984).

The issue contemplated by your inquiry is whether a vacancy in the nomination has occurred. More pointedly, you seek guidance as to the time at which a candidate becomes a nominee - whether a candidate becomes a party nominee by submitting qualifying papers or whether a candidate becomes a nominee once a political party certifies the candidate to the proper election official. There may be some confusion because courts typically start and end inquiries regarding a vacancy in the nomination with the question of whether a candidate has qualified for an elective office. In actuality, the analysis is more complex.

Generally speaking, a candidate is a person who has taken the necessary steps to qualify for nomination or for election to a state or local office. Ala. Code § 17-5-2(1) (Supp. 2017). Section 17-13-5 of the Code of Alabama outlines the election process for both the candidate of a major political party as well as for a major political party that has decided to participate in the primary election process. Pursuant to section 17-13-5(a) of the Code of Alabama, all candidates for nomination in the primary election are required to file a declaration of candidacy with the county or state party chair 116 days prior to the primary election. Ala. Code § 17-13-5(a) (Supp. 2017). Thereafter, the state or county party chair is required to certify the names of all candidates for nomination, i.e., those with opposition as well as those without opposition, to the appropriate election official 82 days prior to the date of the primary election. Ala. Code § 17-13-5(b) (Supp. 2017). Based on the information provided by a party pursuant to section 17-13-5(b), only candidates with opposition are to be placed on the primary ballot. Ala. Code § 17-13-5(c) (Supp. 2017).

The provisions of section 17-13-5 should not be read in isolation. Instead, proper deference should also be given to section 17-9-3(a)(2) of the Code of Alabama, which asserts the importance of a party placing a name in nomination. That provision states that a candidate's name may be placed on a general election ballot provided that the candidate is otherwise qualified for the office sought and the candidate has "been put in nomination by, . . any political party . ., and certified in writing by the chair and secretary of the nominating caucus, convention, or assembly and filed with the probate judge or secretary of state on or before ... the first primary election." Ala. Code § 17-9-3(a)(2) (Supp. 2017) (emphasis added).

Based on the foregoing, it is axiomatic that a candidate may not be considered the nominee of a political party when the party neither nominates the candidate nor places the candidate's name in nomination. As noted in section 17-13-5(a), by filing a declaration of candidacy, a candidate is merely seeking the nomination of a political party. This initial action by a candidate of qualifying is not dispositive of the position of the party. In this matter, the Party never certified a candidate pursuant to section 17-13-5(b).

Section 17-13-23 of the Code of Alabama authorizes a party to fill a vacancy in the nomination. This provision states as follows:

The state executive committee, in cases where the office to be filled is not a county office, and the county executive committee, in cases where the office to be filled is a county office, but subject to the approval of and in accordance with the method prescribed by the state executive committee, where a vacancy may occur in any nomination, either by death, resignation, revocation, or otherwise, or in case of any special election, may fill such vacancy, either by action of the committee itself or by such other method as such committee may see fit to pursue. The respective state or county executive committee shall file with the Secretary of State, for a state or federal office, or with the judge of probate, for a county office, the name of the candidate to fill such vacancy not later than 76 days before the election.

Ala. Code § 17-13-23 (Supp. 2017) (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. In re Inc. of Caritas Vill. v. Fuhrmeister, 152 So.3d 1238, 1241 (Ala. 2014). The term "nomination," although not defined in Title 17 of the Code of Alabama, is defined by Black's Law Dictionary as "[t]he act of proposing a person for election or appointment. The act of naming or designating a person for an office, membership, award, or like title or status." Black's Law Dictionary, 1148 (9 ed. 2009). The term "nominee" is defined in Black's Law Dictionary as "[a] person who is proposed for an office. . . a candidate for election who becomes the nominee after being formally nominated." Black's Law Dictionary 1149 (9 ed. 2009). Based on these definitions and the statutory authority, the party did not nominate a candidate for county superintendent of education.

The concept of whether there has been a vacancy in a nomination has best been defined by the Florida Supreme Court in State ex rel. Chamberlain v. Tyler, 100 Fla. 1112, 130 So. 721 (1930). which stated:

A 'vacancy in nomination' is to be distinguished from a failure or omission to nominate at the primaries. There can be no 'vacancy in nomination' until there has been a nomination. When no nomination has been made, there may be no vacancy on the party ticket for the general election, but there is no vacancy 'in any nomination,' for there has been no nomination. The statute does not provide that, 'if for any cause there is a failure or omission by any political party to designate a nominee in the primary' then the executive committee may designate a nominee. If such had been the legislative intent, it would have been very easy to so provide.

Id. at 1118.

The party, in its letter to you, implied that Harris was definitive on the issue of whether it may now substitute a candidate on the general election ballot. In Harris, a candidate filed his qualifying papers with a designee of the state party chair instead of with the state party chair, the appropriate person. Thereafter, the state party certified the name of that candidate as its nominee. The Alabama Supreme Court determined that the candidate's failure to file a declaration of candidacy with the state party chair prohibited that person from being a candidate. The Court further reasoned that a vacancy in the nomination did not exist because there had been no properly qualified candidate. The Court held that, without a vacancy, the party was unable to substitute another candidate pursuant to section 17-13-23.

Harris may be distinguished from the decision reached by the Supreme Court in Megginson v. Turner, 565 So.2d 247 (Ala. 1990), overruled on other grounds by Davis v. Reynolds, 592 So.2d 546 (Ala. 1991). In Megginson, a candidate properly qualified with a state party. Thereafter, the party certified the name of that candidate as its nominee. The candidate, however, failed to make a required pre-primary filing with the appropriate election official. As a result, the Court determined that a vacancy in the nomination existed and the political party could substitute a candidate.

Harris has generally been cited for the proposition that a vacancy in the nomination can occur only if the candidate is legally qualified for the office. Opinion to Honorable Robert M. Martin, Probate Judge, Chilton County Office of Probate Court, dated July 10, 2002, A.G. No. 2002-284. In Megginson, the Court also emphasized the importance of a candidate being properly qualified. An additional correlation, however, between Harris and Megginson is the fact that in each instance the political party certified the candidate in question as the party's nominee. Accordingly, the Supreme Court has concluded that there must be a legally qualified candidate who has been certified as the party's nominee for there to be a vacancy.

In the matter that you present today, although the Choctaw County Republican Party had a person qualify as a candidate, the party never nominated this person. Without nominating a candidate, there was no indication that the party sought to be represented on the ballot for that particular office. Moreover, there can be no vacancy in a nomination when a party has failed to nominate a candidate. See gen., Foster v. Dickinson, 293 Ala. 298 (Ala. 1974) (determining that a vacancy in a nomination does not include the failure of a party to nominate a candidate in a primary election when there was no legal impediment to preclude the party from doing so). As such, it is the opinion of this Office that the failure of the party to nominate a candidate does not create a vacancy in the nomination. The party may not now nominate a candidate pursuant to section 17-13-23.

CONCLUSION

A political party may not substitute a candidate on the general election ballot for the office of Choctaw County Superintendent of Education when the party failed to place the name of a candidate in nomination for that office.

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

Sincerely,

STEVE MARSHALL Attorney General.

G. WARD BEESON, III Chief, Opinions Division.