Alabama Advisory Opinions April 12, 1996: AGO 1996-183 (April 12, 1996)

AGO 1996-183.

Dear Judge Bolin:

This opinion is issued in response to your request for an opinion from the Attorney General.

Can a person be a candidate for election on a primary ballot to a party office if they are not a qualified elector?

This office has previously ruled in an opinion to Probate Judge William O. Gammill, dated April 8, 1996, that positions for party office created by resolution of the State Executive Committee of a political party may be listed on the presidential primary ballot if such positions are not part of the state or county executive committees. That opinion did not address the question of qualifications of candidates.

In _ 17-3-9, Code of Alabama 1975, we find:

"Any person possessing the qualifications of an elector set out in Article 8 of the Constitution of Alabama, as modified by federal law, and not laboring under any disqualification listed therein, shall be an elector, and shall be entitled to register and to vote at any election by the people."

Section 17-16-12 provides:

"The name of no candidate shall be printed upon any official ballot used at any primary election unless such person is legally qualified to hold the office for which he is a candidate and unless he is eligible to vote in the primary election in which he seeks to be a candidate and possesses the political qualifications prescribed by the governing body of his political party." (Emphasis added.)

In _ 17-16-14(a) the following sentences appear:

" All persons who are qualified electors under the general laws of the State of Alabama and who are also members of a political party and entitled to participate in such primary election under the rules of said party shall be entitled to vote therein and shall receive the official primary ballot of that political party, and no other; but every governing body of a party shall have the right, power and authority to fix and prescribe the political or other qualifications of its own members and shall, in its own way, declare and determine who shall be entitled and qualified to vote in such primary election or to be candidates therein or to otherwise participate in such political parties and primaries. The qualifications of electors entitled to vote in such primary election shall not necessarily be the same as the qualifications for electors entitled to become candidates therein." (Emphasis added.)

Clearly, 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.

The state and county executive committees certify the names of all primary election candidates to the Secretary of State and the Probate Judge, respectively. Code of Alabama 1975, _ 17-16-11. Probate judges do not certify candidates. Their function is to prepare the ballots. See opinion to Honorable Billy C. Ford, Probate Judge, dated May 4, 1988, A.G. No. 88-00283. The state and county executive committees have the power to determine who shall be entitled and qualified to vote in primary elections or be candidates or otherwise participate therein, without interference from the courts, so long as the committees do not run afoul of some statutory or constitutional provision. Knight v. Gray , 420 So.2d 247 (Ala. 1982); Perloff v. Edington , 302 So.2d 92 (Ala. 1974). We note that parties have authority to hear pre-primary challenges to the legal qualifications of their candidates. Knight v. Gray , supra . As stated above, the law is clear that a person may not be a candidate for election on a primary ballot if that person is not a qualified elector. Political parties have a responsibility to ensure that no unqualified candidate is certified to be placed on the ballot. Code of Alabama 1975, _ 17-16-12. Thus, each political party should exercise due diligence and caution to ensure that only legally qualified candidates are certified to be placed on the ballot.

A person may not be a candidate for election on a primary ballot to a party office if such person is not a qualified elector, and political parties should not certify such unqualified persons as candidates in primary elections. Candidates are subject to pre-primary challenges of their qualifications.

I hope this sufficiently answers your question. If our office can be of further assistance, please contact Philip C. Davis of my staff.

Sincerely,

JEFF SESSIONS

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/PCD/cw

B4.96/OP