Alabama Advisory Opinions June 17, 1996: AGO 1996-244 (June 17, 1996)

AGO 1996-244.

Dear Sheriff Hall:

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

Can a convicted felon serve as a poll inspector and return officer while his conviction is on appeal?

Code of Alabama 1975, _ 17-6-1, provides for the appointment of election officers for each election. This section requires the appointee to be selected from the qualified electors of the respective voting places.

The qualifications of electors are set forth in Code of Alabama 1975, _ 17-3-9, which states:

"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."

The Constitution of Alabama 1901, Article VIII, Section 182, has been recently amended. Act No. 95-443 proposed an amendment to Article VIII, which was submitted to the voters on June 4, 1996, and becomes effective on June 19, 1996. We note that this Act has not yet received preclearance from the U. S. Justice Department. Section 182 now provides in pertinent part:

"No person convicted of a felony involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until restoration of civil and political rights or removal of disability."

A felony is defined as "an offense for which a sentence to a term of imprisonment in excess of one year is authorized." Code of Alabama 1975, _ 13A-1-2(4). A crime involving moral turpitude is generally described as "an act of baseness, vileness, or depravity in the private and social duties which an individual owes to his fellow men or to society in general." C. Gamble, McElroy's Alabama Evidence _ 145.01(7) (4th ed. 1991). A catalog of crimes that have been declared by Alabama courts to involve moral turpitude are set forth in McElroy's Alabama Evidence _ 145.01(9) at pages 379 and 380. Some of the crimes include assault with intent to murder, attempted theft, burglary, forgery, fraud, grand larceny, murder, petit larceny, and robbery.

There is no exception in the Constitution or by statute which allows a convicted felon to vote if his conviction is on appeal. The only reference under Alabama election law to a convicted felon who is appealing the conviction is in Code of Alabama 1975, _ 17-4-132, which states in part that, "no person convicted of a disqualifying crime may be stricken from the poll list while an appeal from the conviction is pending." However, this provision pertains solely to the duty of registrars to purge registration lists. The Alabama Supreme Court in Williams v. Lide , 628 So.2d 531 (Ala. 1993), stated:

"Section 182 [of the Alabama Constitution] appears to be the sole authority for determining who has a right to vote. Section 17-4-132 merely provides the board of registrars with a method of purging the voter registration list that complies with due process; specifically, it protects those citizens whose names the board has selected, erroneously, for removal of their names. The presence or absence of a person's name on the voter registration list does not necessarily determine the right to vote."

Thus, Section 17-4-132 in no way alters or amends the Alabama Constitution which clearly states that a person convicted of a felony involving moral turpitude is not a qualified elector.

A person convicted of a felony involving moral turpitude is not a qualified elector, and therefore, is not eligible to serve as an election officer.

I hope this sufficiently answers your question. If our office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

JEFF SESSIONS

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/bfs

H/6.96/f