Alabama Advisory Opinions March 28, 1997: AGO 1997-153 (March 28, 1997)

Alabama Attorney General Opinions

1997.

AGO 1997-153.

Dear Mr. Bennett:

This opinion is issued in response to your request for an opinion from the Attorney General concerning numerous questions pertaining to the implementation of Act No. 96-885.

QUESTION 1

Section 17-10-7, as amended by Act No. 96-885, provides for the terms of the affidavit printed on the affidavit envelope. There are at least two other mandates of state elections law which do not appear to be contemplated by the present language of this section: a. A stated reason for voting absentee in the section is 'I have been appointed as an election officer at a polling place which is not my regular polling place.' Isn't it presently illegal for an election officer to serve outside of his or her precinct (see Sections 17-6-1 and 17-6-7), or does this provision and Section 17-10-3(a) establish the legality of such a practice? b. Emergency absentee balloting (Section 17-10-12) requires the completion of the affidavit envelope established by Section 17-10-9. It has been the practice of election officials in Alabama to allow affidavit envelopes to include the language necessary for a voter to qualify to vote by emergency absentee ballot notwithstanding the absence of such language in Section 17-10-7. May this emergency absentee ballot language continue to be utilized in affidavit envelopes in light of Act No. 96-885?

FACTS AND ANALYSIS

Act No. 96-885, precleared by the U. S. Justice Department on February 4, 1997, made numerous changes to the absentee voting procedures in Alabama. Code of Alabama 1975, § 17-10-3(a), as amended by Act No. 96-885, specifies those persons who may vote by absentee ballot and includes "any qualified elector of this state . . . (v) who has been appointed as an election officer or named as a poll watcher at a polling place other than his or her regular polling place." Section 17-10-7, as amended, sets forth the language to be printed on the affidavit envelope and includes a check-off provision specifying the reason for voting absentee. One of the reasons listed is that "I have been appointed as an election officer at a polling place which is not my regular polling place."

Election officers are appointed pursuant to Code of Alabama 1975, § 17-6-1 and § 17-6-6, which require that an election official be a qualified elector of the precinct in which he is appointed to serve. Opinion to Honorable Paul Thomas, Probate Judge, DeKalb County, dated February 1, 1991, A.G. No. 91-00156. Act No. 96-885 did not amend or repeal these Code sections. Although the Act authorizes absentee voting by a person who is appointed as an election official at a polling place other than his regular place, the Act does not change the requirement that an election official must be a qualified elector of the precinct in which he serves. The one exception to this requirement is the appointment of election officers for on-site absentee ballot locations. Section 17-10-3(h) provides that "any qualified elector of a county may be appointed as an election officer at any on-site absentee balloting location." This office has been informed that a companion bill, which did not receive legislative approval, would have amended the requirement that an election official must be a qualified elector of the precinct in which he serves. This office also notes that in some counties and/or cities, pursuant to court order, election officials may be appointed without regard to this requirement. Thus, Act No. 96-885 would allow those election officials to vote an absentee ballot, but it does not authorize election officials to be appointed at a polling place which is not their regular polling place, except officials at on-site absentee balloting locations.

Emergency absentee ballots are authorized pursuant to Code of Alabama 1975, § 17-10-12, which allows a person with a medical or business emergency as defined by that section to vote an absentee ballot. A voter must first complete an emergency ballot application form designed by the Secretary of State and then the voter may vote by absentee ballot. No provision is made for a separate affidavit envelope to be used for this emergency ballot. You state that it has been the past practice to include the medical and business emergency check-off provision on the affidavit envelope along with the other check-off provisions provided for in § 17-10-7. Prior to its amendment, this section stated "this affidavit shall be substantially as follows." Based upon this language, the medical and business emergency reasons for voting absentee were added to the absentee affidavit language found in § 17-10-7. Section 17-10-7 was amended by Act No. 96-885 to provide for the language that must be printed on the affidavit envelope. This section, as amended, states:

With respect to an absentee ballot cast pursuant to Section 17-10-3(a), said affidavit shall read as follows :

. . .

(5) I am entitled to vote an absentee ballot because:

Check only one:

§§§§ I will be out of the county or the state on all of the following days: election day, Saturday ten (10) days prior to election day, and Tuesday of the week immediately preceding election day.

(Emphasis added.)

Paragraph (5) of § 17-10-7 corresponds to § 17-10-3(a) and sets forth the reasons an absentee ballot may be cast and has a check-off space for the applicable reason. A medical emergency and a business emergency are not listed as reasons. Since the word "substantially" has been deleted from § 17-10-7, it is our opinion that the emergency reasons for voting absentee may not be added to the affidavit envelope used for absentee voting pursuant to § 17-10-3(a). Accordingly, a separate affidavit envelope should be printed that applies to emergency ballots.

CONCLUSION

Act No. 96-885 does not authorize the appointment of election officials for polling places outside the official's regular polling place, except for officials at on-site absentee balloting locations. Emergency reasons for voting absentee may not be added to the affidavit envelope used for absentee voting pursuant to § 17-10-3(a).

QUESTION 2

May a voter who goes to an on-site absentee voting location established by Act No. 96-885 retain the ballot and later mail the ballot to the Absentee Election Manager, or must the voter complete the ballot and turn it in prior to leaving the on-site absentee voting location?

FACTS AND ANALYSIS

Code of Alabama 1975, § 17-10-3(a)(i) allows a voter who will be out of the county or the state on election day, the Saturday ten days prior to election day and the Tuesday the week prior to the election day to vote an absentee ballot by mail or by hand delivery. A voter who will be out of the county or state on the date of the election but who will be in the county on the Saturday ten days prior to the election or the Tuesday the week prior to the election must vote at an on-site absentee balloting location pursuant to § 17-10-3(c). This section states in pertinent part:

. . . [A]ny such elector may obtain and cast an absentee ballot in person at an on-site absentee balloting location . . . . Said absentee ballots shall be in the same form and must meet the same requirements to be counted as an absentee ballot cast by mail under the provisions of this chapter, except that the envelope accompanying the same shall have printed thereon an affidavit in the form prescribed by Section 17-10-7(b).

In addition, Section 17-10-3(n) provides:

No absentee ballots, absentee affidavits, or other absentee election materials may be removed from any such site by any person except an election officer as expressly authorized by this Section upon the daily closing of said site.

The above language requires the voter at an on-site absentee voting location to complete the ballot and turn it in prior to leaving the on-site location. No provision is made for the voter to retain the ballot and mail or hand-deliver the ballot at a later time. In fact, a voter is prohibited from removing any absentee materials from the on-site location.

CONCLUSION

A voter at an on-site absentee voting location must complete the ballot and turn the ballot in prior to leaving the on-site location.

QUESTION 3

Are affidavit envelopes used at on-site absentee voting locations required to contain return mail addressing information?

FACTS AND ANALYSIS

The provisions for on-site absentee voting in Section 17-10-3(c) provide as follows:

Said absentee ballots shall be in the same form and must meet the same requirements to be counted as an absentee ballot cast by mail under the provisions of this chapter, except that the envelope accompanying the same shall have printed thereon an affidavit in the form prescribed by Section 17-10-7(b).

The form of the envelopes for absentee ballots is set forth in § 17-10-9. Thus, the provisions of § 17-10-9 are applicable to on-site absentee ballots. This section provides:

The second envelope shall have the voter's affidavit printed on the back and shall be large enough to seal the plain ballot envelope inside. The second envelope shall also be a return mail envelope.

Such return mail envelope shall be addressed on the front to the absentee election manager and shall be endorsed on the left-hand upper corner thereof as follows:

'Absent Voter's Ballot. State, County, Municipal, General, Primary or Special Election (as the case may be) to be held on the . . . . . . day of . . . . . ., 19. . . From . . . . . . . . (name of voter), precinct or districts . . . . ., County of . . . . . . . ., Alabama.'

CONCLUSION

Affidavit envelopes used at on-site absentee voting locations must contain return mail address information as provided in Code of Alabama 1975, § 17-10-9.

QUESTION 4

Can on-site absentee voters be required to complete an application to vote absentee so long as it is designed to apply to on-site absentee voting?

FACTS AND ANALYSIS

The requirements for an application for a absentee ballot are set forth in Code of Alabama 1975, § 17-10-4 and § 17-10-5, as amended. Section 17-10-5(b), as amended, states:

For purposes of this subsection (b), including but not limited to provisions hereof relating to the posting and maintenance of certain lists, the signing of a poll list by an absentee voter casting his ballot at an on-site absentee balloting location shall constitute an 'application' for an absentee ballot.

CONCLUSION

On-site absentee voters are not required to complete an application to vote absentee; the signing of the poll list constitutes the application.

QUESTION 5

Section 17-10-3(p) requires that on-site absentee election officials seal all of the supplies and ballots in a box and transport the box or boxes to the absentee election official who must secure the boxes and their contents and treat the ballots according to the requirements of § 17-10-10. a. Would it be legally correct for the Secretary of State to establish procedures pursuant to the Administrative Procedures Act for the removal of the ballots from these boxes by the absentee election manager and to provide a clarification as to the security of the contents of these boxes? b. Does the list of qualified voters have to remain with the materials in the boxes or may it be removed and handled pursuant to state law? c. May the applications for on-site absentee voting, if permissible pursuant to Question 4 above, be removed by the absentee election manager and utilized in the same manner as other applications for absentee voting?

FACTS AND ANALYSIS

Section 17-10-3(p) provides:

Upon the daily closing of an on-site absentee balloting location, the election officers thereof shall place all absentee ballots cast at said location, the poll list maintained at said location, any list of qualified voters maintained at said location, and all other absentee ballot materials, whether used or unused, in a box which shall be securely sealed and labeled so as to show the nature of its contents. Said box and its contents shall immediately be delivered by the election officers for said absentee balloting site to the absentee election manager, who shall be responsible for the security of the same and who otherwise shall treat such ballots in the same manner prescribed in Section 17-10-10.

Section 17-10-3(k) also provides for the security and accounting of absentee election material as follows:

Without limiting the foregoing provisions of this subsection, the absentee election manager shall take sufficient steps to provide for an accounting of all absentee election materials supplied to each on-site absentee balloting location and the return of the same, whether used or unused, to the absentee election manager as required by this Section.

This office has previously held that the Secretary of State, as the chief state elections official, may adopt reasonable interpretations, rules, or regulations concerning elections law. Opinion to Honorable Jim Bennett, Secretary of State, dated February 12, 1997, A.G. No. 97-00109. Any change in voting effected by these interpretations, rules, or regulations must be submitted to the Justice Department for preclearance. 42 U.S.C. § 1973.

If the Secretary of State determines that additional procedures or clarification is needed with respect to the provisions of § 17-10-3(p), the Secretary of State may establish those procedures pursuant to the Administrative Procedures Act.

Neither paragraphs (p) nor (k) of § 17-10-3 state whether the list of qualified voters must remain in the boxes. However, in order for the absentee election manager to properly perform all of his or her duties, including making a list of the names of the persons who have voted absentee, the absentee election manager must use the list of registered voters. The list of registered voters will indicate the persons who have voted absentee at the on-site balloting location. This list, the poll list signed by the voters, and the ballots will assist the absentee election managers in the performance of their duties. The procedures adopted by the Secretary of State's Office should address this issue.

The third part of this question is moot given the answer to Question No. 4.

CONCLUSION

The Secretary of State may establish procedures pursuant to the Administrative Procedures Act for the removal of ballots, the use of the poll list and voters list by the absentee election manager, and for the security of the contents of the on-site absentee ballot boxes. Any changes in voting established by these procedures must be submitted for preclearance to the Justice Department.

QUESTION 6

What constitutes a "courthouse annex" at which on-site absentee voting is required pursuant to Section 17-10-3(c)? Does this include all, some or none of the county offices remote from the courthouse not formally designated by the county as an annex to the courthouse? Can new annexes be formally adopted by the county commission for the sole purpose of providing on-site absentee voting?

FACTS AND ANALYSIS

Section 17-10-3(d) provides for the location of on-site absentee balloting and provides:

The on-site absentee balloting for which provision is made in Section 17-10-3(c) shall be conducted at each courthouse, courthouse annex and the two largest towns or cities not containing the courthouse or a courthouse annex within each county. . . .

This office has previously held, pursuant to Code of Alabama 1975, § 11-3-11, § 11-14-10, and § 36-22-1, that the county commission must by motion or resolution designate a building as a courthouse or a courthouse annex in order for the building to house the courts and/or the sheriff's office. Opinion to Honorable Ted Boyett, Chairman, Lamar County Commission, dated February 1, 1991, A.G. No. 91-00161 and to Honorable Mack Diamond, Probate Judge, Randolph County, dated May 24, 1991, A.G. No. 91-00255.

A building that houses county offices must be officially designated by the county commission as a courthouse annex in order to constitute a courthouse annex for on- site absentee voting. Act No. 96-885 does not authorize the creation of courthouse annexes solely for the purpose of providing on-site absentee voting. However, the county commission, pursuant to § 11-3-11(a)(1), may designate a building as a courthouse annex if the county commission determines that such space is necessary. Section 11-3-11(a)(1) authorizes the county commission:

To direct, control and maintain the property of the county as it may deem expedient according to law, and in this direction and control it has the sole power to locate the courts in the rooms to be occupied by the officers entitled to rooms therein, including the circuit judge if resident in the county, and to change the location of the courts and the designation of the rooms for officers as it may deem best and most expedient, and this shall be done by order of the county commission entered upon the minutes of the county commission at a regular meeting of the county commission. In the event the courthouse is inadequate to supply office rooms for such officers, the county commission may lease such office rooms in a convenient location in the county site and pay the rental from the county fund.

CONCLUSION

A courthouse annex must be officially designated by the county commission as a courthouse annex. New courthouse annexes may be designated by the county commission pursuant to Code of Alabama 1975, § 11-3-11.

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

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

BP/BFS

B5/3.97/f