Alabama Advisory Opinions October 28, 1998: AGO 1999-027 (October 28, 1998)

Alabama Attorney General Opinions

1998.

AGO 1999-027.

Dear Judge Johns:

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

QUESTION

Is absentee voting authorized or required in municipal annexation elections, as it would be in any general election?

FACTS AND ANALYSIS

The annexation elections to which your request refers are provided for in sections 11-42-1 through 11-42-6, generally providing for annexations by municipalities, and sections 11-42-40 through 11-42-88 of the Code of Alabama, providing for annexations by cities of 25,000 inhabitants or more. ALA. CODE §§ 11-42-1 to 11-42-6, 11-42-40 to 11-42-88 (1989). Section 11-42-2 states:

(5) The election to determine whether or not the proposed territory shall be brought within such corporate limits must be conducted in all respects as provided by the general election laws and under the same sanctions and penalties, except as changed by the provisions of this article, and except that an official ballot need not be provided.

ALA. CODE § 11-42-2(5) (1989).

Section 11-42-48 provides:

The election to determine whether or not the proposed territory shall be brought within the corporate limits of the city must be conducted in all respects as provided by the general election laws and under the same sanction and penalties, except as changed by the provisions of this article, and except that an official ballot need not be provided.

ALA. CODE § 11-42-48 (1989).

The general election laws provide for the use of absentee ballots. Section 17-10-3 of the Code, specifically providing for the use of absentee ballots, states that absentee ballots may be used "in any primary, general, special or municipal election." ALA.CODE § 17-10-3 (Supp. 1998).

In an opinion issued in 1959 to the Honorable Arnold Teks, City Attorney, City of Florence, dated May 1, 1959, this Office held that absentee voting was not required in a municipal annexation election because such an election was not a primary, general, special, or municipal election. That opinion did not consider the language in sections 11-42-2(5) and 11-42-48 requiring the annexation elections to be conducted as provided under the general election laws. Since the general election laws provide for the use of absentee ballots, and the annexation election provisions do not prohibit the use of absentee ballots, it is the opinion of this Office that absentee ballots must be available in municipal annexation elections. The opinion to Honorable Arnold Teks is hereby overruled.

CONCLUSION

Voting by absentee ballot must be available in municipal annexation elections.

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

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

J/10.98/f