Alabama Advisory Opinions August 16, 2000: AGO 2000-212 (August 16, 2000)

AGO 2000-212.

Dear Mr. Nicholas:

This opinion of the Attorney General is issued in response to your request on behalf of the Town of Good Hope.

QUESTIONS

1. Is candidate B entitled to pay his qualifying fee after the qualifying deadline and remain on the ballot despite the fact that he issued a stop payment on his $50 check for his qualifying fee?

2. Because candidate B failed to pay the qualifying fee before the qualifying deadline, is he barred from seeking the office of mayor?

3. If candidate B is prohibited from seeking the office of mayor, should the Good Hope Town Council declare the remaining candidate duly elected to the office of mayor and issue a certificate of election to this candidate?

4. If candidate B is prohibited from seeking the office of mayor, should the name of candidate B be removed from the ballot?

FACTS AND ANALYSIS

Your request states that on the last day to qualify (July 18, 2000) for the upcoming municipal election in the Town of Good Hope an individual (candidate B) paid by check the fifty dollar qualifying fee required by the Town of Good Hope and signed the necessary papers to qualify to run for the office of mayor. Only two individuals qualified to run for the office of mayor by the qualifying deadline. Several days after the qualifying deadline the town clerk discovered that the check was dishonored and that candidate B had issued a stop payment on the fifty dollar check he had given the town clerk as payment for his qualifying fee.

Candidate B has informed this Office that on July 19, 2000, he did place a stop payment on the check, and on July 20, 2000, he attempted to cancel the stop payment by calling the bank and faxing a note to the bank. The stop payment was not canceled, and the check was not paid by the bank. Candidate B asserts that this was due to an error by the bank.

Pursuant to section 11-46-2 of the Code of Alabama, a municipality may establish a qualification fee in an amount not less than $10 and not more than $50 to be imposed upon all candidates seeking election in the municipality. The Town of Good Hope has adopted an ordinance establishing a $50 qualifying fee. The deadline for qualifying as a candidate for a municipal office is 5:00 p.m. on the third Tuesday in July preceding the date set for the election. ALA. CODE § 11-46-25(g) (1992). The municipal election in the Town of Good Hope will be held on August 22, 2000. The deadline for qualifying was July 18, 2000. Section 11-46-25(g) provides in pertinent part:

The mayor shall cause to be printed on the ballots the name of any qualified elector who has, by 5:00 P.M. on the third Tuesday in July preceding the date set for the election, filed a statement of candidacy, accompanied by an affidavit taken and certified by an officer authorized to take acknowledgements in this state that such person is duly qualified to hold the office for which he desires to become a candidate.

The payment of a qualifying fee is a condition for qualifying as a municipal candidate and for the printing of the candidate's name on the ballot. The courts have held that payment by check is a conditional payment, only effective when and if the check is cashed. Johnson v. Dairyland Insurance Co. , 398 So. 2d 317 (Ala. Civ. App. 1981).

According to the facts presented, candidate B filed the necessary qualifying papers, along with a $50 check for the qualifying fee. On July 19, one day after the qualifying deadline, candidate B requested that his bank put a stop payment on the check. Although candidate B later attempted to cancel the stop payment order, the check was not paid by the bank. Since a condition for qualifying as a municipal candidate was not met by the qualifying deadline, i.e., the payment of the fee, candidate B has not met the conditions for qualifying as a candidate in the municipal election for the Town of Good Hope.

When only one person has filed a statement of candidacy for an office by the qualifying deadline, that person shall be deemed elected and issued a certificate of election by the municipal governing body and that office shall not appear on the ballot. ALA. CODE § 11-46-26 (1992). Write-in candidates are prohibited in municipal elections. ALA. CODE § 11-46-43 (1992). Because candidate B failed to pay the required qualifying fee, his name should not appear on the municipal election ballot. Pursuant to section 11-46-26 of the Code of Alabama, if only one person remains as a candidate for that office, that person should be declared elected to the office and issued a certificate of election.

A municipal candidate who fails to pay his qualifying fee before the qualifying deadline passed has not properly qualified, and his name should not appear on the ballot. Pursuant to section 11-46-26 of the Code of Alabama, if only one person remains as a candidate for that office, that person should be declared elected to the office and issued a certificate of election.

I hope this opinion answers your questions. 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

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