Alabama Advisory Opinions September 07, 2000: AGO 2000-231 (September 7, 2000)

AGO 2000-231.

Dear Mr. Pitts:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Selma.

Should a person's name be stricken from the municipal list of voters when that person makes an application for an absentee ballot or when that person has voted an absentee ballot?

Municipal elections are conducted pursuant to the provisions of Chapter 46 of Title 11 of the Code of Alabama. Section 11-46-57 regulates the casting and handling of absentee ballots in municipal elections, and states, in pertinent part, as follows:

The provisions of Chapter 10 of Title 17 of this Code shall be applicable to the casting and handling of absentee ballots in municipal elections, and any amendments, extensions or deletions from said chapter in the future shall likewise be applicable to municipal elections.

Section 11-46-58 of the Code of Alabama provides for the marking, posting and lists of absentee ballots as follows:

The register or the person authorized to act in his stead, the town clerk, city clerk or other officer performing the duties of the clerk, as the case may be, in municipal elections held under the provisions of this article, shall comply with the provisions of Chapter 10 of Title 17 of this Code with respect to marking, enrolling, posting and delivering of lists showing the names and addresses of applicants for an absentee ballot.

Section 17-10-5 provides, in pertinent part, as follows:

The absentee election manager shall underscore on the list [of qualified voters] the name of each voter who has applied for an absentee ballot and shall write immediately beside his or her name the word "absentee." The absentee election manager shall enroll the name, residence, and polling place of the applicant, and the date the application was received on a list of absentee voters. Each day the absentee election manager shall enter on the list the names, addresses, and polling places of each voter who has that day applied for an absentee ballot and shall post a copy of the list of applicants re-ceived each day on the regular bulletin board or other public place in the county courthouse. . . . The name of the person who applied for an absentee ballot shall be stricken from the list of qualified electors kept at the polling place, and the person shall not vote again.

Your request refers to section 11-46-28(e) of the Code of Alabama, which uses the term "voted" with respect to the persons to be stricken from the list of qualified voters. This section specifies the duties of election officials who work at polling places and states:

Upon receipt of the list showing the names of every person whose name appears on the official list of qualified electors for that particular polling place who have voted absentee ballots in the election, the election officials shall strike from the list of qualified electors kept at the polling place the name of every person who has voted an absentee ballot, and no person who has voted an absentee ballot shall vote again.

A fundamental rule of statutory construction is to ascertain legislative intent, and this may be determined by looking at the history of the statute and the purpose sought to be accomplished. Ex parte Meeks , 682 So. 2d 423 (Ala. 1996). The latest expression of the Legislature prevails with respect to conflicting sections. State v. Bryan , 231 So. 2d 118, 121 (Ala. 1970). Specific provisions are also generally understood to prevail over general provisions. Murphy v. City of Mobile , 504 So. 2d 243, 244 (Ala. 1987).

Sections 11-46-28, 11-46-57, and 11-46-58 of the Code of Alabama were originally adopted in 1961 by Act No. 663, and were a part of the provisions adopted for the conducting of a municipal election. 1961 Ala. Acts No. 663, 827. Sections 11-46-57 and 11-46-58 provided detailed procedures for absentee voting in municipal elections that were similar to the provisions currently found in Title 17. Id . The provisions of section 17-10-5 were originally adopted in 1975. 1975 Ala. Acts No. 1147, 2251. In 1976, the separate procedures that were established for absentee voting for municipal elections found in sections 11-46-57 and 11-46-58 of the Code were repealed, and the language making the provisions of Chapter 10 of Title 17 applicable to municipal elections was added to these sections. 1976 Ala. Acts No. 358, 403. The language in section 11-46-28(e), however, was not repealed by the 1976 Act. Id .

The language in section 11-46-28(e) appears to be in conflict with the requirements of sections 11-46-57, 11-46-58, and 17-10-5, but it is not the latest expression of the Legislature. Section 17-10-5 provides that those persons who have applied for an absentee ballot shall be stricken from the list of qualified voters used at the polling place on election day. There is no requirement that the person must have actually cast an absentee ballot or returned the absentee ballot to the absentee election manager. The presumption of section 17-10-5, passed after section 11-46-28(e), is that those persons who have applied and been sent an absentee ballot have voted absentee. The requirement in section 11-46-58 that section 17-10-5 applies to the marking, enrolling, posting and delivering of lists showing the names and addresses of applicants for an absentee ballot is a specific provision with respect to absentee ballots, and must take precedence over any contrary provision of section 11-46-28(e).

It is our understanding that municipal officials have followed the provisions of section 17-10-5. Municipal election officials have been advised to follow the specific provisions of section 17-10-5 with respect to absentee ballots cast in municipal elections. In 1996 and in 2000, the Alabama League of Municipalities published a special report entitled Procedures for Holding Elections in Mayor-Council Municipalities . In both of the reports, municipal officials were advised to follow section 17-10-5 with respect to the name of the persons who must be stricken from the list of qualified voters. Procedures for Holding Elections in Mayor-Council Municipalities , Special Report, Alabama League of Municipalities, 2000, at p. 27, 1996, at p. 29. Any change in an election practice or procedure must be precleared under section 5 of the Voting Rights Act of 1965 before it can be implemented. 42 U.S.C. §1973c.

Sections 11-46-57 and 11-46-58 of the Code of Alabama provide section 17-10-5 of the Code of Alabama is applicable to municipal absentee ballots. Pursuant to section 17-10-5, a person's name should be stricken from the list of qualified voters when that person makes an application for an absentee ballot in a municipal election.

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

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