Alabama Advisory Opinions August 07, 2001: AGO 2001-249 (August 7, 2001)

Alabama Attorney General Opinions

2001.

AGO 2001-249.

Dear Mr. Bennett:

This opinion of the Attorney General is issued in response to your request on behalf of the Secretary of State's Office.

QUESTIONS

1. Does the phrase "the entire vote cast in the state" apply to a particular race in which the prospective political party has fielded a candidate, or is it a measure of the overall number voting in the election?

2. If the answer to Question 1 is that it is measured from the overall number voting in the election, should the race with the most votes be used as a surrogate in the absence of such data?

3. If the answer to Question 2 is in the affirmative, would only races for state offices be considered, or would a federal office receiving more votes than any of the state offices be the proper measure?

FACTS AND ANALYSIS

Alabama law provides a two-track system by which a political party may have its name placed on a ballot for statewide and local elections: (1) a candidate of the party must receive 20 percent of the votes cast in the last general election, or (2) the party must gather three percent of the signatures of qualified electors who cast ballots for governor in the last general election. ALA. CODE §§ 17-8-2.1 and 17-16-2 (1995); see Libertarian Party v. Wallace , 586 F. Supp. 399 (M.D. Ala. 1984).

A political party is defined in section 17-16-2 of the Code of Alabama as follows:

An assemblage or organization of electors which, at the general election for state and county officers then next preceding the primary, casts more than 20 percent of the entire vote cast in any county is hereby declared to be a political party within the meaning of this chapter within such county; and an assemblage or organization of electors which, at the general election for state officers then next preceding the primary, casts more than 20 percent of the entire vote cast in the state is hereby declared to be a political party within the meaning of this chapter for such state.

ALA. CODE § 17-16-2 (1995) (emphasis added). The total vote of a political party is determined pursuant to section 17-16-3 of the Code of Alabama, which states as follows: "In determining the total vote of a political party whenever required by this chapter, the test shall be the total vote received by a candidate of that party who received the highest vote total of any of the candidates of that party." ALA. CODE § 17-16-3 (1995).

The following information is presented in your request:

In the 2000 general election, Libertarian Party candidate Sydney Albert Smith received 226,844 votes in the race for the Alabama Supreme Court, Place Number 2. A total of 1,124,551 votes were cast in the race for Alabama Supreme Court, Place Number 2. A total of 1,614,282 votes were cast in the race for Chief Justice of the Alabama Supreme Court. A total of 1,672,551 votes were cast in the race for President of the United States.

You also stated that the Office of Secretary of State receives information from the counties as to the number of votes cast for each candidate, but the Office does not receive information concerning the total number of voters voting in an election.

If section 17-16-2 of the Code requires the party to receive 20 percent of the votes cast in the State for the particular race in which the party had a candidate, the Libertarian Party candidate received 20 percent of the total votes cast in the race for Alabama Supreme Court, Place Number 2, and is a "political party" with ballot access under Alabama law. If the law requires the party to receive 20 percent of the total votes cast in the State for any office, including federal offices, the Libertarian Party candidate did not receive 20 percent of the votes.

The plain language of section 17-16-3, which must be read in pari materia with section 17-16-2, establishes that the test for determining party status is based on a single candidate's vote total. This interpretation is also supported by caselaw and at least one previous opinion of this Office. The United States Supreme Court has considered whether the votes cast must be for a particular office or for the entire election. Gutierrez v. Ada , 528 U. S. 250 (2000). In Gutierrez, the statute involved provided "if no slate of candidates for Governor and Lt. Governor of Guam receive a majority of the votes cast in any election, a runoff election shall be held." Id . at 252. The Court held that this statute required that votes be counted based on the most votes cast for the office in question and not the total votes cast for the entire election. Id . There are at least three cases in which the Alabama Supreme Court considered the question of whether a statute that required "a majority vote of qualified electors" required a majority of registered voters or a majority of those who actually cast a ballot on the issue or for the candidate in question. Harris v. Walker , 199 Ala. 51, 74 So. 40 (1917); State ex rel. Crumpton v. Montgomery , 177 Ala. 212, 59 So. 294 (1912); and Ex parte Owens , 148 Ala. 402, 42 So. 676 (1906). In each case, the Court consistently ruled that the law required a majority of the people who actually voted on the issue or for the candidate and that a majority vote of all the registered voters is not required. This Office has also previously opined that the phrase "majority of the qualified electors" found in Amendment No. 188 means a majority of the qualified electors actually voting. Opinion to Honorable William M. Branch, Probate Judge, dated February 3, 1981, A.G. No. 81-00217.

It is the opinion of this Office that sections 17-16-2 and 17-16-3 are satisfied if the party's candidate that received the highest vote totals received 20 percent of the votes in any statewide race in which he or she was a candidate in the last election. Given this answer with respect to Question 1, Questions 2 and 3 are moot.

CONCLUSION

A political party obtains ballot access pursuant to section 17-16-2 of the Code of Alabama if the party's candidate that received the highest vote totals received 20 percent of the votes cast in the statewide race in which he or she was a candidate.

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

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