Alabama Advisory Opinions March 04, 2002: AGO 2002-165 (March 4, 2002)

AGO 2002-165.

Dear Representative Morton and Representative McClurkin:

This opinion of the Attorney General is issued in response to your requests and is addressed in one opinion because your questions are substantially the same.

If, following reapportionment, new legislative districts for the House and the Senate are established by the Legislature one year preceding the general election, does section 47 of the Constitution of Alabama require a person seeking election in one of the newly created districts to have resided in the newly created district for one year immediately preceding the general election?

Your request states as follows:

You issued an opinion on January 9, 2002, to Honorable Jim Bennett, Secretary of State, A.G. No. 2002-118, in which you opined that "when there is a newly created legislative district (taken from territory that once comprised another district), anyone who has resided in the old district for one year and who moves into the new district satisfies the one-year residency requirement of section 47 of the Constitution of Alabama to qualify to seek election in the new district."

Pursuant to Act No. 2001-729, the Legislature established new districts for the House, which the Governor signed into law on July 3, 2001. The Justice Department precleared the House districts on November 5, 2001. Pursuant to Act No. 2001-727, the Legislature established new districts for the Senate, which the Governor signed into law on July 3, 2001. The Justice Department precleared the Senate districts on October 15, 2001. The general election will be held on November 5, 2002.

Section 47 of the Constitution of Alabama specifies that if the district has not been established for one year preceding the election, a person seeking election in the new district may satisfy the residency requirements if that person has resided in the old district for one year and moves into the new district. My question concerns the residency requirements when the new districts have been established for one year preceding the election.

Section 47 of the Constitution of Alabama establishes the qualifications of senators and representatives and states:

Senators shall be at least twenty-five years of age, and representatives twenty-one years of age at the time of their election. They shall have been citizens and residents of this state for three years and residents of their respective counties or districts for one year next before their election, if such county or district shall have been so long established; but if not, then of the county or district from which the same shall have been taken; and they shall reside in their respective counties or districts during their terms of office.

ALA. CONST. art IV, § 47.

Pursuant to Act No. 2001-729, new district lines for the House of Representatives were established. Section 8 of the Act provides that the act "shall become effective immediately upon its passage and approval by the Governor." 2001 Ala. Acts No. 2001-729. New district lines were established for the Alabama Senate pursuant to Act No. 2001-727. Section 7 of the Act provides that it "shall become effective immediately upon its passage and approval by the Governor." 2001 Ala. Acts No. 2001-727. The Governor approved both Acts on July 3, 2001, which is more than one year before the general election. Before these Acts can be implemented, however, they must be precleared under section 5 of the Voting Rights Act of 1965. 42 U.S.C. § 1973c. The House districts established by Act No. 2001-729 were precleared on November 5, 2001. The Senate districts established by Act No. 2001-727 were precleared on October 15, 2001. Regardless of the date used as the date of the establishment of the new districts, in either case, the districts were established one year before the general election. The time is measured from the general election because a candidate is not elected at the primary election, but is selected as the nominee of the party at the primary election. See ALA. CODE § 17-16-36 (1995).

The exception in section 47 for newly established districts is not applicable when the districts have been established for one year preceding the general election. This exception was discussed in the Opinion to Honorable Jim Bennett, Secretary of State, dated January 9, 2002, A.G. No. 2002-118. When the districts have been established for one year preceding the general election, section 47 of the Constitution of Alabama requires that the persons seeking office must have been "residents of their respective counties or districts for one year next before their election." ALA. CONST. art IV, § 47. Questions have been raised as to whether a person seeking office in a newly established district must reside in the district or the county in which the new district lies.

When the Alabama Constitution of 1901 was established, Alabama House Districts corresponded with county lines, and House members were elected by county, with some counties electing more than one member. Accordingly, House members were required by section 47 of the Constitution to be residents of their counties. Beginning in the 1960s, new district lines began to be drawn. The Alabama Legislature, Reapportionment History (visited Jan. 25, 2002) http://www.legislature.state.al.us/reapportionment /history.html. Pursuant to a 1972 order of the United States District Court for the Middle District of Alabama, new district lines that did not correspond to county lines were established for the House. Sims v. Amos , 336 F. Supp. 924 (1972), aff'd , 409 U.S. 942 (1972). In 1974, a person seeking a House seat after the districts had been established pursuant to this court order argued that the one-year residency requirement for the newly established district was not applicable. Butler v. Amos , 292 Ala. 260, 292 So. 2d 645 (1974).

The Alabama Supreme Court reviewed the history of residency requirements in the state and held, based on this history, that "`the intent and object originally intended to be accomplished' was that a legislator must have lived at least one year in the same district with the people he sought to represent in the legislature so that they could know him and he could learn something of their needs." Butler, 292 Ala. at 262, 292 So. 2d at 646. The Plaintiff in that case admitted that he had lived in House District 18 until January 1, 1974. The Alabama Supreme Court ruled that he could not have established residency in House District 17 one year before the general election of November 5, 1974. Butler, 292 Ala. at 260, 292 So. 2d at 645. Accordingly, a person seeking election in one of the newly created legislative districts must have resided in the newly created district for one year immediately preceding the general election.

This Office is not aware of any federal court decisions or decisions of the United States Supreme Court that have invalidated Alabama's requirement that a House member reside in the district he or she seeks to represent for one year immediately preceding the general election.

CONCLUSION

The House and Senate districts established by Act No. 2001-729 and Act No. 2001-727 were established more than one year preceding the general election of November 5, 2002. When districts have been established for one year preceding the general election, a person seeking election in one of the newly created districts must have resided in the newly created district for one year immediately preceding the general 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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