Alabama Advisory Opinions May 21, 2002: AGO 2002-238 (May 21, 2002)

AGO 2002-238.

Dear Mr. Perdue:

This opinion of the Attorney General is issued in response to your request on behalf of the Baldwin County Commission.

QUESTIONS

1. Since on May 13, 2002, the County Commission of Baldwin County received preclearance from the United States Department of Justice relating to actions taken by the County Commission at its March 5, 2002, special meeting, affecting voting, must the Board of Registrars of Baldwin County certify to the Probate Judge, in addition to any deletions and/or corrections to the list of qualified voters, the changes adopted by the county governing body during the March 5, 2002, special meeting?

2. Since on May 13, 2002, the County Commission of Baldwin County received preclearance from the United States Department of Justice relating to actions taken by the County Commission at its March 5, 2002, special meeting, affecting voting, must the Probate Judge of Baldwin County publish a supplemental list of qualified voters that reflects the changes adopted by the county governing body during the March 5, 2002, special meeting? FACTS AND ANALYSIS

On March 5, 2002, the Baldwin County Commission voted to change and alter the configuration, boundaries, and designation of voting precincts in Baldwin County. These changes require that some voters be reassigned to a newly created precinct and polling place. The changes were submitted to the Justice Department by the county commission on March 27, 2002, and received by the Department on March 28, 2002. The County Commission received preclearance from the Justice Department on May 13, 2002.

Your request states that a few days after the March 5 meeting of the Baldwin County Commission, notice of these changes was sent to the Office of the Probate Judge and the Board of Registrars as required by section 17-5A-5 of the Code of Alabama. Section 17-5A-5 requires the probate judge, within five days after receiving this notice, to publish notice of these changes. ALA. CODE § 17-5A-5 (1995). The Probate Judge informed this Office that this notice was not given, because at that time the changes had not received preclearance. The Probate Judge anticipated that the changes might not receive preclearance until May 28, 2002 (60 days from the date the Justice Department received the submission), and therefore, he requested an emergency opinion from the Attorney's General's Office. An opinion was issued on May 10, 2002. This Office stated that the primary election to be held in Baldwin County on June 4, 2002, should be conducted without regard to the changes adopted by the Baldwin County Commission on March 5, 2002, because the changes had not received preclearance. Opinion to Honorable Adrian T. Johns, Judge of Probate, Baldwin County, dated May 10, 2002. The Probate Judge stated in his opinion request that he was reluctant to proceed with any changes without preclearance from the Justice Department. Accordingly, on May 9, 2002, the Probate Judge published a list of qualified voters that did not reflect the precinct changes. After he received the opinion from this Office on May 10, 2002, the Probate Judge ordered the printing of ballots, including absentee ballots, based upon the precinct lines as they existed prior to the March 5, 2002, changes by the County Commission.

After receipt of preclearance on May 13, 2002, the Baldwin County Commission seeks an opinion as to whether the precinct changes should be reflected in the supplemental list of qualified voters that the Board of Registrars must prepare and the Probate Judge must publish before the June 4 primary election. Pursuant to section 17-4-129 of the Code of Alabama, the probate judge must publish a correct alphabetical list of qualified electors by precinct, district, or subdivision in a newspaper of general circulation in the county on or before the 20th day before the primary election. ALA. CODE § 17-4-129 (1995). Any voter who was inadvertently omitted from the list has ten days in which to have his or her name added to the list provided the voter submits proper proof to the board that his or her name should be added to the list. Id . A supplemental list of voters must be published on or before the 7th day preceding the primary election. Id . Section 17-4-130 of the Code of Alabama provides, in pertinent part, as follows:

The board of registrars shall, when registration is closed before a primary, general, or special election, certify to the judge of probate any additions, deletions, corrections or changes from the list previously prepared and submitted to the judge. From these lists the judge shall prepare correct alphabetical lists of the qualified electors registered by precincts, by districts or by subdivisions . . . which lists shall be certified by the board thereof officially to be full and correct copies of the lists of registered electors . . . and shall deliver the same to the probate judge for distribution to the officers of election.

ALA. CODE § 17-4-130 (1995).

The election process, up to this point, has been implemented based upon the old precinct lines. The probate judge has informed this Office that over 1000 voters will be affected by the changes adopted by the County Commission. In addition, the ballots have been printed based upon the old precinct lines. Although preclearance was received before the election, it is too late to implement those changes. Even assuming the Board of Registrars had time to make the changes, the voters must be timely notified of the change, and new ballots must be printed. This process cannot be altered midstream. The new precincts should, therefore, be implemented after the primary and primary run-off elections.

The changes adopted by the Baldwin County Commission on March 5, 2002, should not be implemented for the June 4, 2002, primary election and the primary run-off election. Even though preclearance of the changes was received on May 13, 2002, the election process has been implemented based upon the old precinct lines.

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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