Alabama Advisory Opinions July 30, 2002: AGO 2002-298 (July 30, 2002)

AGO 2002-298.

Dear Judge English:

This opinion of the Attorney General is issued in response to your request. QUESTION 1

Do the letters from the county and the state Republican Party Executive Committee directing that a new election be held, apparently pursuant to section 17-16-87 of the Code of Alabama, constitute sufficient authority for me to call for this election?

Your request states the Lee County Republican Party certified incumbent Terry White as the nominee for the Lee County Commission District 4 after the June 4, 2002, primary election. An election contest was filed by his opponent. The Lee County Republican Party Executive Committee heard the contest on June 21 and 24, 2002, and ruled in favor of the nominee, Mr. White, as certified. This ruling was appealed to the Alabama Republican Party State Executive Committee, which held a hearing on July 15, 2002. Following this hearing, the Executive Director of the State Executive Committee sent a letter to the Chairperson of the Lee County Republican Party Executive Committee directing that a "new primary election" be held for this nomination. The chairperson of the County Executive Committee sent the Lee County Probate Judge a letter serving as notice that a "new primary election" must be held for the Lee County Commission District 4 Republican nomination. The county chairperson also withdrew the certification of Mr. White as its nominee.

Section 17-16-87 of the Code of Alabama provides for a new primary in cases where a contest cannot be decided. This section states as follows:

If, upon the hearing of any contest for any office, as provided for in this article, the committee, after an investigation and hearing of the contest, shall determine that it is impossible from the evidence before it to decide who is the legally nominated candidate for the office contested, it shall have the right and authority to direct a new primary election for the nomination to any such office, but where any action is taken by any county executive committee, either person to the contest, in the same manner as herein provided for in the case of appeals from the action of any county committee, may take an appeal to the state executive committee, which shall be the court of final appeal in all party contests of nominations; provided that, upon hearing of any contest or appeal, as provided for in this chapter, which is not referred to and decided by a subcommittee, 15 members of any such state executive committee shall constitute a quorum for the hearing and determining of such contest or appeal; provided further, that the entire committee shall be notified of the meeting in the usual way.

ALA. CODE § 17-16-87 (1995). This provision gives the political party the authority to direct that a new primary election be held when it is impossible for the party to decide from the evidence in a contest who was legally nominated. There are no other provisions that specify a procedure the party must use for notifying the appropriate officials that a new election should be held. Accordingly, written notice in the form of a letter from the county party executive committee, in the case of a county office, along with an attached copy of the state party executive committee's letter directing a new primary election, is sufficient authority to direct the probate judge to call for a new primary election.

Pursuant to section 17-16-87 of the Code of Alabama, a written letter to the probate judge from the county and/or the state Republican Party Executive Committees, directing that a new election be held, constitutes sufficient authority for the probate judge to call a new primary election for a county office.

QUESTION 2

Does Alabama law prescribe any specific time period for calling or conducting this "new primary election," including advertising and absentee ballots?

Your request states that the letters provide little direction as to how and when the new primary election should be held. You state that you have determined that the only possible dates for this election are September 10 or September 17, 2002, if you allow 40 days for absentee ballots prior to the new primary. Section 17-10-12 of the Code of Alabama requires that "not less than 40 days prior to the holding of any election," with certain exceptions not applicable here, the absentee ballots shall be delivered to the absentee election manager. ALA. CODE § 17-10-12 (1995).

Section 17-18-1, et seq ., of the Code of Alabama provides for special elections to fill certain vacancies in office. ALA. CODE § 17-18-1 to 17-18-7 (1995). Special elections held pursuant to these provisions are governed by the provisions of election laws applicable to general elections. ALA. CODE § 17-18-7 (1995). Thus, all the time periods for a general election are applicable, including advertising and absentee ballots. Although section 17-18-1, et seq ., is not applicable to a new primary election called by a political party, by analogy, the same time periods applicable to primary elections should be applicable to a new primary election. Accordingly, it is the opinion of this Office that a new primary election must be conducted in accordance with all time provisions applicable to a primary election. Because the probate judge is responsible for conducting the election for a county office, you should select an election date for the new primary election that will comply with the deadlines.

The procedure and dates for conducting this new primary election must be precleared under section 5 of the Voting Rights Act of 1965. 42 U.S.C. §1973c (1994).

Although no specific time frames are established by the Code of Alabama for conducting a new primary election, a new primary election should be conducted in accordance with all time provisions applicable to a primary election. QUESTION 3

Are additional Fair Campaign Practices Act filings, pursuant to section 17-22A-8 of the Code of Alabama, required of these candidates, and if so, when are they due?

Section 17-22A-8 of the Code of Alabama requires each candidate's principal campaign committee to file reports of contributions and expenditures 45 days before and between 10 and 5 days before the date of any election in which the committee receives contributions or makes expenditures with a view toward influencing the results of the election. ALA. CODE § 17-22A-8 (1995). Accordingly, this section is applicable to those candidates involved in the new primary election. The reports must be filed 45 days before the date of the new election and between 10 and 5 days before the new election.

CONCLUSION

Candidates involved in the new primary election must file reports pursuant to the Fair Campaign Practices Act 45 days before and between 10 and 5 days before the date of the new election.

QUESTION 4

Are any of the costs of this "new primary election" reimbursable by the State of Alabama under chapter 21 of title 17 of the Code of Alabama, since section 17-16-10 of the Code appears to make reference to special primary elections? Additionally, what role does the Lee County Commission play in approving or denying any claims for payment of the costs of this election?

Section 17-16-10 of the Code of Alabama provides as follows:

The compensation of officers and other expenses of any and all primary elections, general, or special, held under the provisions of this chapter, shall be paid in the same manner and to the same extent as is or may be provided by law for the payment of the expenses and officers of general elections held under the general election laws of Alabama and shall be paid out of the county treasury in the same manner.

ALA. CODE § 17-16-10 (1995). Section 17-21-1, et seq., of the Code of Alabama specifies the election expenses for which the State of Alabama will reimburse the counties. Generally, the State of Alabama will reimburse the county for one-half of the expenses incurred in holding an election in which candidates for both federal or state and county offices are nominated. ALA. CODE § 17-21-2 (1995). The State will reimburse a county for all expenses incurred for elections in which only candidates for federal or states offices are nominated. ALA. CODE § 17-21-3 (1995). Thus, if only candidates for a county office are being nominated, the State does not provide any reimbursement to the county, and the county must pay the expenses of conducting the election out of the county treasury.

The cost of conducting a new primary election for a county office must be paid by the county commission out of the county treasury. The State is not required, pursuant to section 17-21-1, et seq., of the Code of Alabama, to reimburse the county for any of these expenses. QUESTION 5

If granted by a court, what effect would a temporary restraining order have on the running of various time periods under title 17 of the Code? FACTS, ANALYSIS, AND

This Office has previously held that, when a special election is called, the probate judge is required to meet the statutory election deadlines, but if the time periods for conducting the election must be compressed due to the fact situation, the probate judge should comply as nearly as possible with the deadlines. Opinion to Honorable Donald R. Cook, Probate Judge, Perry County, dated November 3, 1989, A.G. No. 90-00026. Until the case is resolved, it is impossible to opine as to how you should proceed.

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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