Alabama Advisory Opinions August 20, 2002: AGO 2002-319 (August 20, 2002)

AGO 2002-319.

Dear Judge Ingram:

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

1. What persons physically count the write-in votes on the night of the general election? Is it the appointing board, or can it be any board named by the judge of probate?

2. Must the precinct official (pollworker/returning officer) be physically present to sign off on the total vote count, including write-in votes, or does he or she merely certify the number of ballots cast in his precinct with no concern or regard as to write-in votes? FACTS AND ANALYSIS

Your request states that Clay County uses a central vote-counting machine, wherein all the ballots cast from each of the precincts are delivered to a central location in the county to be counted by that one machine. You anticipate a large number of write-in votes in the November general election because three local candidates are conducting write-in campaigns. Each write-in vote must be counted by hand. You are concerned that this process will run into the early morning hours and that poll workers from the precincts will be required to serve these extra long hours after having worked 11 or 12 hours earlier that day at the precincts.

The use of a central vote-counting machine is governed by the Procedures for Electronic Vote Counting Systems adopted by the Alabama Electronic Voting Committee. See ALA. CODE § 17-24-7 (1995). The current procedures were amended February 7, 2002, and precleared May 13, 2002.

Poll workers for electronic vote-counting machines are appointed pursuant to Rule 307-X-1-.10 of the Procedures for Electronic Vote Counting Systems. Paragraph (5) of this rule provides: "A county may employ additional poll officials, as necessary to serve at any precinct and at a central ballot counter." Procedures for Electronic Vote Counting Systems, Rule 307-X-1-.10, as amended February 7, 2002.

The ballots are tabulated, and the certificates of results are produced in compliance with Rule 307-X-1-.18. With respect to central ballot counters and write-in votes, this rule provides in paragraph (2)(b) as follows:

In General Elections only, the write-in votes for each office shall be tabulated by the central count poll workers. These write-in votes shall be recorded on a write-in certificate of result to be provided for that purpose. The write-in certificate of result shall be verified and signed by the central count poll workers.

Procedures for Electronic Vote Counting Systems, Rule 307-X-1-.18, as amended February 7, 2002. This rule also provides duties for the precinct inspector and another polling official from each precinct that must be performed after the polls close. Paragraph (c) of this rule states as follows:

After the polls close, the Inspector of the precinct shall immediately close and seal the ballot box that contains the voted ballots with a numbered seal provided for in the election supplies. This sealing of the ballot box shall be verified by all other polling officials. The sealed and unopened ballot box containing the voted ballots and the election supplies shall be returned to the central count location by the Inspector and at least one other polling official. These officials shall remain at the central count location and assist in the processing of their precinct's ballots until the certificate of result for their precinct is produced. These officials along with at least one central count poll official shall verify and sign this certificate of result.

Procedures for Electronic Vote Counting Systems, Rule 307-X-1-.18, as amended February 7, 2002 (emphasis added).

Pursuant to these procedures, central count-polling officials may be used to tabulate the write-in votes and record a certificate of result for write-in votes. The total certificate of result for each precinct, however, must be verified and signed by the precinct inspector and another precinct polling official and at least one central count-polling official. The precinct inspector and the additional precinct polling official must remain at the central count location until a certificate of result for that precinct, which includes write-in votes, is produced. While this Office understands that a large number of write-in votes may result in a long night of tabulating votes, these procedures must be followed when electronic vote-counting systems are used. These procedures may be changed only by the Electronic Voting Committee pursuant to a properly adopted amendment.

Central count-polling officials may be used to tabulate the write-in votes and record a certificate of result for write-in votes. The total certificate of result for each precinct, however, must be verified and signed by the precinct inspector and another precinct polling official and at least one central count-polling official. The precinct inspector and the additional precinct polling official must remain at the central count location until a certificate of result for that precinct, which includes write-in votes, is produced.

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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