Alabama Advisory Opinions October 31, 2002: AGO 2003-022 (October 31, 2002)

AGO 2003-022.

Dear Judge Davis:

This opinion of the Attorney General is issued in response to your request. QUESTIONS 1 & 2

Does the proposed procedure outlined below comply with Alabama law?

Must the Mobile County Vote Canvassing Board have the approval of the Alabama Republican Party and the Alabama Democratic Party to utilize the proposed vote-counting procedure outlined?

Your request presents the following facts:

The Honorable J.E. Turner ("Turner"), a member of the Alabama House of Representatives for District 102, died unexpectedly earlier today. [October 30, 2002]. Turner was the Republican candidate for election to House District 102. Gary Johnson is the Democratic Party's candidate for this position. There are no other candidates for the position.

Mobile County utilizes Shouptronic 1242 electronic voting machines. District 102 voters are located in 17 of Mobile County's voting precincts. There are a total of 63 voting machines assigned to these precincts. On October 29, 2002, my staff sealed all of Mobile County's voting machines in preparation for the November 5, 2002, general election. The machines are in the process of being delivered to the precincts. I have requested that the 63 voting machines relating to District 102 be temporarily held at Mobile County's Voting Machine Warehouse.

The Mobile County Absentee Ballot Manager's Office indicates that they have processed 155 absentee ballot applications for voters residing in District 102.

As you know, the general election is scheduled for November 5, 2002. It is my expectation that the Alabama Republican Party will name a replacement candidate on October 31, 2002. Presuming the Alabama Republican Party names a replacement candidate, I would propose that the following procedure be followed in regards to the District 102 election:

1. The 63 machines associated with District 102 be opened by members of the court's staff, after notice to the Alabama Republican Party, the Alabama Democratic Party, and the general public.

2. The name of the replacement candidate be inserted on the face of the ballot of the voting machines by way of a sticker, which would be placed under a protective covering to prevent its removal. Representatives of the parties and members of the general public would be invited to observe the change and the resealing of the voting machines.

3. The internal computer program for Mobile County's election system would remain as is, with Turner's name included as the Republican candidate for District 102, even though a different name had been affixed to the ballot face.

When a vacancy in any nomination occurs, "either by death, resignation, revocation or otherwise," the state executive committee, where the office is not a local office, "shall have the power and authority to fill such vacancy." ALA. CODE § 17-16-41 (1995). The statute does not place a time limit upon which the political party must act. Obviously, the political party should act as quickly as possible before an election so that the election officials may make the necessary changes to the ballot. The Code of Alabama does not provide any other guidance or procedure for making the changes to the ballot. While a candidate seeking to voluntarily withdraw his or her name from the ballot must do so at least 20 days before the election, no such provision applies where the death of a candidate creates a vacancy. ALA. CODE § 17-8-2 (1995). Nor does this provision affect the right of a political party to fill a vacancy in nomination. The exact nature of the procedure for making the changes may, in fact, vary with the type of voting machines and/or electronic voting equipment used. Thus, the necessary changes must be made on a case-by-case basis by the election officials involved. Given the electronic voting equipment used in Mobile County, you have proposed a procedure that will allow the replacement candidate's name to appear upon the ballot and votes for that candidate to be tabulated. It is the opinion of this Office that the proposed procedure complies with Alabama law. Although the political parties are not required to approve the procedure to be utilized for counting votes for the replacement candidate, all political parties, candidates, and the public should be informed of the procedure, as set forth in your proposal.

The proposed procedure, along with a copy of this opinion, should be submitted to the United States Department of Justice under section 5 of the Voting Rights Act of 1965.

It is the opinion of this Office that the procedure proposed for replacing a vacancy in nomination in District 102 complies with Alabama law. QUESTIONS 3, 4, & 5

How should absentee ballots associated with District 102 be handled?

Do absentee ballots cast for Turner become attributed to the replacement candidate?

Do persons who voted absentee have the right to cast a new ballot at the general election for District 102, since the candidates have changed?

The deadline for requesting an absentee ballot for the November 5, 2002, general election is Thursday, October 31, 2002, five days before the general election. ALA. CODE § 17-10-3 (Supp. 2002). Because the vacancy in nomination occurred just six days before the date of the general election, and the replacement candidate will most likely be named five days before the general election, it is impossible for the absentee ballots to be reprinted with the replacement candidate's name. The Alabama Supreme Court has held that "votes cast for a deceased, disqualified, or ineligible person, although ineffective to elect such person to office, are not to be treated as void or thrown away, but are to be counted in determining the result of the election as regards other candidates." State ex rel. Cleveland v. Stacy , 263 Ala. 185, 187, 82 So. 2d 264, 265 (1955). Accordingly, any absentee votes cast for Turner should be recorded as votes for Turner and should not be attributed as votes cast for the replacement candidate. Alabama law does not provide a procedure for casting a new ballot for those voters who have cast an absentee ballot for a deceased, disqualified, or otherwise ineligible person.

Absentee votes cast for a deceased candidate should be counted in determining the total votes cast for the election and are not to be attributed to the replacement candidate. Voters who have cast an absentee ballot for a deceased, disqualified, or otherwise ineligible person are not authorized by Alabama law to cast a new ballot.

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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