Alabama Advisory Opinions November 07, 2002: AGO 2003-029 (November 7, 2002)

Alabama Attorney General Opinions

2002.

AGO 2003-029.

Dear Judge Davis and Ms. Wilson:

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

Whether the proposed procedure for counting absentee ballots that were discovered after the other absentee ballots were counted is appropriate under state law. FACTS AND ANALYSIS

In your letter of request, you provide the following facts:

The Honorable Susan F. Wilson, Clerk of the Circuit Court of Mobile County and Absentee Ballot Manager for Mobile County ("Wilson"), discovered 187 absentee ballots in her office on the afternoon of November 6, 2002. These ballots were discovered after Wilson received telephone inquiries from a candidate's representative about absentee ballot returns and examination of the absentee ballot records suggested that there were absentee ballots that had not been processed and counted. The additional inquiry led to the discovery of said ballots in an unmarked drawer in Wilson's office. These ballots were received by Wilson in a timely manner from voters and would have been eligible for processing and counting in the November 5, 2002, General Election.

The undersigned propose the following procedure with regard to these 187 absentee ballots:

1. The persons previously appointed by the Appointing Board of Election Managers of Mobile County to work in the November 5, 2002, General Election (or as many of them as available) will be assembled at the Mobile County, Alabama, courthouse to process these ballots.

2. The absentee ballots will be processed utilizing the same equipment and procedure utilized in regards to the absentee ballots processed and counted on November 5, 2002.

3. The absentee ballot returning officer will furnish the Mobile County Election Canvassing Board an amended report regarding the absentee ballots received in Mobile County.

4. The Mobile County Canvassing Board will certify the election results, including the amended absentee ballot results, on November 8, 2002.

Alabama's absentee balloting process is set forth in state law. See Ala. Code § 17-10-1, et seq. (Supp. 2002). Section 17-10-10 provides, in pertinent part, that "[o]n the day of the election, beginning at 12:00 noon, the absentee election manager shall deliver the sealed affidavit envelopes containing absentee ballots to the election officials provided for in Section 17-10-11."

Ala. Code § 17-10-10 (Supp. 2002). Section 17-10-11 provides that:

For every primary, general, special or municipal election, there shall be appointed three managers, two clerks and a returning officer, named and notified as are other election officials under the general laws of the state, who shall meet, at the regular time of closing of the election on that day, in the office of the clerk or register for the purpose of receiving, counting and returning the ballots cast by absent voters. The returns from the absent box shall be made as required by law for all other boxes.

Ala. Code § 17-10-11 (1995).

Your discovery of 187 uncounted absentee ballots means that this absentee voting process in Mobile County has not yet been completed. To complete it, to comply with state law, and to ensure that the votes of every Alabama voter are counted, you are obliged to deliver these unopened and uncounted votes to the persons appointed by the Appointing Board of Election Managers of Mobile County. These ballots should be received, opened, and recorded in the same manner as those absentee ballots previously counted. Please be aware that section 17-10-10 of the Code of Alabama provides that poll watchers may be present for this process.

Ala. Code § 17-10-10 (Supp. 2002); § 17-10-11 (1995). Because these votes will be delivered and counted at a time other than 12:00 noon on the day of the election, proper notice should be given to the political parties and the public of the time and place that these ballots will be counted. You have assured this Office that each of these absentee ballots was received by the Circuit Clerk before the deadline to be counted. Each ballot envelope that is found by the election officials to have been properly signed and appropriately witnessed should be opened, and the votes contained therein should be recorded. Id .

After the legal absentee ballots are counted, the unofficial results provided by the absentee election officials should be amended to reflect the additional votes. The amended total should then be forwarded to the Mobile County Canvassing Board so that they may be reflected in the Canvassing Board's declared totals that are sent to the Secretary of State under section 17-14-1 of the Code. CONCLUSION

The procedure proposed to count absentee ballots that were discovered by election officials on a day after the other absentee ballots were counted is appropriate under state law.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Troy King of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/CJS/TRK

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