Alabama Advisory Opinions February 03, 2003: AGO 2003-072 (February 3, 2003)

Alabama Attorney General Opinions

2003.

AGO 2003-072.

Dear Mr. Ennis:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Tuscaloosa.

QUESTIONS

What is the meaning of the term "personally known" as used in section 17-12-4 of the Code of Alabama, and how many witnesses are required to the oath to establish the identity of a voter voting a challenged ballot?

FACTS AND ANALYSIS

Your request states that, in some instances, an individual appears at the polling place to vote, but the individual's name is not listed on the official voters list at the polling place. The individual states that he has registered to vote, but for whatever reason, the individual's name does not appear on the official voters list. If the voter insists on casting a ballot, the voter may do so, but the voter is required to vote a challenged ballot. The voter must take and subscribe to an oath in which the voter swears that the voter is a qualified elector.

Ala. Code § 17-12-3 (1995). In addition to the oath by the voter, another person, who is a qualified elector in the same precinct, must subscribe under oath that he or she knows the person attempting to vote. This oath is required by section 17-12-4 of the Code of Alabama, which also sets forth the form of the oath. Section 17-12-4 states, in part, as follows:

In addition to the oath provided for in Section 17-12-3, the person so challenged shall be required by the inspectors before he shall be allowed to vote to prove his identity, residence in the state, county and precinct in which he offers to vote by the oath of some elector personally known to some one of the inspectors to be a qualified elector and a freeholder and householder , which oath shall be administered by one of the inspectors, and be in the following form:

"State of Alabama, County of _____ I, _____ do solemnly swear (or affirm) that I have known _____ (here insert the name of the person offering to vote) preceding this election, and that he has been a resident of this state, in this county, and he actually resides in this precinct or district at the time of this election. I do solemnly swear (or affirm) that I am a qualified elector of this precinct; that I have been a freeholder and householder in this precinct for one year next preceding this election; that my occupation is _____; my residence is _____; my business address is _____; Subscribed and sworn to before me this _____ day of _____, 19__."; and, upon such oath being duly taken and subscribed, the ballot of the person offering to vote must be received and deposited as other ballots of qualified electors.

Ala. Code § 17-12-4 (1995) (emphasis added). This section requires that one individual take an oath before an inspector to establish the identity and residency of the person attempting to vote. The person providing the oath must be "personally known" to one of the inspectors "to be a qualified elector" of that precinct. Id . The past practice has been that the inspectors are not required to have a prior acquaintance with the person offering the oath, but that the inspectors determine that the person is a qualified elector in that precinct. A change in this practice would require preclearance under section 5 of the Voting Rights Act of 1965. Given the language of the statute, the text of the oath, and the past practice, the person offering the oath is personally known to be a qualified elector if the inspector can determine from the voters list that the person is a qualified elector in that precinct.

Accordingly, before a challenged voter may vote, he or she must take an oath before one election inspector. In addition, one individual who is a qualified elector in that precinct and who knows the voter and his residence must take an oath before the election inspector. The inspector determines that the individual offering the oath is a qualified elector of that precinct before the oath is taken by finding that person's name on the voters list for that precinct. The inspector is not required to be personally acquainted with the person offering the oath.

CONCLUSION

Before a voter may cast a challenged ballot, in addition to the oath that must be taken by the voter, one person must swear before the inspector to the identity and residence of the person attempting to vote. A person is personally known to be a qualified elector if the inspector determines from the voters list that this person is a qualified elector of that precinct.

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

86291v1/47892