Alabama Advisory Opinions July 25, 2003: AGO 2003-199 (July 25, 2003)

AGO 2003-199.

Dear Ms. Hurst:

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

Is Act 2003-381, the Voter ID Act, as it applies to absentee voting, to be implemented for the September 9, 2003, constitutional amendment election?

Act 2003-381 ("Act") requires voters to present certain identification to the appropriate election official before voting. 2003 Ala. Acts No. 2003-381. Voters who vote by absentee ballot are required to submit, with the absentee ballot, a copy of one of the acceptable forms of identification. Id ., § 1(c). Act 2003-381 was signed by the Governor on June 24, 2003, and became effective on that date. The Act must be precleared under Section 5 of the Voting Rights Act of 1965 before it can be implemented. 42 U.S.C. § 1973c (1994). This Office submitted the Act to the Attorney General of the United States for preclearance under Section 5 and asked for expedited consideration by August 9, 2003, to allow the Act to be implemented with respect to the September 9, 2003, special election. The submission was received by the Department on July 3, 2003. See Voting Section, U.S. Dep't of Justice, Notice of Preclearance Activity Under the Voting Rights Act of 1965, As Amended (July 11, 2003) (Submission No. 2003-2245), http://www. usdoj. gov/crt/voting/notices/vnote071103.html.

Absentee ballots and supplies must be delivered to the absentee election manager not less than 40 days before the date of the election.

Ala. Code § 17-10-12 (1995). With respect to the September 9 election, that would be no later than July 31, 2003. The instructions and procedures necessary for including identification with an absentee ballot are not set forth in Act 2003-381. Those instructions and procedures are instead set forth in section 2 of Act 2003-313, which, among other things, provides for compliance with the federal Help America Vote Act of 2002, Pub. L. 107-252, 116 Stat. 1666. Act 2003-313 became effective on June 19, 2003, when signed by the Governor, but also cannot be implemented until it is precleared under Section 5 of the Voting Rights Act of 1965. This Office is currently preparing Act 2003-313 for submission to the Attorney General of the United States under Section 5; that act will not receive preclearance, however, in time to be implemented with respect to the absentee ballots for the September 9, 2003, election. Accordingly, voter identification under Act 2003-381 may not be implemented with respect to absentee ballots for the September 9, 2003, constitutional amendment election. See Lopez v. Monterey County , 519 U.S. 9, 20 (1996) ("[n]o new voting practice is enforceable unless the covered jurisdiction has succeeded in obtaining preclearance"); 28 C.F.R. § 51.10(b) (2002) ("[i]t is unlawful to enforce a change affecting voting without obtaining preclearance under section 5").

This Office has requested expedited preclearance of the Act and hopes to receive preclearance well before the September 9, 2003, election. Thus, election officials should await further notice regarding preclearance of the remaining provisions of the Act.

Voter identification, pursuant to Act 2003-381, may not be implemented with respect to absentee ballots for the September 9, 2003, constitutional amendment election. This Office has requested expedited preclearance of the Act and hopes to receive preclearance well before the September 9, 2003, election. Thus, election officials should await further notice regarding preclearance of the remaining provisions of the Act.

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

Sincerely,

Bill Pryor

Attorney General

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