Alabama Advisory Opinions October 16, 2003: AGO 2004-006 (October 16, 2003)

Alabama Attorney General Opinions

2003.

AGO 2004-006.

Dear Ms. Hunter:

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

QUESTION

In the disposition of records and forms after the closing of the polls, to whom should the list of registered voters be delivered, the sheriff, sealed in a box, or the board of registrars, sealed in an envelope?

FACTS AND ANALYSIS

Your request provides the following facts:

Each polling place has one or more lists of registered voters that are used to determine an individual's eligibility to vote on election day. When a person presents himself or herself to vote, a poll worker checks to see if the person is a qualified voter in that precinct. If the person is, the poll worker marks off the person's name and the person may proceed to vote. This activity provides a record of who voted that day and is used for various purposes, including, but not limited to, the updating of voter histories as required by section 17-4-231(1) of the Code of Alabama. The use of voter histories is integral to the voter list maintenance provisions found in sections 17-4-200 through 17-4-215 of the Code of Alabama.

Section 17-13-6 of the Code of Alabama, relating to the counting of votes, was first enacted in 1876 and provided that the list of registered voters was to be sealed in a box and delivered to the sheriff. This section states, in pertinent part, as follows:

As soon as the ballots are all counted, the inspectors must ascertain the number of votes received for each person and for what office and must make a statement of the same in writing, which statement must be signed by them; they must also certify in writing on one of the poll lists, that such poll list is the poll list of the election precinct at which they were inspectors, the day and year on which such election was held and for what offices, which certificates must be signed by them; and such statement of the poll lists and votes, thus certified, must be sealed up, together with a list of the registered voters in such precinct at such election on such day, in a box to be furnished by the sheriff of the county , . . . directed to the sheriff of the county , if there be one, and if none, then to the person discharging the duties of such office, and immediately deliver the same to the returning officer of the precinct.

Ala. Code § 17-13-6 (Supp. 2002) (emphasis added).

Section 17-4-231 of the Code of Alabama was enacted in 1990 to provide a new procedure for disposition of records after an election. This section states, in pertinent part, as follows:

After the close of the polls in all primary, special, general and municipal elections held in the state, the records and forms produced at the polling places shall be returned as follows:

(1) The list of registered voters and the voter reidentification forms shall be sealed in an envelope addressed to the board of registrars and the inspectors and any poll watchers present shall sign across the seal. The board of registrars shall hold the list of registered voters as a public record while using it to update their voter histories in accordance with Article 8 of this chapter. The list shall then be returned to the city clerk in municipal elections and the judge of probate in all other elections.

Ala. Code § 17-4-231(1) (1995) (emphasis added). Although this provision of section 17-4-231 was in conflict with the provision in section 17-13-6 that the list be sealed in a box and delivered to the sheriff, it was the latest expression of the Legislature and superseded that provision. See Opinion of the Attorney General to Honorable Wanda Parker, Chairman, Board of Registrars, dated October 26, 1990, A.G. No. 91-00046, and to Honorable Al Tidwell, District Attorney, dated July 15, 1991, A.G. No. 91-00313. Under section 17-4-231, it has been the practice of poll officials to seal the list of registered votes in an envelope after the polls close and deliver the list to the board of registrars. Act 90-557, which added section 17-4-231, received preclearance on July 24, 1990.

Section 17-4-231(1) of the Code of Alabama was amended in 2003 by Act 2003-313, which implements the requirements of the federal Help America Vote Act of 2002, Pub. L. 107-252. See 42 U.S.C.A. § 15403 (West 2003). Section 17-4-231, as amended, provides as follows:

(1) The list of registered voters , the affirmations of provisional voters, the statements of election officials challenging provisional voters, and the voter reidentification forms shall be sealed in an envelope addressed to the board of registrars and the inspectors and any poll watchers present shall sign across the seal. The board of registrars shall hold the list of registered voters as a public record while using it to update their voter histories in accordance with Article 8 of this chapter. The list shall then be returned to the city clerk in municipal elections and the judge of probate in all other elections.

2003 Ala. Acts No. 2003-313 (emphasis added). This act was submitted to the United States Department of Justice on September 17, 2003, for preclearance under section 5 of the Voting Rights Act of 1965. The act added the additional requirement that the "affirmations of provisional voters" and "the statements of election officials challenging provisional voters . . . shall be sealed in an envelope addressed to the board of registrars." Id .

Section 17-13-6 of the Code of Alabama was also amended in 2003 by Act 2003-339, which provides for the automatic recount of votes in general elections. 2003 Ala. Acts No. 2003-339. This act was submitted to the United States Department of Justice on August 5, 2003, for preclearance under section 5 of the Voting Rights Act of 1965. Only grammatical changes, not substantive changes, were made to the provisions of section 17-13-6 pertinent to this question. Section 17-13-6 was amended to provide that "[t]he statement of the poll lists and votes, as certified, shall be sealed up, together with a list of registered voters in the precinct at the election on such day, in one or more boxes to be furnished by the sheriff of the county for each precinct." 2003 Ala. Acts No. 2003-339.

The applicable rules of statutory construction provide as follows:

The reenactment of a statute is a continuation of the law as it existed prior to the reenactment as far as the original provisions are repeated without change in the reenactment. Consequently, an intermediate statute which has been superimposed upon the original enactment as a modification of its provisions is likewise not repealed by the reenactment of the original statute, but is construed to be in force to modify the reenacted statute as it modified the original enactment.

1A Norman J. Singer, Statutes and Statutory Construction , §22:30, 559 (6th ed. 2002). The Alabama Supreme Court endorsed this rule of statutory construction. Allgood v. Sloss-Sheffield Steel & Iron Co. , 196 Ala. 500, 71 So. 724, 724-25 (1916). Additional principles of statutory construction provide that if, a statute is susceptible of two constructions, one of which is workable and fair and the other unworkable and unjust, the court will assume that the Legislature intended that which is workable and fair. Ex parte Hayes , 405 So. 2d 366, 370 (Ala. 1981); State v. Calumet & Hecla Consol. Copper Co. , 259 Ala. 225, 234, 66 So. 2d 726, 731 (Ala. 1953). Statutes must not be interpreted in isolation, but should be considered in the context of the entire statutory scheme. Siegelman v. Alabama Ass'n of School Boards , 819 So. 2d 568 (Ala. 2001). Where more than one Code section is involved, each should be construed in harmony with the other Code sections in effect, so far as is practical. Kinard v. Jordan , 646 So. 2d 1380, 1383 (Ala. 1994).

Applying these principles of statutory construction to the facts at issue, it is the opinion of this Office that the Legislature intended to continue the procedure of requiring the list of registered voters to be sealed in an envelope and delivered to the board of registrars at the close of the polls. This procedure allows the board of registrars to perform other duties, such as updating voter histories, that are required by other statutory provisions. The practice of sealing the list of registered voters in a box and delivering them to the sheriff would thwart the ability of the board of registrars to perform its duties such as those set forth in sections 17-4-201 through 17-4-215.

CONCLUSION

Under section 17-4-231 of the Code of Alabama, after the closing of the polls, the list of registered voters must be sealed in an envelope and delivered to the board of registrars.

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

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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