Alabama Advisory Opinions January 08, 2004: AGO 2004-057 (January 8, 2004)

AGO 2004-057.

Dear Mr. Benton:

This opinion of the Attorney General is issued in response to your request on behalf of the Russell County Commission.

Does section 11-3-1.1(b) of the Code of Alabama require that the United States Department of Justice preclear new district lines adopted by the county commission 180 days before the primary election?

Section 11-3-1.1 of the Code of Alabama authorizes any county commission, following the release of any federal decennial census, to alter the boundaries of county commission districts. Subsection (b) of this section states that "[a]ny revised district arrangement to be used, in whole or in part, for the first time in any year after 1992 shall be approved by the county commission not later than 180 days prior to the primary election in which it will first be used."

Ala. Code § 11-3-1.1 (Supp. 2003).

Your request states that, under a court order issued in 1986, Russell County was divided into seven voting districts. According to the 2000 census figures, a population change in Russell County resulted in the need for reapportionment of the voting population. After public hearings and advertisement of the new commission district lines, the county commission adopted new district lines on May 21, 2003. The plan was submitted to the United States Department of Justice in September 2003. The plan was precleared by the Department of Justice on December 3, 2003.

The 180-day deadline before the primary election for 2004 occurred on December 1, 2003. Because the preclearance from the Department of Justice was received on December 3, 2003, your question is whether this preclearance was received too late for the county to implement the new district lines for the 2004 elections. Section 11-3-1.1(b) of the Code of Alabama requires that the county commission approve any revised district lines 180 days before the primary election. The county commission approved the new district lines in May 2003, before the 180-day deadline.

Any changes in a standard, practice, or procedure with respect to voting must be precleared under section 5 of the Voting Rights Act of 1965 before the changes may be implemented. 42 U.S.C. § 1973c (1994). A voting change is not effective as law until and unless it has judicial or administrative preclearance and failure to obtain preclearance "renders the change unenforceable." Clark v. Roemer , 500 U.S. 646, 652 (1991) (citing Hathorn v. Lovorn , 457 U.S. 255, 269 (1982)). A change must be final before it can be submitted for preclearance. 28 C.F.R. § 51.22(a) (2003). Thus, the county commission must take the appropriate action to adopt the new district lines before the plan is submitted to the Department of Justice. The county commission adopted the new plan in May 2003 and submitted the plan to the Department of Justice after that date. Thus, the county commission complied with the requirements of section 11-3-1.1(b) of the Code of Alabama. This section does not require that the county commission receive preclearance from the Department of Justice 180 days before the primary election. Because the county commission has received preclearance of the new district lines from the Department of Justice, the county may implement the new district lines for the 2004 primary election.

Section 11-3-1.1(b) of the Code of Alabama requires the county commission to approve new district lines 180 days before the primary election. This section does not require preclearance of the new lines by the Department of Justice 180 days before the primary election. The new district lines were precleared by the Department of Justice on December 3, 2003, and may be implemented for the 2004 primary election.

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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