Alabama Advisory Opinions March 30, 2004: AGO 2004-107 (March 30, 2004)

AGO 2004-107.

Dear Judge Fuhrmeister:

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

What method should be used to determine the number of signatures necessary to qualify an independent candidate for the office of county commission?

Your request states that some individuals in Shelby County are interested in running for the Shelby County Commission as independent candidates. Independent candidates for a county office are required to submit, to the probate judge, petitions signed by electors qualified to vote in the election for the office the candidate seeks.

Ala. Code § 17-7-1 (Supp. 2003). The number of signatures required for the petition is set forth in section 17-7-1 of the Code of Alabama, which states "[t]he number of qualified electors signing the petition shall equal or exceed three percent of the qualified electors who cast ballots for the office of Governor in the last general election for the state, county, district, or other political subdivision in which the candidate seeks to qualify." Id .

Your request states that Shelby County has nine commissioners that are elected by district. The districts are not wholly contained within precinct lines; thus, multiple commission districts exist within certain precincts. In addition, since the last general election, the county has amended its precinct lines and its commission district boundaries.

You further state that, because votes are counted and reported by precinct, it is impossible to determine the number of people within a particular district who cast ballots for the office of Governor. The number of qualified electors who cast ballots in a particular commission district is easily ascertainable, but the number of those electors who also cast ballots for the office of Governor is not. Ordinarily, there are undervotes in every contested race, including the Governor's race. Accordingly, it is not possible to determine if the undervotes in the Governor's race from a particular precinct were cast by electors in commission district 6 or district 7, for example.

A fair and reasonable method for determining the number of votes cast for Governor in a particular commission district must be used. This Office suggests a mathematical formula based upon applying a percentage of voters from each district, as those districts existed at the time of the last general election, that voted in the last general election to the total votes cast for Governor in that precinct. You must first review the voter histories from the last general election and determine the number of voters who cast ballots from each of the districts that are within the same precinct. Calculate the ratio of those voters to the total number of voters who casts ballots from both districts and apply that ratio to the total number of votes that were cast for the Governor in that precinct. These numbers would be a reasonably approximate number of ballots cast for Governor from each district in that particular precinct.

For example, a person wants to run as an independent candidate in 2004 for county commission in District 1, but that precinct contains parts of both District 1 and District 2. Therefore, the probate judge is unable to determine how many votes were cast for Governor in the last election in District 1 because of the split, although the judge knows that 240 people voted for Governor in that precinct. Records show that, in that election, 50 people voted in the commission race for District 1, and 150 people voted in the commission race for District 2.

Under the methodology outlined in this opinion, your office would first calculate the ratio of votes for the two commission districts, which would be 50:150, or, more simply, 1:3. This ratio would then be applied to the total of 240 votes for governor. For every one voter in District 1, there were three in District 2. The total of 240 divided by 4 equals 60. Thus, the result is a ratio of 60:180. You would estimate that there were 60 votes for Governor in District 1 and 180 votes for Governor in District 2, for a total of 240. District Votes in Last Election for Votes in Last Election for Commissioner Governor 1 50 60 2 150 180 Total Votes 200 240 Ratio of District Votes = 50:150 = 1:3

Your request also states that the commission district boundary lines have changed since the last general election. If the lines have changed significantly, the number of voters in the old districts is not comparable to the number of voters in the current districts, and the calculation above would not provide a reasonably accurate figure. It has been the practice in this situation to take the total number of votes cast in the county for Governor and divide that number by the total number of commission districts (nine in this case). This result would be multiplied by 3 percent to determine the number of signatures needed for the petition for each district.

This Office will submit the procedure outlined in this opinion to the United States Department of Justice for preclearance under section 5 of the Voting Rights Act of 1965. 42 U.S.C. § 1973c (1994).

The number of signatures necessary to qualify an independent candidate for the office of county commission when the commission districts are split among precinct lines may be determined by applying a percentage of voters from each district that voted in the last general election to the total votes cast for Governor in that precinct and multiplying that number by 3 percent. If the commission district lines have significantly changed since the last election, the total number of votes cast for Governor in the county may be divided by the total number of commission districts and multiply that number by 3 percent.

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

Sincerely,

TROY KING

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

TK/CJS/BFS

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