Alabama Advisory Opinions June 21, 2004: AGO 2004-161 (June 21, 2004)

AGO 2004-161.

Dear Representative Dukes:

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

In a municipal election, is an absentee ballot that is submitted without identification as required by Alabama law rejected and not counted, or is the ballot automatically treated as a challenged ballot and counted?

Alabama law requires a voter to submit identification to vote.

Ala. Code § 17-11A-1 (Supp. 2003). An absentee voter is required to submit a copy of one of the acceptable forms of identification with the ballot.

Ala. Code § 17-11A-1(c) (Supp. 2003). Subsection (e) of this section provides that "[a]n individual required to present identification in accordance with this section who is unable to meet the identification requirements of this section shall be permitted to vote by a challenged or provisional ballot, as provided for by law."

Ala. Code § 17-11A-1(e) (Supp. 2003).

In municipal elections, challenged ballot procedures are used rather than provisional voting, which is currently used in state and county elections. See Opinion to Honorable Bill Dukes, Member, House of Representatives, dated July 31, 2003, A.G. No. 2003-207 & Ala. Code § 11-46-39 (1992). Under provisional voting, an absentee voter who fails to include identification with his or her ballot is notified of this failure and given an opportunity to comply with the law. If the voter fails to comply within the prescribed deadlines, that person's ballot will not be counted.

Ala. Code § 17-10A-2(c) (Supp. 2003).

Under the challenged ballot procedure, there is no method for allowing a voter to provide identification after the absentee ballot is submitted. Normally, a challenged absentee ballot is identified as a challenged ballot by the poll workers on the affidavit envelope and the ballot is later removed from the sealed secrecy envelope and counted. See Ala. Admin. Coder. 820-2-3-.01 through r. 820-2-3-.03 (eff. Feb. 14, 2001). Accordingly, in a municipal election, if an absentee ballot does not include identification, section 17-11A-1(e) of the Code of Alabama provides that the voter "shall be permitted to vote by a challenged . . ." ballot.

Ala. Code § 17-11A-1(e) (Supp. 2003). Thus, an absentee ballot in a municipal election that does not contain proper identification shall automatically be treated as a challenged ballot by the poll workers and should be counted.

Section 17-11A-1(e) of the Code of Alabama requires that an absentee ballot submitted in a municipal election without proper identification must be treated and counted as a challenged ballot.

In a municipal election, is the absentee election manager required to open the third envelope to determine whether the voter's identification has been sent with the ballot, or should this be checked by the poll workers counting absentee ballots on election day? How should the absentee election manager determine who has returned an absentee ballot for purposes of recording its receipt on the absentee voter's list maintained by the absentee election manager?

As stated above, an absentee voter is required to submit a copy of one of the acceptable forms of identification with the absentee ballot.

Ala. Code § 17-11A-1(c) (Supp. 2003). The identification is required to be submitted in a third envelope that also contains the affidavit envelope. The affidavit envelope should contain a plain envelope with the marked ballot sealed inside.

Ala. Code § 17-10-9 (Supp. 2003).

In a municipal election, the absentee ballots are distributed by the absentee election manager on election day to the poll workers responsible for counting absentee ballots. See Ala. Code § 11-46-27 (Supp. 2003) & Ala. Code § 17-10-10 (Supp. 2003). Under the provisional voting procedures, which do not apply in municipal elections, the absentee election manager is required to open the third envelope and determine if the voter submitted a proper identification.

Ala. Code § 17-10A-2(c) (Supp. 2003). If proper identification is not provided, the absentee election manager must notify the voter in writing that the voter has until 5:00 p.m. on the Monday before the election to provide the identification, and if the voter does not, the ballot will become a provisional ballot. Id . Because provisional voting does not apply in municipal elections, there is no reason for the absentee election manager in a municipal election to open the third envelope to determine if the identification has been provided. The poll workers for the municipal election, who will receive the absentee ballots on election day, are required to open the envelope and determine whether the identification has been provided. If the identification is not provided, the poll workers must treat the ballot as a challenged ballot as discussed under

The absentee election manager is required to record the receipt of an absentee ballot on the list of persons who have applied for an absentee ballot as compiled by the absentee election manager under section 17-10-5 of the Code of Alabama.

Ala. Code § 17-10-10 (Supp. 2003). This list, maintained by the absentee election manager, would show that a person requested an absentee ballot and that an absentee ballot was returned for that person. Before the implementation of voter identification and the use of the third envelope, the name of the voter returning the absentee ballot could (in most cases) be determined by the information on the affidavit envelope, which allowed the absentee election manager to record receipt of the ballot by that person's name on the absentee list. Current law does not specify a procedure for allowing the absentee election manager in a municipal election to determine the name of the voter returning the ballot if the voter does not provide his or her name on the return envelope. Because the affidavit envelope will be sealed in the third envelope, the absentee election manager may wish to write the voter's name on the return address line on the third envelope before mailing that envelope and the absentee ballot materials to the voter. This will enable the absentee election manager to record the receipt of the absentee ballot on the absentee list.

In a municipal election, the poll workers who count the absentee ballots are required to open the third envelope and determine whether proper identification has been provided by the voter with the absentee ballot. The absentee election manager may write the voter's name on the return address line on the third envelope before mailing that envelope and the absentee ballot materials to the voter. This information will allow the absentee election manager to record the receipt of the absentee ballot on the absentee list required to be maintained by the absentee election manager.

I hope this opinion answers your questions. 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

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