Alabama Advisory Opinions September 07, 2004: AGO 2004-214 (September 7, 2004)

AGO 2004-214.

Dear Representative Melton:

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

Does the Eutaw City Council have the authority to require the municipal clerk, serving as the absentee election manager, at the close of business each day, to seal the absentee ballot box, jointly with the police chief (each writing his or her name across the seal), and on the next workday only in the presence of the police chief allow the clerk to unseal the ballot box to allow absentee ballots from that day to be deposited into the ballot box, and require all seals made and removed to be delivered to the absentee election officials on election day?

Your request states that there is no statutory authority for this process. Section 17-10-10 of the Code of Alabama provides the procedure to be followed by the absentee election manager upon receipt of an absentee ballot and states, in pertinent part, as follows:

Upon receipt of the absentee ballot, the absentee election manager shall record its receipt thereof on the absentee list as provided in Section 17-10-5 and shall safely keep the ballot without breaking the seal of the affidavit envelope . On the day of the election, beginning at 12:00 noon, the absentee election manager shall deliver the sealed affidavit envelopes containing absentee ballots to the election officials provided for in Section 17-10-11.

Ala. Code § 17-10-10 (Supp. 2003) (emphasis added).

Section 17-10-10 of the Code requires the absentee election manager to safely keep the absentee ballots until the ballots are turned over to the election officials on election day. The Code does not specify the method that the absentee election manager should use for safely keeping the absentee ballots. Nor does the Code authorize the city council to impose a method for safekeeping the ballots. The method of safely keeping the absentee ballots is within the discretion of the absentee election manager. In general, this Office is informed that the absentee ballots are stored in a locked box by the absentee election manager and that box is usually stored in a locked office or safe. The absentee election manager may, at his or her discretion, utilize another person to witness the sealing and opening of the absentee ballot box.

The absentee election manager is required by section 17-10-10 of the Code of Alabama to safely keep the absentee ballots. The city council does not have the authority to impose specific procedures for the safekeeping of the absentee ballots.

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: BRENDA F. SMITH

Chief, Opinions Division

TK/BFS

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