Alabama Advisory Opinions March 27, 2006: AGO 2006-077 (March 27, 2006)

AGO 2006-077.

Dear Ms. Clark:

This opinion of the Attorney General is issued in response to your request on behalf of the Bibb County Board of Registrars.

1. Given that the Bibb County voters' list has records for many active voters that do not have residential addresses, only post office box addresses, may the Board, by proper vote of its members, adopt and implement a process to fulfill the Board's duty to maintain an accurate voters' list with residential addresses?

2. If the answer to Question 1 is no, what procedure should the Board use to ensure these voters are properly registered and voting in the correct precinct?

Your request states that the Bibb County voters' list has records for many active voters that contain no residential address, only a post office address. You further state that the post office address does not accurately reflect the information the Board needs to ensure that voters are placed in the proper voting precinct. The Board proposes to adopt the following procedure to obtain the residential address:

(a) Review the voters list and identify each and all voters for whom the list shows no residential address.

(b) Send a letter, along with an update form, to each of these voters explaining the need for the residential address to complete the voting registration records. The letter would include a request that the form be returned by a specific date, perhaps 10 days after the mailing.

(c) Update the voters list using the returned update forms.

(d) Send a second letter to those voters who did not respond to the first correspondence; this letter would be substantially the same as the first correspondence.

(e) Send a third letter to all individuals who do not respond to the first or second correspondence, informing them that they will be removed from the voters list due to disqualification if they do not provide a residential address for their record. The letter would include a specific deadline and inform the voter of his or her right to appear before the Board to appeal the decision to remove his or her name due to lack of a residential address.

Section 177 of the Recompiled Constitution of Alabama requires that an individual must be a resident of the county to have the right to vote in the county.

Ala. Const. art. VIII, § 177 (amend. 579). The requirements for application for registration to vote are set forth in section 17-4-122 of the Code of Alabama and require an applicant to complete an application form.

Ala. Code § 17-4-122 (1995). The form and contents of the application are prescribed by the Alabama Supreme Court.

Ala. Code § 17-4-122 (1995, Supp. 2005). The application requires an applicant to provide his or her residential address and give the location of the residence. The application also requires that a mailing address be provided if it is different from the residential address. Thus, a post office box may be provided.

Voter registration is based upon residency, and a voter must vote in the county, district, or precinct in which he or she resides.

Ala. Code § 17-3-9 (1995);

Ala. Code § 17-4-127 (Supp. 2005). Voters are assigned to the proper precincts by the county board of registrars based upon the voter's residence. See Opinion to Honorable Virginia B. Merritt, Chairman, Covington County Board of Registrars, dated December 17, 2003, A.G. No. 2004-041. You state that, for various reasons, some voters in the county do not currently have a residential address on file with the Board. For the Board to determine whether these persons are residents of the county and are assigned and voting in the proper precinct, the Board needs a residential address.

The Code of Alabama essentially provides two ways in which a disqualified voter may be purged from the voters' list: a continuous purge process and a voter-list maintenance process conducted statewide. See Ala. Code §§ 17-4-132, 17-4-180 (1995) (continuous purge procedures); Ala. Code § 17-4-200, et seq . (1995) (voter-list maintenance process). Purge procedures are used on a continuous basis by the boards of registrars to purge voters who have moved, who have died, who have been declared mentally incompetent, who have been convicted of a disqualifying offense, or who have otherwise become disqualified from voting.

Ala. Code §§ 17-4-132, 17-4-180, 17-4-204 (1995). A voter who does not have a residential address on file with the board of registrars may be otherwise disqualified from voting, as discussed below.

The board must have reasonable evidence that the voter is disqualified before purging a voter.

Ala. Code § 17-4-180 (1995). The Code of Alabama does not provide a specific procedure that the Board must use to obtain reasonable evidence. It is the opinion of this Office that the procedure proposed by the Board, and outlined above, provides a basis for the Board to obtain reasonable evidence to determine whether a voter is disqualified. If the voter provides his or her residential address, the Board may update its records, determine whether the voter is on the list in the proper precinct, and place the voter in the correct precinct, if necessary. If a voter does not provide the Board with his or her residential address, it is the opinion of this Office that the Board may reasonably conclude from the failure of the voter to provide a residential address that the voter is disqualified from voting. Based on this conclusion, the Board would then be authorized to purge the voter from the voters' list and record the reason for purging the voter.

Ala. Code §§ 17-4-133, 17-4-185 (1995). The Board's proposed plan provides notice to the voter of the Board's actions as required under section 17-4-132 of the Code.

A voter who is purged under these circumstances, who then attempts to vote, may vote only by casting a provisional ballot. Section 17-10A-2 of the Code of Alabama provides that a person who seeks to vote but whose name does not appear on the official list of eligible voters shall be required to cast a provisional ballot.

Ala. Code § 17-10A-2 (Supp. 2005). A voter who casts a provisional ballot is required to complete a voter reidentification form, which would require the voter to provide his or her residential address. Id . The board of registrars uses the voter reidentification forms provided with the provisional ballots to update the voters' list before determining whether the provisional ballot should be counted.

Ala. Code § 17-10A-2(e) (Supp. 2005); Opinion to Honorable Sandra Lasseter, Chairman, Etowah County Board of Registrars, dated March 7, 2005, A. G. No. 2005-081. In this case, the update form should be used to reidentify the voter and return him or her to the active voters' list as provided under section 17-4-186 of the Code.

Ala. Code § 17-4-186 (1995).

Because this proposed plan appears to be a change in practice or procedure, before it is implemented, the plan should be submitted to the United States Department of Justice for preclearance under section 5 of the Voting Rights Act of 1965.

The Bibb County Board of Registrars may notify, by letter, all the voters in the county for whom the Board does not have a residential address and ask those voters to submit update or reidentification forms to the Board. If the voter does not provide the Board with a residential address, the Board may conclude that it has reasonable evidence to purge the voter from the list, and the Board may then purge the voter from the list. This procedure should be submitted to the Department of Justice for preclearance under section 5 of the Voting Rights Act before it is implemented.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact me.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/BFS

102065/86752