Alabama Advisory Opinions June 11, 2010: AGO 2010-73 (June 11, 2010)

AGO 2010-73.

Dear Secretary Chapman:

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

A recount petition concerning the primary election held on June 1, 2010, for Governor has been filed with the Secretary of State's Office and with most, if not all, of the counties throughout the state. As the state's chief election official, the Secretary of State is required to provide uniform guidance to the counties with respect to a recount request. Do the provisions of section 17-16-21 of the Code of. Alabama apply to a primary election? If so, who has the authority to petition for a recount, and what is the time frame for making the petition? Once a proper petition has been filed, when does the recount occur, and does the Secretary of State await the results of the recount before certifying the names to be placed on the ballot for the primary runoff?

As a matter of background, Alabama's statutes governing elections are found in title 17 of the Code of Alabama. Chapter 16 of that title contains various statutes governing post-election procedures, including recounts. There are two statutes that address recounts.

The first statute that addresses recounts is section 17-16-20 of the Code. That statute provides for an automatic recount "[w]hen, in a general election, the election returns for any public office, including a judicial office, reflect that a candidate is defeated or any ballot statewide measure is defeated by not more than one half of one percent of the votes cast for the office, or the ballot measure . . ." Ala. Code § 17-16-20 (2006). Pursuant to the plain language of that statute, and as explained in an opinion to Honorable Beth Chapman, Secretary of State, dated June 8, 2010, this automatic recount provision does not apply to a primary election.

The second statute that addresses recounts is section 17-16-21 of the Code. That statute provides for a recount when a person with standing timely petitions the appropriate canvassing authority for a recount. ala. code § 17-16-21 (2006). Section 17-16-21(b) specifies that a recount authorized pursuant to this section must "consist of reading the ballots through the counter." Id. Only ballots that are counted in the original election and then rejected in the recount may be counted by hand. Id. All of your questions concern this petition-based recount process.

Your first question is whether section 17-16-21 applies to a primary election. Pursuant to the plain terms of subsection (a) of section 17-16-21, the answer is "yes." In pertinent part, section 17-16-21(a) provides that the person petitioning for the recount must file the petition with the canvassing authority, and it defines the canvassing authority as "the canvassing board in general elections and the county executive committee in a party primary." Id. (emphasis added). The plain language of section 17-16-21 specifically provides that the county executive committee may be petitioned for a recount in a primary election.

Section 17-16-21 must, therefore, apply to primary elections. To reach any other conclusion would be to disregard the express language of the statute. Cf, Scott Bridge Co. v. Wright, 883 So. 2d 1221, 1224 (Ala. 2003) ("This Court simply cannot ignore words in a statute except where it is certain that the legislature could not possibly have intended the words to be in the statute, and that the rejection of them serves merely as a correction of careless language. We are not here presented with such a case.") (internal citation and quotation marks omitted).

Given that section 17-16-21 applies to primary elections, like the one held on June 1, 2010, you next ask who may petition for a recount. Section 17-16-21 provides that "any person with standing to contest the election under Sections 17-16-40 and 17-16-47 may petition the canvassing authority for a recount of any or all precinct returns." Id. Accordingly, we look to the two referenced statutes, section 17-16-40 and section 17-16-47, to determine who has standing to petition for a recount.

The first, section 17-16-40, provides, in pertinent part, that "[t]he election of any person declared elected to the office of Governor . . . may be contested by any person who was at the time of either of the elections a qualified elector . . . ." Ala. Code § 17-16-40 (2006) (emphasis added). The second, section 17-16-47, refers to "any elector" and requires a statement that the contestant "was a qualified voter when the election was held." Ala. Code § 17-16-47 (2006) (emphasis added). The terms "elector" and "voter" are synonymous. Thus, section 17-16-40 and section 17-16-47 provide that a person who, at the time of the election, was a qualified elector has standing to contest the election. It is axiomatic that a single qualified elector has standing to file an election contest concerning a statewide office.

We return now to the petition-based recount statute, section 17-16-21. That statute incorporates the qualified-elector standard from the contest statutes. Accordingly, by incorporating that qualified-elector standard, state law permits any person who was a qualified elector at the time of the primary election to petition for a recount of the result of the primary election for a statewide office. Applied here, this means that any person who was a qualified elector on June 1, 2010, may petition the county executive committee for a recount of the results in the primary election for Governor.

Given that any person who was a qualified elector on June 1, 2010, may petition the county executive committee for a recount pursuant to section 17-16-21, your next question is when such a petition must be made. Section 17-16-21 states that "[t]he time period for requesting a recount begins with the production of the certificate of result and ends 48 hours after the official canvass of county returns." ALA. code § 17-16-21 (2006). Depending on the context, and as explained below, these terms may be used interchangeably, or they may have different meanings.

The terms are used interchangeably when the relevant election concerns a county office, as opposed to a state office. In an election for a county office, the certificate of result is produced on the Tuesday seven days following the election, thus starting the recount timeline. ALA. Code § 17-10-2(f) (2006). The official canvass of the county returns occurs at the same time. The result is that the timeline for seeking a recount of an election for county office begins on the Tuesday seven days following the election and ends 48 hours later.

By contrast, there is an additional step involved in the canvassing of the returns for a statewide election. For this reason, the terms used in section 17-16-21 have different meanings in the context of a statewide election, like the race for Governor. Once again, the certificate of result is produced on the Tuesday seven days following the election, thus starting the recount timeline. Ala. Code § 17-10-2(f) (2006). The difference is that the official canvass of the county returns occurs by noon the next day, Wednesday, eight days following the primary election. It is at this time that the county executive committee certifies to the state executive committee a statement and tabulation, by precincts, of the result of the primary election for each candidate. ala. Code § 17-13-17 (2006). The timeline for seeking a recount of a statewide election, therefore, begins on the Tuesday seven days following the election and ends 48 hours after the canvass on Wednesday. Accordingly, the timeline for seeking a recount of the June 1, 2010, primary election for Governor began with the production of the certificate of result on Tuesday, June 8, 2010; the timeline will end 48 hours after Wednesday's canvass, which will be sometime on Friday, June 11, 2010.

The next question that naturally arises is: When, once timely requested, shall the recount be conducted? Section 17-16-21 is nearly silent on this issue. There are, however, certain principles that apply when dealing with elections generally, and there is a mechanism for allowing the political parties holding a primary election to fill any such gap.

As a matter of principle, elections should be held in a smooth, fair, and transparent manner such that the public and the candidates can have faith in the process and in the result that it produces. The sanctity of the individual vote should not be undermined. See, e.g., First Nat. Bank of Boston v. Bellotti, 43 5 U.S. 765 (1978); Storer v. Brown, 415 U.S. 724 (1974); Roe v. Mobile County Appointment Bd., 616 So. 2d 1206 (Ala. 1995), overruled on other grounds by Williamson v. Indianapolis Life Ins. Co., 741 So. 2d 1057 (Ala. 1999); Sears v. Carson, 551 So. 2d 1054 (Ala. 1989);Ala. Code § 17-13-71 (2006); Ala. Code § 17-16-40 (2006).

That said, a primary election, like the one at issue here, is "an election held by the qualified voters who are members of any political party [e.g., the Alabama Republican Party] for the purpose of nominating a candidate or candidates for public or party office." Ala. Code § 17-13-1 (2006). Thus, the primary election is a political party event.

The political parties choose whether to nominate candidates for state office, like Governor, through a primary election or through some other means, such as a mass meeting. Ala. Code § 17-13-42 (2006) ("[p]rimary elections are not compulsory"); see also, ala. code § 17-13-46 (2006) (requiring the political party to give notice of its desire to enter the primary). When a political party makes a decision to hold a primary, it accepts as binding and authoritative those provisions of Alabama law that govern a primary election. Ala. Code § 17-13-42 (2006).

One of those provisions authorizes the political party to make some rules of its own, within certain restrictions. Section 17-13-88 of the Code provides that "[t]he state executive committee may prescribe such other additional rules governing contests and other matters of party procedure as it may deem necessary not in conflict with this chapter." Ala. Code § 17-13-88 (2006). Thus, where the political party sees a need for a rule, it may create such a rule, so long as the rule is not in conflict with Alabama law.

The near silence in section 17-16-21 as to when the recount should be held may allow the political parties to prescribe a rule as to the timing of a recount, if the parties deem such a rule necessary. Ala. Code § 17-13-88 (2006). We understand some counties may have had local rules that govern how recounts are conducted.

If a political party were to create a new rule that closes the gap in the statute, the party should consider whether it needs to obtain preclearance of that rule from the United States Department of Justice ("Department") pursuant to Section 5 of the Voting Rights Act of 1965, codified at 42 U.S.C. § 1973c. See also, 28 C.F.R. § 51.7 (2001). The Department's regulations do provide for seeking preclearance on an expedited basis. 28 C.F.R. § 51.34 (2001).

As previously stated, section 17-16-21 is nearly silent on the issue of when the recount should be conducted. There is one outer limit inherent in the statute, and it helps in understanding the relevance of a petition-based recount. Subsection (d) of section 17-16-21 provides that "[i]f the recount produces a change in the precinct totals of sufficient magnitude to alter the result of the election, the outcome shall constitute grounds for an election contest as now prescribed by law." Ala. Code § 17-16-21(d) (2006). Thus, the petition-based recount should be conducted in time to be used for an election contest.

It is worth noting that section 17-16-21 says nothing about re-certifying the election results based on the recount. Instead, a petition-based recount serves as nothing but a ground for filing an election contest. This is very different from the result under the automatic recount provision, section 17-16-20, which was discussed above.

Subsection (e) of section 17-16-20 expressly provides that when an automatic recount is conducted "the appropriate canvassing board or authority shall amend the initial certification of the election to reflect the result of the recount." Ala. Code § 17-16-20(e) (2006). That is, to the extent that there is any discrepancy between the results of the original count and the results of an automatic recount, the results of the automatic recount are presumed to be more accurate and so they supersede the original results. If the winner of the election changes, this provides a grounds for contesting the general election. Ala. Code § 17-16-40(6) (2006).

By sharp contrast, no presumption of accuracy attaches to the results of a petition-based recount. Section 17-16-21 does not require that the results of the petition-based recount supersede the original results. Moreover, the statute does not authorize it. Hence, Alabama law is clear that the state executive committee must certify to the Secretary of State the names of the candidates who will participate in the runoff based on the original results; Alabama law neither requires nor authorizes any amendment to that certification based on any petition-based recount. ala. code § 17-13-18 (2006). The Secretary of State, in turn, must certify those names to the probate judges in the counties so that they may get ballots printed and so that absentee voting may begin. ala. code § 17-13-18 (2006).

The reason for the different treatment of the results of the recount, depending on whether it was an automatic recount pursuant to section 17-16-20 or a petition-based recount pursuant to section 17-16-21, may lie in the difference in procedural safeguards between the two. Section 17-16-20 provides that the automatic recount shall be conducted by polling officials who have been trained in conducting elections. Ala. Code § 17-16-20(c) (2006). Those polling officials are paid by either the state or the county, depending on whether a statewide or county office is at issue. Ala. Code § 17-16-20(d) (2006). Thus, an automatic recount is a governmental function.

On the other hand, when a qualified elector petitions the county executive committee for a recount in a primary election, the qualified elector "must be prepared to pay the cost of the recount." Ala. Code § 17-16-21 (a) (2006). Section 17-16-21 then directs that "[t]he costs shall be kept to a minimum by using county personnel or volunteer workers whenever possible. However, the recount must be conducted under the supervision of a trained and certified precinct election official." Id. Thus, a petition-based recount may rely extensively on volunteers. This may explain why no presumption of accuracy attaches.

The petition-based recount is, therefore, no more than grounds supporting a contest. Ala. Code § 17-16-21(d) (2006) ("[i]f the recount produces a change in precinct totals of sufficient magnitude to alter the result of the election, the outcome shall constitute grounds for an election contest as now prescribed by law"). When the petition-based recount is aimed at a primary election, the election contest prescribed by law is the one governed by sections 17-13-70 and 17-13-71 of the Code. The first of these, section 17-13-70, makes clear that the election contest is a challenge to the nomination of a candidate. Although it is a political party function, it may not be initiated until after a nominee is named. In this instance, that would be after the primary runoff. The certification of two candidates to compete in a runoff election is not a nomination of a person.(fn1 )Instead, it is the final step in the selection of a nominee.

Section 17-13-18 sets forth the procedure to be followed if no candidate in the first primary election receives a majority of the votes cast if there were more than two candidates in the election. This section provides that the names of the two candidates who received the highest number of votes in the first primary for a statewide office shall be certified to the Secretary of State by the chair of the state executive committee. ala. code § 17-13-18(b) (2006). The Secretary of State shall, not more than six days from the date the certificate is received, certify to the probate judges in the counties where a primary runoff election is to be held the names of the candidates who will appear on the ballot for the primary runoff election. Id. Once the primary runoff election is held, one candidate will emerge victorious. That candidate is then his or her political party's nominee for the office at issue.

Hence, after the July 13, 2010, primary runoff, a person will have been nominated for Governor by the political party holding the runoff. That nominee will then be susceptible to a contest pursuant to section 17-13-70 and section 17-13-71 if the petition-based recount has been conducted and "produces a change in precinct totals of sufficient magnitude to alter the result of the election." Ala. Code § 17-16-21(d) (2006). The burden would remain on the qualified elector who brings the contest to demonstrate that error occurred and that relief is required. See ala. Code § 17-13-72 (2006); see also, ala. code § 17-16-41 (for election contests to general elections). Any contest would "be heard and tried ... by the state committee" of the relevant political party. ala. code § 17-13-70 (2006). Only after the contest is resolved by the relevant political party will it be clear whether the original results of the first primary election were in error, such that a new runoff between different candidates is required.

In summary, section 17-16-21 is nearly silent as to when the recount should occur, although it should be done in time for use in filing an election contest with the relevant political party after the primary runoff election has been held. That runoff will proceed irrespective of any petition-based recount. Nothing in section 17-16-21 of the Code suspends the time frame for the state party chair to certify the results of the first primary election to the Secretary of State or for her to certify those names to the probate judges. Section 17-16-21(d) provides only that the recount shall constitute grounds for an election contest if the recount produces a change in the precinct totals so as to alter the result of the election. Indeed, section 17-16-21 does not allow a recertification based on the recount numbers.

Your final question concerns whether the Secretary of State should await the results of the petition-based recount before certifying the names to be placed on the ballot for the primary runoff. She should not.

Although, pursuant to section 17-13-18 of the Code, the Secretary of State has a six-day window in which to certify the results, other laws dictate this conclusion. For the June 1, 2010, primary election, the certification window begins at noon on Friday, June 11, 2010, and runs through Thursday, June 17, 2010. There is no reason to delay certification since, no matter the outcome, a petition-based recount cannot change the certification. This is so for two reasons. First, as already discussed, a petition-based recount is not required to be completed before the window for certification closes. Accordingly, it is impossible that the Code requires certification to await any petition-based recount. Second, and also as already discussed, a petition-based recount, unlike an automatic recount, provides only grounds for an election contest to be held after the primary runoff. Because the petition-based recount cannot have an effect on the certification of candidates for the primary runoff, there is no reason to delay certification pending the outcome of a petition-based recount.

Instead, the Secretary may choose to certify the names to be placed on the ballot for the primary runoff as soon as noon on Friday, June 11, 2010, and there is good reason to do so. Elections are complex procedures. Once the names are certified, ballots must be designed, printed, and distributed throughout the state. This is necessary not just for preparation for the July 13, 2010, election day activities, but also for the absentee voting that precedes it.

"[N]ot more than seven days after the first primary election, the officer charged with printing and distribution of the official ballots and election supplies shall deliver to the absentee election manager of each county in which the election is held or to the person designated to serve in his or her place a sufficient number of absentee ballots, envelopes, and other necessary supplies." Ala. Code § 17-11-12 (2006). This quick turnaround is necessary so that absentee ballot managers can begin responding to applications for absentee ballots, both for voters who will simply be out of town or otherwise cannot reach the polls on Election Day and for voters who are overseas or engaged in military service.

Federal law requires that Alabama "permit absent uniformed services voters and overseas voters to use absentee registration procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office." 42 U.S.c. § 1973ff-l (2009).(fn2) Alabama law echoes this requirement and, of course, it is the right thing to do. See ala. code §§ 17-11-3, -5 (2006). Those who serve in the military to protect our freedom must be permitted to fully participate in the electoral process that their service permits the rest of us to enjoy. Thus, to enfranchise as many uniformed services voters and overseas voters as possible and to meet the dictates of federal and state law, the Secretary of State should certify the names to be placed on the ballot for the primary runoff as soon as possible.

Pursuant to section 17-16-21 of the Code, a qualified elector of the state may petition for a recount of the results of the first primary election for a statewide office following the production of the certification of the results of the primary election for that statewide office.

The Code is nearly silent on when the recount should occur; however, some counties may have local rules and, since a primary election is at issue, the relevant political party may choose to create a rule governing timing.

If the petition-based recount of the first primary election produces a change in the precinct totals of sufficient magnitude to alter the results of the election, the outcome of the recount constitutes grounds for an election contest to be filed as prescribed under sections 17-13-70 and -71 of the Code of Alabama.

Because, under Alabama law, the results of any petition-based recount have no bearing on the certification of the names to be placed on the ballot for the primary runoff and because delays could result in some military voters being denied the ability to cast their votes, the Secretary of State should make the certification as soon as possible.

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

988155/143282

1. The statute governing contests to general elections is similar. Section 17-16-40 states that the election of any person declared elected may be contested by any person who was, at the time of the election, a qualified elector. Thus, a person must have been declared elected before any qualified elector has standing to contest the election. See Rice v. Chapman, -- So. 3d --, 2010 WL 2209974 (Ala., May 28, 2010); Eubanks v. Hale, 752 So. 2d 1113, 1134 (Ala. 1999); see also, Smith v. Burkhalter, 28 So. 3d 730 (Ala. 2009) (concerning a municipal runoff election; the governing statutes for municipal elections also refer to a person declared elected)

2. Federal offices will appear on some ballots for the July 13, 2010, runoff election.