Alabama Advisory Opinions May 10, 2012: AGO 2012-59 (May 10, 2012)

AGO 2012-59.

Dear Mr. Poteat:

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

(1) Can deficiencies in a timely filed, but incomplete, voter registration application be corrected at the polls if the potential voter fully completes a voter update form as part of the provisional balloting process?

(2) If yes, which items on the voter registration application may be completed through the provisional ballot process?

Alabama law places on the applicant the burden of establishing that he or she is qualified to register to vote. See Ala. Code § 17-3-54 (2006); see also, opinions to Honorable Jamie Crockett, Shelby County Board of Registrars, dated October 6, 2008, A.G. No. 2009-002; and to Honorable Beth Chapman, State Auditor, dated January 20, 2006, A.G. No. 2006-042. No one shall be registered until a majority of the county board of registrars has approved the application. See ALA. CODE § 17-3-1 (2006).

To become a qualified elector, an applicant must complete a voter registration application giving his or her name, address, date of birth, and signature. Additionally, the applicant must answer yes to two questions: whether the applicant is a citizen of the United States, and whether the applicant will be 18 years of age at the time of the next election. See ALA. CODE § 17-3-52 (2006).

Alabama statutes prohibit the registration of any person as a qualified elector within 10 days before any election. See Ala. Code § 17-3-50 (2006). This Office has previously stated that the 10-day cutoff period applies to both registration of voters and updating of voter records. See opinion to Honorable William M. Bouldin, Attorney, City of Russellville, dated July 10, 2000, A.G. No. 2000-193. Furthermore, the current voter registration form, entitled "State of Alabama Mail-In Voter Registration Form," states that "[vjoter registration and updating of voter records is closed the ten days prior to each election in Alabama." Ala. Code § 17-3-52 (Supp. 2011) (emphasis added).

In addition, this Office has stated that boards of registrars cannot register a person to vote in an upcoming election within the 10 days before that election but may, during the 10-day period, register voters for subsequent elections. See opinion to Honorable Wanda Parker, Chairman, Mobile County Board of Registrars, dated May 28, 1993, A.G. No. 93-00200; and opinion to Ms. Faye H. Cowling, Chairperson, Baldwin County Board of Registrars, dated October 29, 1984, A.G. No. 85-00052.

It is unlawful for an elector to vote in any election when his or her name does not appear on the official voter registration list. See Ala. Code § 17-10-3 (2006). An individual, however, may cast a provisional ballot if his or her name does not appear on the official list of eligible voters for the precinct or polling place where the individual seeks to vote. Ala. CODE § 17-I0-2(a)(l) (2006). Pursuant to section 17-10-2(b)(2) of the Code, as part of voting a provisional ballot, an individual must execute a written affidavit that states, in pertinent part, that "I do solemnly swear (or affirm) that I am a registered voter in the precinct in which I am seeking to vote and that I am eligible to vote in this election." Ala. Code § 17-10-2(b)(2) (2006).

The unambiguous language of the sworn affidavit acknowledges that the individual has previously completed the voter registration process and has been approved by the county board of registrars. An individual whose timely filed, but incomplete, voter registration application that has not been completed or approved before the 10-day cutoff period is not a registered voter for purposes of that upcoming election.

An unregistered individual cannot complete the voter registration process by filing a provisional ballot and supporting documents at the polls. Given the answer to Question 1, Question 2 is therefore moot.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Julie Sinclair, Legal Division, Secretary of State's Office.

Sincerely,

LUTHER STRANGE

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

LS/JS

1332029/158799