Alabama Advisory Opinions October 29, 2014: AGO 2015-007 (October 29, 2014)

Advisory Opinion Text

Honorable Brian L. Justiss

Elmore County Circuit Clerk

Post Office Box 310

Wetumpka, Alabama 36092

Absentee Ballots - Absentee Election Manager - Referendum Election - Election Officials -Elections

The Elmore County Absentee Election Manager should determine the eligibility of each absentee voter to vote on a local referendum under these limited circumstances.

Poll workers may hand count ballots for those voters who were not entitled to vote in the referendum.

Dear Mr. Justiss:

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

QUESTIONS

Should the Elmore County Absentee Election Manager determine the eligibility of each absentee voter to vote on the local referendum?

Could poll workers hand count the ballots for those voters who are not authorized to vote in the referendum?

FACTS AND ANALYSTS

In your letter of request, you informed this Office that the ballots provided to your office for absentee voting were incorrect. These ballots allow all absentee voters the ability to vote on a local referendum, which should be limited to persons residing in the unincorporated area of the county. See ALA. Code § 11-3A-5 (2008). Because you would not receive corrected ballots until three days prior to the deadline for absentee voting, both the Secretary of State and the Elmore County Probate Judge advised you to continue to use the original ballots. You now seek guidance regarding the best manner in which to count these absentee ballots.

Sections 17-11-1 through 17-11-19 of Code of Alabama set forth the law regarding absentee voting. Ala. Code §§ 17-11-1 to 17-11-19 (2006, Supp. 2014). As part of the absentee voting process, a voter's ballot is sealed in an initial or inner envelope and that envelope is then sealed inside an outer envelope. An affidavit, which must be completed by the voter, is printed on the outside of the outer envelope. Among the information elicited from a voter in completing the affidavit is the address of that voter. Ala. Code § 17-11-7 (2006). With this information, one would know whether the voter is authorized to vote on the local referendum. This information would allow you to separate absentee ballots that are authorized to vote on the referendum from those that are not authorized to vote on the referendum. Thus, prior to providing the absentee ballots to the election officials, the absentee election manger may divide the ballots into these two categories based on the information that appears on the affidavit. See, generally, Ala. Code § 17-11-10(2006).

Next, you question whether the absentee poll workers may hand count ballots for those voters who are not authorized to vote on the referendum. You informed this Office that the total received from this hand-count would be added to the totals generated by the ballot counter, which would be used to process the absentee ballots of voters authorized to vote on the referendum. To the extent possible, ballots are to be handled as if the absentee voter were voting in person. Ala. Code § 17-11-10 (2006). To that end, the law authorizes the use of ballot counters with respect to the counting of absentee ballots. Id.

In this particular situation, instead of using the ballot counter for some ballots and hand counting other ballots, you may choose to recommend to the county commission that another ballot counter is necessary for the purpose of processing the absentee ballots. Id. In so doing, you could designate a ballot counter to be used for ballots where the voter is authorized to vote on the referendum and a different ballot counter for the ballots where the voter was not authorized to vote on the referendum. This later ballot counter would tally results for all votes cast but would ignore any votes cast regarding the referendum. The totals from these ballot counters could be combined to produce results from all the absentee votes. See, generally, Ala. Code § 17-11-11(a) (2006). If, however, it is impossible or impractical to obtain another ballot counter, your initial proposed remedy of having poll workers hand count a limited number of ballots because of the error with respect to the ballot would be authorized in this limited circumstance.

CONCLUSION

The Elmore County Absentee Election Manager should determine the eligibility of each absentee voter to vote on a local referendum under these limited circumstances.

Poll workers may hand count ballots for those voters who were not entitled to vote in the referendum.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Monet Gaines of my staff.

Sincerely,

LUTHER STRANGE, Attorney General

BRENDA F. SMITH Chief, Opinions Division.