Alabama Advisory Opinions January 05, 1993: AGO 93-00087 (January 05, 1993)

Advisory Opinion Text

THIS OPINION MODIFIED BY SUPREME COURT DECISION, DATED 4-5-96, IN CARR V. STATE OF ALABAMA EX REL. GOGGANS , No. 1950012.

Honorable Billy Joe Camp

Secretary of State

State of Alabama

P. O. Box 5616

Montgomery, Alabama 36103

Elections - Voting Machines -Voting

The discontinuance of the use of voting machines is subject to the approval of the voters pursuant to Code of Alabama 1975, § 17-9-5. Any change in voting procedure must be precleared by the U.S. Justice Department. The effect of an election held without the use of voting machines which was not approved by the voters must be decided by a court of competent jurisdiction.

Dear Mr. Camp:

This opinion Is issued in response to your request for an opinion from the Attorney General.

QUESTIONS

1) Is the discontinuance of the use of voting machines subject to the approval of the voters?

2) If so, what are the legal consequences regarding an election being held where voting machines were not used and such discontinuance was not approved by the voters?

FACTS AND ANALYSIS

The Code of Alabama provides two methods by which the use of voting machines may be adopted by a county or a city. The first method authorizes a county or city to adopt the use of voting machines by resolution of the county or city governing body. Code of Alabama 1975, § 17-9-2. The second method allows a county or city to submit the question of the use of voting machines to a vote of the electors of the county or city. Code of Alabama 1975, § 17-9-3.

The only method provided in the Code for discontinuing the use of voting machines is found at Code of Alabama 1975, § 17-9-5, which states:

"Any county or city may, by a majority vote of its qualified electors voting thereon at any election held not earlier than six years after the adoption and installation of such machines, direct the discontinuance of the use of voting machines at elections held in such county or city. The question of the discontinuance of the use of such voting machines shall be submitted to the voters, subject to the same requirements as to resolution or petition and signatures thereon as is required for the submission of the question on the authorization of the use of such voting machines. Where the qualified electors of any city and the qualified electors of the entire county containing therein such city, both have voted by separate questions in favor of the adoption of the use of voting machines, or where any county and any city within any such county, through its proper officers, in pursuance of appropriate legislation, shall have separately authorized and directed the use of voting machines, a subsequent vote by the qualified electors of the entire county in favor of discontinuance will not be considered as a vote to discontinue the use of voting machines in such city. Such question as to the discontinuance of the use of voting machines shall be submitted in the following form: 'Shall the use of voting machines be continued in the (city or county) of . . .?'"

Our research does not reveal any other methods of discontinuing the use of voting machines. A vote by the electors of the county or city appears to be the only way to discontinue the use of voting machines even if the use of voting machines was adopted by resolution of the county or city governing body pursuant to § 17-9-2. The discontinuance of the use of voting machines would be a change in voting procedure that must be precleared by the U.S. Justice Department.

With respect to your second question, this office cannot make a determination as to the validity or invalidity of an election held without the use of voting machines which was not approved by the electors. Only a court of competent jurisdiction can make this decision.

CONCLUSION

The discontinuance of the use of voting machines is subject to the approval of the voters pursuant to Code of Alabama 1975, § 17-9-5. Any change in voting procedure must be precleared by the U.S. Justice Department. The effect of an election held without the use of voting machines which was not approved by the voters must be decided by a court of competent jurisdiction.

I hope this sufficiently answers your questions. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

JIMMY EVANS Attorney General

JAMES R. SOLOMON, JR. chief, Opinions Division