Alabama Advisory Opinions January 07, 1980: AGO 80-00139 (January 07, 1980)

Advisory Opinion Text

Lee L. Hale Deputy Attorney General

Walter B. Turner Chief Assistant Attorney General

William M. Bekurs, Jr. Executive Assistant

Janie Nobles Administrative Assistant

Honorable James Record

Chairman

Madison County Commission

Madison County Courthouse

Huntsville, Alabama 35801

Madison County-County Commission-Elections

County Commission residency requirement discussed.

Dear Mr. Record:

You have forwarded to this office copies of local acts providing for the manner of election of the Madison County Commission and its chairman together with the resolution from the county commission requesting an Attorney General's opinion on certain questions relating to the election of the county commission chairman. Madison County is divided into five districts with one commissioner elected from each district, the chairman of the commission being the commissioner elected from district 5. Each commissioner is voted on countywide. With respect to this election procedure you have asked the following questions:

"(1) If a person living in District 1 (not the County Seat) wishes to run for Chairman, may he do so? If he is prohibited from doing so by his residence, and wished to move into District 5 (County Seat area) so that he might run for Chairman in the September 2, 1980 Primary, when would he have to move in order to qualify?

"(2) The next installation will be the first Monday after the second Tuesday in January, following the November 4, 1980 General Election, and we would like to know at what time of day should the installation legally take place on January 12, 1981, as well as whether the Commissioners must be sworn in and by whom?

"(3) If an incumbent County Commissioner (District 1 through 4) were to wish to run for Chairman in the September 2, 1980 Primary, would he have to move and if so, when? Would he have to resign as District Commissioner if he did move? If he did resign would the remaining four Commissioners have the duty to appoint someone else in his place?

"(4) In the questions above, presuming the answer is that a person would have to move to a different district in order to run for Commissioner, what procedure is available to positively require proof of residence to eliminate suberfuge? For instance, would one have to live six months or more in the new address and so certify before qualifying to run for the office? Would sworn affidavits be required?"

Act No. 1729 requires only that one member be elected ''from" each of the districts and that each member so elected "shall be a registered voter in and a resident of the district." Members are elected by the voters of the entire county and not only by the electors of the district which he represents.

The act does not state precisely when a person must be a resident of the district except that it is clear that he must at least be a resident during his term of office. Section 2 of the act makes this clear. The act seems clearly to further imply that the member must be a resident of the district at the time of his election. It seems further reasonable that election officials would be justified in not placing the individual's name on the ballot for the election if he were not a resident of the district at the time ballots are finalized. However, the election discussed in the act is the general election in November and not the primary election.

It is my opinion that the residency requirement should not be "bootstrapped" to the primary election because the residency qualification is a qualification capable of being met between the primary election and the general election. Candidates for nomination in the primary election must swear that they meet the qualifications for the office but a nonresident of the district can do this in good faith since the qualification for the office is only that the person be a resident of the district at the time of his election and thereafter. Thus, a person may qualify to run for county commissioner in the primary election without being a resident of the district for which he runs. This would not be so if the qualification which he lacked were not one that could possibly be fulfilled prior to the general election.

Thus, in answer to your first question, a person living in a district other than district 5 may run for chairman in the primary election but not in the general election in November. To appear on the ballot as a candidate for chairman in the general election in November, he must have become a resident of district 5 prior to the election.

In answer to your second question, the installation of county commissioners may take place at any time on January 12, 1981 and the oath of office may be administered by any person legally authorized to administer oaths in the State of Alabama.

In answer to question 3, an incumbent county commissioner from a district other than district 5 would not have to move prior to the primary election but would have to move prior to the general election in which case he would have to resign as district commissioner and the remaining commissioners would have the duty of appointing someone to fill his position for the remaining few weeks of his term.

In answer to your fourth question, unfortunately neither the local laws relating to the Madison County election nor our state law provides any clear-cut method of assuring the qualifications of candidates or of eliminating subterfuge with respect to these qualifications. The qualifications of any candidate could, of course, be challenged in an appropriate action filed in the Circuit Court of Madison County.

I hope and trust that this sufficiently answers your questions.

Sincerely,

CHARLES A. GRADDICK Attorney General

WILLIAM T. STEPHENS Assistant Attorney General