Alabama Advisory Opinions September 02, 1988: AGO 88-00441 (September 02, 1988)

Advisory Opinion Text

Honorable Edward W. Enslen

Probate Judge

Elmore County Courthouse

Wetumpka, Alabama 36092

Elections - Probate Judges -Political parties

Pursuant to § 17-16-87 and § 17-16-10, a county executive committee has the authority to direct that a new primary election be held, at the expense of the county, for a contested office when the committee cannot determine who is the legally nominated candidate and an appeal has not been taken to the State Executive Committee.

Dear judge Enslen:

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

QUESTION

Is Elmore county required to appropriate county revenue to conduct another primary election for a seat on the Elmore county Board of Education when requested to do so by the Elmore County Democratic Executive Committee pursuant to code of Alabama 1975, § 17-16-87?

FACTS AND ANALYSIS

Your request presents the following information:

The Elmore County Democratic Executive Committee failed to determine the outcome of a contested election for the Elmore County Board of Education, Place No. 1. The election was held on June 7, 1988. On August 23, 1988, the Elmore County Executive committee requested that another election for this position be held on September 27, 1988.

The authority for calling this election was cited to you as Code of Alabama 1975, § 17-16-87. Your position is that the contestor must meet the requirements of § 17-16-82 as her course of appeal and that the "committee" referred to in § 17-16-87 is the State Executive Committee.

Our office has been informed that the reason the Elmore County Democratic Executive Committee was unable to determine the outcome of the contested election was that the names of some of the candidates were not in the appropriate boxes/ machines for their district for several hours before the error was discovered and corrected; thus, the committee was unable to determine the number of votes these candidates received before the boxes/machines were corrected.

Code of Alabama 1975, Section 17-16-87, provides:

"If, upon the hearing of any contest for any office, as provided for in this article, the committee , after an investigation and hearing of the contest, shall determine that it is impossible from the evidence before it to decide who is the legally nominated candidate for the office contested, it shall have the right and authority to direct a new primary election for the nomination to any such office , but where any action is taken by any county executive committee, either person to the contest, in the same manner as herein provided for in the case of appeals from the action of any county committee, may take an appeal to the state executive committee, which shall be the court of final appeal in all party contests of nominations...." (emphasis added.)

Code of Alabama 1975, § 17-16-82, provides in pertinent part:

"(a) Either party to a contest under this article shall have the right of an appeal to the state executive committee from the final decision of the county executive committee upon the same."

Although Sections 17-16-82 and 87 provide for a right of appeal to the State Executive Committee from decisions of the county executive committee, neither of these sections provide that an appeal is mandatory. Thus, if neither person to the contest appeals the decision of the county executive committee, its decision is final.

It is the opinion of the Attorney General that § 17-16-87 specifically provides that the committee investigating and hearing the contest shall have the power to request that a new primary election be held.

It is also the opinion of the Attorney General, based upon Code of Alabama 1975, § 17-16-10, that the expenses of holding the new election are to be paid out of the county treasurer. Section 17-16-10 provides:

"The compensation of officers and other expenses of any and all primary elections , general or special, held under the pro-visions of this chapter, shall be paid in the same manner and to the same extent as is or may be provided by law for the payment of the expenses and officers of general elections held under the general election laws of Alabama and shall be paid out of the county treasury in same manner." (emphasis added.)

CONCLUSION

Based upon Code of Alabama 1975, § 17-16-87 and § 17-16-10, it is the opinion of the Attorney General that the Elmore County Democratic Executive committee has the authority to direct that a new primary election be held, at the expense of the county, when the county committee cannot determine who is the legally nominated candidate for the contested office and an appeal has not been taken to the State Executive Committee.

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

Sincerely,

DON SIEGELMAN, Attorney General.

BRENDA FLOWERS, Assistant Attorney General.