Alabama Advisory Opinions May 04, 1989: AGO 89-00263 (May 04, 1989)

Advisory Opinion Text

Honorable Sherrie R. Phillips

Probate judge

P. O. Drawer 789

Andalusia, AL 36420

Elections - Fair Campaign Disclosure Act - Campaign Contributions - Candidates

1. A candidate cannot be disqualified for not filing a preelection report within the 45 days required by Section 8 of Act No. 88-873 if the candidate qualifies on the last day of the qualifying period set by federal court order.

2. The 45-day preelection report can be waived for candidates who qualify on the last day of the qualifying period for the municipal election in the City of Plorala.

Dear Judge Phillips:

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

QUESTION 1

Considering the federal court order in Dillard v. City of Plorala and Act No. 88-873, can a candidate in the municipal election for the City of Florala be disqualified for not filing a preelection report within the 45 days required by law if such candidate qualifies on the last day of . the qualifying period?

FACTS AND ANALYSIS

The City of Florala is to hold a special municipal election on June 6, 1989, under a federal court order in Dillard v. City of Florala , Civil Action No. 87-T-1211-N. Pursuant to the court order, the qualifying period is to begin on March 24, 1989, and end on April 24, 1989.

Act No. 88-873, 1988 First Extraordinary Session, is known as the Fair Campaign Practices Act. Section 8 (1)(a) of this act requires the treasurer of each principal campaign committee or other political committee to file with the Secretary of State or judge of probate reports of contributions and expenditures 45 days before and between 10 and 5 days before an election. Such statements by candidates for municipal elections must be filed with the judge of probate of their county according to Section 9 of Act No. 88-873. The ending date of the qualifying period set by the federal court order interferes with the 45-day requirement for filing the preelection report under Act No. 88-873.

Act No. 88-873 was not precleared by the united states Justice Department upon being submitted to that agency as required by Section 5 of the Voting Rights Act. Generally speaking, any change affecting voting is unenforceable until it is precleared. See NAACP v. Hampton County Election Commission , 470 U.S. 166 (1985). Furthermore, the federal court order supercedes state law and must be followed.

Therefore, a candidate for office in the Florala municipal election cannot be disqualified for not filing a preelection report within the 45 days required by Section 8 of Act No. 88-873 if the candidate qualifies on the last day of the March 24 - April 24 qualifying period set by the federal court order.

CONCLUSION

A candidate in the municipal election of the City of Florala cannot be disqualified for not filing a preelection report within the 45 days required by Section 8 of Act No. 88-873 if the candidate qualifies on the last day of the qualifying period set by federal court order.

QUESTION 2

Can the 45-day preelection report be waived for those candidates in the Florala municipal election who qualify on the last day and the 5-10 day preelection report be sufficient for these candidates?

FACTS AND ANALYSIS

As previously stated, Act No. 88-873 has not been precleared and the federal court order in Dillard v. City of Florala , supra , supercedes state law. The local officials can do what is reasonably necessary to comply with the court order. Therefore, the 45-day preelection report required by Act No. 88-873 may be waived for those candidates in the Florala municipal election who qualify on the last day of the qualifying period. The report which is required to be filed with the probate judge between 5 and 10 days before the municipal election is sufficient for these candidates.

CONCLUSION

The 45-day preelection report can be waived for candidates who qualify on the last day of the qualifying period for the municipal election of the city of Florala.

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

Sincerely,

DON SIEGELMAN Attorney General.

LYNDA K. OSWALD, Assistant Attorney General.