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In Legal Terms
- Pre-Convention Issue 2004
New Election
Laws May Impact Counties in November Primary
elections were held in Alabama on June 1, 2004, and as is becoming all too common
in federal, state, and county elections, several victories (or losses) were by
razor thin margins. In fact, at the time of this writing, many elections were
still too close to call. Most of the close races I read about were for county
commission seats. In one county alone, one incumbent appeared to have won by 11
votes and another by 8. A third incumbent faced a runoff. In a neighboring county,
unofficial totals indicated that one incumbent avoided a runoff by a mere two
votes. Two fellow commissioners were not as lucky and faced runoffs at the end
of June.
Having never run for office, I
can only imagine the relief one feels when the election is over - win or lose.
However, under new election reform laws designed to improve elections in Alabama,
the anxious wait for a final outcome may now last longer in some of these nail-biting
contests, but hopefully will better protect that the winner was legitimately elected,
and that all eligible voters who sought to exercise their right to vote were able
to do so.
A comprehensive review of Alabama's
laws covering "after-election" activities is not possible in this column,
but since all county commissioners are sometimes candidates, they should educate
themselves on these complex but important procedures aimed at protecting the integrity
of elections. A brief overview of some of these laws is provided here.
As
part of the federally-mandated "Help America Vote Act" (HAVA), the Alabama
Legislature enacted a new law on "provisional voting" in 2003 replacing
the now-repealed "challenged voting". See, Act No. 03-313. 1
The purpose of these new procedures is to provide more protection for voters who
may be questioned about their eligibility to vote when they show up at the polls,
and to ensure that only eligible voters vote - and only vote once. The new procedure
sounds good on paper, and hopefully will achieve its goals. However, this primary
election, with its many nail-biting elections, will be the first real state-wide
test of how this new law will really work.
Under
the provisional voting law, a voter is required to cast a provisional ballot when
his or her eligibility to vote at the precinct cannot be verified while at the
polling place or when an inspector has knowledge that the individual is not entitled
to vote at that precinct. A provisional vote is also required when an individual
is unable to provide proper identification or when polling times are extended
by court order and the person votes during the extended time. The person is allowed
to vote a "provisional ballot", which is placed into a separately sealed
ballot box, with the reasons for provisional voting documented by election officials.
If it is later determined that the voter was, in fact, eligible to vote at that
precinct, the vote is counted.
After the
election, the board of registrars must research each provisional ballot to determine
whether it was properly cast and deliver the findings and documentation to the
judge of probate no later than noon seven days after the election. Beginning at
noon on the seventh day, the appointing board must count the provisional ballots
which have been certified as proper, and then certify and post those results.
Upon request, any provisional voter is entitled to be made aware of the board
of registrars' findings as to whether the provisional ballot was counted and,
if not, the reason why.
One newspaper article
I read a few days after the election reported that in the county where the commissioners
won by 11 and 8 votes, there were at least 14 provisional ballots yet to be counted.
Clearly, this new law could have a significant impact on either of those elections,
and the many others like it around the state.
While
this new law is intended to improve elections, it does delay the final "tally".
And actually, the results are still not official until canvassing and certification
is complete. Under prior law, this final step took place on the Friday after the
election. However, another change in the law under HAVA moves the date of canvassing
and certifying the election results to the following Friday - "the second
Friday next after the election". See Code of Alabama 1975, §
17-14-1 and § 17-14-2.
Although not
part of the legislation aimed at bringing Alabama into compliance with HAVA, another
election reform passed in 2003 may also be important in the general election to
be held in November. You may recall that after the gubernatorial election in 2002,
serious questions were raised about the recount procedures in Alabama. A lawsuit
was filed but later withdrawn, and an attorney general's opinion released a few
days after the election, raised more questions than it resolved. In response,
the Alabama Legislature passed Act No. 03-339, to provide for an automatic recount
in a general election where a candidate or referendum is defeated by "not
more than one half of one percent of the votes cast". This law only applies
in a general election and thus will have no bearing on the tight primary elections
around the state. However, given the results of the last several election cycles,
I feel somewhat confident that this new law will also be put to the test in November.
Under the new law, found at Code of Alabama
1975, § 17-13-12, the automatic recount will take place unless the defeated
candidate submits a written waiver. In a county race, this waiver must be delivered
to the probate judge within 24 hours after certification of the election results.
Waivers in federal, state, or circuit races are delivered to the Secretary of
State. If no waiver is received, the recount must begin within 72 hours after
certification,2 and the time limit for contesting an election is suspended
until the election is recertified with the results of the recount. Following the
recount, the appropriate certifying authority shall amend the initial certification
to reflect the results of the recount. If the results of the recount name as the
"winner" a person other than the person initially certified, the outcome
is grounds for an election contest.
The
new recount law does not affect the existing law on contesting elections, whereby
a qualified elector may challenge the results of any election based on several
criteria set out in the law. (See, Code of Alabama 1975, § 17-15-1
et seq.) This law remains intact, and will most likely continue to be the more
frequently-applied process for challenging (or verifying) the results of an election.
However, Alabama's contest law requires that there be some serious error or misconduct
altering election results for an election contest to succeed - there is no absolute
right to have votes recounted. In order to successfully challenge the results
of an election under the contest law, there must be: (1) misconduct, fraud or
corruption by an election official; (2) ineligibility of the person elected; (3)
illegal voting; (4) rejection of legal votes; or (4) bribery, intimidation, or
other misconduct aimed at preventing a fair election. And the misconduct must
have altered the results.
The election contest procedures are extremely
complicated and vary depending on the office for which the election is contested.
Therefore, anyone interested in challenging an election should seek the advice
of an attorney with experience handling these cases before taking any action.
And since the contest must be filed within a short period of time following the
election, the contesting party must act very quickly to properly file for contest.
Alabama has always had interesting and exciting elections and it is anticipated
that this year will be no different. In fact, with elections predicted to be close
at the federal, state, and local level, this could be quite a lively election
year. These new election laws will play an important role in how smoothly elections
are run in Alabama in 2004 - and may significantly impact who is elected at every
level of government, and most importantly, who is representing county government
in 2005.
1 The provisional voting procedures
are now codified at Code of Alabama 1975, § 17-10A-1 et seq.
2
The county must pay for the recount where it is held for an election for county
office, but all other recounts are the financial responsibility of the state. | |
