#### Paul HAUGHTON, et al. v. W. Hardy McCOLLUM, et al.

87-705.

Supreme Court of Alabama.

May 27, 1988.

Rehearing Denied July 29, 1988.

Isaac P. Espy of Gray, Espy & Nettles, Tuscaloosa, for appellants.

Michael D. Smith and Barry Mullins of Lee, Barrett, Mullins, Smith & Smithart, and Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellees.

BEATTY, Justice.

This is an appeal from the denial of the appellants’ request for “emergency declaratory and injunctive relief.”

Appellants, Paul Haughton, Bryant Evans, and Neil Buettner, filed suit to prevent implementation by the appellees, W. Hardy McCollum, Doris Turner, and Beasor Walker, of a plan to have election workers indicate on the official list of voters for each ward or precinct the party primary in which the voter participated.

W. Hardy McCollum is the probate judge of Tuscaloosa County, Doris Turner is the circuit clerk, and Beasor Walker is the sheriff. They constitute the board that is required, under Code of 1975, § 17-16-2, to appoint the inspectors and clerks for each voting place and the returning officer for each voting precinct, who must perform their election duties according to law. See § 17-6-10. The facts are not in dispute, and we adopt the statement thereof contained in the trial court’s order:

> “The facts in this case revolve around the statutory framework of Alabama election laws and the actions of the Defendants in attempting to carry out their statutory duties thereunder. The facts are largely undisputed.

> “Under current Alabama law, when a voter participates in a Presidential Preference Primary Election, the voter must present and identify himself or herself to the election officials at his or her designated polling place. After the official verifies that the voter is listed on the official voting list, the voter must publicly declare in which party’s primary he or she wishes to participate by signing the appropriate party’s polling list. The Democratic party’s polling list is one col- or and the Republican party’s list is another color. An election official then *759marks the voter’s name on the official voting list to ensure that the person does not attempt to vote more than once in the election. After the election, the polling lists are sealed and forwarded to the respective chairmen of the political parties in each county. The marked copies of the official voting lists are sealed and retained by the Probate Judge of each county. Neither the polling lists nor the official voting lists may be unsealed for any purpose except in the event of an election contest. The polling lists must be destroyed 30 days after the election unless a contest is filed within that time. The Probate Judge retains the sealed voting lists for one year before destroying the lists.

> “The controversy in this case centers around the instruction of the appointing board to the election officials to mark on the official voting list the names of those voters participating in the March 8, 1988 Presidential Preference Primary Election using colored markers in a manner that would identify in which party’s primary a voter participated. In uncontroverted testimony in an open hearing, Probate Judge Hardy McCollum, a named Defendant, stated that the sole purpose of such instruction was to aid in the resolution of any contested election by identifying which voters participated in which party’s primary. The coded marking of the voting list requires no disclosure from the voter other than the disclosure of party preference already required by Alabama law.

> “The Plaintiffs contend that such coded marking of the voting list in effect creates a separate voting list not specifically authorized by law and that the existence of such list would tend to affect them in a disparate manner because the Plaintiffs belong to a party that is in a numerical minority in Tuscaloosa County. The Plaintiffs alleged that if voters are aware that such coding is being utilized to record who participated in the primary election, they may feel pressured to vote in the majority party’s primary because of peer pressure.

> “The Plaintiffs seek (1) a ruling that such marking is contrary to Alabama law and (2) an injunction against the Defendants prohibiting the color coded marking of the voting lists.”

The trial court went on in its order to rule as follows on the matters presented by the complaint filed by appellants:

> “Given the facts of the case, the current Alabama voting laws, and the testimony of the witnesses at the hearing, this Court finds that the Plaintiffs failed to meet their burden of proof that they would suffer immediate and irreparable harm absent granting of the relief sought. As to the legality of the Defendants’ instructions to Tuscaloosa County election officials, the Plaintiffs have failed to produce any statutory or judicial precedent to show that the absence of specific statutory authorization for their actions makes those instructions contrary to the statutes governing elections in Alabama. The coding of the voting list by party preference creates no record not already required by the Alabama law requiring voters to declare their party preference by signing a poll list.”

Thus, the substantive issue in the case, as framed at the beginning of the trial court’s order, is:

> “[Wjhether or not the board created under *Ala. Code*§ 17-6-1 (1987 repl. vol.) for the purpose of appointing election officials (the appointing board) may legally instruct those officials to mark the names of those voters participating in the March 8, 1988 Presidential Preference Primary Election in a manner that would identify in which political party’s primary election a voter participated. Further, the Plaintiffs ask this Court to enjoin the appointing board from so instructing voting officials.”

Appellants argue that the plan, calling for color coding of the official voting list to indicate in which party’s primary those voting participated, violates Code of 1975, § 17-7-17, which provides as follows:

> “Any election officer or any other person who makes a copy of the poll list or *760any memoranda therefrom, or list of the persons voting, or the number of their ballots, or discloses the number of such voter’s ballot, shall be guilty of a misdemeanor, and upon conviction, shall be fined not less than $200.00.”

This statute, passed by the legislature on October 3, 1903, was first codified in the 1907 Code at § 6806, in the portion of volume 3 entitled “the Criminal Code.” The language of the statute has remained unchanged since that first codification. In *Sartain v. Shepherd,*173 Ala. 474, 55 So. 919 (1911), the first decision construing this section, the Court, speaking through Justice Somerville, noted that “Section 6806 of the Criminal Code is, of course, designed to prevent in general the making of copies of poll lists by any person, or for any use or occasion, *not authorized by law;*and it must be construed in connection with section 458.” (Emphasis added.) 173 Ala. at 478, 55 So. at 921.

We do not equate the procedure used in this case for checking off electors from the official voting list *{viz.,*color-coded checkoffs indicating in which party primary each elector participated) with the sort of duplication of the poll list proscribed by § 17-7-17. First of all, § 17-16-25 provides that, as each voter votes in primary elections, “the name of the voter shall be checked off the official voting list.” Thus, the checkoff procedure is not only authorized but is required by law. Secondly, the color-coded checkoff procedure constitutes neither a “copy of the poll list,” nor a “memorand[um] therefrom.”

Pursuant to § 17-16-4, primary elections are to be conducted in accord with the provisions of Title 17, Chapter 16, dealing with primary elections, as well as “in the same manner and form, under the same requirements [, etc.,] ... as are ... provided by law for the holding of regular state elections.” Furthermore, under § 17-16-14, only qualified electors “who are also members of a political party and entitled to participate in such primary election under the rules of said party shall be entitled to vote therein and shall receive the official primary ballot of that political party, *and no other*.” (Emphasis added.) This statute further vests in “every governing body of a party ... the right, power and authority to fix and prescribe the political or other qualifications of its own members *and shall, in its own way, declare and determine who shall be entitled and qualified to vote in such primary election*or to be candidates therein or to otherwise participate in such political parties and primaries.” (Emphasis added.) Pursuant to this statutory authority, the State Democratic Executive Committee established a party rule prohibiting “cross-over” voting. That rule, which, under § 17-16-14 above, has the force and effect of law, is found in Article VII, § 1(e), Rules of the Democratic Party, and it provides as follows:

> “Any person who (1) votes in any primary election of another political party, (2) participates in the nominating process of another party's candidates(s), or (3) promotes the candidacy of an independent candidate, shall not be entitled to vote in Primary Elections of the Democratic Party held in the calendar year in which such person does any of said prohibited act(s). Without limiting the foregoing, *any person who votes in the first primary election of another political party shall not be entitled to vote in the Democratic Party’s run-off Primary Election*which follows such first primary election.” (Emphasis added.)

It is undisputed that, when the legislature authorized a presidential preference primary to be held approximately 90 days prior to the regular primary elections, a void was created with respect to the availability of poll lists in the event of an election contest. See Code of 1975, Chapter 16A of Title 17. The poll lists, provided for in Code of 1975, § 17-16-14, which would identify the voters who participated in each party’s presidential primary, must be destroyed by the chairman of the county executive committee after the time allowed by law for filing a contest to that election. Code of 1975, § 17-16-25. Therefore, if a contest was filed after the regular primary election based upon a violation of the “anti-crossover” rule of the Democratic Party, there would be no record available indicating who voted in which party’s presidential *761primary. The same kind of void exists where there is a contest of a run-off primary election based on violations of the “anti-crossover” rule. Depending upon the date of the run-off election, the records from the regular primary may also have been destroyed by the time the contest of the run-off election is filed.

Nothing in the election laws of this state prohibits the appellees herein from making this administrative accommodation of the party rules, which by law govern the primary elections held in this state. Furthermore, the election statutes specifically contemplate and provide that the records and information necessary to an election contest will be available during the time for filing such a contest (see §§ 17-16-25 and -30). It is only in the instances described above that a hiatus exists between the express language of the election statutes and the party rules. In effecting the purpose of both, we hold that the plan instituted by the appellees to fill this void is not only consonant with the purpose of the election statutes, but also must be viewed as implicitly authorized thereby. The implementation of the plan under attack is no more than an administrative convenience, and thus attendant to the appellees’ function as election officials charged with the duty of carrying out the letter and spirit of the election laws of this state.

Accordingly, the judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

JONES, ALMON, SHORES and ADAMS, JJ., concur.

MADDOX, J., concurs specially.

TORBERT, C.J., dissents.

MADDOX, Justice

(concurring specially).

I concur with the opinion in its holding that the plan instituted by the appellees does not violate the provisions of Ala.Code 1975, § 17-7-17, but I point out, as I stated in a dissent in *Ex parte Graddick,*495 So.2d 1367, 1376 (Ala.1986), that there is a question whether the Alabama Democratic Party should be allowed to enforce its rules unless it can show compliance with the Alabama Administrative Procedure Act, Ala.Code 1975, § 41-22-1 *et seq.,*especially the provisions of § 41-22-6(b), which require the filing “in the office of the legislative reference service ... [of] a certified copy of each rule adopted by [an agency], including all rules, as defined in this chapter, existing on the effective date of this act.”

As I view it, however, the validity vel non of the “anti-crossover” rule is not squarely presented *in this case,*because this case does not present a factual situation in which an elector *is prohibited from voting*in the upcoming June 7 primary because election officials enforce the provisions of the “anti-crossover” rule.

In my dissenting opinion in *Ex parte Graddick,*supra, I stated that the reason I thought the party had to comply with the provisions of the Administrative Procedure Act was because it was granted *the power to make rules that have the force and effect of law.**1*

In *Smith v. Allwright,*321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), the Supreme Court of the United States struck down the so-called “white primaries,” in which black voters were excluded from participation in party primaries, stating, in part, as follows:

> *762“We think that this statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions *an agency of the State insofar as it determines the participants in a primary election.*The party takes its character as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by a political party....

> “The privilege of membership in a party may be, as this Court said in *Grovey v. Townsend,*295 U.S. 45, 55, [55 S.Ct. 622, 626, 79 L.Ed. 1292], no concern of a State. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the State makes the action of the party the action of the State.”

Id. at 321 U.S. at 663-64, 64 S.Ct. at 765 (emphasis added).

The right of an elector to vote in any election, primary or otherwise, is a valuable and cherished right that cannot constitutionally be denied an individual, except in accordance with law. On the other hand, a state may facilitate the effective operation of the democratic process by classifying voters or candidates according to party affiliation, and political parties have broad powers to establish the qualifications of their members. *Ray v. Blair,*343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 894 (1952).

Any party rule, such as the so-called “anti-crossover” rule, that plays a vital role in the election of state constitutional officers and other public officers, should have wide distribution and should be. readily available to those affected by its provisions —the voters themselves. That is why I thought that the rules adopted by a political party for the conduct of primary elections, which have the force and effect of law, were required to be made a part of the Administrative Code. As I stated in my dissent in *Ex parte Graddick,*the failure of the legislature to exempt political parties from the requirements of the Administrative Procedure Act may have been a result of legislative oversight, but the legislature has convened since I authored my dissent in *Ex parte Graddick,*and there has been no change in the law. The requirements of § 41-22-4 are clear:

> “(a) In addition to the other rulemak-ing requirements imposed by law, each agency shall:

> “(1) Adopt as a rule a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information or make submissions or requests;

> “(2) Adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the agency;

> “(3) Make available for public inspection and copying, at cost, all rules and all other written statements of policy or interpretations formulated, adopted or used by the agency in the discharge of its functions;

> “(4) Make available for public inspection and copying, at cost, and index by name and subject all final orders, decisions, and opinions which are issued after October 1, 1982, except those expressly made confidential or privileged by statute or order of court.

> “(b) No agency rule, order, or decision shall be valid or effective against any person or party nor may it be invoked by the agency for any purpose until it has been made available for public inspection and indexed as required by this section and the agency has given all notices required by section 41-22-5. This provision is not applicable in favor of any person or party who has actual knowledge thereof, and the burden of proving such knowledge shall be on the agency.”

Because of the foregoing, I concur specially. I should not be understood as stating that the “anti-crossover” rule is invalid, only that there is a question concerning its validity. There could be a question of the validity of the Alabama Administrative Procedure Act itself if it changes a voting procedure and has not been precleared under the provisions of the Voting Rights Act of 1965, § 5, 42 U.S.C.A, § 1973c. Further*763more, the party, in the event of a challenge to the rule, might be able to prove actual notice on the part of each voter who might be excluded from participation in the upcoming primary because of the enforcement of the rule by election officials. See § 41-22-4, supra.

1

. When I was researching the law in connection with the case of *Ex parte Graddick,*I could not locate a copy of the "anti-crossover” rule in the Supreme Court and State Law Library, so I requested that the Library obtain a copy of all the Rules of the Alabama Democratic Party that had been adopted *at that time.*The language of the "anti-crossover” rule, as it is quoted in the main opinion, comes from the copy of the rules that was filed in the Library at my request. As I pointed out in a footnote in *Ex parte Graddick,*I attempted to locate the rules in the Alabama Administrative Code. Because I believe that any rule adopted by a political party pursuant to the grant of a part of the legislative power of the state should be made a part of the Administrative Code, unless the legislature has specifically exempted the "agency” from the requirements of the Act, I cannot take judicial notice of the rules, as was the case before the adoption of the Act. See *State v. Friedkin,*244 Ala. 494, 14 So.2d 363 (1943) (judicial notice will be taken of rules and regulations of an administrative board where a statute referring to such rules and regulations expressly declares that they shall have the force and effect of law).

TORBERT, Chief Justice

(dissenting).

It is undisputed that the appellees implemented the color coding plan in order to address a void that was created when the legislature authorized a presidential primary to be held approximately 90 days prior to the regular primary elections. See Code 1975, Chapter 16A of Title 17. The poll lists, provided for in Code 1975, § 17-16-14, which would identify the voters who participated in each party’s presidential primary, are to be destroyed after the time allowed by law for filing a contest to that election. Code 1975, § 17-16-25. Therefore, if a contest was filed after the regular primary election based upon a violation of the “anti-crossover” rule of the Democratic Party, there would be no record of who had voted in which party’s presidential primary.

While the intent of the defendants in attempting to provide for such a contingency may be laudable, the question to be determined is whether the defendants had authority to implement such a plan.

“Elections belong to the political branch of government, and, in the absence of special constitutional or statutory provisions, are beyond the control of judicial power.” *Longshore v. City of Homewood,*277 Ala.444, 446, 171 So.2d 453, 455 (1965) (quoting 29 C.J.S. *Elections*§ 246); accord, *Sharrock v. Borough of Keansburg,*15 N.J.Super. 11, 83 A.2d 11 (App.Div.1951). We have repeatedly held that the statutes providing for election contests are to be strictly construed. *Parker v. Mount Olive Fire and Rescue District,*420 So.2d 31 (Ala.1982), *Perloff v. Edington,*293 Ala. 277, 302 So.2d 92 (1974). “Ordinarily provisions of an election law are mandatory if enforcement is sought before election in a direct proceeding; but after an election such provisions are directory only, in support of the result_” 29 C.J.S. *Elections*§ 67 (1965). *Phillips v. Rothrock,*194 Ark. 945, 110 S.W.2d 26 (1937). “It is the function of the legislature to prescribe the conditions of the elective process, and it is the obligation of the courts to see that they are complied with. We may not inject provisions not found in a statute, however desirable or beneficial they may be.” *Hassiepen v. Marcin,*24 Ill.App.3d 97, 320 N.E.2d 572 (1974); *Sharrock,*supra.

It is undisputed that there is no direct statutory authority for the adoption of such a plan. Appellees argue that they had implicit authority to take steps that would help enforce the election laws, that is, the “anti-crossover” rule. Appellants argue that to hold that appellees had such implicit authority would circumvent Code 1975, § 17-7-17.

Code 1975, § 17-7-17, states:

> “Any election officer or any other person who makes a copy of the poll list or any memoranda therefrom, or list of the persons voting, or the number of their ballots, or discloses the number of such voter’s ballot, shall be guilty of a misdemeanor, and upon conviction, shall be fined not less than $200.00.”

Without question, the color coding plan would create a duplicate of the information contained on the poll list. The trial judge, in support of his holding that plaintiffs failed to meet their burden of showing immediate and irreparable harm absent the granting of relief, recognized as much in concluding that the color coded list “creates no record not already required by law.” The trial court’s observation was made while the court was determining that injunctive relief was inappropriate. However, the appellants also sought a declaratory judgment.

We recently had occasion to speak to the proper construction to be given to § 17-7-17, in light of an argument advanced that compelling public interests warranted a liberal construction:

> “Appellants contend that the election laws of Alabama pertaining to registration lists are confusing and outdated, and appellants set forth several reasons in support of their contention that the subject lists should be available for public inspection. Appellants contend that by *764making the registration lists available to the public, voter fraud will be discouraged, voter lists will be easier to purge, and public disclosure of the names of registered voters not voting may in fact encourage voting.

> “Regardless of the validity, or invalidity, or appellants' reasons for making the lists available for public inspection, the rule in this case, as in all cases of statutory interpretation, is that the court must ascertain and give effect to the intent of the legislature in enacting the statute. *Wright v. Turner,*351 So.2d 1 (Ala.1977); *Locke v. Wheat,*350 So.2d 451 (Ala.1977). If possible, such intent must be gathered from the language of the statute itself, and only when the language of the statute is ambiguous or uncertain will the court resort to considerations of fairness or policy to ascertain the legislature’s intent. *Morgan County Board of Education v. Alabama Public School and College Authority,*362 So.2d 850 (Ala.1978).

> “We think it obvious that a list of the names of all the registered voters in a precinct is transformed into a ‘list of the persons voting’ when, after an election, that list has been so marked as to identify every voter in the precinct who presented himself at the polling place to vote. Moreover, appellants, in effect, concede that the registration lists they seek are in fact ‘lists of the persons voting.’ In their brief, appellants argue that ‘the only information that can be gleaned from an official registration list would be *the names of those persons who presented themselves to vote*and the names of the persons in that precinct who are registered to vote but who did not present themselves to vote,’ and that if the Board of Registrars ‘retained such information, *it could determine those elections in which a voter did or did not vote.’*(Emphasis added [in *Advertiser*Co.].) (Brief for appellants, pp. 4-5).

> “The plain meaning of § 17-7-17 can be gleaned from its words; therefore, the statute should be construed in accordance with that meaning. *Howard v. Burton, 470*So.2d 1176 (Ala.1985); *Mobile County Republican Executive Committee v. Mandeville,*363 So.2d 754, 757 (Ala.1978). We hold that because the registration lists sought by appellants are lists of the persons voting, within the meaning of § 17-7-17, the appellants are not entitled to the relief sought.”

*Advertiser Co. v. Hobbie,*474 So.2d 93 (Ala.1985). The majority does not “equate the procedure used in this case ... with the sort of duplication of the poll list prescribed by § 17-7-17.” I would point out that § 17-7-17 specifically prohibits “[a]ny election officer” from making duplications and prohibits the creation of a duplicate of the poll list or “memoranda therefrom.” While the color coding plan does not literally encompass the copying of the poll list, it has the same effect and amounts to the making of a memorandum of the poll list. I believe that § 17-7-17 clearly prohibits the implementation of the plan and therefore that it is “beyond the control of the judicial power” to authorize implementation of the plan notwithstanding the appealing argument that the plan would help in the enforcement of the election laws.