ON APPLICATION FOR REHEARING
This Court's opinion of June 9, 1989, is withdrawn and the following is substituted therefor:
This case arises out of a dispute over the results of the August 23, 1988, town council election in Franklin, Alabama. This is an appeal of the circuit court's order setting a date for filing an election contest and the court's order allowing the appellee to remain in office until resolution of the contest.
The issues we address are whether Code 1975, § 17-15-6, precludes this Court from exercising jurisdiction over this case;1 whether the canvassing board acted unlawfully in disallowing the results of the election; whether Code 1975, §11-46-69, is to be strictly construed;2 and whether the circuit court erred by allowing the appellee to continue in office until the resolution of any election contest.
Sears and Gibson were on the ballot for the Tuesday, August 23, 1988, election to the Franklin town council. Appellee Gibson was the incumbent town council member. After the polling had ended, the election officials prepared a statement of canvass to deliver to the Franklin town council (which also serves as the canvassing board). The statement said that Sears had received 44 votes (32 by machine, 8 by challenged ballot, and 4 by absentee ballot) and that Gibson had received 38 votes (33 by machine, 2 by challenged ballot, and 3 by absentee ballot). The results were posted, but the canvassing board did not meet by noon August 24, 1988, as required by Code 1975, § 11-46-55 (cum. supp. 1988).3 On August 26, 1988, appellant Sears obtained
a writ of mandamus from the Macon County Circuit Court that ordered the board to count the votes and declare a winner by August 29, 1988, at 7:00 p.m. That same day, the board met and threw out all of the votes but the machine votes and declared Gibson the winner by a vote of 33-32. Sears filed another petition for writ of mandamus; the circuit court denied it, but, on reconsideration, amended its original order of mandamus to require the board to count all the votes (including absentee and challenged votes) by September 28, 1988. The Council recanvassed the votes on September 27, 1988. Sears was declared the winner, and the Council issued Sears a certificate of election. The court also stated that the date for filing an election contest should be computed from the date of canvass (September 27, 1988). On September 29, 1988, the circuit court again amended its order, ex mero motu, and ordered that the winner of the election according to the certificate of election (Sears) be sworn in as councilman unless an election contest was timely filed and that, in the event a contest was filed, the current councilman (Gibson) would remain in office until the contest was resolved. On September 30, 1988, Gibson filed an election contest.
The appellees argue that § 17-15-6 deprives the circuit court of jurisdiction over the case and, as a result, prevents this Court from exercising jurisdiction. This Court has been unequivocal in stating that elections normally do not fall within the scope of judicial review. Parker v. Mt. Olive Fire Rescue District, 420 So.2d 31, 33 (Ala. 1982); Longshore v.City of Homewood, 277 Ala. 444, 446, 171 So.2d 453 (1965). However, the application of § 17-15-6 skirts the issue that is central to this case.
On the night of the election, the votes were tallied and posted by the election officials, and Sears was the winner by six votes. At noon the following day, the town council failed to meet, count the votes, and declare a winner. This was clearly in violation of § 11-46-55, which states that the governing body must meet by noon on the Wednesday following the election to ratify the results. The purpose of this meeting is not to determine if the election was fraudulent or fair, but merely to count the votes and declare the winner. This Court discussed the duties of the canvassing body in Cosby v. Moore,259 Ala. 41, 46, 65 So.2d 178, 181-82 (1953), as follows:
"Canvassing the returns of an election is a ministerial act, and when it is completed and the results declared an unsuccessful candidate may contest the election. . . .
"The canvassers are controlled by the returns of the inspectors and have no power to go behind them or inquire into fraud or irregularity, but they must add together the number of votes each candidate received in the several voting precincts, according to the certificates of the inspectors, and declare the results; and are subject to mandamus to compel a performance when necessary. Their duties are confined to computation."
Quoted with approval in Reed v. City of Montgomery,376 So.2d 708, 710 (Ala. 1979).
Here, the board went far beyond its legislated role. By failing to verify the results of the election, the board assumed a new role never intended by the legislature. If §17-5-6 is allowed to stand between the judiciary and such acts, any canvassing board would be provided a license to change the results of an election by cabal. The purpose and intent of §17-5-6 were not to undermine the sanctity of the individual vote.
Section 11-46-69(b) clearly states that a contest of an election must be "commenced within five days after the result of the election is declared." Gibson did not comply with this requirement. Instead, he and the town council circumvented the statute by disallowing the results and declaring him the winner. Should this Court allow an extension of time for the appellee to file an election contest, it would be a signal that the process set up by the legislature is to be followed only when the loser cannot convince the board of canvassers to throw out the election results. Section 11-46-69(b)
must be construed strictly, and a winner must be declared.
We conclude that the trial court erred in ordering that Gibson remain in office. Accordingly, we reverse the judgment and remand this cause to the Circuit Court of Macon County for that court to declare the five-day time limit for Gibson to file an election contest under § 11-46-69(a) (counted from August 23, 1988, the date the board illegally threw out the election results), to have expired, thereby confirming David Sears as the winner of the election.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and KENNEDY, JJ., concur.
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ON APPLICATION FOR REHEARING
This Court's opinion of June 9, 1989, is withdrawn and the following is substituted therefor:
This case arises out of a dispute over the results of the August 23, 1988, town council election in Franklin, Alabama. This is an appeal of the circuit court's order setting a date for filing an election contest and the court's order allowing the appellee to remain in office until resolution of the contest.
The issues we address are whether Code 1975, § 17-15-6, precludes this Court from exercising jurisdiction over this case;1 whether the canvassing board acted unlawfully in disallowing the results of the election; whether Code 1975, §11-46-69, is to be strictly construed;2 and whether the circuit court erred by allowing the appellee to continue in office until the resolution of any election contest.
Sears and Gibson were on the ballot for the Tuesday, August 23, 1988, election to the Franklin town council. Appellee Gibson was the incumbent town council member. After the polling had ended, the election officials prepared a statement of canvass to deliver to the Franklin town council (which also serves as the canvassing board). The statement said that Sears had received 44 votes (32 by machine, 8 by challenged ballot, and 4 by absentee ballot) and that Gibson had received 38 votes (33 by machine, 2 by challenged ballot, and 3 by absentee ballot). The results were posted, but the canvassing board did not meet by noon August 24, 1988, as required by Code 1975, § 11-46-55 (cum. supp. 1988).3 On August 26, 1988, appellant Sears obtained
a writ of mandamus from the Macon County Circuit Court that ordered the board to count the votes and declare a winner by August 29, 1988, at 7:00 p.m. That same day, the board met and threw out all of the votes but the machine votes and declared Gibson the winner by a vote of 33-32. Sears filed another petition for writ of mandamus; the circuit court denied it, but, on reconsideration, amended its original order of mandamus to require the board to count all the votes (including absentee and challenged votes) by September 28, 1988. The Council recanvassed the votes on September 27, 1988. Sears was declared the winner, and the Council issued Sears a certificate of election. The court also stated that the date for filing an election contest should be computed from the date of canvass (September 27, 1988). On September 29, 1988, the circuit court again amended its order, ex mero motu, and ordered that the winner of the election according to the certificate of election (Sears) be sworn in as councilman unless an election contest was timely filed and that, in the event a contest was filed, the current councilman (Gibson) would remain in office until the contest was resolved. On September 30, 1988, Gibson filed an election contest.
The appellees argue that § 17-15-6 deprives the circuit court of jurisdiction over the case and, as a result, prevents this Court from exercising jurisdiction. This Court has been unequivocal in stating that elections normally do not fall within the scope of judicial review. Parker v. Mt. Olive Fire Rescue District, 420 So.2d 31, 33 (Ala. 1982); Longshore v.City of Homewood, 277 Ala. 444, 446, 171 So.2d 453 (1965). However, the application of § 17-15-6 skirts the issue that is central to this case.
On the night of the election, the votes were tallied and posted by the election officials, and Sears was the winner by six votes. At noon the following day, the town council failed to meet, count the votes, and declare a winner. This was clearly in violation of § 11-46-55, which states that the governing body must meet by noon on the Wednesday following the election to ratify the results. The purpose of this meeting is not to determine if the election was fraudulent or fair, but merely to count the votes and declare the winner. This Court discussed the duties of the canvassing body in Cosby v. Moore,259 Ala. 41, 46, 65 So.2d 178, 181-82 (1953), as follows:
"Canvassing the returns of an election is a ministerial act, and when it is completed and the results declared an unsuccessful candidate may contest the election. . . .
"The canvassers are controlled by the returns of the inspectors and have no power to go behind them or inquire into fraud or irregularity, but they must add together the number of votes each candidate received in the several voting precincts, according to the certificates of the inspectors, and declare the results; and are subject to mandamus to compel a performance when necessary. Their duties are confined to computation."
Quoted with approval in Reed v. City of Montgomery,376 So.2d 708, 710 (Ala. 1979).
Here, the board went far beyond its legislated role. By failing to verify the results of the election, the board assumed a new role never intended by the legislature. If §17-5-6 is allowed to stand between the judiciary and such acts, any canvassing board would be provided a license to change the results of an election by cabal. The purpose and intent of §17-5-6 were not to undermine the sanctity of the individual vote.
Section 11-46-69(b) clearly states that a contest of an election must be "commenced within five days after the result of the election is declared." Gibson did not comply with this requirement. Instead, he and the town council circumvented the statute by disallowing the results and declaring him the winner. Should this Court allow an extension of time for the appellee to file an election contest, it would be a signal that the process set up by the legislature is to be followed only when the loser cannot convince the board of canvassers to throw out the election results. Section 11-46-69(b)
must be construed strictly, and a winner must be declared.
We conclude that the trial court erred in ordering that Gibson remain in office. Accordingly, we reverse the judgment and remand this cause to the Circuit Court of Macon County for that court to declare the five-day time limit for Gibson to file an election contest under § 11-46-69(a) (counted from August 23, 1988, the date the board illegally threw out the election results), to have expired, thereby confirming David Sears as the winner of the election.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and KENNEDY, JJ., concur.