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Just What Is An Abstention?

By Graham L. Champion

That is a question that the Alabama Supreme Court just may have the opportunity to answer in the very near future. Webster’s New Collegiate Dictionary offers the following definitions:

Abstain: to refrain deliberately and often with an effort of self-denial from an action or practice

Abstention: the act or practice of abstaining

If the definition of abstain above is to be taken at its plain writing an abstention is a deliberate act. Therein lies the question that the Alabama Supreme Court may ultimately have to decide as the result of a Jefferson County Circuit Court ruling affecting local legislation that specifically was passed by the Jefferson County local legislation delegation. For several years we have asked the question about whether a Budget Isolation Resolution (BIR) was validly adopted if there were more votes recorded as an abstention than affirmative votes. For a BIR to pass there must be an affirmative vote equal to, or greater than, 3/5 of those present and voting.

Consider a question on a local Bill that comes up for debate on the Floor of either the House or the Senate. Further, assume that there were 9 yeas, 6 nays, 50 abstentions and 40 Members not voting at all. Under current practice it would be assumed that the BIR had been adopted by a vote of 9-6 (3/5) of those “voting”. However, those Members who pressed the “Abstain” button at their desk have made a conscious decision and they wanted to be recorded as abstaining – a recorded vote. The 40 Members who did not indicate a preference were either present and “Not voting” or they were absent. In this case, the vote would be recorded as 9-6-50.

The Alabama Legislature operates under the guidance of Mason’s Rules of Order. Mason’s is a set of procedural rules designed specifically for Legislative bodies. Mason’s does not specifically answer the question of whether an abstention is a vote. The Legislature also operates under Rules of the House, Rules of the Senate and Joint Rules. It goes without question that the Legislature also must operate within the confines of the Constitution of the State of Alabama.

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In years past the Alabama Supreme Court has hesitated to rule against the Legislature on many procedural issues. It is our opinion that the Alabama Supreme Court may very well be facing the question of “Is an abstention a ‘vote’ that should be counted in the number of those present and voting?” The answer to that simple question could cause a great many local Acts to be invalidated. Many of these local Acts have created, or authorized local votes, on local taxes. Some have authorized annexation of property and others have created specific changes to municipal government structure. By extension a ruling by the Supreme Court could affect the conduct of many government Boards, Agencies Councils and Commissions. Today it is common practice for a Member of a governing body to “Abstain” if there is a perceived conflict of interest that should preclude a vote on a specific matter. If the Court decides that an “Abstention” is in fact a “vote” then perhaps the record in the future will need to reflect that a particular Member “did not vote” rather than recording an abstention.

Only in Alabama can one little word have such a potentially big impact.

 

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