Mississippi Advisory Opinions March 14, 2003: AGO 000015506 (March 14, 2003)

AGO 000015506.

Dear Mr. Hanskiewicz:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter states:

We are seeking your opinion on the following situation pertaining to the Democratic Primary Election scheduled for August 5, 2003.

One of the candidates for the office of 2nd District Supervisor, Jimmy Kidd, conducts a business in the building which has served as the polling place for Precinct 205 (Martin) for many years. Mr. Kidd operates a convenience store in this building. Elections are held in the main area of the store and business is conducted during the hours the poll workers and voters are present.

Mr. Kidd resides in a mobile home on the same premises. He "homesteaded" this as his residence on Jan. 13, 2003. His prior residence was in Pontotoc County.

The office of 2nd District Supervisor is a contested race in the Democratic Primary. We need to know how to proceed with this situation to insure that all candidates are treated equally and fairly.

Mississippi Code Annotated Section 23-15-283 (Revised 2001) authorizes county boards of supervisors to change polling places within the respective precincts. It provides in part:

The board of supervisors shall have power to alter the boundaries of the supervisors districts, voting precincts and the voting place therein; ....Upon the order of change .... of any voting precinct or the voting place therein, the board of supervisors shall notify the office of the Secretary of State and provide said office a legal description and a map of any boundary change.

If another facility located within the precinct is available for use as the polling place, the board of supervisors could adopt an order changing the polling place pursuant to the above quoted statute. Any such change would have to be submitted to the U.S. Department of Justice for preclearance under Section 5 of the Voting Rights Act.

If changing the polling place remains the same, the proper enforcement of our statutes that regulate activity at the polls become extremely important.

Section 23-15-233 provides that "the managers shall take care that the election is conducted fairly and agreeably to law."

Section 23-15-241 provides that "the manager designated as election bailiff shall, in addition to his other duties, be present during the election to keep the peace and to protect the voting place, and to prevent improper intrusion upon the voting place or interference with the election, and to arrest all persons creating any disturbance about the voting place, and enable all qualified electors who have not voted, and who desire to vote, to have unobstructed access to the polls for the purpose of voting when others are not voting."

Section 23-15-245 provides that "it shall be the duty of the manager designated as bailiff to be present at the voting place, and to take such steps as will accomplish the purpose of his appointment, and he shall have full power to do so, and he may summon to his aid all persons present at the voting place. A space thirty (30) feet in every direction from the polls, or the room in which the election is held, shall be kept open and clear of all persons except the election officers ... ."

Section 23-15-577 provides that "each candidate shall have the right, either in person or by a representative to be named by him, to be present at the polling place, and the managers shall provide him or his representative with a suitable position from which he or his representative may be able to carefully inspect the manner in which the election is held. He or his representative shall be allowed to challenge the qualifications of any person offering to vote, and his challenge shall be considered and acted upon by the managers."

Section 23-15-895 provides that "it shall be unlawful for any candidate for an elective office, or any representative of such candidate, or for any proponent or opponent of any constitutional amendment, local issue or other measure printed on the ballot to post or distribute cards, posters or other campaign literature within one hundred fifty (150) feet of any entrance of the building wherein any election is being held."

While the above does not include every statutory provision regulating activities at polling places, the proper enforcement of these provisions should facilitate an election that is fair to all candidates.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General