Mississippi Advisory Opinions December 08, 2006: No. 2006-00620 (December 8, 2006)

No. 2006-00620.

DOCK 2006-00620

Dear Mr. Jones:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. Your letter states:

The Washington County Election Commission would like an opinion on certain paragraphs of the enclosed letter. Paragraphs are numbered on the letter for our questions.

You then present five (5) specific questions which we will restate and respond to in the order presented.

QUESTION 1: Paragraph #5 - Do we have the right to continue to purge up until election day? If so, will that include deaths, change of address, moved from county or state or moved from one district to another?

RESPONSE: Mississippi Code Annotated Section 23-15-153 (Supp.2006) provides in part:

At the following times the commissioners of election shall meet at the office of the registrar and carefully revise the registration books and the pollbooks of the several voting precincts, and shall erase from those books the names of all persons erroneously on the books, or who have died, removed or become disqualified as electors from any cause; and shall register the names of all persons who have duly applied to be registered and have been illegally denied registration:

(a) On the Tuesday after the second Monday in January 1987 and every following year;

(b) On the first Tuesday in the month immediately preceding the first primary election for congressmen in the years when congressmen are elected;

(c) On the first Monday in the month immediately preceding the first primary election for state, state district legislative, county and county district offices in the years in which those offices are elected; and

(d) On the second Monday of September preceding the general election or regular special election day in years in which a general election is not conducted.

Except for the names of those persons who are duly qualified to vote in the election, no name shall be permitted to remain on the registration books and pollbooks; however, no name shall be erased from the registration books or pollbooks based on a change in the residence of an elector except in accordance with procedures provided for by the National Voter Registration Act of 1993 that are in effect at the time of such erasure. *** (Emphasis added)

The above quoted statute specifically requires that only the names of persons who are duly qualified to vote in an election shall be permitted to remain on the registration books and poll books. It is the responsibility of election commissioners to insure that such requirement is met.

Section 8 (a) (4) of the National Voter Registration Act of 1993 (the Act) requires each state to "conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters."

Section 8 (c) provides:

(1) A state may meet the requirement of subsection (a)(4) by establishing a program under which

(A) change-of-address information supplied by the Postal Service through its licensees is used to identify registrants whose addresses may have changed; and

(B) If it appears from information provided by the Postal Service that

(i) a registrant has moved to a different residence address in the same registrar's jurisdiction in which the registrant is currently registered, the registrar changes the registration records to show the new address and sends the registrant a notice of the change by forwardable mail and a postage prepaid pre-addressed return form by which the registrant may verify or correct the address information; or

(ii) the registrant has moved to a different residence address not in the same registrar's jurisdiction, the registrar uses the notice procedure described in subsection (d)(2) to confirm the change of address.

(2)(A) A state shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.

(B) Subparagraph (A) shall not be construed to preclude

(i) the removal of names from official lists of voters on a basis described in paragraph (3) (A) or (B) or (4) (A) of subsection (a); or

(ii) correction of registration records pursuant to this Act.

The reasons for which removal of names are specifically not precluded within 90 days prior to the date of a primary or general election as specified in Section 8 (c) (2) (B) (i) above are: 1) at the request of the registrant (Section 8 (a) (3) (A)); 2) as provided by State law, by reason of criminal conviction or mental incapacity (Section 8 (a) (3) (B)); or 3) the death of the registrant (Section 8 (a) (4) (A)).

Based on the above quoted legal authorities, we are of the opinion that the only purging activity that is prohibited within 90 days of a regularly scheduled primary or general election is the removal of names pursuant to a program established to systematically remove said names based on residency in accordance with Sections 8 (a) 4, 8 (b) and (c) of the Act.

Therefore, in response to the specific question, it is our opinion that a county election commission may continue to purge names from the registration books and poll books within 90 days of a regularly scheduled primary or general election with the exception, as noted above, that any program the purpose of which is to systematically remove the names of ineligible voters based on residency must be completed prior to 90 days prior to a regularly scheduled primary or general election.

The poll books must, of course, be printed and ready for use by the date of an election.

QUESTION 2: Paragraph #6 - Does NVRA require purging to be governed by Mississippi law and not the NVRA?

RESPONSE: As indicated in our response to your first question, while state law governs the purging of names from the voter registration books and poll books, Section 23-15-153 specifically requires compliance with the NVRA when purging is based on a change of residence.

QUESTION 3: Paragraph #8 - 2 questions. Does the Washington County Board of Supervisors have the authority over the Washington County Election Commission regarding Voting Rights or other election laws or office procedures.

NVRA coupled with Mississippi election laws can be complex, however, WCEC does seek advice from SOS and AG offices. Is this correct?

RESPONSE: In response to the first question, the duties and responsibilities of a county election commission are clearly set out in the Mississippi Code. Each county commission must insure that those duties and responsibilities are carried out. A board of supervisors approves a budget for the county election commission, and is required to perform the duties of the election commission if the commissioners fail to perform the duties prescribed for them (Section 23-15-215). As long as the election commission performs its statutory duties, we find nothing that gives board of supervisors any authority regarding the day to day operation of the election commission.

In response to the second question, we encourage each county election commission to seek necessary legal advice from the office of the Attorney General as well as the attorney for their county board of supervisors and technical assistance from the office of Secretary of State.

QUESTION 4: Paragraph #9 - Is there a code that states that "our minutes" must be filed in the chancery clerk's office?

RESPONSE: We find no statutory provision that requires a county election commission to file its minutes in the office of the chancery clerk. You will note that in the portion of Section 23-15-153 quoted above that a county election commission is required to perform its purging activities in the office of the registrar, who by statute is the circuit clerk (Section 23-15-211(1)). Also, the circuit clerk is required by law to assist the election commission in the performance of its duties (Sections 23-15-225 and 23-15-235). Therefore, we are of the opinion that the minutes of a county election commission should be available as a public record in the office of the circuit clerk.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter Special Assistant Attorney General