Mississippi Advisory Opinions May 30, 2008: No. 2008-00260 (May 30, 2008)
Collection: Mississippi Attorney General Opinions
Docket: No. 2008-00260
Date: May 30, 2008
Advisory Opinion Text
No. 2008-00260.
DOCK: 2008-00260
Dear Ms. Hafter:
Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. You present six (6) questions which we will restate and respond to in the order presented.
What are the duties of the Circuit Clerk and/or her Deputy Clerks to timely post voter registration forms into the SEMS database?
Pursuant to Mississippi Code Annotated Section 7-5-25 (Revised 2007), the Attorney General is authorized to issue official opinions to designated public officials only on questions of law relating to their respective offices. Since your question pertains to the duties of the Circuit Clerk, we are unable to respond to your question with an official opinion.
Can registered voters be moved to an inactive list without notification solely because they have not voted in a state or federal election in four (4) years?
Your letter indicates that this has been the past practice of the Washington County Election Commission.
Pursuant to Section 7-5-25, opinions of the Attorney General are issued on questions of law for the future guidance of those officials entitled to receive them. An Attorney General's opinion can neither validate nor invalidate past action of a county election commission.
For future guidance, we find no authority for a county election commission to place a voter's name on an inactive list based on a failure to vote without first sending a confirmation card to the voter pursuant to the provisions of the National Voter Registration Act (NVRA), 42 U.S.C. 1973gg-6(b).
Does the Help America Vote Act (HAVA) and related federal laws prohibit the removal of voters from the voter rolls used in federal elections (a) solely for failure to vote and (b) without written notice? What procedures/steps are required to remove voters from the active voting list and, thus, the poll books on account of failure to vote in a prescribed period of time?
Please see our response to Question Number Two regarding past actions of the Washington County Election Commission.
For your future guidance, while there is no specific procedure to remove voters names from the active list for failure to vote, such failure over a long period could be viewed by a county election commission as an indication that such voters may no longer reside within the county.
Mississippi Code Annotated Section 23-15-153 (Revised 2007) provides in part:
(N)o 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.
Certain provisions of the NVRA set forth the procedures for the removal of names from the registration records. 42 U.S.C. Section 1973gg-6(b) provides in part:
Confirmation of voter registration. Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office-
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(2) shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person's failure to vote, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual-
(A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (B) to the notice sent by the applicable registrar; and then
(B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office. (Emphasis added)
The NVRA sets forth the procedure that must be followed in order to remove a voter's name from the official list of eligible voters. It provides that a State shall not remove the name of a registrant from the official list of eligible voters on the ground that the registrant has changed residence unless the registrant confirms in writing that the registrant has changed residence to a place outside the registrar's jurisdiction in which the registrant is registered; or has failed to respond to a notice or "confirmation card" sent by forwardable mail on which the registrant may state his or her current address. Such "confirmation card" must be accompanied by a notice that if the registrant did not change his or her residence, or changed residence but remained in the registrar's jurisdiction, the registrant should return the card not later than thirty (30) days prior to an election. If the card is not returned, affirmation or confirmation of the registrant's address may be required before the registrant is permitted to vote. If a registrant does not vote in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice, the registrant's name will be removed from the list of eligible voters. 42 U.S.C. 1973gg -6(d)(2)(A).
We are of the opinion that once the "confirmation card" with the proper notice has been mailed to a voter who has not voted for a prolonged period indicating that he or she may no longer reside in the county, the county election commission would be authorized to place his or her name on the "inactive list" of voters. This, of course, does not disqualify such individual from voting but would necessitate that they vote by affidavit ballot.
While we are of the opinion that the above described procedure is authorized by state and federal law we note that the U.S. Department of Justice has, in the past, verbally objected to such procedure. Therefore, you may wish to seek their input or guidance.
Is a county election commission required to notify voters who cast affidavit ballots of whether the affidavit ballot was counted and, if not, the reasons for that action? You further ask about the procedure to be followed in the case a voter whose name is not found on the "active voter" roll and poll book and who, as a result, casts an affidavit ballot.
As set out in your letter, Mississippi Code Annotated Section 23-15-573(4) (Revised 2007) provides:
When a person is offered the opportunity to vote by affidavit ballot, he shall be provided with written information that informs the person how to ascertain whether his affidavit ballot was counted and, if the vote was not counted, the reasons the vote was not counted.
While the above quoted statute does not require automatic notification to a voter of the disposition of his or her affidavit ballot, it specifically requires election officials to inform an individual who voted an affidavit ballot as to how he or she can determine whether the vote was counted and if the vote was not counted the reason why it was not counted.
The procedure that is to be followed when a voter is not able to cast a regular election day ballot under a provision of state or federal law is set forth in Section 23-15-573.
Can a return of a jury summons as "unfound" be used as grounds for removal of a registered voter from the active voting roll and poll books?
Again, you indicate that this has been the practice of the Washington County Election Commission. Please see our response to question number two regarding past action.
For future guidance we find no prohibition against a county election commission determining that a returned jury summons is an indication that a voter may no longer reside at the address shown on the official list of eligible voters and that the returned jury summons constitutes sufficient grounds to send a confirmation card and then place the voter's name on an inactive list.
Is the Washington County Circuit Clerk and Election Commission required to produce registration books and poll books for municipal elections in the City of Greenville and other municipalities in Washington County? You further ask if county election commissioners can demand compensation of $25 per hour in addition to the statutorily authorized per diem. You further ask if an arrangement by the Circuit Clerk for a trained individual to enter data into the SEEMS database for a municipality is a lawful alternative to paying county election commissioners such data.
As indicated in your letter, in 2004 the Mississippi Legislature amended Section 23-15-153(6) to provide that effective January 1, 2006, the county registrar shall prepare poll books and the county commissioners of election shall prepare the registration books of each municipality located within the county pursuant to an agreement between the county and each municipality in the county. That amendment repealed the provisions of Section 23-15-137 which gave municipal governing authorities the discretionary authority to enter such an agreement.
However, in 2006 the Legislature adopted Chapters 574 and 585 both of which removed the repealer and reinstated the discretionary provisions of Section 23-15-137(1) which provides in part:
If the governing authorities of a municipality determine that the revision of the registration books and pollbooks can be performed more effectively and efficiently utilizing the authority granted in this section, then such governing authorities may contract with the commissioners of election of the county or counties in which the municipality is located to provide the municipal registrar of such municipality with registration books and pollbooks containing only the duly qualified electors of such municipality. (Emphasis added)
Chapter 574 was effectuated pursuant to Section 5 of the Voting Rights Act on June 5, 2006.
Therefore, from January 1, 2006 to June 5, 2006 the mandatory provisions requiring county election officials to enter agreements with all municipalities within the county to produce the municipal registration books and poll books were in effect.
It is our opinion that the legislative change from mandatory agreements whereby the county election officials were required to produce the registration books and poll books for each municipality within the county to discretionary agreements makes such agreements entered into during the time period January 1, 2006 to June 5, 2006 voidable.
Such agreements entered into prior to January 1, 2006 or after June 5, 2006 pursuant to the discretionary provisions would be binding. However, any such agreement between the commissioners of election and one or more municipalities within the county would not be binding on the successors in office of the municipal governing authorities or the county commissioners of election. Smith v. City of Louisville, 190 Miss. 819, 1 So.2d 765 (Miss. 1941); Edwards Hotel & City St. R. Co. v. City of Jackson, 96 Miss. 547, 51 So. 802 (Miss. 1910); Biloxi Firefighters Assoc. v. City of Biloxi, 810 So.2d 859 (Miss. 2002).
Regarding the compensation of county election commissioners for producing municipal registration books and poll books pursuant to a valid agreement, Section 23-15-137(2) provides that each municipality shall pay each county commissioner the per diem authorized in Section 23-15-153(2) for each day or period of not less than five (5) hours accumulated over two (2) or more days such commissioner is actually employed in preparing such registration books and poll books not to exceed five (5) days.
Section 23-15-137(2) also specifically provides that "(t)he county commissioners of election shall not receive any compensation for the preparation of registration books and pollbooks pursuant to subsection (1) other than that provided for in this subsection."
Regarding an arrangement by the Circuit Clerk for a trained individual to enter municipal voter data into the SEEMS database at no cost to the municipality or to the county, assuming there is an agreement between a municipality and the county election commissioners pursuant to Section 23-15-137, the Circuit Clerk, pursuant to Section 23-15-225 is required to assist the Election Commission in the performance of its duties. We are of the opinion that a county election commission, pursuant to an agreement authorized by Section 23-15-137, may authorize the Circuit Clerk to make such arrangement.
Sincerely,
JIM HOOD, ATTORNEY GENERAL
By: Phil Carter
Special Assistant Attorney General