Mississippi Advisory Opinions December 18, 2009: No. 2009-00699 (December 18, 2009)

No. 2009-00699.

Dear Ms. Smylie:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and reply.

Whether an individual who has moved out of the county but still owns property in the county can remain on the county voter roll?

No.

In your letter you state that a former election commissioner has informed the Election Commission that anyone who has moved out of the county or state but is a landowner is still legally a voter of Wilkinson County.

Miss. Code Ann. Section 23-15-11 provides that any person who meets the qualifications stated therein "shall be a qualified elector in and for the county, municipality and voting precinct of his residence, and shall be entitled to vote at any election." To be a qualified elector of a county, one must reside in that county for 30 days. The Mississippi Supreme Court has consistently held that "residence and domicile are synonymous for election purposes." Garner v. MS Democratic Executive Committee , 956 So.2d 906, 909 (Miss. 2007) (citing Hinds County Election Comm'n v. Brinston , 671 So.2d 667, 668 (Miss. 1996)). "In order to be an actual bona fide resident of a county, 'there must have been (1) an actual residence voluntarily established in said county, (2) with the bona fide intention of remaining there, if not permanently, at least indefinitely.'" Gadd v. Thompson , 517 So.2d 576 (Miss. 1987), citing Smith v. Smith , 12 So.2d 428, 429 (1943). Our office has previously opined that "ownership of property, whether real or personal, in the county is not an indispensable requirement to establishing domicile or permanent residence thereon or the continuation of such domicile and permanent residence once established." MS AG Op., Neely (November 21, 2008).

Further, Section 23-15-153(1) of the Miss. Code requires Election Commissioners to meet on a regular basis to maintain voter rolls. One of the reasons for removing the name of a voter from the voter roll is if the voter "removes" himself from the county. Removal of the names of voters from the voter rolls must be done in accordance with voter maintenance procedures set out in the National Voter Registration Act ("NVRA"). The NVRA requires written confirmation that a voter has changed his residence to an address outside of the county. The Election Commission would be required to mail a postage prepaid "confirmation card" to the voter at the address provided on the voter registration form. If the voter fails to return the confirmation card, then that voter's name is placed on an inactive voter list. The voter's name must be purged from the voter roll if the voter fails to contact the Election Commission or vote in two consecutive federal general elections after mailing the confirmation card. Our office has previously opined that the decision to send notices to voters who are believed to have moved out of the county and the placing of their names on an inactive list is an official act of the election commission and therefore must be made by the commission as a whole and not individual commissioners on a district basis. mS AG Op., Wilson (May 2, 2008).

It should be noted that the question of qualifying as a voter is a factual determination to be made by the Election Commission, based upon the facts and circumstances including the intent to remain indefinitely in the county, which is the foundation of the residence requirement.

Accordingly, it is the opinion of this office that once the Election Commission has made a factual determination that a voter who owns property in the county has removed from the county and the Commission has followed the purging guidelines as established by the National Voter Registration Act, the Commission is authorized to remove the voter's name from the voter roll.

Please contact our office if we may be of further assistance.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By: Margarette L. Meeks

Special Assistant Attorney General