Mississippi Advisory Opinions September 03, 2010: No. 2010-00511 (September 3, 2010)

No. 2010-00511.

Dear Representative Smith:

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

May a candidate transport voters to the polls and provide meals at a site near the polling place?

The practice of providing transportation to the polls on election day is not prohibited by statute, nor is providing meals on election day. Whether the providing of meals or transportation is part of a quid pro quo giving rise to criminal liability would be a question of fact determinable by a court.

Your letter reads as follows:

Several Legislators and many constituents have asked about the propriety of a candidate taking people to the polls and closely thereby set up a tent and feed catfish or a barbeque dinner for those people coming to the polls to vote.

The dinner may be before or after the vote. The luncheons are open to the general public, but appears to be to reward people on election day.

I enclose herewith a code section a researcher has sent to me.

Please let men know if this appears to be something which can be utilized or is something which should be stopped.

Miss. Code Ann. Section 23-15-889 (1972) provides as follows:

It shall be unlawful for any person to sell or offer to sell his vote and it shall be likewise unlawful for any person to offer money or anything of substantial value to anyone for his vote. Anyone violating the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be fined not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or imprisoned not more than six (6) months, or both.

Miss. Code Ann. Section 97-13-3 (1972) provides as follows:

If any person shall offer or give a reward to another for the purpose of inducing him, by any unlawful means not amounting to bribery, to procure any person to vote at any election for or against any person, the person so giving or offering such reward shall, upon conviction thereof, be imprisoned in the county jail not more than one year, or fined not more than five hundred dollars, or both.

Miss. Code Ann. Section 97-13-1 (1972) provides as follows:

If any elector, manager, clerk or canvasser at any election, or any executive officer attending the same, shall receive any gift, reward, or promise thereof or if any person shall offer such gift, reward, or promise thereof to influence any elector, clerk, canvasser, or any executive officer attending any election in his vote, opinion, action, or judgment in relation to such election, the person so offending shall, on conviction, be imprisoned in the penitentiary not more than two years or in a county jail not more than one year, or be fined one thousand dollars, or both.

Section 23-15-889 makes it a crime to offer a person money or anything of substantial value for his vote or for the voter to sell or offer to sell his vote. Section 97-13-3 makes it a crime to offer or give a reward to a third party for the third party to procure any person's vote for or against a candidate. Common to both statutes (as well as Section 97-13-1) is an unlawful inducement to secure a voter's ballot choice.

This office addressed the practice of candidates providing food to voters in MS AG Op., Jordan (December 21, 2005) and MS AG Op., Whitehead (February 25, 2005). In Jordan, the facts were a candidate was supplying voters with catfish dinners in advance of the election with a placard attached stating "Thank you for your support - George Ellis - Candidate for Councilman Ward 6". We stated in that situation that there was no suggestion that provision of the catfish dinner was conditioned upon the voter's promise to vote for the candidate. We concluded that whether a violation of Section 23-15-889 had occurred would necessarily be a factual question.

In the Whitehead opinion, the incumbent candidate had been baking pies and providing them to voters for a period of years. We stated that since no one was being asked to vote for the candidate in exchange for the pie, there was no apparent violation of Section 23-15-889.

In Naron v. Prestage , 469 So.2d 83 (Miss. 1985), the Mississippi Supreme Court considered a cash drawing sponsored by a candidate on election day. The court stated therein:

Given that the scheme employed by Candidate Prestage is undesirable, the construction of (the applicable Corrupt Practices Act provision) urged by the appellant, i.e., that an offer of anything of value by a candidate to the electorate constitutes a gift, would outlaw everything from fish-frys, barbeques and musical entertainment to the commonly accepted practice of providing voter transportation to the polls on election day. In this Court's opinion, such wide-sweeping restriction upon campaign conduct is best left to the Legislature.

Similarly, the dissent in that case stated:

"..I think this Court should not condone a campaign practice that has the potential of straying far from the familiar political rally; i.e., fish fry, barbeque, and country music entertainment, and opens the door to "up the ante," as is done in ordinary gambling pursuits."

We are likewise of the opinion that providing catfish or barbecue dinners to voters in and of itself is not unlawful under state law. Furthermore, as a matter of state law, it is not prohibited to provide voters transportation to the polls on election day. However, it remains a factual question in each instance, as determined by a court, whether the things of value provided to the voters by the candidate or by a third party on behalf of the candidate were made in exchange for the voter's ballot choices.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Reese Partridge

Assistant Attorney General