Mississippi Advisory Opinions September 30, 2011: No. 2011-00404 (September 30, 2011)

No. 2011-00404.

Dear Mr. Gardner:

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

Your letter states:

A voter has an established residence where she, her husband and children currently reside in that county and have homestead exemption. However, she works in Newton County and has been provided a place on the premises whereby she may stay overnight if desired. She has registered to vote in Newton County, as a place of choice for voting.

Is it lawful for her to register and vote in Newton County?

The question of whether one is lawfully registered is one of fact as opposed to a question of law which must be answered by the Newton County Election Commission (the Commission). See Mississippi Code Annotated Section 23-15-153 (Supp. 2011).

In an effort to assist the Commission in making that factual determination we offer the following.

Section 23-15-11 (Supp. 2011) provides that one may be a qualified elector only in the "voting precinct of his residence."

The established rule on residency is that, once established, it continues until removal to another locality with intent to remain there and abandonment of the old domicile without intent to return. Hubbard v. McKey, 193 So.2d 129 (Miss. 1966).

The filing for homestead exemption creates a strong but rebuttable presumption that the property on which the homestead exemption is claimed is one's residence for election purposes. Hinds County Election Commission v. Brinston, 671 So.2d 667 (Miss. 1996).

Residency, for electoral purposes, is not a function of the nature of an applicant's shelter, but is rather a function of whether the applicant permanently resides within the district in which he offers to vote. MS AG Op., Mathers (June 29, 1989).

In order for the individual in question to be eligible to be a legitimately registered voter in Newton County, the Commission must determine, consistent with the facts, that she has overcome the strong presumption that the property (in another county) on which she is receiving the benefits of homestead exemption constitutes her residence for electoral purposes and that she has abandoned that residence with no intent to return and has established a permanent residence in Newton County.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General