Mississippi Advisory Opinions October 20, 2009: AGO 2009-00621 (October 20, 2009)

Advisory Opinion Text

Representative Willie J. Perkins, Sr.

Mississippi House of Representatives - District 32

Post Office Box 8404

Greenwood, Mississippi 38930-8404

Re: Authority of Secretary of State and Attorney General to Send Observers during Municipal Elections

Dear Representative Perkins:

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

Issues Presented

1. Does the Secretary of State have the authority to send observers to polling places during municipal elections?

2. Does the Attorney General have the authority to send observers to polling places during municipal elections?

3. Has a submission under Section 5 of the Voting Rights Act of 1965 as amended been made with respect to sending observers from the offices of the Attorney General and the Secretary of State on election day?

Response

It is the opinion of this office that the Secretary of State and the Attorney General for the State of Mississippi are authorized as election officers by virtue of their membership on the State Board of Election Commissioners and in their individual official capacities to send observers into polling places during municipal elections. Furthermore, the Attorney General possesses the inherent authority to be present in polling places during elections. The Legislature has specifically designated the Attorney General in Section 7-5-1 as chief legal officer and legal advisor for the state, and the Legislature explicitly granted to him the powers of the Attorney General at common law.

Applicable Law and Discussion

Miss. Code Ann. Section 23-15-245 (1972) 1 states:

It shall be the duty of the manager designated as bailiff to be present at the voting place, and to take such steps as will accomplish the purpose of his appointment, and he shall have full power to do so, and he may summon to his aid all persons present at the voting place. A space thirty (30) feet in every direction from the polls, or the room in which the election is held, shall be kept open and clear of all persons except the election officers and two (2) challengers of good conduct and behavior, selected by each party to detect and challenge illegal voters; and the electors shall approach the polls from one direction, line, door or passage, and depart in another as nearly opposite as convenient.

(Emphasis added).

Paragraph 1 of Miss. Code Ann. Section 23-15-211 (1972) 2 states that “[t]here shall be a State Board of Election Commissioners to consist of the Governor, the Secretary of State and the Attorney General, any two (2) of whom may perform the duties required of the board … “. It follows, therefore, that members of the State Board of Election Commissioners are election officers.

In addition, the Secretary of State is designated as Mississippi's chief election officer for purposes of the National Voter Registration Act (See Miss. Code Ann. Section 23-15-211.1 ) and the Attorney General is the chief legal officer and advisor for the State of Mississippi and possesses the powers of the Attorney General at common law (See Miss. Code Ann. Section 7-5-1 (1972) ).

As Mississippi's chief election officer, it has been a long-standing practice of the Secretary of State to dispatch observers to polling places on election day to monitor elections. The function of observers from the Secretary of State's office is to gather information so as to ascertain whether a polling precinct is operating in accordance with state law and to refer questions regarding election irregularities and/or crimes to the Attorney General, Secretary of State legal staff, or other authorized law enforcement authorities. The assignment of observers is based upon requests from local citizens and officials, including candidates.

Additionally, Miss. Code Ann. Section 23-15-211.1 (2) (1972) 3 authorizes the Secretary of State to gather information regarding voting and requires him to file an annual report with the Legislature, the Governor and the Attorney General detailing voter participation in elections throughout the state.

As Mississippi's chief legal officer and advisor, it has been a long-standing practice of the Attorney General to send out investigators and attorneys as observers on election day to monitor elections, to assist local election officials on election law matters and to help address any other election law issues that may arise. The assignment of observers is based upon requests from local and state officials and citizens. It is the understanding of this office that the practice of the Attorney General sending representatives to polling places predates the enactment of the Voting Rights Act of 1965.

Moreover, it is our opinion that the Attorney General has the inherent authority as Attorney General to send investigators and attorneys to polling places to fulfill his lawful duties.

In response to your inquiry, it is the opinion of this office that the Secretary of State and the Attorney General for the State of Mississippi are authorized as election officers by virtue of their membership on the State Board of Election Commissioners and in their individual official capacities to send observers as described above from their respective offices to polling places during municipal elections, as well as other public elections, including primary, special and general elections conducted at the county level.

With respect to preclearance, we cannot issue an opinion interpreting federal law but the relevant statutes above which require preclearance have been precleared by the U. S. Department of Justice.

Conclusion

Accordingly, it is the opinion of this office that the Secretary of State and the Attorney General for the State of Mississippi are authorized as election officers by virtue of their membership on the State Board of Election Commissioners and in their individual official capacities to send observers from their respective offices to polling places during municipal elections.

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

Very truly yours,

Jim Hood, Attorney General

Margarette L. Meeks, Special Assistant Attorney General