Mississippi Advisory Opinions April 03, 1998: AGO 98-0098 (April 03, 1998)

Advisory Opinion Text

Hon. Harry P. Hewes

City Attorney

P.O. Box 1780

Gulfport, MS 39502

Re: Residence requirements for voter registration

Dear Mr. Hewes:

Attorney General Mike Moore has received your request for an opinion of this office and has assigned it to me for research and response. We summarize your letter as follows:

From time to time, the Personnel Department of the City of Gulfport or the Civil Service Commission of the City of Gulfport receives complaints alleging that certain City employees under the Civil Service System do not meet the state and local residence requirements for the employment position.

Under authority of Section 21-31-15, the Governing Authority of the City of Gulfport adopted an Ordinance in 1989 providing that “. . . all new employees who accept employment with the City after the enactment of this Section shall be residents of Harrison County as a prerequisite to employment.” Also, the Gulfport Civil Service Commission as part of its rules and regulations requires as follows:

All employees in a position of any kind under Civil Service shall, within six calendar months from date of employment, become a qualified elector of Harrison County, MS, and shall establish and maintain their place of residency in Harrison County, MS.

Your specific questions are as follows:

1. Can a resident of the State of Mississippi by claim of simultaneous residence in two adjoining counties qualify as an elector under Section 23-15-11 . . . in both counties in which he or she claims simultaneously to reside?

2. If the answer to question #1 above is yes, can said person qualify as a civil service employee of the City of Gulfport claiming simultaneous residences, and being registered to vote in both the county where the municipality is located and another adjoining county?

You conclude by stating your belief that the intent of Section 23-15-11 and Section 21-31-15 and regulations and ordinances of the city “is to require the elector to register to vote in only one county, which shall be his or her established county of residence and domicile for purposes under these statutes.” However, you are concerned by the discussion in Johnson v. Preferred Risk Automobile Insurance Company , 659 So.2d 866, 873 (Miss. 1995), in which the Mississippi Supreme Court reasoned that while a person may have multiple residences simultaneously, he can have but one domicile.

Miss. Code Ann. § 23-15-11 (Supp. 1997) provides, in relevant part:

Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upwards, who has resided in this state for thirty (30) days and for thirty (30) days in the county in which he offers to vote, and for thirty (30) days in the supervisor's district or in the incorporated city or town in which he offers to vote, and who shall have been duly registered as an elector by an officer of this state under the laws thereof, and who has never been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, 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.

The Mississippi Supreme Court has “consistently held that for election purposes, residency and domicile are synonymous in Mississippi.” Gadd v. Thompson , 517 So.2d 576, 578 (Miss. 1987), attached, citing Hubbard v. McKey , 193 So.2d 129, 132 (Miss. 1966); Jones v. State , 207 Miss. 208, 214, 42 So.2d 123, 125 (1949) . “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 at 578, citing Smith v. Smith , 194 Miss. 431, 434, 12 So.2d 428, 429 (1943) .

One conclusive method of establishing residency or domicile for electoral purposes is the filing of a homestead exemption. In Gadd , the Court held:

We hold as a matter of law that the filing of a homestead exemption conclusively establishes domicile for electoral purposes in the county of filing, regardless of circumstances indicating that certain ties to other counties still exist.

517 So.2d at 579.

Based upon the above holding, this office has previously opined that once an individual has filed for homestead exemption in a particular county, he may not be a qualified elector (registered voter) in another county. MS AG Op., Ward (March 28, 1995), attached.

In summary, a person may not qualify as an elector in two adjoining counties by claiming to simultaneously reside in both such counties. Absent a conclusive indicator of residency, such as filing for homestead exemption, the question of qualifying as an elector should be determined, based on the facts and circumstances of each case, by reference to other relevant factors including the intent to remain, indefinitely, in a county where an actual residence has been established.

Based on our response, above, your second question becomes moot.

Please contact this office if we can provide further information or assistance.

Sincerely,

Mike Moore Attorney General

Patricia F. Aston, Special Assistant Attorney General