Mississippi Advisory Opinions April 19, 1996: AGO 96-0232 (April 19, 1996)

Advisory Opinion Text

Hon. Fred Ferguson

Circuit Clerk, Adams County

P.O. Box 1224

Natchez, Mississippi 39121-1224

RE: Absentee Ballots

Dear Mr. Ferguson:

Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and reply. In your letter you inquire:

1. Can a friend or neighbor request an application and ballot to be sent to a registered voter?

2. Can these requests be made over the phone, by a friend or neighbor?

3. Can parents, spouse or dependents request by phone?

4. Attached is a copy of an in-office form that we have been using. Does this form request enough information to send out applications and ballots?

Section 23-15-627, Miss. Code Ann. (Supp. 1995) states, in pertinent part:

The registrar shall be responsible for furnishing an absentee ballot application form to any elector authorized to receive a ballot.... [emphasis added].

In a prior opinion, we stated that the registrar is under no obligation to furnish an absentes ballot application to anyone other than the voter himself. MS AG Op., Dixon (July 12, 1989), attached. (Please note that the portion of the Dixon opinion referring to the clerk or deputy clerk personally delivering an absentee application and ballot to a physically incapacitated voter has been amended by Section 23-15-735, Miss. Code Ann. (Supp. 1995)). See also MS AG Op., Rasberry (October 7, 1987), attached.

In response to your final question, please refer to Section 23-15-627, Miss. Code Ann. (Supp. 1995) which sets forth a form for applications for absentee ballots that should be substantially followed.

If this office can be of any further assistance, please let us know.

Very truly yours,

Mike Moore, Attorney General.

Sandra M. Shelson, Special Assistant Attorney General.

63 Elections - Absentee Ballots

July 12, 1989

Honorable Ruth Dixon

Circuit Clerk

Post Office Box 312

Liberty, Mississippi 39645-0312

Dear Mrs. Dixon:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply.

Your letter seeks an official opinion on certain aspects of absentee balloting. Specifically, your letter states in part:

“Please advise me if just any individual has the right to request absentee ballots and applications for the disabled voter? How do I know if the voter is competent to vote the ballot?”

At the outset of our response to your request we emphasize that, under no circumstances should a third party be allowed to deliver an absentee ballot to a voter. By prior opinion this office has said that the circuit clerk or a deputy Circuit clerk (but no other person) upon proper request or application way, but is not required to, personally deliver an application and a ballot to a disabled voter and allow the voter to complete the application and mark the ballot just as if he were in the clerk's office. The clerk or deputy clerk would act as the attesting witness and would then return the ballot to his office and deposit it in the appropriate ballot box. See prior opinion addressed to Honorable Wayne Parker, dated October 19, 1979 (copy enclosed).

For your further information we are enclosing a copy of an opinion addressed to Honorable Wallace Gray, Jr., dated May 16, 1984 and its several attachments which generally represent the current position of this office on matters pertaining to the absentee balloting process. However, it should be pointed out that the opinion addressed to Mrs. Audrey W. Kern, dated August 2, 1979, which is one of the attachments to Gray , states that an absentee ballot application “may be returned by the absent voter either personally, by mail, or by some person duly authorized by such absent voter”. Subsequent to the issuance of Kern the United States District Court (S.D.Miss.) in Welch v. McKenzie , 592 F.Supp.1549, 1552 (1984) in discussing that class of absentee voters who cast their ballots by mail said:

“Accordingly, each member of that class of absentee electors who cannot appear personally before the registrar must file his application by mail, must thereafter receive his absentee ballot and finally must return his absentee envelope with his marked ballot contained therein to the registrar by mail.”

In response to your question concerning an individual requesting absentee ballot applications for disabled voters, please see the enclosed copy of an opinion addressed to Honorable Sandy Rasberry, dated October 7, 1987. In summary that opinion states, inter alia , that the registrar is under no obligation to furnish an absentee ballot application to anyone other than the voter himself. This is based on Mississippi Code Annotated § 23-15-627 (Supp. 1988) which provides in part:

“The registrar shall be responsible for furnishing an absentee ballot application form to any elector authorized to receive a ballot.” (emphasis added)

In response to your question as to how you can be sure that the disabled voter is competent to vote the ballot, if the voter is properly registered and his application is complete and has been returned to your office in the manner prescribed by law, there would be no affirmative duty on your part to make such a determination.

Sincerely,

Mike Moore Attorney General

Phil Carter Special Assistant Attorney General.