Mississippi Advisory Opinions July 19, 1989: 19890719 (July 19, 1989)

Advisory Opinion Text

Representative Isiah Fredericks

Mississippi House of Representatives

3500 Meadowlark Drive

Gulfport, Mississippi 39501

Dear Representative Fredericks:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter presents three (3) specific questions which we will repeat and respond to in the order presented:

QUESTION NO. 1:

“What is the practical procedure which commissioners of election are required to follow when removing the names of electors from the voter registration books due to failure to vote in at least one election for successive years? Section 23–15–159, Mississippi Code of 1972, addresses this question, and my inquiry is for an interpretation from you of the mechanics of that statutory procedure.”

RESPONSE: It is the opinion of this office that since the Legislature did not specify the mechanics of the procedure in question, an election commission has the discretion to establish such mechanics provided all the requirements of section 23–15–159 are complied with in every particular.

QUESTION NO. 2:

“Other than voting by affidavit ballot or reregistering, what remedies are available to an elector whose registration has been canceled in violation of the requirements stated in Section 23–15–159, Mississippi Code of 1972 ?”

RESPONSE: It is the opinion of this office that an individual whose registration is initially suspended in accordance with section 23–15–159(a) and who fails to return the self addressed, stamped return card within thirty (30) days of the date of the notification of suspension, indicating that said individual wishes to have his registration continued as provided for in section 23–15–159(b) must either re-register or vote by affidavit ballot pursuant to section 23–15–573 in order to have his name re-entered on the registration books. See section 23–15–159(d) . However, upon discovery that a commission has removed the name of a voter who has not failed to vote in a federal, state or county election in the last four (4) years, it is the opinion of this office that it would be incumbent on that commission to administratively restore said name to the registration book. Refusal by a commission to restore a voter's name which has been erroneously removed could subject the individual commissioners to certain penalties which we will address in our response to your third question.

QUESTION NO. 3:

“If the commissioners of election have canceled an elector's registration without compliance with the provisions of Section 23–15–159, Mississippi Code of 1972, what sanctions are imposed on the commissioners? Please refer to Section 23–15–117, Mississippi Code of 1972 .”

RESPONSE: Mississippi Code Annotated s 23–15–117 provides:

“Any false entry on any registration book, or pollbook, made knowingly, and any unauthorized erasure or alteration therein, shall be punished as provided for the alteration of any other public record.”

Section 97–11–1 provides:

“If any clerk of any court, or public officer or any other person, shall wittingly make any false entry, or erase any work or letter, or change any record belonging to any court or public office, whether in his keeping or not, he shall, on conviction thereof, be imprisoned in the penitentiary for a term not exceeding ten years, and be liable to the action of the party aggrieved.”

Based on the above two (2) statutes, it is the opinion of this office that if an election commissioner, or any other person, knowingly makes an unauthorized erasure of a voter's name from the registration or pollbooks, the individual(s) responsible for such illegal act would be subject to the criminal penalties specified in section 97–11–1 above. Furthermore, that code section indicates that the individual(s) responsible for such a violation would also be subject to some civil penalties as well.

We emphasize that election commissioners who are exercising personal deliberation, decision and judgement and who are acting in good faith are immune from civil liability pursuant to the doctrine of public officials immunity. Davis v. Little, 362 So.2d 642 (1978); Hudson v. Rausa, 462 So.2d 689 (1984); Grantham v. Mississippi Department of Correction, 522 So.2d 219 (1988); McFadden v. State, 542 So.2d 871 (1989) .

Sincerely,

Mike Moore Attorney General.