Mississippi Advisory Opinions December 17, 1990: 19901217 (December 17, 1990)

Advisory Opinion Text

Honorable Jan Montgomery

Circuit Clerk

Post Office Box 1953

Greenwood, Mississippi 38930

Dear Ms. Montgomery:

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

“The City Clerk of Itta Bena has registered a certain number of people outside the City limits without publication and making a submission to the U.S. Dept. of Justice, these applications have been forwarded to me, so my question is ‘are these applications valid’? 'D'

We preface our response to your inquiry by stating that it is the policy of this Office to encourage local election officials to make voter registration as convenient and easy as possible for all citizens provided, of course, it is done within the laws which include certain procedural requirements that must be met. To legitimize registrations away from the registrar's office which do not meet the basic legal requirements would be to allow registrars and their deputies to provide registration opportunities for certain groups of citizens to the exclusion of others. This “selective” registration of voters cannot be allowed. With this in mind we now consider the question posed in your letter.

Mississippi Code Annotated § 23–15–37(3) requires the county registrar or a deputy registrar to visit the regular polling place in at least three (3) voting precincts in each supervisor district within twelve (12) months prior to the election of statewide officials for the purpose to registering voters. Section 23–15–37(4) provides:

“In addition to the visits to polling places required pursuant to subsection (3) of this section, the registrar, or any deputy registrar duly appointed by law, may visit and spend such time as he may deem necessary at the regular polling place in any voting precinct in his county, or if such polling place is not available, at an alternate place selected by the registrar not less than thirty (30) days before an election, for the purpose of registering voters after having given notice by publication of the times and places of such visits. Such publication shall be made not less than three (3) days nor more than ten (10) days prior to such visits in a newspaper published in the county, and if there is none published in the county then in a newspaper of general circulation in the county.” (emphasis added)

Section 23–15–35 which designates each municipal clerk as a deputy county registrar provides in part:

“(1) The clerk of the municipality shall be the registrar of voters thereof, .....

(2) The municipal clerk shall be authorized to register applicants as county electors. The municipal clerk shall forward notice of registration, a copy of the application for registration, and any changes to such registration when they occur, either by certified mail to the county registrar or by personal delivery to the county registrar.... Upon receipt of the copy of the application for registration or changes to such registration, and if a review of same indicates that the applicant meets all the criteria necessary to qualify as a county elector, then the county registrar shall make a determination of the county voting precinct in which the person making the application shall be required to vote.... If a review of the copy of the application for registration or changes to such registration indicates that the applicant is not qualified to vote in said county, the county registrar shall challenge such application.....

(3) The municipal clerk shall issue to the person making the application a copy of such application upon which has been written the municipal voting precinct in which said person shall vote...” (emphasis added)

Section 23–15–37 authorizes the county registrar or any deputy registrar to visit any polling place in any voting precinct in his county for the purpose of registering voters. Section 23–15–35 provides that the clerk of the municipality shall be the registrar of voters thereof obviously meaning that the municipal clerk is to register voters who reside within his municipality. Section 23–15–35 further provides that the municipal clerk shall be authorized to register applicants as county electors and requires the municipal clerk to determine in which municipal precinct each applicant shall be required to vote.

Reading the two code sections in pari materia we conclude that the jurisdiction of a municipal clerk acting as a deputy county registrar pursuant to Section 23–15–35 is limited to the confines of the corporate limits of the municipality he serves. To say that municipal clerks are empowered to visit sites outside their jurisdiction on their own initiative would be to allow the infringement upon the authority and duty of the county registrar, the chief election officer of the county, to plan the necessary “satellite” voter registration for the county in a comprehensive, fair and impartial manner. Additionally, aside from the foregoing, any voter registration conducted away from the office of the registrar or deputy registrar may be done only after compliance with the notice requirements of Section 23–15–37. Furthermore, it appears that since the statutory provisions for the registration of voters away from the registrar's office allows for the exercise of discretion in determining which polling places will be visited and when the visits will be made, the county registrar would be required to make a submission to and receive preclearance of any such plan from the United States Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965.

In response to your specific question and based on all of the above, it is the opinion of this office that the applications for registration in question must not be approved. The affected individuals may, of course, be registered at your office or at a lawfully conducted “satellite” registration session.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.