Mississippi Advisory Opinions September 12, 1991: 19910912 (September 12, 1991)

Advisory Opinion Text

Honorable Sue Sautermeister

Hinds County Election Commissioner

District 1

106 Cativo Drive

Jackson, Mississippi 39211-4710

Dear Ms. Sautermeister:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your questions shall be listed in the order presented immediately followed by the response thereto.

Question (1):

“There is a requirement that a voter be listed on the poll books for 30 days before he can vote. Can this residency requirement be served concurrently while the voter establishes residency in the county?”

Response to Question (1): According to Ferguson v. Williams , 343 F.Supp. 654 (1972), the residency requirement can be served concurrently while the voter establishes residency in the county. Mississippi Code Annotated § 23-15-11 (1972) and the federal court in Graham v. Waller , 343 F.Supp 1 (1972) state that to be a qualified elector, one must reside in the state and the county in which he offers to vote for thirty (30) days prior to the election. Furthermore, Mississippi Code Annotated § 23-15-37 (1972) and the federal court in Ferguson require that the registrar shall register voters no less than thirty (30) days prior to the election. However, the court in Ferguson stated: “We make it clear that this 30-day residency period does not have to be satisfied before one may register to vote, for any person otherwise qualified may at any time register if he shall meet the residency requirement by the date of the election although he may not do so at the date of registration.”

Question (2):

“May college students who live on or off the campus register to vote in the county where the college or university is located?”

Response to Question (2): In response to your inquiry please see the enclosed copy of an opinion addressed to Mrs. Amy McCaleb, dated October 29, 1982, which, in summary, states that in order for a college student to register to vote in the county where the college is located, the student must meet the standard requirements for establishing residency. Once residency requirements are met, the student can establish a legal residence for voting in the county in which the college is located. However, the question whether a college student is a resident of the county in which the college is located is a factual determination, as opposed to law, and must be made by the County Board of Election Commissioners. Please see enclosed a copy of an opinion addressed to Honorable Bernard Handy, dated July 29, 1981, which sets out several guidelines for the board to consider in making the factual determination of residency of the college students. In summary, the guidelines state that determining residency must fall upon the intention of the student.

Question (3):

“May college students go to either the city clerk's or the circuit clerk's office to register to vote?”

Response to Question (3): The student may go to either the city clerk's or the circuit clerk's office to register to vote. The residency question is then determined in due course by the election board. According to Mississippi Code Annotated § 23-15-211 and 23-15-223 (1972), the State Board of Election Commissioners shall appoint the clerk of the circuit court to serve as the registrar in each county, unless the board finds the circuit court clerk improper. Furthermore, Mississippi Code Annotated § 23-15-223 (1972) states that the county registrar, or circuit clerk, shall appoint the clerk of every municipality to serve as deputy registrar.

Question (4):

“In the case of an absentee ballot application, may a university official endorse the application or must it be notarized?”

Response to Question (4): According to Mississippi Code Annotated § 23-15-631(c), a university official may not endorse the absentee ballot unless that official is a notary public, a postal supervisor, clerk in charge of the postal station, or an attesting witness for a physically disabled absent elector. The code section states:

“Any notary public, United States postmaster, assistant United States postmaster, United States postal supervisor, clerk in charge of a contract postal station, or any officer having authority to administer an oath or take an acknowledgment may be an attesting witness; provided, however, that in the case of an absent elector who is temporarily or permanently physically disabled, the attesting witness may be any person eighteen (18) years of age or older and such person is not required to have the authority to administer an oath. If a postmaster, assistant postmaster, postal supervisor, or clerk in charge of a contract postal station acts as an attesting witness, his signature on the elector's certificate must be authenticated by the cancellation stamp of their respective post offices. If one or the other officers herein named acts as attesting witness, his signature on the elector's certificate, together with his title and address, but no seal, shall be required. Any affidavits made by an absent elector who is in the armed forces may be executed before a commissioned officer, warrant officer, or noncommissioned officer not lower in the grade than sergeant rating, or any person authorized to administer oath.”

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.