Mississippi Advisory Opinions April 10, 1985: 19850410 (April 10, 1985)

Advisory Opinion Text

Honorable Gay Dawn Horne

Deputy City Attorney

220 South President Street

Post Office Box 17

Jackson, Mississippi 39205

Dear Ms. Horne:

Attorney General Edwin Lloyd Pittman has received your request for opinion and has referred it to the undersigned for research and reply.

You present two questions for opinion which will be set forth below followed by the response thereto.

Question Number 1.

You advise that the Circuit Clerk as County Registrar has, pursuant to the provisions of § 23-5-7, Mississippi Code 1972 Annotated and Amended (1984 Supp.) appointed municipal clerks within Hinds County deputy registrars. You assume the premise that such municipal clerks as deputy county registrars ‘...may be required by mandate from the county registrar to work on Saturdays.”

Additionally, you point out that “It is a long-standing practice in Hinds County that during the statutorily required openings before elections, the City of Jackson and the Hinds County Clerk's Office cooperate by remaining open before an election held by the other, at no cost to the other.”

You request an opinion, however, as to whether in instances “...when a Saturday opening, (of the municipal clerk's office) unrelated to an election, is mandated by the county registrar, ...” the expenses of such opening of the municipal clerk's office is required to be paid by the county.

§ 23-5-7, supra, to which you refer provides, inter alia: “The registrar is empowered to appoint deputy registrars, ...”

“The clerk of every municipality with a population of or in excess of five hundred (500) shall be appointed as such a deputy registrar, provided that such clerk is employed by the municipality on a full-time basis and the office of the clerk is held open for regular hours each day .”

“The county registrar may not be held liable for any malfeasance or nonfeasance in office by any deputy registrar who is a deputy registrar by virtue of his office .” (Emphasis added.)

It is patently clear that municipal clerks who come within the quoted statutory criteria and who are appointed by the circuit clerk as county registrar thereby become deputy county registrars by operation of the statute and by virtue of his or her office as municipal clerk.

The criteria are that the municipal population be in excess of 500; that the clerk be employed full-time and that the clerk's office be open for regular hours each day.

The obvious intent is that the municipal clerk perform the services of deputy county registrar as and along with the other duties as municipal clerk while employed on a full time basis and during regular hours each day of the municipal clerk's office.

While the cooperation by and between the Circuit Clerk's Office and the municipal clerk's offices is commendable, I am unable to find any authority for compensating the municipalities by the county for any opening of the municipal clerk's office on days or for time when the municipal clerk's office would not be open “...for regular hours each day.”

Question Number 2.

Whether a registered voter's name may be clerically or administratively changed from the poll book for the precinct or voting district where such voter formerly resided to the poll book for the precinct or voting district to which such voter has moved based upon information contained on the face of an affidavit envelope subscribed to by the voter in a county election (or municipal election), a letter or other written request?

You appropriately cite Section 21-11-1, Ibid, as applicable to the question, wherein it is stated, inter alia, that a qualified municipal elector may have his or her “...registration transferred to his new ward or voting precinct upon making request therefor , ...” (Emphasis added.)

The emphasized language is contained in § 21-11-1, supra, as the section appears in the Main Code Volume Number 6, having the source of Chapter 491 of the Laws of 1950 and was brought forward in Chapter 457 of the Laws of 1984.

An additional statute applicable to the question is Section 3114 found in Appendix A to the 1984 Cumulative Supplement to Volume 6 of the Mississippi Code of 1972 Annotated, here quoted for convenient reference:

“The county poll books shall be used in primary elections, and no person whose name does not appear upon the poll books shall be permitted to vote in a primary election; but if any person offering to vote in any primary election whose name does not appear upon the poll book shall make affidavit before one of the managers of election, in writing, that he is entitled to vote, or that he has been illegally denied registration, his vote may be prepared by him and handed to the proper election officer, who shall enclose the same in an envelope with the written affidavit of the voter and seal it and mark plainly upon it the name of the person offering to vote. And, in canvassing the returns of the election, the executive committee shall examine the records and allow the ballot to be counted, or not, as shall appear to be legal.”

While the quoted statute pertains to primary elections, it is the opinion of the Attorney General that the statute applies with equal effect to all elections. The basis for such opinion is the Mississippi Supreme Court decision in Lopez v. Holleman , 219 Miss. 822, 836; 69 So.2d 903 (1954), which holds that primary election statutes which are indicative of a general policy of the state on a cognate subject matter are also applicable to special and general elections when statutes governing such elections are silent on the matter.

It is concluded, therefore, that since such an affidavit may form the basis to count a qualified voter's vote which is cast in the precinct of the actual residence of such voter although the voter's name does not appear upon the poll book, such affidavit, undisputed, unimpeached or not disproven likewise authorized the clerical or administrative change of the name of the voter from the poll book of the former residence to the poll book of the present residence, where the individual is otherwise qualified, including a continuous residence within the new precinct for not less than thirty (30) days on or before the election.

You do not furnish me with a copy of the opinion to which you refer only by the date of September 8, 1978, However, I enclose herewith two former opinions which are not inconsistent with the opinion expressed herein:

One dated May 18, 1981, by S. E. Birdsong, Jr., Assistant Attorney General to Honorable Michael D. Ferris.

One dated August 31, 1983, by Phillip C. Carter, Special Assistant Attorney General, to Honorable Maurine H. Bain.

Moreover, I am aware of no change in the law since September 8, 1978, which as you suggest would nullify the referenced former opinions or the opinion herein expressed.

It is reiterated that it is the opinion of this office that an affidavit subscribed to and filed pursuant to the provisions of § 3114, supra, a letter, other written request or other reliable information upon which it may be concluded prima facie that a qualified elector has moved from one precinct to another within the same county and will have resided in such new precinct for not less than thirty (30) days on or before the next election, that the name of such qualified elector may be clerically or administratively changed from the poll book of the former precinct to the poll book of the new precinct into which such elector has last moved.

Copies of this opinion are also being mailed to others indicated to be interested.

Very truly yours,

Edwin Lloyd Pittman, Attorney General