Mississippi Advisory Opinions October 11, 1982: 19821011 (October 11, 1982)

Advisory Opinion Text

Mrs. Ruth Dixon

Circuit Clerk

Amite County

Post Office Box 312

Liberty, Mississippi 39645

Dear Mrs. Dixon:

Attorney General Bill Allain has received your letter of request dated October 7, 1982, and has referred it to me for research and reply.

You refer to § 23-9-409(A), Mississippi Code of 1972, Annotated and Amended, and request an opinion regarding physically incapacitated absentee voters, as follows:

“Would you please give me your Official opinion as to whether or not the Registrar or Deputy Registrar can personally deliver absentee ballots to the physically incapacitated voter at their home in Amite County; and after they vote, notarize this voter's signature and serve as attesting witness on the back of the envelope containing the voted ballot; and then return it to the Circuit Clerk's (Registrar's) Office for deposit in the proper Ballot Box?”

§ 23-9-407, Mississippi Code of 1972, Annotated & Amended, provides, in part:

“ . . . I hereby make application for an official ballot, or ballots, to be voted by me at the election to be held in __, on __. Send Absent Elector's Ballot to me (1) at the following address __, or (2) deliver same to me in person (Strike (1) or (2), whichever is inapplicable.). . . ” (Emphasis added)

§ 23-9-409, Ibid, provides, in part:

“(1) The registrar shall enclose with each ballot sent to an absent elector separate printed instructions furnished by him containing the following:

“(A) All absentee voters, excepting those physically incapacitated, who mark their ballots in the county of the residence shall use the registrar of that county as the witness. Said absentee voter shall come to the office of the registrar and neither the registrar nor his deputy shall be required to go out of the registrar's office to serve as an attesting witness . . . ”.

§ 23-9-605, Ibid, provides, in part:

“Any elector desiring an absentee ballot as provided in this article may secure same if:

“(1) Not more than fifteen (15) days nor later than 5:00 p.m. on the second day immediately prior to such election, he shall appear in person before the registrar of the county in which he resides, or, for municipal elections, he shall appear in person before the city clerk of the municipality in which he resides, and shall execute and file an application as provided in section 23-9-407 . . . ”.

It is the opinion of this office, based on the cited statutory language, that the County Registrar or his Deputy in his official capacity (but no other person) may, but is not required to , upon proper request or application, deliver in person, an absentee ballot to physically incapacitated voters within the county, in which event the voter must use the registrar of the county as the witness, and under such circumstance, the registrar or his deputy, acting in their official capacity, must comply with all statutory provisions in the same manner and to the same extent as if such person had appeared in person in the office of the registrar and cast his ballot.

This opinion is supplementary to the opinion of this office dated August 2, 1979, to Mrs. Audrey W. Kern, copy of which is hereto attached, which opinion is hereby affirmed but which opinion is not to be construed as excluding the official authority vested in the County Registrar as hereinabove set forth. With kindest regards, Very truly yours,

Bill Allain Attorney General.