Mississippi Advisory Opinions July 25, 2014: AGO 2014-00266 (July 25, 2014)

Advisory Opinion Text

AUTH: Phil Carter

SUBJ: Elections - Commissioners

SBCD: 64

TEXT: The Honorable Toni Jo Diaz Harrison County Election Commissioner 2600 24 Avenue Gulfport, Mississippi 39502-0860

Re: Mississippi Code Section 23-15-153(7)

JIM HOOD, ATTORNEY GENERAL.

Dear Ms. Diaz:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Issue Presented

We understand your question to be whether, pursuant to Section 23-15-153(7), each municipality in your county is required to enter an agreement with the county whereby the county election commissioners and registrar are to prepare the municipal registration books and the poll books and be paid by each municipality.

Response

Yes.

Applicable Law and Discussion

Section 23-15-153(7) provides:

The county registrar shall prepare the pollbooks and the county commissioners of election shall prepare the registration books of each municipality located within the county pursuant to an agreement between the county and each municipality in the county. The county commissioners of election and the county registrar shall be paid by each municipality for the actual cost of preparing registration books and pollbooks for the municipality and shall pay each county commissioner of election a per diem in the amount provided for in subsection (2) of this section for each day or period of not less than five (5) hours accumulated over two (2) or more days the commissioners are actually employed in preparing the registration books for the municipality, not to exceed five (5) days. The county commissioners of election and county registrar shall provide copies of the registration books and pollbooks to the municipal clerk of each municipality in the county. The municipality shall pay the county registrar for preparing and printing the pollbooks. A municipality may secure "read only" access to the Statewide Centralized Voter System and print its own pollbooks using this information; however, county commissioners of election shall remain responsible for preparing registration books for municipalities and shall be paid for this duty in accordance with this subsection. (Emphasis added)

Section 23-15-137 provides:

(1) If the governing authorities of a municipality determine that revision of the registration books and pollbooks can be performed more effectively and efficiently utilizing the authority granted in this section, then such governing authorities may contract with the commissioners of election of the county or counties in which the municipality is located to provide the municipal registrar of such municipality with registration books and pollbooks containing only the duly qualified electors of such municipality. The registration books and pollbooks provided pursuant to this section may be used to conduct any municipal election in such municipality. By adopting the registration books and pollbooks so provided, the municipal commissioners of election shall be deemed to have met any requirements to revise such books which are imposed upon such commissioners by Mississippi law.

(2) In addition to any meeting otherwise authorized by law, the county commissioners of election may meet to prepare the registration and pollbooks of each municipality pursuant to a contract authorized pursuant to subsection (1) of this section. Each municipality shall compensate the county commissioners of election for the actual cost of preparing such registration books and pollbooks for the municipality and shall pay each county commissioner of election the per diem provided for in Section 23-15-153(2) for each day or period of not less than five (5) hours accumulated over two (2) or more days such commissioners are actually employed in preparing such registration books and pollbooks for such municipality, not to exceed five (5) days. The county commissioners of election shall not receive any compensation for the preparation of registration books and pollbooks pursuant to subsection (1) other than that provided for in this subsection. (Emphasis added)

Clearly, there is a conflict between the above two statutes as to whether an agreement between the county and each municipality in the county is discretionary or mandatory.

Section 23-15-137 makes such agreements discretionary. Section 23-15-153(7) mandates that the county registrar prepare the poll books and the election commissioners prepare the registration books for each municipality in the county pursuant to an agreement between the county and each municipality.

Section 23-15-153 was last amended by Chapter 456, Laws of 2013. Section 23-15-137 was last amended by Chapter 585, Laws of 2006.

A general rule of statutory construction is to give effect to the legislative intent. Roberts v. Miss. Rep. Party State Exec. Comm., 465 So.2d 1050 (Miss. 1985). Where two legislative acts conflict, the latest expression of legislative intent will control. Jackson Municipal Airport Authority v. Shivers, 206 So.2d 190 (Miss. 1968).

Section 23-15-153, as amended, making the agreements mandatory is the latest expression of Legislative intent and, therefore, controls over the provisions of Section 23-15-137.

Sincerely,

Phil Carter Special Assistant Attorney General.