Mississippi Advisory Opinions June 17, 2016: AGO 2016-00208 (June 17, 2016)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Eddie Fulton

SUBJ: Elections - Local Option

SBCD:76-A

TEXT: The Honorable Eddie Fulton

Mayor, City of Quitman

Post Office Box 16

Quitman, Mississippi 39355-0016

Re: Number of petition signatures required for beer and light wine referendum

Dear Mayor Fulton:

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

Issue Presented

Your letter states:

A petition to allow the sale of beer, light wine, and alcohol is currently being passed around the City of Quitman.

The question I need answered is how to decide what is 20% of the voters.

County voter rolls, including those of the City of Quitman have been challenged in court as to a lack of proper purging. The Circuit Court Clerk feels the active voter list is more correct, but our Board and I want a better clarification.

City had a census population of 2323 in 2010 showing a declining trend. Active voters on county rolls are 1,532, but registered voters shows 2,312. Knowing we do not have that many, I took the last update from census showing a population of 2,335 with 579 people under the age of 17 and came up with 1,756 of which 20% being 352.

May we with our Board of Aldermen approval use the figure of 352 for the number of people needed on the petitions or should we use the County number of 1532 active voters and 307?

Preface

Our response to your inquiry is based on our understanding that Quitman is the County Seat of Clarke County and that there has been a previous countywide referendum which resulted in a vote against coming out from under the dry law.

Furthermore, our response is based on the understanding that the official voter registration rolls for the City of Quitman shows that there are 2,312 registered voters.

Response

We first note that, based on the population figures stated in your letter, the City of Quitman is not authorized to conduct a referendum on the sale of beer and light wine. A minimum population of 2,500 is required in order for a municipality to conduct such referendum. Mississippi Code Annotated Section 67-3-9.

The City of Quitman, as a county seat, does have the authority to conduct a referendum on the sale of “alcoholic beverages” excluding light wine and beer, upon the presentation of a petition signed by the requisite number of qualified electors of the City.

In response to your specific question, we are of the opinion that 20% of 2,312 or 463 signatures of qualified electors of the municipality, on a proper petition, are necessary to meet the statutory requirement to authorize a referendum on the legalization of the sale of alcoholic beverages pursuant to Section 67-1-14 (Revised 2012).

Applicable Law and Discussion

Section 67-1-14 provides, in part:

(1) The legalizing provisions of this chapter may be effective, applicable and operative in any municipality located in a county which has voted against coming out from under the dry law if a local option election shall be called and held in such municipality in the manner and with the results hereinafter provided.

(2)(a) Any municipality in this state having a population of not less than five thousand (5,000) according to the latest federal census and which is located in a county which has voted against coming out from under the dry law, or any municipality that is a county seat and which is located in a county which has voted against coming out from under the dry law, may, at an election held for the purpose under the election laws applicable to such municipality, either prohibit or permit, except as otherwise provided under Section 67-9-1, the sale, and the receipt, storage and transportation for the purpose of sale, of alcoholic beverages . An election to determine whether such sale and possession shall be permitted in municipalities wherein its sale and possession is prohibited by law shall be ordered by the municipal governing authorities upon the presentation of a petition to such governing authorities containing the names of at least twenty percent (20%) of the duly qualified voters of such municipality asking for such election. In like manner, an election to determine whether such sale and possession shall be prohibited in municipalities wherein its sale is permitted by law shall be ordered by the municipal governing authorities upon the presentation of a petition to such governing authorities containing the names of at least twenty percent (20%) of the duly qualified voters of such municipality asking for such election. No election on either question shall be held by any one (1) municipality more often than once in two (2) years. (Emphasis added)

The definition of the term “alcoholic beverage” is found in Section 67-1-5 as amended by House Bill 845, Regular Session 2016. It provides, in part:

For the purposes of this chapter and unless otherwise required by context:

(a) "Alcoholic beverage" means any alcoholic liquid, including wines of more than five percent (5%) of alcohol by weight, capable of being consumed as a beverage by a human being, but shall not include light wine and beer, as defined in Section 67-3-3, Mississippi Code of 1972, but shall include native wines. The words "alcoholic beverage" shall not include ethyl alcohol manufactured or distilled solely for fuel purposes or beer of an alcoholic content of more than eight percent (8%) by weight if the beer is legally manufactured in this state for sale in another state. (Emphasis added)

Section 23-15-153 (1) provides, in part:

Except for the names of those persons who are duly qualified to vote in the election, no name shall be permitted to remain on the registration books and pollbooks; however, no name shall be erased from the registration books or pollbooks based on a change in the residence of an elector except in accordance with procedures provided for by the National Voter Registration Act of 1993 that are in effect at the time of such erasure. Except as otherwise provided by Section 23-15-573, no person shall vote at any election whose name is not on the pollbook.

“Duly qualified voters” are registered voters as shown on the official voter rolls. This includes active voters and voters whose names have been placed on the inactive rolls pursuant to Mississippi Code Annotated Section 23-15-153(1), based on a change of residence. That statute provides that an inactive voter may cast an affidavit ballot in an election pursuant to Section 23-15-573, until two successive federal general elections have occurred. If the appropriate election officials, in reviewing such affidavit ballot, determine that the voter is, in fact, a legitimate resident of the municipality and is not otherwise disqualified, the voter’s name must be restored to the active list. If it is determined that an inactive voter who has cast an affidavit ballot is not a legitimate resident of the municipality, or is otherwise disqualified, his or her name must be purged from the voter rolls.

For further clarification, inactive voters are those voters who have been sent “confirmation cards” by the appropriate election officials when there is legitimate reason to believe that those voters may no longer reside within the corporate limits. Pursuant to Section 23-15-573 and the National Voter Registration Act of 1993, if they do not respond to the notice verifying that they still reside within the corporate limits and do not cast a valid vote in an election before two successive federal general elections have occurred, their names must be removed from the registration records.

Therefore, even though a voter is considered inactive, his or her name remains on the official voter registration rolls until two successive federal general elections have occurred or the voter has cast an affidavit ballot during that time period and it has been determined, consistent with the facts, that he or she is no longer a resident of the municipality or is otherwise disqualified.

Conclusion

Assuming that there has been a county wide referendum, in which the majority of voters participating in that referendum voted against coming out from under the dry law, the City of Quitman, by virtue of being the County Seat of Clarke County, may conduct a referendum on the sale of alcoholic beverages, excluding beer and light wine, upon the presentation of a petition requesting such referendum that contains a minimum of 463 signatures of qualified electors of the City.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General