Mississippi Advisory Opinions October 27, 1980: AGO 000002126 (October 27, 1980)

AGO 000002126.

Dear Mr. Retzer:

Attorney General Bill Allain has received your request for opin- ion and has referred it to the under-signed for research and reply. You present two questions, each of which is listed below immediately followed by the opinion rendered thereon.

"Would you please favor us with your opinion as to whether the provisions of Section 23-11-7 Mississippi Code Annota- ted (1972) As Amended require of persons not otherwise re- gistered electors the filing of an application for a Pre- sidential affidavit ballot not later than 30 days before the November 4, 1980 General Election (i.e. on or before October 5, 1980) as a precondition to voting in such e- lection for President and Vice-President only?"

The Mississippi Legislature, by the enactment of Chapter 490 of the Regular 1972 Session, being new Chapter 11 of Title 23, Sections 23-11-1, et seq. Mississippi Code of 1972, Annotated, adopted a presidential election law. The purpose of such en- actment, as expressed in Section 23-11-3, supra". . . is to conform Mississippi's voting requirements concerning presiden- tial elections with the 1970 amendments to the Voting Rights Act of 1965."

The United States Congress enacted Public Law 91-285, approved June 22, 1970, 84 Stat. 315, 42 U.S. C.A. 1973 aa-1. Summarized, the federal enactment pertains to voting both in person and by absentee ballot for President and Vice-President only. The Act expressly removes any durational residency requirement in any state or political subdivision in order to vote for President and Vice-President. The Act also mandates the privilege of vo- ting an absentee ballot for President and Vice President regard- less of the reason for the absence from the state or political subdivision on the day of the election. The privilege of voting an absentee ballot is predicated upon compliance with the re- quirements prescribed by the law of such State or political sub- division providing for the casting of absentee ballots in such election." (42 U.S.C.A. Section 1973 aa-l. (c) The privilege of either voting in person or by absentee ballot for President and Vice-President only without regard to durational residency requirements of the state or political subdivision is made fur- ther subject to the statutory provisions of each state for the registration or other means of qualification of all duly quali- fied residents of such State who apply, not later than thirty days immediately prior to any presidential election, for regis- tration or qualification to vote for the choice of electors for President and Vice-president in such election; (Emphasis added). (42 U.S.C.A. Section 1973 a a-1. (d).

It is seen, therefore, that based upon the federal statute a person, otherwise qualified, desiring to vote either in person or by absentee ballot for President and Vice-President only without regard to durational residency requirements is required to apply for such privilege "not later than thirty days immedi- ately prior to any presidential election, for registration or qualification to vote for the choice of electors for President and Vice-President.".

Harmoniously with the above and foregoing cited federal statute, Section 23-11-7, supra, provides:

"Any Mississippi resident desiring to qualify under this chap- ter who applies not later than thirty (30) days prior to any presidential election to vote for presidential and vice-pre- sidential electors is not required to register, but at least thirty (30) days prior to such presidential election he shall make an application in the form of an affidavit executed in duplicate . . . "

In conformance with the statute. The form of the application to be so registered to vote in the presidential and vice-presidenti- al election only is that prescribed in Section 23-9- 407, ibid.

Therefore, based on the above and foregoing discussed federal and state statutes, it is the opinion of this office that any person, otherwise qualified, who desires to either vote in person or by absentee ballot for President and Vice-President only, where such person is not also a registered, qualified elector, is required to file an application not later than thirty days before the November 4, 1980, General Election or on or before October 5, 1980, as a precondition to voting either in person or by absentee ballot in the election for President and Vice-President.

Additionally, you present the following question for opinion:

"Additionally, if the answer to the above question is in the affirmative, would such requirement apply to not only those unregistered persons voting in person for President and Vice- President only but also to those voting absentee ballot for such offices only in compliance with Section 23-11-13 Id.?".

For the same reasons stated for the opinion in response to your first question, and as stated in the response to the first ques- tion, it is the opinion of this office that a person desiring to vote an absentee ballot for President and Vice-President only is required by both the federal and state statutes to apply for re- gistration to vote in said election only no later than thirty days before the November 4, 1980, General Election or on or before Oc- tober 5, 1980.

The following explanatory remarks are considered advisable and pertinent to the opinions hereinabove expressed. The enactment of both the federal and state statute, although eliminating any durational residency or registration re- quirements of the State of Mississippi or the political subdivisions thereof in order to vote for President and Vice-President only, occurred at a time prior to the re- duction by federal court order of the durational and re- gistration requirements to thirty days. Now that such durational requirements have been reduced to thirty days, a person, otherwise qualified, who applies pursuant to the federal and state statutes to vote either in person or by absentee ballot for President and Vice-President only no later than thirty days prior to said election would be eligible for registration to vote the regular ballot in such election.

Further, it is the opinion of this office that a person, other- wise qualified, who is a resident and who has registered to vote not later than thirty days prior to the November 4, 1980, regular election or on or before October 5, 1980, would be per- mitted pursuant to the provisions of Section 23-11-13, supra, to apply for and vote in person or by mail an absentee ballot for President and Vice President only regardless of the reason for such person's absence from his or her voting precinct or district on the day of the election.

It was held in the case of Prigmore v. Renfro, 356 Fed. Supp. 427 (1972) 35 L.Ed. 2d 582 (1973), that residents and duly re- gistered voters of Alabama, but who were not eligible under the Alabama statute to vote the regular absentee ballot because their absence on election day was not due to reasons authorized for such regular absentee ballot, were, nOtwithstanding, requir- ed to be permitted to vote an absentee ballot for President and Vice President.

Although neither question you present Specifically refers to the precise question of whether one, otherwise qualified, who is already registered and, therefore, appears upon the poll books as being registered and a resident of the voting pre- cinct or district on or before October 5, 1980, thirty days before the November 4, 1980, General Election may vote either in person or absentee ballot for President and Vice President only, it is the opinion of this office that such registered, qualified electors may, upon complying with the applicable statutes, vote either in person or absentee ballot for Presi- dent and Vice President only in the November 4, 1980, regular election.

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY

W. D. Coleman Deputy Attorney General

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