Mississippi Advisory Opinions March 08, 1985: AGO 000004763 (March 8, 1985)

AGO 000004763.

Dear Mrs. Dunn:

Your request for opinion has been received by Attorney General Pittman and has been referred to the undersigned for research and reply.

The facts you present being brief are here quoted in the entirety upon which the following opinion is rendered.

"I respectfully request an opinion on the Absentee ballot if he or she will be out of town on election day because of Spring Vacation and the school or college is closed and the campus is to be vacated? I would sincerely appreciate an answer on this as soon as possible, because we have a Special Runoff Election scheduled for March 19, 1985 which is during Spring Vacation for some schools in my area and I already have students coming in to vote."

In order to vote an absentee ballot, the application form set forth in Section 23-9-407, Mississippi Code 1972, Annotated and Amended must be completed and subscribed to under oath by the qualified elector desiring to vote an absentee ballot.

With regard to qualified voters in Hinds County, this form requires a statement under oath that such voter is a duly quali- fied elector in Hinds County and registered to vote in the specific precinct where the voter actually resides.

Additionally, the form requires a statement under oath that not only is the person duly qualified and registered to vote in Hinds County and that such person also comes "...within the purview of the definition (of) `absent elector'..." but also that such person will be absent from Hinds County, being the county of their residence, on election day and unable to vote in person because of at least one of the reasons set forth in the form of the application included in which is the reason of being a student.

Therefore, if a qualified elector of Hinds County applies for an absentee ballot because such person is a student, the statute defining "absent elector" in terms of a student must be applied.

This statute is Section 23-9-603, ibid, which sets forth in sub-section (1) the definition of an "absent elector" where such person is a student as "Any qualified elector who is a bona fide student...at any college, university, junior college, high, junior high, or elementary grade school whose studies... at such institution necessitates his absence from the county of his voting residence on the date of any...election,..." (Emphasis supplied)

It is clearly seen, therefore, that the requirement is that the "studies" at the institution being attended by the student, who is a resident and qualified elector of Hinds County, must necessitate the absence from Hinds County on election day. As to whether such "studies" necessitate absence on election day, such requires a determination based upon the true facts and circumstances necessitating such absence.

The location of the institution is not specified in the definition, Section 23-9-603, supra. Therefore, the location of the institution is not controlling. Whether the studies necessitate the absence is the determining factor of eligibility to vote an absentee ballot.

It is common knowledge that students in the pursuit of their studies are necessarily required to conform to the rules, regulations and schedules of the institution where studies are being pursued.

Therefore, if the rules, regulations and schedules of the institution require the students to vacate the campus during Spring Vacation, such as you relate, it appears elementary that it would be necessary in connection with the studies of the students residing on the campus in lodging situated and located on the campus that they comply with such regulation to close such lodging and vacate the campus and seek housing elsewhere.

Although it is inherently essential to individual choice that during the spring vacation, students be privileged to obtain such alternative lodging or housing of their choice wherever located, including any location outside of Hinds County, it is still a matter of individual choice as to the actual location of such lodging or housing. The fact that a student may not reside on campus during spring break does not mean that his studies necessitate that he absent himself from the county in which he is registered to vote. Such selection of lodging or housing away from his county of registration is an individual, voluntary action, not necessitated or mandated by his studies.

It necessarily follows, therefore, that it is the opinion of this office that a qualified elector of Hinds County, who is a student at any institution located in Hinds County, who, because of the closing of the institution and vacating the campus during spring vacation, must lodge elsewhere and elects to do so outside of Hinds County, thereby resulting in his or her being necessarily absent on election day, that such student does not come within the definition of "absent elector" defined in Section 23-8-603(1), supra, and would not be eligible to apply for, obtain and vote an absentee ballot in the Special Runoff Election scheduled for March 19, 1985, to which you refer.

Very truly yours,

EDWIN LLOYD PITTMAN ATTORNEY GENERAL

BY:

W. D. Coleman Deputy Attorney General

WDC/lcm