Mississippi Advisory Opinions November 07, 1986: AGO 000007659 (November 07, 1986)

AGO 000007659.

Dear Mr. Mabus:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply.

Your letter states:

"This is a request for an official opinion from your office.

"Because of several apparent conflicts in state law, there is a lot of confusion among the counties concerning the number of days an election commissioner may be paid during the year an election is held. This opinion request is being submitted to clarify some of the issues in question.

"Since election commissioners are paid an amount depending on a county's population, we will present our questions using an example county with a population of 77,000.

"Sections 23-5-79, 80, 81 and 183, Miss. Code Ann. (1972), and Section 3226, Miss. Code (1942), appear to be the sections which apply to this matter.

"In regard to the payment to election commissioners, our questions are as follows:

"First, what is the maximum number of days an election commissioner may be paid during a year in which legislative and statewide elections are held and in what months, and for what periods of time, may election commissioners meet?

"Second, what is the maximum number of days an election commissioner may be paid during a year in which congressional elections are held and in what months, and for what periods of time, may election commissioners meet?

"Third, if a special election is held during a year covered by each of the above two situations on (1) the same day as the regularly scheduled election and on (2) another day, what effect would those special elections have on the maximum number of days an election commissioner may be paid?"

We preface our response to your request by stating that Chapter 495, Laws of 1986 has been submitted to the U. S. Department of Justice for preclearance pursuant to the Voting Rights Act of 1965.Sections 42, 43, 44, 45, 46 and 47 of Chapter 495 will amend the Code Sections which now govern the meetings of local election commissions if the non-severable sections of Chapter 495 are not objected to by the Justice Department. The stated effective date of these Sections is January 1, 1987.

We further preface our response by stating that this opinion is prospective in nature only and can neither validate nor invalidate any past actions. Such validation or invalidation must necessarily be by ruling of a court of competent jurisdiction.

In response to your first question, Mississippi Code An- notated 23-5-81 (Supp. 1985) requires election commissions to meet on the Tuesday after the third Monday in March. In a county which has 77,000 qualified electors the election commission would be authorized to meet a maximum of thirty (30) days to purge the registration and poll books.

Sections 23-5-80 and -79 require commissions to meet on the third Monday of July prior to a general election and on the first Monday of September preceding a general election respectively.

Each of these two (2) Sections authorize commissions to meet up to a maximum of thirty (30) days to purge the registration and poll books. However, Section 23-5-183 places an overall limitation of fifty-five (55) days that an election commission of a county which has 77,000 qualified electors may meet for any one (1) election which would in our opinion include "purging" days and all other days worked in preparation for an election as well as days worked in actually conducting the election and performing necessary tasks subsequent to the election.

Therefore, in our opinion, the maximum number of days an election commissioner of a county which has 77,000 qualified electors may be paid during a year in which legislative and statewide elections are held is thirty (30) days for the March meeting plus fifty-five (55) days for the July and September meeting and the necessary time spent in preparing and conducting the election and performing subsequent duties for a total of eighty-five (85) days.

In response to your second question Section 23-5-81 requires election commission to meet on Tuesday after the third Monday in March. In a county which has 77,000 qualified electors the election commission would be authorized to meet a maximum of thirty (30) days to purge the registration and poll books.

Section 23-5-80 requires commissions to meet on the third Tuesday in May before the first primary congressional election for maximum of thirty (30) days. However, since primaries do not elect individuals to office but are merely nominating devices, it is the opinion of this office that the days authorized by Section 23-5-80 beginning on the third Tuesday in May before the first primary congressional election must also be counted toward the overall limitation of fifty-five (55) days for one election (the General Election in November). Wagner v. Gray, 74 So. 2d 89, 91 (Fla.), U.S. v. Classic, 35 F. Supp. 66 (La.), Dyke v. Thompson, 136 Tenn. 136, Nixon v. Condon, 34 F. 2d 464 (Tex.). Section 23-5-79 requires election commissions to meet on the first Monday of September prior to a general election. In a county which has 77,000 qualified electors the election commission would be authorized to meet a maximum of thirty (30) days to purge the registration and poll books. Again, Section 23-5-183 places an overall limitation of fifty-five (55) days that an election commission of a county which has 77,000 qualified electors may meet for any one (1) election which would as previously stated include "purging" days and all days worked in actually conducting the election and performing necessary tasks subsequent to the election.

Therefore, in our opinion, the maximum number of days an election commissioner of a county which has 77,000 qualified electors may be paid during a year in which congressional elections are held is thirty (30) days for the March meeting plus fifty-five (55) days for the May and September meetings and the necessary time spent in preparing and conducting the election and performing subsequent duties for a total of eighty-five (85) days.

Our responses to your first two questions do not take into consideration specials or the meeting pursuant to Section 3226, Code of 1942 to hear appeals concerning illegal or improper registration or improper denial of registration etc., or meetings pursuant to Section 23-5-11 necessitated by redistricting.

Also, Section 23-5-79(2) authorizes the boards of supervisors to allow an additional day each month for the purpose of revising the registration and poll books.

In response to your third question Section 23-5-183 which sets the pay for commissioners of election and limits the number of days for which they can be paid for one (1) election provides in part:

"The compensation provided herein shall constitute payment in full for the services rendered by the persons named for any election, whether there be one (1) election, or issue, voted upon, or more than one (1) election, or issue, voted upon at the same time."

Accordingly it is the opinion of this office that a special election held on the same day as a regular or general election would not increase the maximum number of days for which election commissioners may be paid.

If a special election is held at a time when no other election is being conducted the election commissioners would be entitled to be paid for either five (5) or ten (10) days for revising the registration and pollbooks as outlined in our opinion of this date to Honorable Rick Fortenberry (Copy attached). They would also be entitled to be paid for the days actually and necessarily worked in conducting the election and performing necessary tasks subsequent to said election.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY

Phillip C. Carter Special Assistant Attorney General

PCC:mfd Enclosure