Mississippi Advisory Opinions November 07, 1986: AGO 000007660 (November 07, 1986)

AGO 000007660.

Dear Mr. Fortenberry:

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

Your letter states:

"I write as attorney for the Board of Supervisors of Lauderdale County, Mississippi to request an opinion from your office.

"Section 23-5-80, Mississippi Code of 1972, requires the county election commission to meet at the office of the registrar and carefully revise the registration books and poll books of the several election districts `on the third Tuesday in May before the first primary election for congressman in the years when congressman are elected and on the third Monday of July prior to any other regular election and five (5) days before any other election. . .'.

"Does this language require or authorize the election commission to so act in May and July in a year in which congressman are elected, e.g. 1986?

"What is your interpretation of the term `any other regular election' and what are examples of elections that would trigger the July work period?

"What is your interpretation of the term `any other election' which would trigger the five (5) day work period.

"Section 23-5-79, Mississippi Code of 1972, requires the election commissioners to meet and revise the registration books and poll books `on the first Monday of September preceding a general election and ten (10) days before any other. . .'.

"What is your interpretation of the term `any other' which would trigger the ten (10) day work period?

"What is the effect of the apparent conflict between the five (5) day work period authorized by Section 23-5-80, Mississippi Code of 1972, and the ten (10) day work period authorized by Section 23- 5-79, Mississippi Code of 1972, particularly as regards the regular special election day in November when held in a year in which no general election is conducted."

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. Chapter 423, Laws of 1983, sets forth the statutory scheme governing when the local election commissions are to meet and revise the registration and poll books. It also sets the maximum number of days that members of these commissions are authorized to meet in order to complete said revisions.

Chapter 423 is codified as Sections 23-5-79, -80, and -81 in the Mississippi Code of 1972. The language of these sections and, in at least one instance, the conflicting provisions makes it extremely difficult for this office to interpret it in a way which gives force and effect to all provisions therein and precisely state when and for how many days commissioners of elections are authorized to meet to carry out there statutory responsibilities.

For the purposes of this opinion the terms "general election" and "regular election" will be considered synonymous.

State ex rel Stieringer, Ohio, 28 O.C.A. 10, 12 (Ohio); State v. Nebraska City, 243 N.W. 858, 860 (Nebraska); Allen v. Tobin, 51 N.W.2d 338, 342 (Nebraska); Henderson v. City of Salem, 4 P.2d 321, 137 Or. 541 (Oregon).

The first paragraph of Section 23-5-79 provides:

"On the first Monday of September preceding a general election and ten (10) days before any other, the commissioners of election shall meet at the office of the registrar and carefully revise the registration books and the pollbooks of the several election districts, and shall erase therefrom the names of all persons erroneously thereon, or who have died, removed or become disqualified as electors from any cause; and shall register the names of all persons who have duly applied to be registered and have been illegally denied registration."

The first paragraph of Section 23-5-80 provides:

"On the third Tuesday in May before the first primary election for congressmen in the years when congressmen are elected, and on the third Monday of July prior to any other regular election, and five (5) days before any other election, the commissioners of election shall meet at the office of the registrar and carefully revise the registration books and the pollbooks of the several election districts, and shall erase therefrom the names of all persons erroneously thereon, or who have died, removed or become disqualified as electors for any cause; and shall register the names of all persons who have duly applied to be registered, and have been illegally denied registration; and no name shall be permitted to remain on the pollbooks except such as are duly qualified to vote in the regular election. No person shall vote at such primary whose name is not on the pollbook. At the meeting held under this section, the commissioners shall exercise all the functions authorized under the chapter on and elections and at the September meeting shall only attend to what has since occurred in the way of disqualification or death of electors, or what was before overlooked." (Emphasis added)

The first paragraph of Section 23-5-81 provides:

"On the Tuesday after the third Monday in March, 1939 A.D., and every year thereafter, the commissioners of election shall meet at the office of the registrar and carefully revise the registration books and poll books of the several election districts and shall erase therefrom the names of all persons erroneously thereon, or who have died, removed or become disqualified as electors for any cause; and shall register the names of all persons who have duly applied to be registered and have been illegally denied registration; and no name shall be permitted to remain on the poll books except such as are duly qualified electors."

In response to your first question, the first sentence of Section 23-5-80 seems to indicate that the election commissioners are required to meet at least twice and possibly three times in years in which Congressmen are elected i.e. the third Tuesday in May before the first primary election for congressmen and on the third Monday of July prior to any other regular election and five (5) days before any other election. However, the last sentence refers to "the meeting held under this section" (Emphasis added) which indicates that there is to be only one (1) meeting annually pursuant to this Code section. It therefore appears that we have conflicting provisions within the same Code section that must be resolved in order to answer your question. As a practical matter it appears to this office that two meetings of the local election commissioners to revise the registration and poll books within an approximate period of two (2) months is not necessary and would result in an excessive expenditure of our taxpayers' money. We do not believe it was the intent of the Legislature to authorize two meetings within such a short time frame. Therefore, it is the opinion of this office that Section 23-5-80 authorizes a single annual meeting to be held on one of three possible dates. The first being the third Tuesday in May before the first primary election for congressmen in years when congressmen are elected. The second being the third Monday in July prior to any other regular election in years in which we do not have congressional elections. The third being five (5) days before "any other election" which, in our opinion, would be a special election and would be applicable in any years in which we may not have a congressional or regular election.

Based on the above and in direct response to your first question it is the opinion of this office that Section 23-5-80 does not require or authorize a local election commission to meet in both May and July in a year in which congressmen are elected.

In response to your second question and as stated above, in years in which we do not elect congressmen and there is some other regular election, the local election commissioners would be required to meet on the third Monday in July to revise the registration and poll books.

In response to your third question and as indicated above, in years in which we do not elect congressmen and have no other regular election, the local election commissioners would be required to meet five (5) days prior to a special election pursuant to Section 23-5-80 or, if more time is required, ten (10) days prior to any such special election pursuant to Section 23-5-79.

We point out that when commissioners are meeting pursuant to Section 23-5-80 they are required to exercise all the functions authorized under the chapter on registration and elections and at the September meeting only attend to what has occurred in the way of disqualification or death of electors, or what was overlooked at the prior meeting.

The above interpretation gives the election commissioners the option of meeting either five (5) or ten (10) days before the first special election which may be held in a year in which congressmen are not elected and there is no other regular election. Based on our previously stated conclusion that Section 23-5-80 contemplates only one (1) meeting per year pursuant thereto, purging the books for a special election in years when the congressional or other regular election is held would necessarily be conducted pursuant to Section 23-5-79. Also, the purging for any subsequent special elections in such years must necessarily be conducted pursuant to Section 23-5-79.

We recognize that this is contrary to this office's opinion addressed to Honorable Jeff Russell, dated October 6, 1983, insofar as the resolution of the conflicting provisions concerning work periods is concerned (10 days vs. 5 days).

The Russell opinion and any others in conflict with this opinion are hereby modified in accordance herewith.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY

Phillip C. Carter Special Assistant Attorney General

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