Mississippi Advisory Opinions July 21, 2003: AGO 000015762 (July 21, 2003)

AGO 000015762.

Dear Mr. Cole:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter states:

Several inquiries have been received at our office regarding the means of enforcement of section 23-15-575 of the Mississippi election laws, which reads "no person shall be eligible to participate in any primary election unless he intends to support the nominations made in the primary in which he participates." I understand that your office may have issued earlier opinion(s) regarding certain aspects of this statute, but we have specific questions that must be answered before August 5 of this year. Therefore, this letter is a formal request for your opinion regarding the following specific questions:

1) May a poll worker, credentialed poll watcher, or other voter ask an individual attempting to vote in a party primary whether he/she intends to support the nominations made in that primary, in keeping with 23-15-575?

2) If that question is asked, and the prospective voter answers in the negative, may the poll workers consider that response as grounds for a challenge?

3) If that question is asked, and the prospective voter answers in the affirmative or refuses to respond, may the prospective voters ballot still be challenged by a challenger who can demonstrate to poll workers that the prospective voter's intent is not to support the nominations made in that primary, his/her statement or refusal to respond notwithstanding?

We preface our responses to your questions by noting that it is a crime for a poll worker or other persons to deprive one of his suffrage or to refuse the vote of a qualified elector without honestly considering his qualifications. See Mississippi Code Annotated, Sections 97-13-19 and 97-13-33 (Revised 2000).

We further note that Section 23-15-241 requires the election bailiff to insure that all qualified electors have "unobstructed access to the polls." Therefore, voters must not be delayed by anyone as they approach the polls.

With the above in mind and in response to your first question, we find nothing that would allow a poll worker, poll watcher or another voter to ask a voter if he or she intends to support the nominees of the party once the voter presents himself or herself to vote. Challenges may be made pursuant to Section 23-15-579 only for the reasons listed in Section 23-15-571, and for the reason that the voter does not intend to support the nominees of the party per Section 23-15-575.

If a challenge of a voter is properly initiated in strict accordance with Section 23-15-579 and the voter then openly declares that he or she does not intend to support the nominees of the party, the poll workers could find the challenge to be well taken and mark the ballot "challenged" or "rejected" consistent with the provisions of said statute. On the other hand, if the voter openly declares his or her intent to support the nominees, then a challenge is not proper under Section 23-15-575.

In response to your third question, we have previously opined that absent an obvious factual situation such as an independent candidate attempting to vote in a party's primary, the stated intent of the voter is controlling. MS AG Op. Hemphill, (January 16, 2003). No past action by a voter can form the basis of a valid challenge under Section 23-15-571(3)(g) and Section 23-15-575.

The U.S. Department of Justice has informed us that challenging a person's right to vote based on his or her alleged lack of support of party nominees pursuant to Section 23-15-575 would be viewed as a change in practice that requires pre-clearance pursuant to Section 5 of the Voting Rights Act. We urge you to contact the U.S. Department of Justice prior to making such challenges.

If we can be of any further assistance, please let us know.

Sincerely,

MIKE MOORE

ATTORNEY GENERAL