Mississippi Advisory Opinions August 01, 2003: AGO 000015776 (August 1, 2003)

AGO 000015776.

Dear Ms. Dillon:

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

In 1995, the Leflore County Board of Supervisors adopted a resolution describing the boundaries of the supervisors districts and precincts. The resolution, which was spread upon the minutes, included a detailed legal description of the supervisor districts and precincts. This resolution was adopted after receiving pre-clearance from the Justice Department as required under Section 5 of the Voting Rights Act.

In 2002 the Board of Supervisors commissioned redistricting studies for the supervisor, school board, and justice court districts. These plans were submitted to the Justice Department and pre-cleared. Resolutions were adopted purporting to approve the new districts. These resolutions are attached.

In reviewing these resolutions and Mississippi statutes, particularly MCA Sections 23-15-281, 283, and 285, several concerns are raised. I shall outline them in a series of questions, and I would very much appreciate a written opinion from your office with regard to these questions.

You then present seven questions which we will state and respond to in sequence in the order presented.

QUESTION 1: Nowhere in the board resolutions are any legal descriptions or maps included. Does Mississippi law require a legal or other detailed description of election boundary changes to be enrolled in the board minute book?

RESPONSE: The question presented relates to the duties and responsibilities of the Leflore County Board of Supervisors. Mississippi Code Annotated Section 7-5-25 (Revised 2002) limits the issuance of official opinions to designated public officials, including county officials to questions of law relating to their respective offices. Your question also concerns past actions of county officials that cannot be address by way of an official opinion. Any such opinion could neither validate nor invalidate such actions. Therefore, we cannot respond to your first question with an official opinion.

QUESTION 2: Are the attached board resolutions legally sufficient to effect new supervisor, school board, and justice court district boundaries for Leflore County?

RESPONSE: Section 7-5-25 authorizes the Attorney General to issue official opinions on questions that are prospective in nature only. Since this question deals with the sufficiency of past actions by the Leflore County Board of Supervisors, we are unable to respond with an official opinion.

QUESTION 3: Based upon the attached board resolutions, is there any authority for the circuit clerk, the election commission, or the party executive committees to conduct any elections based upon the new supervisor, school board, and justice court district lines, or must the elections be conducted using the previous set of district lines?

RESPONSE: You indicate that redistricting plans for supervisor districts, school board districts and justice court districts were submitted to and pre-cleared by the U.S. Justice Department. The 2003 elections must be held pursuant to election districts that were last approved by the U.S. Department of Justice.

QUESTION 4: According to the Secretary of State's office, no map or description of the new districts has been filed for Leflore County with that office. Does MCA Section 23-15-283 prohibit the circuit clerk and/or the election commission from implementing the new supervisor, school board, and justice court election district lines under this set of facts?

RESPONSE: No.

QUESTION 5: Nowhere in any of the resolutions adopted in 2002 or 2003 is there any mention of changes in the precinct boundaries of Leflore County. May the precinct boundaries be changed by the circuit clerk or the election commission to conform to the new supervisor district boundaries, or must the precinct boundaries be left as they were last changed by board order back in 1995?

RESPONSE: The Federal Code of Regulations in listing examples of changes affecting voting that are subject to the pre-clearance requirement of the Voting Rights Act specifically lists "any change in the boundaries of voting precincts or in the location of polling places." CFR Section 51.13 (d). Therefore, the last changes in precinct lines that were approved by the U.S. Department of Justice are the lines that are in effect for the 2003 elections. The election commission would have no authority to conduct an election utilizing precinct boundaries that have not been adopted by the Leflore County Board of Supervisors and approved by the U.S. Department of Justice.

QUESTION 6: Do precinct boundaries automatically follow supervisor district boundaries, or must precinct boundary changes be specifically approved by board order and pre-cleared by the Justice Department?

RESPONSE: As indicated in our response to Question 5, changes in precinct boundaries must be adopted by the board of supervisors and pre-cleared by the U.S. Department of Justice.

QUESTION 7: Is Justice Department pre-clearance required before changes in precinct boundaries may be implemented by the board, circuit clerk, and/or the election commission?

RESPONSE: Yes.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General