Mississippi Advisory Opinions January 26, 2007: No. 2006-00661 (January 26, 2007)

No. 2006-00661.

Dear Ms. Dill:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. Your letter states:

I would like to request an official opinion regarding affidavits for permanently disabled voters and the date that should appear on an absentee application. My questions are:

Can a affidavit from a physician regarding the disability of a permanently disabled voter be accepted at any time during the year or is it only acceptable at the time a voter makes application for an absentee ballot during the election period?

Also, should the application used for a permanently disabled voter show the date of the last election the application was received for or should the date of election remain blank on the application form?

Mississippi Code Annotated Section 23-15-629 (Supp. 2006) provides a procedure for permanently disabled voters to receive their absentee ballots automatically without re-applying prior to each election. It provides in part:

(1) The application for an absentee ballot of a person who is permanently physically disabled shall be accompanied by a statement signed by such person's physician, or nurse practitioner, which statement must show that the person signing the statement is a licensed, practicing medical doctor or nurse practitioner and must indicate that the person applying for the absentee ballot is permanently physically disabled to such a degree that it is difficult for him to vote in person.

(2) An application accompanied by the statement provided for in subsection (1) of this section shall entitle such permanently physically disabled person to automatically receive an absentee ballot for all elections on a continuing basis without the necessity for reapplication.

Within forty-five (45) days next prior to any election, any elector who cannot comply with paragraph (a) of this section by reason of temporarily residing outside the county, or any person who has a temporary or permanent physical disability, **** may make application for an absentee ballot my mailing the appropriate application to the registrar. ****

Section 23-15-629 requires that an application for an absentee ballot from a voter who has a permanent physical disability be accompanied by statement signed by his physician or nurse practitioner showing that the person signing the statement is a licensed, practicing medical doctor or nurse practitioner and that the person applying for the absentee ballot is permanently physically disabled to such a degree that it is difficult for him to vote in person. Section 23-15-715 (b) requires that an application for an absentee ballot be filed within forty-five (45) days of the date of the election for which absentee ballot is sought. Therefore, in response to your first question, we are of the opinion that a statement from a physician or nurse practitioner regarding the permanent disability of a voter must be filed within the forty-five (45) day period prior to an election.

Section 23-15-715 is a general statute that sets forth the procedure to apply for an absentee ballot. Section 23-15-629 deals specifically with voting by absentee ballot by persons who are permanently disabled and entitles such persons "to automatically receive an absentee ballot for all elections on a continuing basis without the necessity for reapplication." The provisions of a specific statute control over the provisions of a general statute. Lenoir v. Madison County, 641 So.2d 1124, 1128 (Miss. 1994); Townsend v. Estate of Gilbert, 616 So.2d 333 (Miss. 1993); Benoit v. United Companies Mortg. of Miss., 504 So.2d 196 (Miss. 1987). Therefore, once the required statement is filed by a permanently disabled voter, said voter is not required to reapply for an absentee ballot for any future elections.

In response to your second question, we are of the opinion that the circuit clerk must attach a photocopy of the application which would show the date of the original filing to the envelope containing the voter's absentee ballot in all subsequent elections. We suggest that the clerk place a notation on the copy of the application that alerts the poll workers, who must compare signatures on the ballot envelope and application, that the accompanying absentee ballot is that of a permanently disabled voter who is not required to reapply for an absentee ballot for the current election.

Sincerely,

JIM HOOD,

ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General