Mississippi Advisory Opinions May 02, 2008: No. 2008-00210 (May 2, 2008)
Collection: Mississippi Attorney General Opinions
Docket: No. 2008-00210
Date: May 2, 2008
Advisory Opinion Text
No. 2008-00210.
DOCK: 2008-00210
Chairman
Washington County Election Commission
Post Office Box 1276
Greenville, Mississippi 38702-1276
Dear Ms. Wilson:
Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.
You ask whether it is lawful for an individual election commissioner to restore inactive voters to active status without the approval of the majority of the commission.
We preface our response by stating that pursuant to Mississippi Code Annotated Section 7-5-25 (Revised 2002), opinions of the Attorney General are issued on questions of law for the future guidance of those officials entitled to receive them. An Attorney General's opinion can neither validate nor invalidate past action of an officer or agency.
We further preface our response by stating that it is our understanding that you are referring to voters who are believed to have moved out of your county and have been sent the appropriate notice asking them to verify their residence. If they do not respond to the notice and do not vote in an election before two successive federal general elections have occurred, their names will be removed from the registration records, all in accordance with state and federal law.
The decision to send notices to voters who are believed to have moved out of your county and the placing of their names on an "inactive list" is, in our opinion, an official act of the commission and must be made by the commission as a whole and not individual commissioners doing it on a district by district basis. Likewise, any decision that a voter has responded to a notice or has voted in an election and should have his name returned to the "active list" must be made by the commission as a whole.
Mississippi Code Annotated Section 23-15-153 (1)(d) (Revised 2007) provides in part:
...., no name shall be erased from the registration books or pollbooks based on a change in the residence of an elector except in accordance with procedures provided for by the National Voter Registration Act of 1993 that are in effect at the time of such erasure.
United States Code Section 1973gg (d) provides in part:
A State shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence unless the registrant-
(A) confirms in writing that the registrant has changed residence to a place outside the registrar's jurisdiction in which the registrant is registered; or
(B) (I) has failed to respond to a notice described in paragraph (2); and (ii) has not voted or appeared to vote (and, if necessary, correct the registrar's record of the registrant's address) in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice.
As a general proposition on the activities of a county election commission, we have consistently opined that an individual election commissioner has no authority to take official actions. All official actions must be take by the commission as a whole. MS AG Op., Mitchell (February 13, 1990); MS AG Op., Richardson (February 1, 1991); MS AG Op., Evans (November 25, 1992); MS AG Op., Ivy (June 1, 2007).
By the county maintaining an "inactive list" for voters who are believed to have moved out of the county, and who have been sent the required notice but have not yet taken action that would warrant the return of their name to the "active list", the determination of the status of those voters, is, in our opinion, taking official action.
It is the opinion of this office that individual election commissioners may not make official determinations on the status of voters. Each commissioner may make recommendations to the commission as a whole and, with a quorum of commissioners present in a lawful meeting, a majority thereof must determine such status.
Sincerely,
JIM HOOD, ATTORNEY GENERAL
By: Phil Carter
Special Assistant Attorney General