Mississippi Advisory Opinions March 06, 2009: No. 2009-00077 (March 6, 2009)

No. 2009-00077.

Dear Mr. Martin:

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

Issues Presented

You present a list of crimes and seek our opinion on whether convictions of these crimes takes away the convicted person's right to vote.

The crimes listed are: 1) False Acquisition of a Prescription; 2) Welfare Fraud; 3) Obtaining Controlled Substance by Fraud; 4) Assault; 5) Aggravated Assault; 6) Simple Assault on a Police Officer; 7) Sexual Battery; 8) Uttering a Forged Prescription; 9) Uttering Forgery; and 10) Prescription Fraud.

Assumptions

We assume you are referring to the following criminal statutes:

1) Mississippi Code Annotated Section 41-29-144 (Revised 2005) regarding the crimes of false acquisition of a prescription, obtaining controlled substance by fraud, uttering a forged prescription and prescription fraud;

2) Section 97-19-71 regarding the crime of welfare fraud;

3) Section 97-3-7 regarding the crimes of assault, aggravated assault, and simple assault on a police officer.

4) Section 97-3-95 regarding the crime of sexual battery; and

5) Section 97-21-59 regarding the crime of uttering forgery.

Response

We are of the opinion that none of the listed crimes are disenfranchising.

Applicable Law and Discussion

Section 241, Mississippi Constitution of 1890 lists disenfranchising crimes as murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement and bigamy.

Prescription forgery and uttering forgery are separate and distinct crimes from forgery. Therefore, a conviction of either prescription forgery or uttering forgery does not disqualify one as a registered voter. MS AG Op., Salazar (April 7, 2000).

A conviction of "welfare fraud" pursuant to Section 97-19-71 constitutes a conviction of the crime of fraud, which is not a disenfranchising crime.

The crimes of assault you list do not contain the elements of any of the crimes listed in Section 241. Therefore, they are not disenfranchising.

The crime of sexual battery is a separate and distinct crime from that of rape. Therefore, a conviction of sexual battery is not disenfranchising. MS AG Op., Scott (May 11, 2001).

For your information, we have previously said that, based on Section 241, the Fifth Circuit Court of Appeals ruling in Cotton v. Fordice , 157 F.3d 388 (1988), and other legal authorities and principles, this office has identified twenty-one crimes that should be considered disenfranchising. They are: 1) Arson; 2) Armed Robbery; 3) Bigamy; 4) Bribery; 5) Embezzlement; 6) Extortion; 7) Felony Bad Check; 8) Felony Shoplifting; 9) Forgery; 10) Larceny; 11) Murder; 12) Obtaining Money or Goods under False Pretense; 13) Perjury; 14) Rape; 15) Receiving Stolen Property; 16) Robbery; 17) Theft; 18) Timber Larceny; 19) Unlawful Taking of Motor Vehicle; 20) Statutory Rape; and 21) Carjacking. MS AG Op., Karrem (April 23, 2004).

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General