Mississippi Advisory Opinions December 18, 2009: No. 2009-00700 (December 18, 2009)

Mississippi Attorney General Opinions

2009.

No. 2009-00700.

Dear Mr. Atkinson:

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

Issue Presented

Where the U. S. Justice Department preclears under the Voting Rights Act only one element of a General Law that involves a series of changes to voting practices, some of which are inter-related, but asks for additional information regarding all other changes to voting practices contained in the law, does the one precleared element take effect upon preclearance?

Background

Your letter reads as follows:

The McComb School District has added territory and elects one trustee from the added territory with the election being held on the first Saturday in March. In the 2009 Legislative Session, H. B. 877 was passed, has been signed by the Governor and has been submitted to the Attorney General of the United States in accordance with the Voting Rights Act of 1965, as amended and extended.

Section 7 of H. B. 877 provides that the act shall take effect and be in force from and after it is effectuated under Section 5 of the Voting Rights Act or July 1, 2009, whichever is later. Based on the attached letter dated August 28, 2009, from the Hon. Christopher Coates, Chief of the Voting Section of the U. S. Department of Justice, the Attorney General did not interpose any objection to the change in the general election date proved for in Chapter 469 (H. B. 877) (2009).

The Attorney General, however, did request additional information about other provisions of H. B. 877. In light of partial approval of H. B. 877, does this mean that the portion of H. B. 877 not objected to by the Attorney General is now effective? Or does H. B. 877 have to be approved in its entirety before any of the provisions become effective?

Applicable law

Miss. Code Ann. Section 1-3-76 (1972) reads as follows:

If any section, paragraph, sentence, clause, phrase or any part of any act passed hereafter is declared to be unconstitutional or void, or if for any reason is declared to be invalid or of no effect, the remaining sections, paragraphs, sentences, clauses, phrases or parts thereof shall be in no manner affected thereby but shall remain in full force and effect.

Unless the contrary intent shall clearly appear in the particular act in question, each and every act passed hereafter shall be read and construed as though the provisions of the first paragraph of this section form an integral part thereof, whether expressly set out therein or not.

House Bill 877 (2009 Reg. Sess.), reads in pertinent part as follows:

SECTION 4. Section 37-7-215, Mississippi Code of 1972, is amended as follows:

37-7-215. * * * All such elections shall be held on the first Tuesday after the first Monday in November and, except as otherwise provided in this chapter, in accordance with procedures followed in regular general elections * * *. In the event a runoff is necessary, such runoff shall be held three (3) w eeks thereafter. * * *

SECTION 5. Section 37-7-217, Mississippi Code of 1972, is amended as follows:

37-7-217. The qualified electors of each school district operating under Section 37-7-215(1) shall meet at 2 p.m. on the date and at the place specified therein, and the qualified electors of each school district operating under Section 37-7-215(2) shall meet on the date specified therein and at the time and place or places specified by the board of trustees of the school district, and at such meeting the electors shall immediately organize by electing a chairman and a secretary of the meeting and shall thereupon proceed to elect the necessary number of trustees by secret written ballot from the list of candidates properly qualified. If there is an election for a full term and for an unexpired term or terms, such election shall be separately held and conducted. The person elected shall immediately assume the duties of his office for the full term if the election is for the full term, or for the remainder of the unexpired term if the election is for an unexpired term. The chairman and secretary of the meeting shall forthwith certify the results of the election to the superintendent of the municipal separate or special municipal separate school district, as the case may be, which * * * certificate shall be delivered to such superintendent within five (5) days following said election. If a person shall not receive a majority of the votes cast upon the first ballot, a runoff shall be held between the two (2) persons receiving the highest number of votes upon such first ballot, which * * * runoff shall be held three (3) w eeks thereafter. No trustees' election shall be discontinued or adjourned but same shall be completed upon the day specified therefor.

Discussion

1.Preclearance status of House Bill 877 (Chapter 469).

We initially note that as of this date the U. S. Department of Justice has not objected to any provision of H. B. 877 (Chapter 469). It has, however, asked for additional information from the state regarding the bill, such as demographics of affected jurisdictions, election results, the reasoning behind the bill, etc. In its August 28, 2009, letter, DOJ stated it "does not interpose any objection to the change in the general election date provided for in Chapter 469."

Information requested by DOJ was forwarded for their review, but in a response dated November 20, 2009, DOJ advised our office that more information would be required. The November 20, 2009, letter did not preclear any additional provisions of HB 877.

HB 877 (2009) addresses several areas of voting practices. It provides for a change from a plurality vote to majority vote requirement for county school board members, for trustees for municipal separate school districts which encompass an entire county, and for trustees for special municipal separate school districts. The bill further provides that for each of these categories of election that a runoff, if required, would be conducted 3 weeks after the initial general election. For municipal separate school districts with added territory it changes the date of the election, certain procedures for the election, and changes the plurality vote requirement to a majority vote requirement with the runoff 3 weeks after the initial election.

2. Election process for trustees of municipal separate school districts with added territory.

The election process for trustees of municipal separate school districts with added territory has been fundamentally different from elections for other county and municipal offices.(fn1) Some of the main differences for municipal separate school district trustee elections include:

Candidates file their qualifying petitions with the school superintendent instead of the county or municipal clerk. Miss. Code Ann. Section 37-7-211. Rather than voters casting their ballots at county or municipal polling places, voters cast their ballots at a high school or other location designated by the municipal school board. Miss. Code Ann. Sections 37-7-215, -217.

Instead of voters simply casting a ballot with county or municipal pollworkers and departing from the polling place, voters are required to conduct a "community meeting" election where they assemble at the designated school at 2 pm, organize by electing from those present a secretary and a chairman, who essentially act as pollworkers, and only those persons present at the meeting may cast ballots in the election for trustee. Miss. Code Ann. Sections 37-7-215, -217, -219.

The only candidates appearing on the ballot are for trustee of municipal separate school district with added territory; names of candidates for any other county or municipal office would be on ballots voted at polling places for precincts within the counties and municipalities, not the designated school where the trustee election is being held. Miss. Code Ann. Section 37-7-217.

Instead of the appropriate election commission certifying the election result, the "chairman" and "secretary" of the meeting certify the result to the school superintendent. Miss. Code Ann. Section 37-7-217. Rather than taking office with other county and municipal officers on the first Monday in January or the first Monday in July, municipal trustees elected to a full term take office immediately upon certification of the election. Miss. Code Ann. Section 37-7-217.

Rather than being elected on the November county general election dates or June municipal election dates, they are elected in March. Miss. Code Ann. Section 37-7-215. Instead of a Tuesday election with the polls open from 7am to 7pm, the election is held at a meeting beginning at 2pm on a Saturday generally ending at 5 p.m. Miss. Code Ann. Sections 37-7-215, -217.

3. Severability Clause.

In addition to Section 1-3-77 (printed above), elections bills filed in Mississippi frequently contain severability clauses. For instance, Chapter 528 (HB 723, 1993 Reg. Sess.), an extensive elections bill which like HB 877 was partially precleared, contains the following provision:

Section 19. If any section, paragraph, sentence, clause, prase or any part of this act is declared to be unconstitutional or void, or if for any reason is declared to be invalid or of no effect, the remaining sections, paragraphs, sentences, clauses, phrases, or parts thereof shall be in no manner affected thereby but shall remain in full force and effect.

Analysis and Conclusion

This opinion request primarily concerns Sections 4 and 5 of House Bill 877 (2009 Reg. Sess.). While HB 877 itself lacks an explicit severability clause, Section 1-3-77 still applies to the bill. In at least one previous instance where the DOJ precleared only parts of an elections bill, the state proceeded to successfully implement the precleared parts. See HB 723 (1993 Reg. Sess.). (As an example of a statute from HB 723 that has not been precleared, yet still is codified as non-enforceable law, see Miss. Code Ann. Section 23-15-903 (1972)). However, it is our opinion that in order to salvage only one element of a bill when the remainder of the bill has not been precleared, that one element must be capable of "standing alone."

Here, DOJ has not precleared the language in Section 4 of HB 877 that the election for trustees of municipal separate school district with added territory shall be conducted "except as otherwise provided in this chapter, in accordance with procedures followed in regular general elections." Without this language, any effort to somehow integrate Section 5's "community meeting" style of election with the state's regular "polling place" election is impossible.(fn2)

Section 5 of HB 877 requires the "community meeting" election process described above. If we assume, arguendo, that the election is to proceed in November, but the community meeting is to be held at the regular county polling place, then the result we face is a probable disruption of the county polling place proceedings while, at some point after 2pm, the participants hold their meeting to elect a chairman and secretary of the meeting and proceed to elect trustees, the resulting election of whom is certified not by the pollworkers or the election commission, but by the chairman and secretary. Nor is there any precleared language for the trustee election to somehow be inserted on the county general election ballot or on the county's voting devices: Section 5 of the bill requires the election to be by "secret written ballot". Any voter eligible to vote in the trustee election who is not present after 2pm on Tuesday in the polling place while the "community meeting" is being conducted will not be able to participate in the trustee election.

Conversely, if we assume the November "community meeting" trustee election is to be held away from the normal county polling places under the currently precleared language in Section 37-7-217, as brought forward in Section 5 of HB 877 , the results are many of the same problems as holding it at the polling place in addition to new troubles. Again, since the 2pm "community meeting" election will be conducted on a work day, parents and other voters with jobs must take time off from work to be present to vote in the trustee election. However, in this scenario voters must also travel to a separate location, wherever their regular county polling place is located, and will be required to vote a second time in order to cast their ballot for candidates for county, state and federal offices appearing on the normal general election ballot.

In statutory interpretation, the Mississippi Supreme Court has held that the chief desire of the courts is to reach the real intention of the Legislature.... Unthought of results must be avoided if possible, especially if injustice follows, and unwise purpose will not be imputed to the Legislature when a reasonable construction is possible. (Internal cites omitted) Zeigler v. Zeigler, 174 Miss. 302 at 310, 164 So. 768 (1935).

The Mississippi Court of Appeals has stated that, "When a statute is ambiguous and subject to multiple interpretations, courts need to understand the possible effects in order not to interpret the statute in such a way as to cause absurd results." Dawson v. Townsend & Sons, Inc., 735 So.2d 1131 (Miss.App. 1999).

Either of the two scenarios above, having the"community meeting" trustee election on the first Tuesday after the first Monday in November at the regular county polling place or at a separate location designated by the school district, leads to an absurd result. Once the "November election" component of HB 877 is isolated from the remainder of the bill's new but unprecleared language relevant to the election, we find no means in state law to integrate the municipal separate school district trustee election into the normal November election process without causing disruption in the polling place and confusion, inconvenience and cost to voters as they are required to take time off from work to participate in a "community meeting" trustee election during working hours on a workday in November. It is obvious, as well, that participating in the 2pm "community meeting" may require a much greater commitment of time on a workday, during a much more limited timeframe, than simply voting at one's polling place on election day.

Such confusion and disruption, as well as the financial burden that would be borne by many voters forced to take time off from work to attend a weekday afternoon meeting, would be in our opinion unintended consequences of HB 877 if the "community meeting" style election is conducted on the regular general election day of November. Rather than increasing voter participation and enhancing the democratic process, such confusion could have the opposite effect of increasing voter frustration and resentment while reducing overall voter participation, which is likely contrary to legislative intent. (fn3)

We therefore opine that until new legislation is passed or further language is precleared with regard to the election of trustees of municipal separate school districts with added territory which is sufficient to clarify trustee election procedures, the November election referred to in Section 4 of HB 877 and precleared by DOJ in its August 28, 2009, letter is without effect and that such elections shall proceed with the March election as reflected in Section 37-7-215 and 37-7-217 as they read prior to the enactment of HB 877.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Reese Partridge

Assistant Attorney General

1. Certain trustees for special separate municipal school districts are elected in the same manner as trustees for municipal separate school districts with added territory. Miss. Code Ann. Section 37-7-713 (1972).

2. It is evident as well that even if all the language in Sections 4 and 5 of HB 877 had been precleared, most of the original provisions of Section 37-7-217 would still be in effect, with the impractical result of conducting the "community meeting" style of election on the first Tuesday after the first Monday of November at 2pm at the high school or some other site designated by the school district, which is both a school day and a work day for most parents and voters. Furthermore, on election day voters would have to vote separate ballots at separate locations, one at their polling place for county and state office and the other a "secret written ballot" at the high school for trustee. Moreover, even if it were possible to interpret HB 877 to allow the trustee election at polling places, there is no guarantee that the "added territory" of a district would fall within one precinct and polling place, thereby frustrating an effort to conduct the single "community meeting" election described in 37-7-217. Finally, many polling places are simply too small to handle the "community meeting" while conducting the state election without disturbing the polling place.

3. Additionally, an email dated December 2, 2009, to our office from legislative staff states that they have identified drafting errors in Section 5 of HB 877 regarding the date and location of the trustee election.