Mississippi Advisory Opinions April 01, 2011: No. 2011-00061 (April 01, 2011)

No. 2011-00061.

Dear Mr. Hillman:

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

1. If a person who is otherwise qualified under the law registers to vote less than thirty (30) days before a general or primary election but more than thirty (30) days before the runoff associated with the general or primary, is the voter considered to be a qualified elector at the time of the runoff?

2. Would the voter be eligible to cast a ballot in the runoff and have his ballot counted?

1. No.

2. No.

Miss. Code Ann. Section 23-15-11 sets forth the qualifications of electors. In accordance with Section 23-15-11, one who meets the qualifications set forth in said section and has registered as an elector pursuant to Section 23-15-33 shall be entitled to vote at any election. Section 23-15-125 of the Miss. Code, which prescribes the form of pollbooks, provides that except for the requirements of Miss. Code Ann. Section 23-15-692, "all who register within thirty (30) days before any regular election shall be entered on the pollbooks immediately after such election , and not before, so that the pollbooks will show only the names of those qualified to vote at such election." (Emphasis added). Pursuant to Miss. Code Ann. Section 23-15-37, registrars of elections may keep their offices open for voter registration for the five (5) days immediately preceding the thirtieth day prior to any regularly scheduled primary or general election . (Emphasis added). The closing of registration at a reasonable time before an election has been recognized by the U.S. Supreme Court as a legitimate state interest to allow election officials sufficient time to compile accurate voter lists. See Burns v. Fortson , 410 U.S. 686 (1973) ( citing Marston v. Lewis , 410 U.S. 679 (1973)) (Legislative judgment that 50 days rather than 30 is necessary to promote the State's important interest in accurate voter lists is justifiable. "The Constitution is not so rigid that the determination and others like it may not stand").

Our office has consistently opined that "the first and second primaries constitute one election; therefore, if an elector is ineligible to vote in the first primary, he or she cannot subsequently vote in the second primary. However, this holding does not apply to an elector's eligibility to vote in the subsequent general election." MS AG Op., Hewes (March 5, 1993); See also MS AG Op., Sherry (April 26, 1978); MS AG Op., Horton (March 28, 1983).

In Smith v. Hollins , 905 So.2d 1267, we note that the Mississippi Supreme Court permitted the absentee ballot of a voter to be counted in the second primary who had registered to vote approximately three weeks prior to the first primary but more than thirty days prior to the second primary. Smith v. Hollins , 905 So.2d 1267, 1276 (Miss. 2005). The Court's ruling, however, did not address the issue but instead acted on the parties' stipulation that some voters whose names did not appear in the precinct pollbook were registered in time for the runoff election in the Master Roll kept by the Circuit Clerk. Id at 1275. The conclusion of the Court was simply that the contestant "cites no law which holds a person who does not vote in a first primary cannot vote in a second primary " (Emphasis added).

We have been advised by county voter registrars that continuing voter registration for the runoff for three of the four weeks leading to the first primary will create difficulties in properly preparing for the first primary. Some of the problems include the need for continuing follow-up by the registrar for mailed, hand delivered and agency-based voter registrations which would necessarily have to occur during the preparation, conduct and certification of the first primary. In Ferguson v. Williams , 343 F.Supp. 654, the U.S. District Court stated, "[r]ecognizing that problems would ensue if registration did not precede voting by some prefixed period, we are unwilling to leave the State of Mississippi, even temporarily, without an effective cutoff date for registration...[T]he court deems it wise to prescribe, strictly as an interim measure, a registration cutoff date that will satisfy the compelling state interest standard. In this regard, the court is persuaded that a period of 30 days would meet the constitutional test." Ferguson v. Williams , 343 F.Supp. 654, 657 (N.D. Miss. 1972).

In response to your inquiry, the eligibility to vote in any runoff election is based upon the date of the first election. In other words, the deadline for registration to vote in any runoff associated with a general or primary election is the deadline for voting in the first election.

In the Horton opinion, our office opined "[o]ne who is not properly registered thirty (30) days prior to the first primary would not be eligible to vote in the second primary." MS AG Op., Horton (March 28, 1983). Where the same is applicable to a special election and the subsequent runoff, it would also apply to the general election and the subsequent runoff if required. To be eligible to vote in a runoff election, one must be a qualified elector thirty (30) days prior to the first election.

Accordingly, it is the opinion of this office that where a person registers to vote less than thirty (30) days before a general, special or primary election but more than thirty (30) days before the runoff associated with the general or primary election, he or she is not eligible to vote in the runoff. Thus, the said person would not be eligible to cast a ballot in the runoff and have his or her ballot counted.

Please contact our office if we may be of further assistance.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By:

Margarette L. Meeks

Special Assistant Attorney General