Mississippi Advisory Opinions March 06, 1975: 1975-0010 (March 06, 1975)

Advisory Opinion Text

Mrs. Sara B. McCool

Clerk of Circuit Court

Attala County

Kosciusko, Mississippi 39090

Dear Mrs. McCool:

Attorney General Summer has received your request for opinions regarding several questions you present and has referred the same to the undersigned for research and reply.

You advise that a beer referendum is to be conducted in Attala County in the near future in connection with which you present a number of questions on which you request an opinion. Each of the questions shall be set forth below followed by my response thereto.

“1. How long do you have to be registered before you can sign a petition?”

It is presumed that you are having reference to a petition filed pursuant to the provisions of Section 67-3-7, Mississippi Code of 1972, Annotated, which provides, among other things, that:

“An election to determine whether such transportation, storage, sale, distribution, receipt and / or manufacture of such beverages shall be excluded from any county in the state, shall on a petition of twenty percent (20%) of the duly qualified electors of such county, be ordered by the board of supervisors thereof, for such county only.”

It was held by the Mississippi Supreme Court in the case of Moffett v. Attala County , 181 M. 419, 179 So. 352, that:

“Qualifications of electors were properly determined as of hour petition considered and ordered passed, . . . ”

Consistent with this decision, the Mississippi Supreme Court in a later case, Miles v. Scott County , 200 M. 214, 26 So. 2d. 541, held that:

“The number of qualified voters in the county and the percentage on the petition must be determined as of the time that the matter is considered by the board, not as of the time that the petition is filed .” (Emphasis added)

It is to be seen from the cited Supreme Court decisions that Section 67-3-7, Supra, has been construed to vest in the board of supervisors the exclusive authority, subject to judicial review, to determine whether a person whose name appears upon a petition is a qualified elector and that such determination is required to be made by the board of supervisors as of the time that the matter is considered by the board and not as of the time that the petition is filed.

I am unable to find any statute or Mississippi Supreme Court decision wherein the question of whether one is a qualified elector and, therefore, required to be counted on a petition is related in any way to when such person signed such petition in relation to registration to vote.

For your further information, however, regarding the determination of qualifications to vote, Section 241 of the Mississippi Constitution of 1890 and Section 23-5-85, Ibid, have been superseded by federal court orders reducing the required time of registration and residence to thirty (30) days in the state, county and election district, or precinct, on or before the day of the election. However, based upon the above and foregoing cited Supreme Court decisions, such registration and residence for not less than thirty (30) days is required to be determined or computed from the time that the petition is considered by the board.

The sole question being whether one whose name appears on the petition is a qualified elector and not when such person may have signed the petition, whether before or after registering to vote, it necessarily follows that it is my opinion that it is immaterial whether the petition is signed before or after registering to vote so long as the registeration is not less than thirty (30) days prior to the time on which the board of supervisors considers the petition.

“2. Who can go in booth with voter? Change since 1942?”

The United States District Court for the Southern District of Mississippi in the case of United States of America, Plaintiff, v. State of Mississippi, et al, Defendants, reported in 256 Fed.Supp. 344, entered a declaratory judgment on May 21, 1966, Paragraph IV, of which is hereby quoted for your information:

“It is the duty and responsibility of the precinct officials at each election to provide to each illiterate voter who may request it such reasonable assistance as may be necessary to permit such voter to cast his ballot in accordance with the voter's own decision.”

Section 23-5-157, Mississippi Code of 1-72, Annotated, provides:

“Any voter who declares to the managers of the election that, by reason of blindness or other physical disability, he is unable to mark his ballot, and whose declaration is not palpably untrue, shall have the assistance of one of the managers or other person of his own selection, in the marking thereof; but such person giving such assistance shall not give information in regard to the same.”

“3. Should a signature on a petition be exactly as on the poll book: Example: Mrs. Louise Jones (on petition) Mrs. John Jones (on poll books)”

As stated in the opinion in response to the first question you present, the sole question to be determined by the board of supervisors regarding any person whose signature appears on the petition is whether such person is a qualified elector. It necessarily follows, therefore, that it is my opinion that such determination is required to be made, without regard to variations between the words contained in the signatures on the registration book and the petition so long as the board of supervisors determines, consistent with the facts, that the name represents the same person.

The Mississippi Supreme Court held in the case of Miles v. Scott County , 33 So. 2d. 810, that in determining the sufficiency of a petition the board of supervisors may consider other facts, in addition to the registration books, in determining the question of whether a person is a qualified elector.

“4. Can you take a ballot out to a car to a disabled person?”

An opinion on this precise question, although based on a somewhat dissimilar factual situation, appears on Page 23 of the 1959-1961 Biennial Report of the Attorney General, which opinion has remained the opinion of the Attorney General.

A copy of the opinion is enclosed for your reference.

“5. Does a person have to be registered in a precinct that he has transferred to for 30 days before he can vote?”

In an opinion rendered by the Attorney General on April 27, 1967, to Honorable G. H. Hood, Circuit Clerk, Belzoni, Mississippi, copy of which request and opinion is enclosed for your reference, the conclusion is expressed therein that:

“. . . it will not be necessary for a person to re-register in the same county where he only moves to another election district or precinct within the county.”

However, the requirement that such person be a resident one year on or before the election in which he offers to vote has, by federal court order, been reduced to thirty days. Therefore, in specific answer to this question, it is my opinion that if a person, otherwise qualified, and registered to vote moves from one voting district or precinct to another voting district or precinct within the county, such person is not required to re-register. The change may be clerically or ministerially made by erasing the name of such person from the poll book for the election district or precinct in which such person formerly resided and the entry of such person's name by the county board of election commissioners may be made on the poll book for the new election district or precinct where such person is otherwise qualified and will have resided in such new district not less than thirty (30) days on or before the date of the election for which the poll books are being prepared and in which election the said person may vote.

“6. How far do you have to be from the polls to solicit or advertise? From voting booth? From building where the election is being held?”

The election to which you refer is a special election and Section 23-5-203, Ibid, requires special elections to be held, conducted and returned in all respects in the same manner as general elections.

Therefore, the answer to this question is contained in Section 23-5-109, Ibid, wherein it is provided, with respect to general elections, that:

“A space thirty feet in every direction from the polls, or the room in which the election is held, shall be kept open and clear of all persons except the election officers and two challengers of good conduct and behavior, selected by each party to detect and challenge illegal voters; and the elector shall approach the polls from one direction, line, door, or passage, and depart in another as as nearly opposite as convenient.”

With respect to your questions numbered seven and eight, they shall be consolidated for expediency in responding to them.

“7. Does metal seal have to have precinct name on it? Does the seal that comes on the box when it is returned to the clerks from the polls need to be metal or paper?”

“8. Should seal be put on box by Manager in the presence of all workers?”

With respect to general and special elections, Section 23-5-111, Ibid, provides with respect to securing the ballot boxes, the following:

“The boxes shall be secured by good and substantial locks, and, if an adjournment shall take place after the opening of the polls and before all the votes shall be counted, the box shall be securely locked, so as to prevent the admission of anything into it, or the taking of anything from it, during the time of adjournment; and the box shall be kept by one of the managers and the key by another of the managers, and the manager having the box shall carefully keep it, and neither unlock or open it himself nor permit it to be done, nor permit any person to have any access to it during the time of adjournment. *** After each election the ballot boxes shall be delivered, with the keys thereof, to the clerk of the circuit court of the county for preservation; and he shall keep them for future use, and, when called for, deliver them to the commissioners of election.”

It was held, however, by the Mississippi Supreme Court in the case of Barnes v. Ladner , 241 M. 606, 131 So. 2d 458, as follows:

“That the ballot boxes provided were not 'secured by good and substantial locks' is a mere irregularity not invalidating an election.”

Section 23-5-167, Ibid, also provides:

“The statement of the result of the election in their election district shall be certified and signed by the managers and clerks; and the poll books, tally lists, list of voters, ballot boxes, and ballots shall all be delivered, as required, to the commissioners of election.”

With respect to metal seals, such as to which you refer, I am unable to find any statute or Supreme Court decision relative thereto with respect to general or special elections.

However, with respect to primary elections, Section 23-3-19, Ibid, which provides inter alia, the following:

“And when the count of the votes and the tally thereof have been completed, the managers shall lock and seal the ballot box , having first placed therein all ballots voted, all spoiled ballots and all unused ballots. And there shall be enclosed therein also one of the duplicate receipts given by the manager who received the blank ballots received for that box; and the total ballots voted, and the spoiled ballots and the unused ballots must correspond in total with the said duplicate receipt, or else the failure thereof must be perfectly accounted for by a written statement, under oath of the managers, which statement must be enclosed in the ballot box. There shall be also enclosed in said box the tally list, the receipt booklet containing the signed names of the voters who voted; and the number of ballots voted must correspond with the number of names signed in said receipt booklet.” (Emphasis added)

Also, with respect to primary elections, Section 23-3-21, Ibid, provides, inter alia, the following:

“The box containing the ballots and other records required by this chapter shall, as soon as practical after the ballots have been counted, be delivered by one of the precinct managers to the clerk of the circuit court of the county and said clerk shall, in the presence of the manager making delivery of the box, place upon the lock of such box a metal seal similar to the seal commonly used in sealing the doors of railroad freight cars. Such seal shall be numbered consecutively to the number of ballot boxes used in the election in the county and the clerk shall keep in a place separate from such boxes a record of the number of the seal of each separate box in the county . The board of supervisors of the county shall pay the cost of providing such seals.” (Emphasis added)

While the Mississippi Supreme Court in the case of Lopez v. Holleman , 219 M. 822, 69 So. 2d 903, held that a statute with respect to primary elections is in pari materia with a statute pertaining to general elections, I am unable to find a Mississippi Supreme Court decision specifically holding that the above cited and quoted statutes pertaining to both general and primary elections are in pari materia and should be read together so that they may be drawn upon to supply any deficiency that may exist with respect to any election, whether general, special or primary.

It is my opinion that it is entirely possible that upon the litigation of the question, the Mississippi Supreme Court may well consider Lopez v. Holleman as stare decisis for holding said statutes to be in pari materia.

The comment of the Mississippi Supreme Court in the case of Allen v. Funchess , 195 M. 486, 15 So. 2d 343, at Page 493 of the Mississippi Report, that:

“Had these boxes been sealed, as required by the statute, it is entirely probable that this unfortunate controversy would never have proceeded to the course of an expensive litigation with its residue of doubts which will inevitably linger and rankle.”

is sage advice with respect to the conduct of elections, so that out of an abundance of caution, it is my opinion that it would be advisable to follow the above and foregoing quoted statutory provision in all elections, including the one to which you refer, regardless of how any issue with respect thereto might be ultimately determined by a court of competent jurisdiction.

The court in Allen referred to its decision in Briggs v. Gautier , 195 M. 472, 15 So. 2d 209, on Page 495 of the Mississippi Reports, wherein the court did invalidate an election on questions unrelated to these questions which you present but stating:

“ . . . but if we should advance that holding so as to embrace cases such as presented under all the facts in the instance now before us, primary election contests, especially as to the larger precincts, would become so common as to overbear the good that was sought to be accomplished in allowing them.”

Therefore, it is impossible to predict, in the absence of a previous Mississippi Supreme Court decision on a specific issue or question, whether the court will hold any irregularity to be a mere irregularity not invalidating an election, such as in Barnes v. Ladner , or of such a substantial nature as to render the election void.

In view of this truth, the opinions of the Attorney General are weighted on the side of avoiding controversy and doubt within the legal framework.

I trust that the above and foregoing will be of assistance to you with respect to these two questions.

“9. Can names on petitions be qualified before going to supervisors?”

I regret to advise that I am unable to determine from the wording of this question, precisely the information you desire. However, since it appears that you are referring to an element of time or sequence at which qualification of petitioners are required to be determined, I respectfully refer you to the answer to the first question you present. You will note the Mississippi Supreme Court decisions cited which hold that it is the board of supervisors who make the determination as to whether persons whose names appear upon a petition are qualified electors and that such determination is required to be made “ . . . as of hour petition considered and ordered passed, . . .”

I hasten to point out, however, that the Mississippi Supreme Court in the case of Costas v. Lauderdale County , 198 Miss. 440, 22 So. 2d 229, held that the determination of the board of supervisors as to the sufficiency of signatures to a petition for an election to determine whether traffic in light wines and beers should be excluded from the county is interlocutory and that the “ . . . entire cause, including that issue , must on pertinent and competent protest be adjudicated by the board upon trial before the final judgment . . . ” (Emphasis added)

by United States Mail, personally delivered or through the registrar's placing same in the ballot boxes.

It is my opinion that the only authority existing for the placing of a “card of instruction” and the content thereof in the ballot box by the registrar is as set forth in Section 23-5-121, Supra, quoted above, which has been prepared and printed in conformance with the statute by the officer charged with printing and distributing the official ballot.

However, I am unaware of any other restriction on the dissimination of election phamphlets.

I hasten to emphasize, however, that it is the purpose and intent of the statute, Section 23-5-121, Supra, that the election managers may receive full instructions and guidance in the conduct of an election by referring to the “card of instruction” supplied in conformance with the statute, for the statute mandates the election commissioner charged with printing and distributing the official ballots to “ . . . prepare full instructions for the guidance of electors at elections . . . ” (Emphasis added)

While I am unaware of any statute which prohibits managers of elections from obtaining information regarding the conduct of an election from any available source, it is my opinion that no such information could be more reliable than that which is contained in the “card of instruction”.

“11. Is form LB 2114M-Revised 2/3/70 still the instruction sheet that goes out to the polls?”

I regret that you do not attach a copy of the form of the “card of instructions”, to which you refer, because I do not have a copy of such form available to me. Cards of instruction are printed by various printers in the State, copies of which are not filed with or maintained in the Attorney General's office. I have ascertained that Form LB 2114M-Revised 2/3/70 was printed by the Dement Printing where the entire election is contested.

Therefore, it is my opinion that although the number of qualified electors upon the petition may have been determined by the board of supervisors prior to either calling or refusing to call an election, the question as to whether any signer on the petition is in truth and in fact a qualified elector is, again, required to be reviewed and adjudicated by the board of supervisors where the proceedings and the election is later contested.

“10. Is it lawful for an attorney for either the drys or wets to prepare a phamphlet of rules to send out to the precinct workers?”

Section 23-5-121, Ibid, relates to this question and is here quoted for your convenient reference:

“The officer charged with printing and distributing the official ballot shall ascertain from the registrar, at least ten days before the day of election, the number of registered voters in each election district; and he shall have printed and distributed a sufficient number of ballots for use in each district. He shall also prepare full instructions for the guidance of electors at elections as to obtaining ballots, the manner of marking them, and the mode of obtaining new ballots in the place of those spoiled by accident. The instructions shall be printed in large, clear type, on 'cards of instruction,' and the officer shall furnish the same in sufficient numbers for the use of electors. The cards shall be preserved by the officers of election, and returned by them to the commissioners of election; and they may be used, if applicable, in subsequent elections .” (Emphasis added)

You do not state how that a phamphlet to which you refer is to be sent “ . . . out to the precinct workers?”, whether Company, Post Office Box 1111, Meridian, Mississippi 39301. I have contacted Mr. Vance Dement of said company, who was unable to advise whether the form to which you refer is the latest revision. Mr. Dement is mailing me a copy of the latest revision, upon the receipt of which I will examine the same and advise you in an effort to fully answer this question for you. I have records indicating that the “card of instruction” for primary elections printed by the Dement Printing Company may have been revised in 1972, but this form was designated by Dement Printing Company to be L.B. 2115-M, rather than the number to which you refer.

Therefore, I am unable to answer this question specifically at this time, but as soon as the necessary information has been received from Dement Printing Company, I will make further attempt to answer your question.

Trusting that the above and foregoing will be of assistance to you in the discharge of your duties as County Registrar, I am

Very truly yours,

A. F. Summer, Attorney General