Mississippi Advisory Opinions February 22, 1983: 19830222 (February 22, 1983)

Advisory Opinion Text

Mr. J. Larry Burris

Executive Director

Mississippi Ethics Commission

Post Office Box 22746

Jackson, Mississippi 39205

Dear Mr. Burris:

Your letter of February 17, 1983, is acknowledged and has been referred to the undersigned for a response.

In particular, your request for an opinion concerns the legal status of the Ethics Commission under the provisions of Chapter 488, Mississippi Laws of 1982. Your request arises from the language contained in sections 18, 19, and 20 of the Act which provide for the following:

Section 18. Section 19, Chapter 508, Mississippi Laws of 1979, is amended as follows:

Section 19. This act shall take effect and be in force as follows:

(a) Section 18 shall be effective from and after its passage.

(b) Sections 1 through 17 of this act shall be effective from and after November 15, 1979, if effectuated under the provisions of the Voting Rights Act of 1965, as amended and extended.

SECTION 19. The Attorney General of the State of Mississippi is hereby directed to submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.

SECTION 20. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, and shall stand repealed from and after July 1, 1986.

In answering your questions, our initial inquiry should focus upon the filing requirements under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c . The pertinent provisions are:

Whenever a State or political subdivision ... shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect November 1, 1964, ... such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color ... . Provided , that such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made.

In Allen v. Board of Elections , 393 U.S. 544, 563-564, 22 L.Ed.2d 1, 16, 89 S.Ct. 817 (1969), the Court eleaborated upon those items which must be “precleared” holding:

Finding that these cases are properly before us, we turn to a consideration of whether these state enactments are subject to the approval requirements of § 5. These requirements apply to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting ... .” 42 USC § 1973c (1964 ed, Supp I) . The Act further provides that the term “voting” “shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing ... or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public [ 393 U.S. 564 ] or party office and propositions for which votes are received in an election.” § 14(c)(1), 79 Stat 445, 42 USC § 1973 l (c)(1) (1964 ed., Supp I) . See also : Dougherty Cty., Ga., Bd. of Ed. v. White , 439 U.S. 32, 58 L.Ed.2d 269, 99 S.Ct. 368 (1978) .

Pretermitting any discussion as to whether the State was required to “preclear” Chapter 508, Mississippi Laws of 1979, the precursor to Chapter 488, we note that Chapter 508 was submitted to the Attorney General of the United States for his consideration, and an objection was not interposed. In substance, the provisions of Chapter 508 and Chapter 488 are virtually identical.

Although not specifically granted the authority to do so, the Attorney General of the United States has promulgated regulations concerning “Section 5 submissions.” Georgia v. United States , 411 U.S. 526, 36 L.Ed.2d 472, 93 S.Ct. 1702 (1973); Morris v. Gussette , 432 U.S. 491, 53 L.Ed.2d 506, 97 S.Ct. 2411 (1977) . Given the central role of the Attorney General in formulating and implementing Section 5, the courts have uniformly held that these regulations are entitled to particular deference. Dougherty Cty ., Ga. Bd. of Ed. v. White , supra ; United States v. Board of Commrs of Sheffield, Ala ., 435 U.S. 110, 55 L.Ed.2d 148, 98 S.Ct. 965 (1978); Perkins v. Matthews , 400 US. 379, 27 L.Ed.2d 476, 91 S.Ct. 431 (1971) .

Pursuant to the State's policy of “Sunset Budgeting, ” Section 19 of Chapter 508 provided that said act would stand repealed from and after February 1, 1983. In keeping with this policy, the Legislature during the 1982 regular session under took a comprehensive review of the agency's functions and effectiveness. As a result, Chapter 488 was passed extending the sunset date to July 1, 1986.

By its very nature, sunset budgeting is a recurrent practice. Therefore, the question arises as to whether the legislation extending the viability of the agency must be submitted. The answer is found in 28 CFR § 51.13 (1981) concerning recurrent practices. In substance, the regulation provides that where a jurisdiction implements a practice or procedure periodically or upon certain established contingencies, a change occurs the first time such practice or procedure is implemented. Thereafter, the covered jurisdiction is not required to resubmit the matter.

Concomitantly, Chapter 488 is a re-enactment of Chapter 508, and the operative provisions thereof are virtually identical. By the very terms of the Voting Rights Act, only substantial changes in current practices and procedures must be submitted. Changes of this nature are not perceived in Chapter 488.

It is, therefore, the opinion of this office that Chapter 488, Mississippi Laws of 1982, does not have to be submitted for preclearance.

Let us next consider the effective date of the Act. Section 20 provides that the “Act shall take effect and be in force from and after the date it is effectuated under Section 5 ... .” Inasmuch as Chapter 488 did not have to be submitted under Section 5, it became “effectuated” on April 23, 1982, the day it was signed by the Governor.

Should you have any further questions concerning this matter, please do not hesitate to contact us.

Respectfully,

Bill Allain Attorney General.