Mississippi Advisory Opinions February 24, 2014: AGO 2014-00058 (February 24, 2014)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Delbert Hosemann

SUBJ: Secretary of State

SBCD: 171

TEXT: The Honorable Delbert Hosemann

Secretary of State

Post Office Box 136

Jackson, Mississippi 39205

Re: Penalty for Intentional Failure of an Election Official to Require a Voter to Present Identification as Required by Law

Dear Mr. Hosemann:

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

Issue Presented

Your letter states:

Miss. Code Ann. Section 23-15-563(1) requires individuals voting in person at the polls or the clerk's office to present photo identification before voting. Miss. Code Ann. Section 23-15-563(5) states "[t]he intentional failure of an election official to require a voter to present identification as required by this section shall be considered corrupt conduct under Section 97-13-19 and shall be reported to the Secretary of State and Attorney General." In preparation for the June 3, 2014 primary election, the Secretary of State's Office is asking for your written opinion on the following questions:

1. What are the penalties for "corrupt conduct under Section 97-13-19?"

2. Are election officials who intentionally fail to require a voter to present photo identification subject to additional civil or criminal penalties? If yes, what are those penalties?

3. What are the duties of the Secretary of State upon receiving a report of an election official intentionally failing to require photo identification?

Responses

In response to your first question, the penalty for one convicted of corrupt conduct under Section 97-13-19 is, as stated in that statute, imprisonment in the penitentiary for a term not exceeding two years.

In response to your second question, we find no additional civil or criminal penalties specifically for intentional failure by an election official to require a voter to present photo identification as required by Section 23-15-563.

However, Section 23-15-269 provides for a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00) or imprisonment in the county jail not less than ten (10) days nor more than ninety (90) days, or both for a conviction of willfully refusing or knowingly failing to perform any duty required of him by the election laws.

In response to your third question, while we find no specific statutory duties imposed on the Secretary of State upon receipt of such report, we are of the opinion that you should notify the appropriate District Attorney and County Prosecuting Attorney of the County in which the crime was allegedly committed.

Applicable Law

Section 23-15-563 provides, in part:

(1) Each person who shall appear to vote in person at a polling place or the registrar's office shall be required to identify himself or herself to an election manager or the registrar by presenting current and valid photo identification before such person shall be allowed to vote.

(5) The intentional failure of an election official to require a voter to present identification as required by this section shall be considered corrupt conduct under Section 97-13-19 and shall be reported to the Secretary of State and the Attorney General.

Section 97-13-19 provides:

If any manager, clerk, or any other officer whatever, assisting or engaged in conducting any election, or charged with any duty in reference to any election, shall designedly omit to do any official act required by law, or designedly do any illegal act in relation to any general or special election, by which act or omission the votes taken at any such election in any district shall be lost, or the electors thereof shall be deprived of their suffrage at such election, or shall designedly do any act which shall render such election void, or shall be guilty of any corrupt conduct or partiality in his official capacity at such election, he shall, upon conviction, be imprisoned, in the penitentiary for a term not exceeding two years. (Emphasis added)

Section 23-15-269 provides:

Any election commissioner, or any other officer or person acting as such, or performing election duty, who shall willfully refuse or knowingly fail to perform any duty required of him by the election laws, or who shall violate any of the provisions thereof, shall be guilty of a misdemeanor, and, upon conviction, be punished by a fine of not less than Twenty-five Dollars ($25.00) nor more than One Hundred Dollars ($100.00), or be imprisoned in the county jail not less than ten (10) days nor more than ninety (90) days, or both.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.