Mississippi Advisory Opinions June 04, 2015: AGO 2015-00156 (June 04, 2015)

Advisory Opinion Text

AUTH: Liz Bolin

RQNM: Kimberly Turner

SUBJ: Elections - registration

SBCD:74

TEXT: Kimberly P. Turner, Esq.

Assistant Secretary of State, Elections Division

P.O. Box 136 Jackson, MS 39205

Re: July 4, 2015

Dear Ms. Turner:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Questions Presented

Your letter states, in part:

Miss. Code Ann. Section 23-15-37 states, "the registrar shall also keep his office open from 8:00 am until 12:00 noon on the Saturday immediately preceding the thirtieth day prior to any regularly scheduled primary or general election." This year's Primary Election will be held on Tuesday, August 4, 2015. The thirtieth day prior to the Primary Election date is Saturday, July 4, 2015, a federal and state holiday.

On July 7, 1998, Jones County conducted a county-wide special election. The Second Saturday immediately preceding this special election was July 4, 1998. Miss. Code Ann. Section 23-15-653 states, "all registrars' offices shall remain open until noon on the two (2) Saturdays prior to each election." In response to a written request from the Jones County Circuit Clerk, the office of the Attorney General opined "the deadline for absentee balloting should be the Friday prior to the election on Tuesday since the Saturday before the election is a holiday." MS AG Op., Myrick (June 23, 1998).

Candidates for the 2015 primary and general elections are required by Miss. Code Ann. Section 23-15-297, 23-15-299 and 23-15-359 to file their qualifying papers and pay any applicable fee "...by 5:00 pm on March 1 of the year in which primary election for the office is held or on the date of the qualifying deadline provided by statute for the office, whichever is earlier." This year, March 1 fell on a Sunday. In response to a written request from our office, the office of the Attorney General opined, "while Section 23-15-653 requires county registrars (circuit clerks) to keep their offices open until noon on the two (2) Saturdays prior to each election for absentee balloting purposes, we find no statutory requirement that state, county or political party offices be open on weekends or holidays for the purpose of accepting candidate qualifying statements of intent, fees or petitions." MS AG Op., Turner (October 17, 2014). Thus, the 2015 qualifying period for candidates ended at 5:00 pm on Friday, February 27, 2015 as opposed to March 1, 2015.

Based upon the similarities in the language used in each of the above-cited statutes and the previous opinions of the office of the Attorney General, the office of the Secretary of State requests an official written opinion regarding whether the county registrars (circuit clerks) are required to keep their offices open from 8:00 am until 12:00 noon on Saturday, July 4, 2015 for the registration of voters in accordance with Miss. Code Ann. Section 23-15-37.

Brief Response

Section 7-5-25 provides that the Attorney General is authorized to issue official opinions to designated State and local public officers who request an opinion in writing "upon any question of law relating to their respective offices." This section provides there shall be no liability, civil or criminal, that attaches to the public officer for actions taken in good faith in accordance with the direction of the opinion. Official opinions are not issued to advise one public officer about another public officer's duties and responsibilities. MS AG Op., Bounds (Feb. 12, 2010). In this instance, your request relates to the duties of circuit clerks; therefore, we are unable to respond by way of an official opinion. We offer the following analysis for informational purposes only.

Applicable Law and Analysis

As noted in your request, Miss. Code Ann. Section 23-15-37 addresses the registration of voters and specifically states, in part:

(2) The registrar may keep his office open for registration of voters from 8:00 a.m. until 7:00 p.m., including the noon hour, for the five (5) business days immediately preceding the thirtieth day prior to any regularly scheduled primary or general election. The registrar shall also keep his office open from 8:00 a.m. until 12:00 noon on the Saturday immediately preceding the thirtieth day prior to any regularly scheduled primary or general election.

(Emphasis added.)

Prior to 2009, the language quoted above stated, "The registrar may keep his office open . . .on the Saturday immediately preceding the thirtieth day prior to any regularly scheduled primary or general election"; however, a 2009 amendment substituted "shall" for "may". As a result of this amendment, it is no longer discretionary whether registrar's offices open on the Saturday preceding the thirtieth day prior to any regularly scheduled general or primary election for voter registration purposes.

Regarding the days and times county offices are to be open, Section 25-1-99 provides, in part:

The clerks of the circuit and chancery courts, the county superintendents of education, the county tax assessors, and the sheriffs shall keep their offices at the courthouses of their respective counties if offices shall be there provided for them...The offices of all circuit and chancery clerks and sheriffs shall be open for business on all business days from 8:00 a.m. to 5:00 p.m., except that within the discretion of the board of supervisors of said county, the above county offices may be closed at 12:00 noon one (1) business day of each week, or may be closed all day Saturday of each week, or may be closed at 12:00 noon on Saturday and at 12:00 noon on one (1) additional business day of each week. Such courthouse hours decided upon within the discretion of the board of supervisors must be duly entered at large on the minutes of said board, and such action by the board shall be published in a newspaper having general circulation in the county once each week for four (4) consecutive weeks.

Provided, however, the courthouse shall be closed on all state holidays as set forth in Section 3-3-7, and when any state holiday set forth in Section 3-3-7 falls on a Saturday, the courthouse may be closed on the Friday immediately preceding such Saturday and when such holiday falls on a Sunday, the courthouse may be closed on the Monday immediately succeeding such Sunday. The board of supervisors, in its discretion, may close the county offices on those holidays created by executive order of the Governor.

(Emphasis added.)

If a statute is not ambiguous, it should be applied according to its plain meaning, and the principles of statutory construction should not be invoked. Whether a statute is ambiguous, or not, the ultimate goal in interpreting a statute is to discern and give effect to the legislative intent. City of Natchez v. Sullivan, 612 So.2d 1087 (Miss. 1992). In this instance, both statutes are unambiguous, thus, the plain meaning of the statutes is applied.

Conclusion

Pursuant to Miss. Code Ann. Section 25-1-99, counties will observe the Saturday, July 4 holiday on Friday, July 3 , and county courthouses and offices therein will be closed. Section 23-15-37 specifically requires that registrars "shall" keep offices open on the Saturday before the thirtieth day prior to the election for registration purposes. Accordingly, we are of the opinion that registrars' offices should be open on Saturday, July 4, 2015 for voter registration from 8:00 a.m. until 12:00 noon even though the rest of the courthouse will be closed.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Elizabeth S. Bolin, Special Assistant Attorney General