Mississippi Advisory Opinions April 22, 2016: AGO 2016-00129 (April 22, 2016)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Amy Lassitter St.Pe’

SUBJ: Elections - Municipal

SBCD: 69

TEXT: Amy Lassitter St.Pe’, Esquire

Attorney for Moss Point

Post Office Box 1618

Pascagoula, Mississippi 39568-1618

Re: Reducing number of polling places

Dear Ms. St.Pe’:

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

Questions and Responses

You cite Mississippi Code Annotated Section 23-15-557 (Revised 2015) and MS AG Op. Granberry (January 20, 1994) and ask three questions.

Question 1: Is the City required to have the same number of polling places as wards?

Response : No. We find no statutory requirement that the City have the same number of polling places as wards.

Question 2: If the answer to number (1) is no, then does the City have the legal authority pursuant to MCA Section 23-15-557 to pass an ordinance dividing the entire city into three (3) precincts and reducing the number of polling places to three (3)?

Response : Yes. Section 23-15-557 authorizes municipal governing authorities to divide the municipality into a sufficient number of voting precincts “as is necessary” and requires that there are the same number of polling places as there are precincts.

Question 3: Does the City have the authority to create one (1) precinct for the entire city and have one precinct for voting for the entire city with the understanding that the one (1) precinct would be partitioned or divided by wards? For example, there are six (6) wards in the City. If the City were allowed to have only one voting precinct for the entire City, then the City would partition off the one (1) building and have six (6) separate polling places within the one location.

Response : Section 23-15-221 clearly contemplates that a municipality may have only one (1) precinct.

Therefore, the governing authorities may establish one (1) precinct for the entire City provided, pursuant to Section 23-15-557, they determine that only one (1) precinct is necessary, in which case there would only be one polling place in which qualified electors of all six (6) wards would cast their ballots for the respective ward candidates and all at-large candidates.

There would not be six (6) separate polling places.

Since there would be only one (1) precinct, there would only be one (1) polling place with separate tables set up for each of the respective wards.

Applicable Law and Discussion

Section 23-15-557 provides:

The governing authorities of any municipality within the State of Mississippi are hereby authorized and empowered, in their discretion, to divide the municipality into a sufficient number of voting precincts of such size and location as is necessary, and there shall be the same number of polling places . The authority conducting an election shall not be required, however, to establish a polling place in each of said precincts, but such election authorities, whether in a primary or in a general election, may locate and establish such polling places, without regard to precinct lines, in such manner as in the discretion of such authority will better accommodate the electorate and better facilitate the holding of the election.

Section 23-15-221 provides:

The governing authorities of municipalities having a population of less than twenty thousand (20,000) inhabitants according to the last federal decennial census shall appoint three (3) election commissioners; the governing authorities of municipalities having a population of twenty thousand (20,000) inhabitants or more and less than one hundred thousand (100,000) inhabitants according to the last federal decennial census shall appoint five (5) election commissioners; and the governing authorities of municipalities having a population of one hundred thousand (100,000) or more according to the last federal decennial census shall appoint seven (7) election commissioners, one (1) of whom, in each municipality, shall be designated to have printed and distributed the “official ballots,” and all of whom shall perform all the duties in respect to the municipal election prescribed by law to be performed by the county election commissioners where not otherwise provided. The said election commissioners shall, in case there be but one (1) election precinct in the municipality, act as election managers themselves. (Emphasis added)

Some of our smaller municipalities that are divided into wards have only one precinct and, therefore, only one polling place where the qualified electors of all the wards cast their ballots. MS AG Op. White (June 13, 1997). As noted in White , the municipal election commissioners should appoint election managers (poll workers) for each ward.

In White , the terms “precinct” and “ward” were used interchangeably. However, for the purpose of determining the required number of polling places, they are distinguishable.

Black’s Law Dictionary (Abridged Fifth Edition) defines “ward” as “a division of a city or town for elections, police, and other purposes.” It defines “precinct” as “an election district created for convenient localization of polling places.”

The terms “ward” and “precinct” cannot be synonymous for the purpose of determining the required number of polling places because municipal governing authorities are given the discretion to establish as many precincts “as is necessary” and are required to establish an equal number of polling places, but are limited to creating a specific number of wards based on population.

The statutory procedure for the division of a municipality into wards that appears in the Mississippi Code (Section 21-3-7) was struck down in Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss. 1975) in which the Court gave full force and effect to Section 3374-36, Mississippi Code of 1942) which specifies the number of wards a municipality may create based on population. See MS AG Op . Houston (May 29, 1984) and the Editor’s Note following Section 21-3-7.

The statutory procedure for dividing a municipality into precincts is set forth in Section 23-15-577 quoted above.

Section 23-15-577 “ties” the number of polling places to the number of precincts as opposed to the number of wards and gives municipal governing authorities flexibility in establishing precincts and polling places to “locate and establish such polling places, without regard to precinct lines, in such manner as in the discretion of such authority will better accommodate the electorate and better facilitate the holding of the election.”

We make no comment on whether the reduction in the number of polling places would be good public policy.

White is hereby modified to the extent necessary to conform to this opinion.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General