Mississippi Advisory Opinions October 29, 1982: AGO 000003557 (October 29, 1982)

AGO 000003557.

Dear Mrs. Shirley:

Attorney General Bill Allain has received your request for opinion and has referred it to the undersigned for re- search and reply.

Your questions shall be listed in the order presented immediately followed by the response thereto.

Question (1): "Should a voter who resides in the county, but who is registered in a precinct in which he no longer re- sides, be allowed to vote on the voting machine where, as here, no sub-county district elections will be affected?"

Response to Question (1): I enclose herewith copy of an opinion rendered Mrs. Sue Sautermeister dated October 27, 1982, regarding persons qualified to vote in a precinct to which they have moved and have resided continuously for not less than thirty (30) days, including the day of the election, whose name has not been changed on the poll book to the new precinct and where such person is registered in the county not less than thirty (30) days before the election, which is a complete re- sponse to your question. In reviewing the opinion, you will note the conclusion that a person is no longer qualified to vote in a precinct in which he or she no longer resides.

Question (2) "If the answer to the above question is no, should such a voter be allowed to vote an affidavit ballot at the old precinct or at the new precinct, or should he be limited to casting a challenged ballot?"

Response to Question (2): The answer to the first question being in the negative, it is my opinion that a voter, otherwise qualified, should be allowed to vote an affidavit ballot in the new precinct and not the old pre- cinct. You will note the enclosed attachment contains a form of affidavit for the ballot cast, which is based thereon. The affidavit and procedure in this instance serves the same purpose as a challenged ballot. However, such ballot may also be challenged should there be other valid grounds for such challenge.

Question (3): "If the voter is limited to a challenged ballot, how and when should a determination be made as to whether to count the ballot?"

Response to Question (3): As shown in the attachment to the opinion to Mrs. Sautermeister, if the challenge is determined to be frivolous and not made in good faith, the challenge may be disregarded and the ballot counted the same as any other legal ballot. If the managers are unanimous in their opinion that the challenge is well taken the ballot is required to be rejected and not counted and proceeded with as set forth in the statute. If the challenge is neither frivolous nor the ballot rejected, the statute requires that when all the unchallenged votes have been counted tallied and totaled, the challenged votes shall then be counted, tallied and totaled and a separate return made thereof.

Trusting that the enclosed material will fully answer your questions, I am

Very truly yours,

BILL ALLAIN ATTORNEY GENERAL

BY:

W. D. Coleman Deputy Attorney General

WDC:nm Enclosures