Mississippi Advisory Opinions October 27, 2000: AGO 000014068 (October 27, 2000)

AGO 000014068.

Dear Ms. Scott:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter states:

This is a request for an official Attorney General's opinion. Due to the fact this matter concerns voter registration for the November 7, 2000, General Election, we are requesting that this request be given expedited consideration.

There has been a widespread effort this year to register to vote many inmates and detainees who are incarcerated in local jails and other local detention centers. These inmates have been using mail-in voter registration forms in order to register.

On the mail-in voter registration forms, some of the applicants are providing as their street address the address of the jail or detention center. Our question is this: Can an inmate housed in a jail or other local detention facility use that facility or jail as their residence for voter registration purposes?

We are aware of the provisions of Miss. Code Ann. Section 47-1-63 (1972) which provides that persons incarcerated in Department of Corrections facilities cannot establish residence in the county where the facility is located solely because they are housed in such facility.

However, the inmates in question are those housed in local jail facilities which are not under the jurisdiction of the Department of Corrections.

The obvious purpose of the enactment of Mississippi Code Annotated, Section 47-1-63 (Revised 1993) is to establish the policy that individuals who are being involuntarily housed outside the county of their established residences do not participate in the elections of the county in which they are incarcerated. We note that inmates who should be incarcerated in a facility under the jurisdiction of the Department of Corrections are, at times, temporarily confined in our county jails.

The Mississippi Supreme Court in Lopez v. Holleman, 69 So.2d 903, 219 Miss. 822 (Miss. 1954) addressed the question of whether certain statutory provisions which specifically applied only to primary elections should also be applied to general elections. The Court found that those provisions were indicative of a general policy and were applicable to general elections. We are of the opinion that the provisions of Section 47-1-63 are indicative of a general policy regarding elections that are applicable to county and municipal jails as well as Department of Corrections facilities.

Aside from Section 47-1-63, the general law on residency dictates that one cannot claim his place of incarceration as his residence. Residency is based largely on intent. The basic rule for voting purposes is that once established, one's residency continues until removal to another locality with intent to remain there and abandonment of the old residence without intent to return. Hubbard v. McKey, 193 So.2d 129 (Miss. 1966). Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile. Texas v. Florida, 306 U.S. 398, 83 L.Ed. 817 (1939). It is our opinion that the courts were referring to voluntary removal and purpose as opposed to involuntary removal and forced purpose.

It is evident that one who is involuntarily incarcerated has not intentionally abandoned his established residence with the purpose to make a county jail his home. An inmate who is incarcerated in a county jail will eventually be released or transferred to a facility under the jurisdiction of the State Department of Corrections. To say that an inmate sentenced to serve time in a facility of the Department of Corrections but who may be temporarily held in a county jail may claim the jail as his residence for voting purposes but one who is confined in a facility under the jurisdiction of said department may not is an absurdity. Effect must be given to the purpose and policy of the Legislature and an unwise purpose will not be imputed to the Legislature. Sheffield v. Reece, 28 So.2d 745 (Miss. 1947).

Based on the above, we are of the opinion that an inmate housed in a jail or other local detention facility may not use that facility or jail as his residence for voter registration purposes. It is our further opinion that an inmate who has not been convicted of a crime that disqualifies him from voting, may register by mail in the county in which he resided immediately prior to his incarceration.

Sincerely,

MIKE MOORE

ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General

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