Wyoming Advisory Opinions April 19, 1982: AGO 1982-005 (April 19, 1982)

AGO 1982-005.

DISCUSSION

Your question contemplates the appointment by a county clerk of deputies to aid in the performance of the clerk's duties in the pre-election registration of voters.

In view of several previous opinions by this office on the first question, we begin with an examination of those appraisals.

Attorney General Norman B. Gray once concluded:

Assuming that under the provisions of Section 27-404, Wyoming Compiled Statutes, 1945, permission of the Board of County Commissioners could be obtained, we see no reason why a deputy could not act for the Clerk in the registration of voters (see Section 27-403, W.C.S., 1945). [Emphasis added]

Wyoming Attorneys General Opinions, September 24, 1948, page 127. Yet, that opinion reasoned that to permit a county clerk to appoint a special deputy to assist with voter registration would constitute indirect compensation to the county clerk in derogation of the directive of the legislature that the clerk receive no additional compensation for his or her performance of the registration duties. Regardless of the soundness of that deduction, the impediment to providing additional compensation to the clerk was removed by Laws 1951, Ch. 139, Section 13. This change specifically allowed for additional compensation to county clerks for conducting voter registration.

Some years later, in 1964, and under somewhat different statutes, the issue of county clerk authority to specially deputize persons to assist in voter registration was again raised. In Opinions Nos. 61, 62 and 63, pp. 442-448, this office rendered advice on a series of related questions. Through Opinion No. 61 it was noted that the law at that time, permitted a county clerk only one deputy. While it was concluded that special deputies for conducting voter registration werenot provided for under the statutes, the further conclusion that they could not in fact be utilized was premised at leastin part, upon the law's limitation of a clerk to but one deputy. True as that may have been in 1964, the present law provides, in contrast:

By and with the consent of the board of county commissioners of the respective counties, the . . . county clerk . . . in each county in the state may appoint one (1) or more deputies for each of the above-named offices who shall receive an annual salary of not less than twenty percent (20%) of the above-named officer's salary to be established by the board of county commissioners and also appoint such other clerks, stenographers and assistants as may be necessary to properly administer the affairs of any county office.

Section 18-3-107(e), W.S. 1977. [Emphasis added]

The change in the law to permit clerks and other county officers more than one deputy where necessary and consented to by the appropriate board of commissioners, occurred at Session Laws 1967, Ch. 74, Section 1, and appeared in the form nowfound at Section 18-3-107(e), W.S. 1977.

A mere change by law in the number of deputies permitted a county clerk might not satisfactorily answer the question of whether deputies may be employed on an intended temporary basis for the limited purpose of registering voters. But we further note that in the same session in which the permissible number of deputy county clerks was raised, the Legislature for the first time expressed recognition of these deputies as proper registration officials. Session Laws 1967, Ch. 38,Section 4.

Looking at our present elections laws, the Wyoming Election Code of 1973, we see that the term "Registry Agent" is defined as "a county clerk, his deputies, a city clerk, his deputies, and an election judge during a primary election." Section 22-1-102(n), W.S. 1977. "Deputies" is set forth in the plural, fully contemplating that a clerk may have more than one.

Further, the permissible places for voter registration are multiple:

Section 22-3-104. Signing, subscribing and delivery of registration oath; registration facilities in public buildings.

(a) A person registering to vote except as provided in subsection (b) or in section 22.1-33[Section 22-3-117]of the statutes shall sign his legal name in full on the registration oath form in the presence of a registry agent in his proper polling place at a primary election or in the office of the county clerk or city clerk in the principal office building of the county or city in the presence of the registry agent. The completed and signed registration oath shall then be subscribed by the registry agent and delivered to the county clerk.

(b) A county or city clerk may establish and maintain registration facilities in a public building owned by a political subdivision or governmental institution, agency or entity, after giving not less than two (2) days notice by publication in a newspaper of general circulation in the county and by posting such notice in such clerk's office and on the front door of such public building.

Wyoming Statutes, 1977. [Emphasis added]

Clearly, if multiple facilities are to be made available, one clerk and a deputy may not be sufficient if a registry agent is to be in attendance at each facility.

While registration laws are designed to protect the integrity of elections against fraud, such precautions should be designed so as to afford full and adequate opportunity to vote. 29 C.J.S., Elections, Section 37 p.60.

In the case of Bishop v. Lomenzo, 350 F.Supp. 576, 587 (D.C. NY 1972), it was said of a state law closing registration facilities in August, and therefore in derogation of the Voting Rights Act Amendments of 1970, 42 U.S.C.A. Section 1973 as -1(d), that a state may not deny the opportunity to register because of clerical deficiencies. The appropriate remedy said the court, was to provide more clerical assistants rather than to limit registration. Similarly, our own law provides that the Election Code should be construed such that qualified electors might register and vote, while preventing fraud or voting by those unqualified. Section 22-2-114, W.S. 1977.

From our examination we conclude that a fair and reasonable interpretation of the law would allow a county clerk to appoint and deputize, given the consent of the board of county commissioners, temporary employees to assist in the effectuation of voter registration. Schoeller v. Board of County Commissioners, Wyo., 568 P2d 869 (1977); Whipps v. Town of Greybull, Wyo., 109 P.2d 805 (1941).

It is our further opinion that such deputies as are appointed should be compensated at the rate provided in Section 18-3-107(e), W.S. 1977. That is to say, they should receive compensation at a rate not less than twenty percent (20%) of that of the clerk for the particular period of their employment. The term of appointment is not fixed by statute for deputies and they serve as needed and with the consent of the board of county commissioners. Griggs v. Board of County Commissioners, Wyo., 40 P. 304 (1893); Board of Commissioners of Laramie County v. Stone, Wyo., 51 P. 605 (1898).