Is Mississippi's law requiring county election commissioners to pass a skills test after election unconstitutional under Article 12, Section 250?

Plain-English summary

Senator Jeff Tate asked whether Mississippi Code Annotated Section 23-15-213(1) is constitutional under Article 12, Section 250 of the Mississippi Constitution. Section 23-15-213(1) requires a county election commissioner to satisfactorily complete a skills assessment after the commissioner has both qualified for the office and been elected to the office.

The AG declined to render an opinion on the constitutionality. The reason: Mississippi statutes are presumed constitutional until a court of competent jurisdiction rules otherwise, and no court has held Section 23-15-213 unconstitutional. The AG cited a 1996 Capps opinion citing Mississippi Power Co. v. Goudy, 459 So. 2d 257 (Miss. 1984), for the presumption-of-constitutionality rule.

The opinion is short for a reason. The AG is part of the executive branch, and constitutional review of legislative enactments is a judicial function. AG opinions can advise officials about how to apply existing statutes; they generally do not declare statutes unconstitutional. When a legislator or other official asks the AG to opine on the constitutionality of a statute, the standard answer is the presumption: the statute is constitutional until a court says otherwise.

For practical purposes, the answer is: comply with Section 23-15-213's skills-assessment requirement. If a court later strikes the statute, that ruling will govern. Until then, the requirement applies.

What this means for you

For Mississippi county election commissioners

Comply with Section 23-15-213(1)'s skills-assessment requirement. Whatever its merits or constitutional vulnerabilities, the statute is in force, and the AG is not going to declare it unconstitutional in an opinion.

If you have a case-specific concern (you cannot pass the assessment, you believe the assessment is unfairly administered, you object on constitutional grounds), the route is litigation. A declaratory judgment action in Mississippi court could put the constitutional question before a judge.

For Mississippi state legislators

If you have a constitutional concern about a statute, the AG opinion is unlikely to give you the validation you might be seeking. The AG will recite the presumption and decline to second-guess the legislature. To get a ruling on constitutionality:

• Bring (or fund) a test case in court
• Amend the statute to remove the constitutional concern
• Request that the legislature commission a constitutional review through other means (academic study, bar association, or similar)

For the Secretary of State and election administration

Section 23-15-213's skills-assessment requirement is part of the election-administration regulatory framework. Continue to administer it as the statute requires until a court ruling changes the landscape.

For voters concerned about election administration

The skills-assessment requirement exists to ensure that elected election commissioners have a baseline competency in election administration. Mississippi voters can express their views on this through their elected representatives or through candidate selection. The constitutional question (is post-election competency screening permissible under Article 12, Section 250) is open as a litigated matter.

For constitutional law scholars

Article 12, Section 250 of the Mississippi Constitution governs qualifications for office. The argument that a post-election skills assessment is unconstitutional would presumably rest on the proposition that the constitution sets all the qualifications and the legislature cannot add to them. This is a recurring question across states (constitutional vs. statutory qualifications). Mississippi has not had a definitive ruling on Section 23-15-213 specifically.

Common questions

Q: What does Article 12, Section 250 say?
A: It addresses qualifications for office in Mississippi. The full text and analysis is beyond this opinion's scope, but the section is part of the qualifications framework that limits what the legislature can demand of officeholders.

Q: What is the presumption of constitutionality?
A: A common-law principle that legislative enactments are presumed valid until invalidated by a court. The party challenging the statute carries the burden of proof. The AG's office, as part of the executive branch, defers to this presumption.

Q: Why doesn't the AG just answer the constitutional question?
A: Constitutional review of statutes is a judicial function. The AG's role is to advise on the application of existing law, not to second-guess the legislature on constitutional grounds. The presumption-of-constitutionality answer respects this separation of functions.

Q: Has Mississippi Power Co. v. Goudy been applied to election-statute challenges?
A: It is the leading case on presumption of constitutionality generally. Election-statute cases are typically resolved on more specific constitutional grounds (equal protection, voting rights), but the underlying presumption applies.

Q: What is a "court of competent jurisdiction"?
A: A court with jurisdiction over the parties and the subject matter. For state constitutional challenges, that is typically Mississippi state circuit, chancery, or appellate courts.

Q: Could a federal court rule on Section 23-15-213?
A: A federal court could decide federal constitutional questions about the statute (e.g., First Amendment, Equal Protection Clause challenges). State-constitutional questions are usually decided by state courts.

Q: What is the skills assessment for election commissioners?
A: Section 23-15-213 requires that county election commissioners complete training and pass an assessment to demonstrate competency in election administration. The Secretary of State or another administrative entity administers the assessment.

Q: What if a commissioner cannot pass the assessment?
A: The statute's specific consequences for failure are in the statutory text. Generally, failure to complete the requirement could affect the commissioner's ability to serve. Specifics depend on the current statute and any administrative rules.

Q: Does this opinion affect the validity of past elections where Section 23-15-213 applied?
A: AG opinions cannot validate or invalidate past actions. The opinion's reasoning (presumption of constitutionality, no judicial ruling) means the statute remains in effect as currently written. Past elections proceeded under its current framework.

Background and statutory framework

Mississippi's election-administration framework places county election commissioners as front-line officials responsible for running elections at the county level. The state has steadily added training and competency requirements to ensure commissioners can perform their duties effectively.

Section 23-15-213(1) requires post-election skills assessment. The structural question Senator Tate raised is whether the legislature can require something after election that goes beyond the constitutional qualifications for the office.

The presumption-of-constitutionality rule (from Mississippi Power Co. v. Goudy and a long line of similar cases) is the AG's answer to constitutional-challenge requests of this kind. The presumption applies until a court rules otherwise, with the burden of proof on the challenger.

The 1996 Capps opinion the AG cited stands for the same principle. Across state and federal law, the presumption of constitutionality is one of the strongest interpretive defaults in administrative practice. The rationale is institutional: the legislature is the policy-making branch, courts are the constitutional-review branch, and the executive branch (including the AG) operates within that framework.

The opinion is therefore primarily a procedural answer. Senator Tate did not get a "yes, it's constitutional" or "no, it isn't" ruling. He got a "courts decide; until then it's presumed valid" framing. That is the AG's standard response to legislator-driven constitutional questions about Mississippi statutes.

Citations and references

Statute:
- Miss. Code Ann. § 23-15-213, county election commissioner qualifications and skills assessment

Mississippi Constitution:
- Miss. Const. art. 12, § 250, qualifications for office

Case:
- Mississippi Power Co. v. Goudy, 459 So. 2d 257 (Miss. 1984), presumption of constitutionality of legislative enactments

Prior AG opinion cited:
- MS AG Op., Capps (Sept. 6, 1996), statutes presumed constitutional until court rules otherwise

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/J.Tate-November-23-2021-Constitutionality-of-Mississippi-Code-Annotated-Section-23-15-2131.pdf

Original opinion text

November 23, 2021

The Honorable Jeff Tate
Member, Mississippi State Senate
Post Office Box 1018
Jackson, Mississippi 39215-1018

Re: Constitutionality of Mississippi Code Annotated Section 23-15-213(1)

Dear Senator Tate:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

Under Article 12, Section 250 of the Mississippi Constitution of 1890, is it constitutional to require a county election commissioner to satisfactorily complete a skills assessment after the commissioner has both qualified for the office and been elected to the office, as is provided for in Mississippi Code Annotated Section 23-15-213(1)?

Brief Response

Statutes passed by the Mississippi Legislature are presumed constitutional until a court of competent jurisdiction rules otherwise. MS AG Op., Capps at *2 (Sept. 6, 1996) (citing Mississippi Power Co. v. Goudy, 459 So. 2d 257 (Miss. 1984)). To our knowledge, no court to date has held that Section 23-15-213 is unconstitutional.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General