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. When a legislator asks the AG whether a statute is constitutional, the office's standard answer is the presumption of constitutionality: the statute is treated as valid until a court of competent jurisdiction holds otherwise. The opinion reports that no court has invalidated Section 23-15-213, so the statute remains in effect; if a court later struck it, that ruling would govern.

What this means for you

For Mississippi county election commissioners

The opinion does not decide whether Section 23-15-213(1)'s post-election skills-assessment requirement is constitutional. It states that statutes "are presumed constitutional until a court of competent jurisdiction rules otherwise," and that, to the AG's knowledge, "no court to date has held that Section 23-15-213 is unconstitutional." On that basis the statute stands.

For Mississippi state legislators

The opinion is the AG's standard response to a request to opine on a statute's constitutionality: it recites the presumption of constitutionality and notes that no court has invalidated the statute. It does not endorse or reject the constitutional argument raised under Article 12, Section 250.

For the Secretary of State and election administration

The opinion leaves Section 23-15-213 in force. It does not address how the skills assessment is administered; it answers only that the statute is presumed constitutional unless and until a court rules otherwise.

For voters and others following the question

Under the opinion, the constitutional question (whether a post-election skills-assessment requirement is permissible under Article 12, Section 250) remains one for the courts. The AG did not answer it; the statute is presumed valid until a court of competent jurisdiction holds otherwise.

Common questions

Q: Did the AG decide whether Section 23-15-213(1) is constitutional?
A: No. The opinion states only that statutes "are presumed constitutional until a court of competent jurisdiction rules otherwise" and that no court has held Section 23-15-213 unconstitutional.

Q: What is the presumption of constitutionality?
A: The principle, which the opinion applies, that a statute passed by the Legislature is presumed valid until a court of competent jurisdiction holds otherwise. The opinion cites the Capps opinion and Mississippi Power Co. v. Goudy (Miss. 1984).

Q: Why won't the AG answer the constitutional question?
A: The opinion's framing is that the question is one for a "court of competent jurisdiction." The AG reports the presumption and the absence of any court ruling striking the statute, rather than ruling on the constitutional issue itself.

Q: What does the statute require?
A: As described in the opinion, 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."

Q: What was the constitutional concern raised?
A: The question asked whether that post-election skills-assessment requirement is constitutional "under Article 12, Section 250 of the Mississippi Constitution of 1890." The opinion does not resolve that question.

Background and statutory framework

Section 23-15-213(1) requires a county election commissioner to complete a skills assessment after qualifying for and being elected to the office. Senator Tate's question was whether that requirement is constitutional under Article 12, Section 250 of the Mississippi Constitution, which addresses qualifications for office.

The opinion does not reach that question. Instead it applies the presumption of constitutionality: a statute is presumed valid until a court of competent jurisdiction holds otherwise, citing the Capps (1996) opinion and Mississippi Power Co. v. Goudy, 459 So. 2d 257 (Miss. 1984). Because no court has invalidated Section 23-15-213, the opinion concludes the statute stands. It is, in substance, a procedural answer rather than a ruling on the merits of the constitutional argument.

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