Does Mississippi's HB 1365 ban on private election funding cover student art and essay contests about voting?

Plain-English summary

In 2022 Mississippi enacted House Bill 1365, which prohibits state and local election officials from soliciting, accepting, using, or disposing of private donations for certain election expenses and programs. The bill is short: no agency or state or local official responsible for conducting elections may solicit, accept, use, or dispose of any donation in the form of money, grants, property, or personal services from an individual or a nongovernmental entity for the purpose of funding election-related expenses or voter education, voter outreach, or voter registration programs.

Secretary of State Michael Watson asked whether the law applied to "Promote the Vote," a long-running K-12 voter-education partnership between his office and Mississippi Public Broadcasting (MPB) and its foundation. The program included classroom materials, mock elections, and student art and essay contests. Prize money for the contests had historically been raised through private donations to the MPB Foundation. Watson asked specifically whether art and essay contests that stress the importance of voting, but do not require a separate voter-education component, fell within the statute's prohibition.

The AG's answer has two pieces.

First, on classification. Whether a particular activity is "election-related expenses or voter education, voter outreach or voter registration programs" is a factual determination "to be made by the Secretary of State's Office subject to judicial review." The AG does not decide it. The opinion notes that the program might instead be, "for example, a program in civics or government," and cites § 37-13-5(3), which requires Mississippi public schools to teach "the duties and obligations of citizenship, patriotism, Americanism and respect for an obedience to law," as a separate statutory category.

Second, on what HB 1365 does and does not prohibit. HB 1365 does not stop election officials from running, participating in, or promoting voter-education programs. The AG flags that point twice. What HB 1365 prohibits is an election official's soliciting, accepting, using, or disposing of private donations for the covered purposes. The opinion does not analyze public appropriations or approve routing donations through another entity. In the described program, the Secretary of State's Office worked with the MPB Foundation when soliciting and awarding privately funded prizes.

The Secretary of State's Office must determine whether Promote the Vote's activities fall within the covered election expenses or programs, or instead constitute civics or government education, subject to judicial review. The AG did not classify the program or approve its proposed funding arrangement.

What this means for you

For election officials running voter-education or civics programs

Under the opinion, HB 1365 "does not prohibit election officials from participating in, promoting, or administering voter education, outreach, or registration programs." What it prohibits is the funding mechanism: an election official soliciting, accepting, using, or disposing of private donations "for the purpose of funding election-related expenses or voter education, voter outreach or voter registration programs." The opinion notes that in the program described, "the prize monies have been funded with private donations through the MPB foundation," and that the classification of a given activity is the Secretary of State's factual call subject to judicial review.

For county election commissioners and circuit clerks

The prohibition reaches any "state or local official responsible for conducting elections," not just the Secretary of State. Under the opinion, such an official may not solicit, accept, use, or dispose of a private donation of money, grants, property, or personal services for the covered purposes. The opinion does not decide whether any particular program falls inside or outside the statute.

For public school administrators and civics teachers

The opinion identifies civics or government instruction, including the § 37-13-5(3) requirement that public schools teach "the duties and obligations of citizenship, patriotism, Americanism and respect for an obedience to law," as a separate statutory category. It does not decide whether a given program is civics or covered voter education; that classification is the Secretary of State's factual determination.

Common questions

Q: What does HB 1365 actually prohibit?
A: Under the statute, "[n]o agency or state or local official responsible for conducting elections may solicit, accept, use or dispose of any donation in the form of money, grants, property or personal services from an individual or a nongovernmental entity for the purpose of funding election-related expenses or voter education, voter outreach or voter registration programs."

Q: Does HB 1365 ban government grants too?
A: No. The prohibition runs to donations "from an individual or a nongovernmental entity." The statute by its terms reaches private, nongovernmental donations.

Q: What is "voter education" versus "civics education"?
A: The opinion does not define either. It says the classification is a factual determination for the Secretary of State's Office, subject to judicial review, and points to § 37-13-5(3)'s civics requirement as a separate statutory category ("for example, a program in civics or government").

Q: Can the Secretary of State still partner with MPB on Promote the Vote? A: The opinion does not decide whether Promote the Vote falls within HB 1365's covered purposes or approve its funding arrangement. It says the law does not prohibit election officials from participating in, promoting, or administering voter education programs, but bars their soliciting, accepting, using, or disposing of private donations for the covered purposes. The request said the Secretary of State's Office worked with MPB's foundation when soliciting and awarding privately funded prizes.

Q: Are personal services covered?
A: Yes. The statute reaches donations "in the form of money, grants, property or personal services," so a donation of services for a covered purpose is treated like a cash donation.

Background and statutory framework

HB 1365 (Laws of 2022) prohibits state and local election officials from soliciting, accepting, using, or disposing of private donations for election-related expenses or voter education, voter outreach, or voter registration programs. The statute is short, and the opinion declines to draw the line in the abstract for any given program, deferring to the Secretary of State's factual classification, subject to judicial review.

The opinion identifies § 37-13-5(3), the public-school civics requirement, as a separate statutory category and notes that the program in question might instead be "a program in civics or government." It does not decide whether Promote the Vote falls inside or outside HB 1365; it confirms that the statute bars the funding mechanism, not the running of the program.

Citations

• House Bill 1365, Reg. Sess. (Miss. 2022) (private election funding prohibition)
• Miss. Code Ann. § 37-13-5(3) (public school civics education requirement)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/09/M.Watson-September-13-2022-House-Bill-No.-1365-Laws-of-2022.pdf

Original opinion text

September 13, 2022
The Honorable Michael Watson
Secretary of State
Post Office Box 136
Jackson, Mississippi 39205
Re:

House Bill No. 1365 (Laws of 2022)

Dear Secretary Watson:
The Office of the Attorney General has received your request for an official opinion.

Background
In the 2022 legislative session, the Mississippi Legislature enacted House Bill 1365 ("H.B. 1365"), which prohibits state and local election officials from soliciting, accepting, using, or disposing of private donations for certain election expenses and programs. H.B. 1365, Reg. Sess. (Miss. 2022). In your request, you describe what you term as a "voter education program" that the Office of the Secretary of State has administered in prior years as follows: The Secretary of State's Office has been a long-time sponsor of Promote the Vote (PTV), a comprehensive non-partisan K-12 voter education project in partnership with Mississippi Public Broadcasting and its foundation (MPB). In the project, teachers are provided with classroom content to educate their students on the election process in Mississippi. Students also participate in mock elections and other contests, such as art and essay contests, centered around the importance of voter engagement. While the project also encourages voter registration for those students who are eligible to register to vote, a student is not required to "learn about elections" to participate. Since its inception, the role of the SOS with respect to the PTV has been to administer the program, which includes providing educational materials, implementing and judging the art and essay contests, and working closely with the MPB foundation when soliciting and awarding prize monies to contest winners. Historically, the prize monies have been funded with private donations through the MPB foundation. It should be noted that these prize monies are not used for any of the educational material provided through PTV.

Question Presented
Does "election-related expenses or voter education, voter outreach or voter registration programs" as contemplated in H.B. 1365 include art and essay contests that stress the importance of voting, but do not require a voter education component? Brief Response Whether the art and essay contests as described in your request are "election-related expenses or voter education, voter outreach or voter registration programs" under H.B. 1365 is a factual determination to be made by the Secretary of State's Office subject to judicial review. H.B. 1365 does not prohibit election officials from participating in or administering voter education, outreach, or registration programs. Rather, H.B. 1365 prohibits election officials from soliciting, accepting, using, or disposing of private donations for such programs. Applicable Law and Discussion H.B. 1365 provides: No agency or state or local official responsible for conducting elections may solicit, accept, use or dispose of any donation in the form of money, grants, property or personal services from an individual or a nongovernmental entity for the purpose of funding election-related expenses or voter education, voter outreach or voter registration programs. H.B. 1365, Reg. Sess. (Miss. 2022). You ask specifically about contests that do not require a voter education component. However, H.B. 1365 prohibits the use of private donations for any election-related expenses, not merely those with a voter education component. Pursuant to H.B. 1365, the Office of the Secretary of State is prohibited from soliciting, accepting, using, or disposing of private donations for the funding of election-related expenses or voter education, voter outreach or voter registration programs. Whether the Promote the Vote program you describe is "election-related expenses or voter education, voter outreach or voter registration programs," or, for example, a program in civics or government, is a factual determination that this office cannot make. See Miss. Code Ann. § 37-13-5(3) (requiring a course of study in all public schools on "the duties and obligations of citizenship, patriotism, Americanism and respect for an obedience to law"). Notably, H.B. 1365 does not prohibit election officials from participating in, promoting, or administering voter education, outreach, or registration programs. Rather, H.B. 1365 prohibits election officials from soliciting, accepting, using, or disposing of private donations for such programs.

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