Can a Mississippi pretrial detainee held in their home county vote absentee on the disability excuse?

Plain-English summary

Mississippi's State Public Defender, André DeGruy, asked the AG a sharply practical question. Mississippi pretrial detainees and others in jail in their county of residence on election day cannot reach the polls. The state's absentee-ballot statute lists categories of qualified electors who can vote absentee. One category is "any person who has a temporary or permanent physical disability." The Public Defender wanted to know whether a person held in their home county could mark "disability" on the absentee application as a way to vote.

The AG's answer: only if the elector actually has a temporary or permanent physical disability. Custody by itself is not the same as disability.

The reasoning leans hard on strict statutory compliance. The Mississippi Supreme Court has said repeatedly that absentee-ballot procedures require strict compliance (Thompson v. Jones, 17 So. 3d 524 (Miss. 2008); Boyd v. Tishomingo County Democratic Exec. Comm., 912 So. 2d 124 (Miss. 2005); Watson v. Oppenheim, 301 So. 3d 37 (Miss. 2020)). § 23-15-713(d) defines the disability category as a "temporary or permanent physical disability" that prevents voting in person without substantial hardship or that would create danger to the elector or others if they appeared at the polling place. The statute does not define "disability" further, and § 23-15-629 requires a permanent disability to be backed by a signed statement from a physician or nurse practitioner.

Without a statutory definition, the AG turned to plain meaning. The Merriam-Webster definition of disability is "a physical, mental, cognitive, or developmental condition that impairs, interferes with, or limits a person's ability to engage in certain tasks or actions or participate in typical daily activities and interactions." The AG read § 23-15-713(d)'s "physical disability" requirement as anchoring the category in inherent, impairing, physical conditions. Detention is a circumstance imposed externally, not a physical condition inherent to the elector.

Citing O'Brien v. Skinner, 414 U.S. 524 (1974), the AG noted that "a qualified elector who is otherwise eligible to vote does not lose the right to vote because he or she is being detained." The opinion's point is narrow: detention does not strip the right to vote, but the disability category is not the absentee excuse for someone whose only basis is being in custody. The question for any individual detainee is whether one of the existing categories (disability, age over 65, away from county on election day, and others) actually fits, a case-by-case determination for local election officials.

What this means for you

For public defenders and attorneys representing pretrial detainees

Under the opinion, the disability excuse works only for a client who in fact has a temporary or permanent physical disability. The opinion lists the other absentee categories in § 23-15-713, including bona fide students and teachers absent from the county on election day, congressional-delegation members, "any qualified elector who for any reason is away from his county of residence on election day," and those over 65. The opinion notes that for a detainee held in the home county, the analysis is whether one of those categories actually fits; a detainee held outside the home county may fit the "away from his county of residence" category.

For circuit clerks and county election commissioners

The opinion ties the answer to strict compliance: the Mississippi Supreme Court "requires strict compliance with the statutes concerning absentee ballots," and local officials must "act in good faith." Whether an elector qualifies on disability "or any other category for absentee voting is a determination that must be made on a case-by-case basis by local election officials." For a permanent physical disability, § 23-15-629 requires a signed statement from a physician or nurse practitioner.

For county jails and detainees

The opinion notes, citing O'Brien v. Skinner, that "a qualified elector who is otherwise eligible to vote does not lose the right to vote because he or she is being detained." It does not impose specific obligations on jails; it answers only that the disability excuse is not available to a detainee whose sole basis is being in custody. A detainee's path to an absentee ballot depends on whether another statutory category fits.

Common questions

Q: What categories let a Mississippi voter cast an absentee ballot?
A: § 23-15-713 lists them. The opinion names, among others: (a) bona fide students and teachers absent from the county on election day; (b) qualified electors away from their residence on election day as members of a congressional delegation; (c) "any qualified elector who for any reason is away from his county of residence on election day"; (d) any person with a temporary or permanent physical disability; and (f) those over 65.

Q: What about category (c), "for any reason away from his county of residence on election day"?
A: The opinion notes that question was about detainees in their home county. By its terms, category (c) addresses an elector who is away from the county of residence, which would fit a detainee held outside the home county rather than one held in it.

Q: What does the disability excuse look like in practice?
A: For a permanent physical disability, § 23-15-629 requires a signed statement from a physician or nurse practitioner. The statute also covers a "temporary . . . physical disability." Local election officials make a case-by-case determination of whether the application is sufficient.

Q: Does pretrial detention itself constitute a disability?
A: Not under the opinion. Reading "physical disability" by its common and ordinary meaning, the AG concluded the category "assumes an inherent, impairing, physical condition," and § 23-15-713(d) "requires that the disability be physical," not a circumstance like detention.

Q: Did the AG say detention strips the right to vote?
A: No. The opinion notes, citing O'Brien v. Skinner, 414 U.S. 524 (1974), that "a qualified elector who is otherwise eligible to vote does not lose the right to vote because he or she is being detained." The holding is only that the disability excuse is not the mechanism for an in-county detainee.

Background and statutory framework

Mississippi requires in-person voting unless the voter qualifies for an absentee ballot. § 23-15-621 creates the absentee-ballot mechanism. § 23-15-713 lists the qualifying categories. § 23-15-627 contains the application form. § 23-15-629 handles permanent physical disability and the physician statement requirement. § 23-15-579, § 23-15-641, and § 23-15-643 govern processing and rejection.

The Mississippi Supreme Court has repeatedly described the absentee statutes as requiring strict compliance, with local officials acting in good faith. That standard pulls toward construing each category narrowly and against expansive readings that paper over absent legislative authority.

The opinion cites O'Brien v. Skinner, 414 U.S. 524 (1974), for the proposition that "a qualified elector who is otherwise eligible to vote does not lose the right to vote because he or she is being detained." The opinion does not analyze whether in-home-county detainees have an effective avenue to vote; it holds only that the disability category is not that avenue for a detainee whose sole basis is custody, and that whether any category fits is a case-by-case determination for local election officials.

Citations

• Miss. Code Ann. § 23-15-621 (creation of absentee voting privilege)
• Miss. Code Ann. § 23-15-627 (absentee ballot application form)
• Miss. Code Ann. § 23-15-629 (physician or nurse practitioner statement for permanent disability)
• Miss. Code Ann. § 23-15-579 (processing absentee ballots)
• Miss. Code Ann. § 23-15-641 (rejection procedures)
• Miss. Code Ann. § 23-15-643 (rejection procedures)
• Miss. Code Ann. § 23-15-713(d) (temporary or permanent physical disability category)
• Thompson v. Jones, 17 So. 3d 524 (Miss. 2008) (strict compliance with absentee statutes)
• Boyd v. Tishomingo County Democratic Exec. Comm., 912 So. 2d 124 (Miss. 2005) (strict compliance)
• Watson v. Oppenheim, 301 So. 3d 37 (Miss. 2020) (strict compliance and good-faith application by local officials)
• O'Brien v. Skinner, 414 U.S. 524 (1974) (detention does not strip voting rights)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/10/A.DeGruy-September-29-2022-Absentee-Ballot-Excuse-for-Persons-Held-in-Custody-in-Their-Home-County.pdf

Original opinion text

September 29, 2022
The Honorable André DeGruy
Mississippi State Public Defender
239 N. Lamar Street, Suite 601
Jackson, Mississippi 39207
Re:

Absentee Ballot Excuse for Persons Held in Custody in Their Home County

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

Question Presented
May qualified electors who are held in custody in their county of residence select the "disability"
excuse when applying for and voting by absentee ballot?
Brief Response
A qualified elector may only vote by absentee ballot on the basis of a disability if he or she, in fact,
has a temporary or permanent physical disability, which is a determination that must be made on
a case-by-case basis by local election officials.
Applicable Law and Discussion
"The privilege of voting by absentee ballot is created by Miss. Code Ann. § 23–15–621 . . ., and
those administering elections must strictly conform to statutory requirements." Thompson v. Jones,
17 So. 3d 524, 527 (Miss. 2008) (citing Boyd v. Tishomingo County Democratic Exec. Comm. &
Members, 912 So. 2d 124, 134 (Miss. 2005)).
A duly qualified elector may vote by absentee ballot if the elector falls within at least one of several
listed categories, including:
Any person who has a temporary or permanent physical disability and who, because
of such disability, is unable to vote in person without substantial hardship to
himself, herself or others, or whose attendance at the voting place could reasonably

cause danger to himself, herself or others. For purposes of this paragraph (d),
"temporary physical disability" shall include any qualified elector who is under a
physician-imposed quarantine due to COVID-19 during the year 2020 or is caring
for a dependent who is under a physician-imposed quarantine due to COVID-19
beginning with July 8, 2020 and the same being repealed on December 31, 2020.
Miss. Code Ann. § 23-15-713(d). Some of the other categories include bona fide students and
teachers absent from the counties of their voting residence on an election day, qualified electors
required to be away from their place of residence on election day because they are members of a
congressional delegation, any qualified elector who for any reason is away from his county of
residence on election day, and those over sixty-five years of age. Id. at (a), (b), (c), and (f). These
categories are also included on the application form for an absentee ballot found in Section 23-15-627. Local election officials make the decision whether to reject an absentee ballot, and each
decision is specific to the individual qualified elector and is made on a case-by-case basis. See
Miss. Code Ann. §§ 23-15-641, 23-15-643, and 23-15-579.
Section 23-15-629 provides that voters with a permanent physical disability must prove such with
a signed statement from their physician or nurse practitioner. Yet Section 23-15-629 fails to define
a "permanent physical disability." In fact, the term "disability" is not defined at all in the Absentee
Balloting Procedures Law. Miss. Code Ann. §§ 23-15-621, et seq. "Mississippi law mandates that
all words and phrases contained in the statutes are used according to their common and ordinary
meaning . . . ." Watson v. Oppenheim, 301 So. 3d 37, 42 (Miss. 2020) (citations omitted). In the
Merriam-Webster Dictionary, "disability" is defined as "a physical, mental, cognitive, or
developmental condition that impairs, interferes with, or limits a person's ability to engage in
certain tasks or actions or participate in typical daily activities and interactions." Disability,
Merriam-Webster, https://www.merriam-webster.com/dictionary/disability (last visited Sept. 23,
2022). Thus, the common and ordinary meaning of "disability" assumes an inherent, impairing,
physical condition. Section 23-15-713(d) reflects this and requires that the disability be physical.
The Mississippi Supreme Court has held that it "requires strict compliance with the statutes
concerning absentee ballots," and local officials must "act in good faith" to ensure that absentee
ballots are cast in a legally prescribed manner. Watson, 301 So. 3d at 43 (citations omitted).
Therefore, it is the opinion of this office that a qualified elector may only vote by absentee ballot
on the basis of a disability if he or she, in fact, has a temporary or permanent physical disability.
Whether a qualified elector meets the requirements to vote absentee based on a temporary or
permanent physical disability or any other category for absentee voting is a determination that
must be made on a case-by-case basis by local election officials. We do note that a qualified elector
who is otherwise eligible to vote does not lose the right to vote because he or she is being detained.
See O'Brien v. Skinner, 414 U.S. 524, 529 (1974).

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