MS 2023-07-S-Dionne-July-20-2023-Disability-as-Used-in-Mississippi-Code-Annotated-Section-2 July 20, 2023

What counts as a 'disability' that allows a Mississippi voter to get help at the polls?

Short answer: Section 23-15-549 doesn't define 'disability,' so the Mississippi AG applies the common dictionary meaning. A voter has a 'disability' that qualifies them for assistance if a physical, mental, cognitive, or developmental condition impairs their ability to engage in the tasks needed to vote.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Subject

Definition of "Disability" Under Section 23-15-549

Recipient

Sara Carlson Dionne, Chairman, Warren County Election Commission

Plain-English summary

Section 23-15-549 lets a voter who declares to poll managers that they "require[] assistance to vote by reason of blindness, disability or inability to read or write" be given assistance by a person of the voter's choice (with conflict-of-interest exclusions for candidates, immediate family of candidates, poll watchers, employers, and union officers, except that a candidate or candidate's family member may help a first-degree relative).

Warren County's election commission chair asked the AG: what counts as a "disability" for that purpose? The AG said the statute does not define the term, so under Section 1-3-65 (Mississippi's plain-meaning rule), the dictionary controls. 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." Applied here, a "disability" is one of those conditions that limits the voter's ability to vote without help.

The AG noted the same approach was used in DeGruy (Sept. 29, 2022), addressing the same definitional gap in the Absentee Balloting Procedures Law (Sections 23-15-621 et seq.).

What this means for you

Poll managers

When a voter declares they need assistance because of a disability, the standard is broad. The voter does not have to provide medical documentation or fit a specific category. If the condition impairs their ability to perform voting tasks (reading the ballot, marking a choice, navigating the booth, understanding the instructions), they qualify under Section 23-15-549. Provide the assistance the voter requests, subject only to the statutory conflict-of-interest exclusions on who can help.

County election commissioners

Train poll managers to apply the dictionary standard. A voter saying "I have arthritis and cannot grip the pen" or "I have an anxiety disorder that prevents me from reading the ballot alone" qualifies. The poll manager's job is not to second-guess the voter's self-identification.

Voters with disabilities

Mississippi law gives you the right to bring a person of your choice to assist you at the polls, with the limits noted above. You do not need to prove your disability. Just declare that you need help, and your assistor (other than the excluded categories) can come into the booth.

Voter assistance helpers

You may not assist a voter at the polls if you are: (1) a candidate on the ballot; (2) a spouse, parent, sibling, or child of a candidate on the ballot (except for assistance to a first-degree relative); (3) a poll watcher observing the polling place that day; (4) the voter's employer or that employer's agent; or (5) an officer or agent of the voter's union.

Voting rights advocates

The AG's broad reading of "disability" is favorable to access. If poll managers are turning voters away or refusing assistance based on a narrower definition, that conduct conflicts with the AG opinion's plain-meaning interpretation.

Background and statutory framework

Section 23-15-549 reads in pertinent part: "Any voter who declares to the poll managers of the election that he or she requires assistance to vote by reason of blindness, disability or inability to read or write may be given assistance by a person of the voter's choice, except that voter assistance shall not be provided by a candidate whose name is on the ballot, or by a spouse, parent, sibling or child of a candidate whose name is on the ballot, or by a poll watcher who is observing the polling place on election day, or the voter's employer, or agent of that employer, or officer or agent of the voter's union; however, a candidate for public office or the spouse, parent or child of a candidate may provide assistance upon request of any voter who is related within the first degree."

The term "disability" is not defined in Section 23-15-549 or anywhere else in the Mississippi Election Code (Sections 25-15-1 et seq.). Section 1-3-65 says all words in statutes are used "according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning." The Mississippi Supreme Court applied the rule in Taylor Constr. Co., Inc. v. Superior Mat Co., Inc., 298 So. 3d 956, 958-59 (Miss. 2020), and Buffington v. Miss. State Tax Comm'n, 43 So. 3d 450, 455 (Miss. 2010).

The AG's prior DeGruy opinion (Sept. 29, 2022) had imported the same Merriam-Webster definition for Section 23-15-621 et seq., and the AG carried it forward here.

Citations

Miss. Code Ann. § 1-3-65 (plain-meaning rule)
Miss. Code Ann. § 23-15-549 (voter assistance for blindness, disability, or inability to read or write)
Taylor Constr. Co., Inc. v. Superior Mat Co., Inc., 298 So. 3d 956, 958-59 (Miss. 2020) (common and ordinary meaning)
Buffington v. Miss. State Tax Comm'n, 43 So. 3d 450, 455 (Miss. 2010) (plain-meaning rule)
MS AG Op., DeGruy (Sept. 29, 2022) (adopting Merriam-Webster disability definition for absentee balloting)

Source

Original opinion text

July 20, 2023
Sara Carlson Dionne, Chairman
Warren County Election Commission
Post Office Box 351
Vicksburg, Mississippi 39181
Re:

"Disability" as Used in Mississippi Code Annotated Section 23-15-549

Dear Ms. Dionne:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
What is the definition of "disability" as used in Mississippi Code Annotated Section 23-15-549?
Brief Response
Where there is no statutory definition of a term, the term's common and ordinary meaning applies.
Applying the Merriam-Webster Dictionary definition to Section 23-15-549, a "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" so as to necessitate assistance in order to vote.
Applicable Law and Discussion
Section 23-15-549 provides:
Any voter who declares to the poll managers of the election that he or she requires
assistance to vote by reason of blindness, disability or inability to read or write may
be given assistance by a person of the voter's choice, except that voter assistance
shall not be provided by a candidate whose name is on the ballot, or by a spouse,
parent, sibling or child of a candidate whose name is on the ballot, or by a poll
watcher who is observing the polling place on election day, or the voter's employer,
or agent of that employer, or officer or agent of the voter's union; however, a
candidate for public office or the spouse, parent or child of a candidate may provide
assistance upon request of any voter who is related within the first degree.
(emphasis added). But, as suggested by your question, Section 23-15-549 fails to define
"disability." Nor is the term "disability" defined anywhere in the Mississippi Election Code,
Sections 25-15-1, et seq. See also MS AG Op., DeGruy at 2 (Sept. 29, 2022) (noting "disability"
is not defined in the Absentee Balloting Procedures Law, Sections 23-15-621, et seq.).
Where there is no statutory definition of a phrase, the Mississippi Supreme Court has stated that
the phrase "must be given its common and ordinary meaning." Taylor Constr. Co., Inc. v. Superior
Mat Co., Inc., 298 So. 3d 956, 958-59 (Miss. 2020) (quoting Buffington v. Miss. State Tax Comm'n,
43 So. 3d 450, 455 (Miss. 2010)); see also Miss. Code Ann. § 1-3-65 ("All words and phrases
contained in the statutes are used according to their common and ordinary acceptation and
meaning; but technical words and phrases according to their technical meaning."). As understood
when Section 23-15-549 was drafted, "disability" meant "the condition of being disabled: the lack
of ability, power, or fitness to do something." Merriam-Webster, Inc., WEBSTER'S INTERMEDIATE
DICTIONARY (1986). But now, as noted in DeGruy, Merriam-Webster Dictionary defines
"disability" 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." DeGruy at 1 (quoting MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/disability (last visited July 18, 2023)).
The two definitions of "disability" being virtually the same, applying the "common and ordinary
meaning" as required for statutory construction in circumstances such as these, it is the opinion of
this office that the recent definition of disability used in DeGruy is also applicable here. Thus, in
the context of Section 23-15-549, a "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" so as to necessitate assistance in
order to vote.
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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General