Does Mississippi voter ID law apply to mail-in absentee voters, or only to in-person voting?

Plain-English summary

Mississippi has voter ID. Both the state constitution (Section 249A) and a statute (Section 23-15-563) require voters to present a government-issued photo ID to vote. The Secretary of State asked the AG: do these requirements reach mail-in absentee voters?

The AG said no, on both fronts:

1. Constitution Section 249A. The provision is expressly limited to "[a] qualified elector who votes in a primary or general election, either in person at the polls or in person in the office of the circuit clerk." Mail-in voting is not "in person." Section 249A does not address mail-in absentee voting at all, so it does not require ID for mail-in absentee voters and does not prohibit the legislature from later doing so.

2. Section 23-15-563. The statute says "[e]ach person who appears to vote in person at a polling place or the registrar's office shall be required to identify himself or herself to a poll manager or the registrar by presenting current and valid photo identification before such person shall be allowed to vote." Again, "appears to vote in person" is the trigger. Mail-in voting is not "appearing in person."

Section 23-15-631(3) instructs the Secretary of State to prepare instructions for absentee voters on how to comply with the ID requirements of Section 23-15-563. The Secretary asked whether that cross-reference imports the ID requirements into mail-in absentee voting. The AG read it the other way: the Secretary's instructions tell absentee voters how to comply with the ID requirements of § 23-15-563 to the extent those requirements apply to absentee voting, which is in-person absentee voting at the registrar's office. Mail-in absentee voting is not subject to those ID requirements.

The third question (about UOCAVA, the federal absentee voting law for military and overseas voters) was rendered moot by the answer to question 2.

This opinion does not say what the law should be; it says what the law is. The legislature could amend the statutes (or amend Section 249A through a constitutional amendment) to extend voter ID requirements to mail-in voting. As of August 2024, the law as written reaches in-person voting only.

What this means for you

If you are at the Mississippi Secretary of State's office

The opinion answers the question you posed: Section 23-15-563's photo ID requirement applies to voting "in person at a polling place or the registrar's office," not to mail-in absentee voting. Section 23-15-631(3) directs you to "prepare instructions on how absent voters may comply with the identification requirements of Section 23-15-563," and the AG read that as a delegation to prepare instructions, not a substantive expansion of the ID requirement to mail-in voting.

If you are a county circuit clerk or election official

Under this opinion, mail-in absentee voters are not subject to the photo ID requirements of Section 23-15-563 or Section 249A; those requirements reach only voting "in person at the polls or in person in the office of the circuit clerk." The opinion addresses the photo ID question and does not speak to the other procedures that govern absentee ballots.

If you are a Mississippi voter using a mail-in absentee ballot

Based on this opinion, the photo ID requirements in Section 249A and Section 23-15-563 do not apply to mail-in absentee voting. The opinion is limited to those ID requirements; it does not address the other rules that apply to absentee ballots.

If you are a Mississippi state legislator

The opinion holds that Section 249A "does not prohibit a legislative or constitutional expansion of voter identification requirements for mail-in absentee voting." So the constitution does not currently require ID for mail-in voting, and it does not bar the legislature (by statute) or the people (by constitutional amendment) from adding one.

Common questions

Q: Does Mississippi require photo ID to vote by mail-in absentee ballot?
A: No, under this opinion. The AG concluded that both Section 249A of the constitution and Section 23-15-563 apply only to voting "in person," so mail-in absentee voters are not subject to the photo ID requirement.

Q: What is in-person absentee voting, and does ID apply to it?
A: It is voting in person at the circuit clerk's (registrar's) office before election day rather than by mail. The AG concluded the photo ID requirement does apply to it, because Section 23-15-563 covers a person who "appears to vote in person at a polling place or the registrar's office."

Q: If the Secretary of State prepares ID instructions for "absent voters," doesn't that mean mail-in voters need ID?
A: The AG said no. Section 23-15-631(3) tells the Secretary of State to prepare instructions on complying with Section 23-15-563's ID requirements, but Section 23-15-563 itself limits those requirements to in-person voting. The instructions follow the underlying statute; they do not expand it.

Q: Could Mississippi extend voter ID to mail-in voting?
A: Yes. The AG concluded Section 249A "does not prohibit a legislative or constitutional expansion" of the ID requirement to mail-in absentee voting. The legislature could amend the statutes, or Section 249A could be amended, to add such a requirement.

Q: Does this opinion affect UOCAVA (military and overseas) voters?
A: The Secretary of State's third question asked about UOCAVA voters. The AG found it moot: because Section 23-15-563 applies only to in-person voting and the legislature "did not amend any provision of Section 23-15-631 to apply voter identification requirements to mail-in absentee voting," the question did not need to be reached.

Background and statutory framework

Section 249A of the Mississippi Constitution:

(1)(a) A qualified elector who votes in a primary or general election, either in person at the polls or in person in the office of the circuit clerk, shall present a government issued photo identification before being allowed to vote.

The "in person at the polls or in person in the office of the circuit clerk" language is the AG's anchor: mail-in voting is not in person.

Section 23-15-563(1):

[E]ach person who appears to vote in person at a polling place or the registrar's office shall be required to identify himself or herself to a poll manager or the registrar by presenting current and valid photo identification before such person shall be allowed to vote.

Section 23-15-631(3):

The Secretary of State shall prepare instructions on how absent voters may comply with the identification requirements of Section 23-15-563.

The Secretary of State's question turned on this last provision. The AG read the cross-reference as a delegation to the Secretary to prepare instructions, not as a substantive expansion of the ID requirement to mail-in voting.

UOCAVA voting is governed by §§ 23-15-701 et seq. on the state side, and by federal UOCAVA on the federal side.

Citations

• Miss. Const. art. 12, § 249A
• Miss. Const. art. 12, § 249A(1)(a)
• Miss. Code Ann. § 23-15-563
• Miss. Code Ann. § 23-15-563(1)
• Miss. Code Ann. § 23-15-631(3)
• Miss. Code Ann. §§ 23-15-701 et seq.

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/08/M.Watson-August-15-2024-Voter-ID-for-Mail-In-Absentee-Voters.pdf

Original opinion text

August 15, 2024
The Honorable Michael Watson
Secretary of State, Mississippi
401 Mississippi Street
Jackson, Mississippi 39205
Re: Voter ID for Mail-In Absentee Voters

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

Questions Presented

1. Does Mississippi Constitution Section 249A, "Government issued photo identification required to vote," prohibit an expansion of the requirement to present an acceptable form of photo ID to mail-in absentee voters?
2. Are the voter identification requirements set forth in Mississippi Code Annotated Section 23-15-563 applicable to mail-in absentee voters pursuant to Section 23-15-631(3)?
3. If the legislature imposed requirements to present an acceptable form of photo ID for mail-in absentee voters through Section 23-15-631(3), how would this requirement affect the procedures for Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA") absentee voters through Sections 23-15-701, et. seq.? Does the separation of procedures for UOCAVA, including instructions to be provided to UOCAVA voters, into a separate sub-article from Section 23-15-631(3) also separate UOCAVA absentee voters from providing an acceptable form of photo ID if casting a ballot outside of the registrar's office?

Brief Response

1. Section 249A is expressly limited to voting "in person at the polls or in person in the office of the circuit clerk"; thus, it does not prohibit a legislative or constitutional expansion of voter identification requirements for mail-in absentee voters.
2. Section 23-15-563's voter identification requirements only apply to in-person voting: "[e]ach person who appears to vote in person at a polling place or the registrar's office shall be required to identify himself or herself to a poll manager or the registrar by presenting current and valid photo identification before such person shall be allowed to vote."
3. Given the response to question two, this question is moot.

Applicable Law and Discussion
You first ask whether Section 249A of the Mississippi Constitution prohibits an expansion of the requirement to present an acceptable form of photo ID to mail-in absentee voters. While Section 249A generally concerns government issued photo identification required to vote in Mississippi, Section 249A(1)(a) specifically provides that "[a] qualified elector who votes in a primary or general election, either in person at the polls or in person in the office of the circuit clerk, shall present a government issued photo identification before being allowed to vote." Section 249A does not address mail-in absentee voting in any regard. Thus, it is the opinion of this office that Section 249A does not prohibit a legislative or constitutional expansion of voter identification requirements for mail-in absentee voting.

You next ask if the voter identification requirements set forth in Section 23-15-563 are applicable to mail-in absentee voters pursuant to Section 23-15-631(3). Like Section 249A, Section 23-15-563 does not address mail-in absentee voting. Rather, as stated above, Section 23-15-563(1) only requires current, valid photo identification for individuals who are voting in person. Section 23-15-631(3) provides, "[t]he Secretary of State shall prepare instructions on how absent voters may comply with the identification requirements of Section 23-15-563." Accordingly, even though Section 23-15-631(3) does not distinguish between in-person absentee voting and mail-in absentee voting for purposes of the instructions the Secretary of State shall prepare, Section 23-15-563 does make that distinction, only requiring voter identification for absentee voting in person at the registrar's office.

Because Section 23-15-563 only applies to in-person voting, and the legislature did not amend any provision of Section 23-15-631 to apply voter identification requirements to mail-in absentee voting, your third question is moot.

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