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

When preparing absentee voter instructions, distinguish in-person absentee voting (at the registrar's office) from mail-in absentee voting. ID requirements apply to in-person absentee voting; they do not apply to mail-in absentee voting. The instructions should reflect that distinction.

If the legislature wants to change this, the legislative path involves amending Section 23-15-563 or 23-15-631 (statutory) or Section 249A (constitutional). The AG's reading does not foreclose such an amendment.

If you are a county circuit clerk handling absentee ballot requests

Mail-in absentee voters are not required to provide photo ID with their ballot or ballot application under current law. Other identification and verification requirements apply (witnessing, signatures, qualifying reasons), but not the photo ID requirements that govern in-person voting.

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

You are not required to include a photo ID with your mail-in ballot or ballot application. Other absentee ballot procedures still apply: the ballot has to be returned by the deadline, the ballot envelope has to be properly signed and witnessed, and you have to qualify for absentee voting under Mississippi law (e.g., out-of-county on election day, age 65+, certain medical conditions, military and overseas voters).

If you are an election integrity advocate or a voter access advocate

This opinion is descriptive of the current state of Mississippi law. It does not endorse or criticize voter ID for mail-in voting; it just reads the existing statutes and constitution. If you want to change the rule, the path is legislative.

If you are a Mississippi state legislator

The AG opinion identifies a clean statutory path if you want to extend voter ID requirements to mail-in absentee voting: amend Section 23-15-563 or Section 23-15-631 to include mail-in voters explicitly. A constitutional amendment to Section 249A would be needed if you want the ID requirement to be constitutional rather than statutory.

Common questions

Q: What kinds of ID are accepted for in-person voting in Mississippi?
A: Section 23-15-563 lists acceptable forms, including a Mississippi driver's license, U.S. passport, government-issued employee ID, firearms permit, military ID, tribal ID, and Mississippi voter identification card. The AG opinion does not analyze the list itself.

Q: What is in-person absentee voting?
A: A voter goes to the circuit clerk's office before election day and votes in person there, rather than at their polling place on election day. This is for voters who qualify for absentee voting under Mississippi law and choose the in-person option. ID requirements apply to this kind of absentee voting because it is "in person."

Q: How does mail-in absentee voting work in Mississippi?
A: Voters who qualify for absentee voting can request a ballot by mail, fill it out at home, and return it (typically by mail or in person at the circuit clerk's office) by the deadline. The ballot envelope has signature and witness requirements. Photo ID is not part of the verification process under current law.

Q: Does this opinion affect UOCAVA voters?
A: UOCAVA (Uniformed and Overseas Citizens Absentee Voting Act) covers military and overseas voters under federal law. Sections 23-15-701 et seq. set up the Mississippi-specific procedures. The AG opinion's third question (about UOCAVA) was rendered moot because the answer to question 2 (no ID for mail-in voting) means UOCAVA voters who vote by mail are likewise not subject to ID requirements.

Q: Is photo ID required for the absentee ballot application?
A: The opinion is about voting itself, not the application process. Section 23-15-563 applies to in-person voting at a polling place or the registrar's office, not to absentee ballot applications. Other application procedures apply (signature, statement of qualification).

Q: Can a county clerk add ID requirements for mail-in voters as a local rule?
A: Generally no. Election procedures in Mississippi are state-wide and statutory. County clerks implement; they do not create new requirements. Adding a county-specific ID requirement for mail-in voting would likely exceed local authority.

Q: What about a voter who has had their ID stolen and needs to vote absentee?
A: For mail-in absentee voting, ID is not required, so the missing ID is not a barrier. For in-person voting, Mississippi has affidavit-ballot procedures for voters without ID, with follow-up requirements to provide ID later for the ballot to count.

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