The opinions of the authors of this guide are based on the authority discussed below. However, defer to the Secretary of State’s advice, excerpts of which are on Slides 27-28.
Denying qualified electors in jail their right to vote violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. O’Brien v. Skinner, 414
U.S. 524 (1974); see also Goosby v. Osser, 409 U.S. 512 (1973).
Detained voters must vote in the county where they lived prior to being incarcerated. Inmate Population in County Redistricting, Op. Att’y Gen. Miss. No. 2002-0060 (2002), 2002
WL 321998 (Miss. A.G.).
Eligible persons in jail and prison must be able to vote by absentee ballot. Murphree v. Wint er, 589 F. Supp. 374 (S.D. Miss. 1984) (permanently enjoining Mississippi from denying
a class of all eligible present and future pretrial detainees and prisoners from voting by absentee ballot.). Citing the U.S. Supreme Court’s decision in O’Brien, the district court in
Murphree construed Mississippi’s absentee voter law, then codified in Section 23-9-601 of the Mississippi Code, to “literally include[] pretrial detainees under the provision made
for those who are ‘physically unable’ to go to the polls and vote in person.” Id. at 381. Although Mississippi’s absentee ballot statute has undergone changes since the Murphree
decision, the rationale behind Murphree and O’Brien applies with full force to the existing statute, codified in Section 23-15-627 of the Mississippi Code.
Under Murphree, registered voters detained in Mississippi prisons or jails are eligible to vote an absentee ballot using the excuse that applies to voters with a “temporary
or permanent physical disability,” which is one of only thirteen excuses to vote by absentee ballot exist under current law (Section 23-15-627).
Voters who qualify for an absentee ballot due to having a “temporary or permanent physical disability” are exempted from the legal requirement to have one’s absentee ballot
application and absentee ballot witnessed by their county’s registrar, a notary public, or other officer having authority to administer an oath, (where the attesting witness may be
any person over the age of eighteen). Miss. Code Ann. § 23-15-631 (2013).
Eligible voters casting an absentee ballot by mail do not have to provide a photo ID to vote. See, e.g., Secretary of State, “When Do I Need A Photo ID?,” available at
https://www.msvoterid.ms.gov/Pages/Forms/When%20do%20I%20need%20an%20ID.pdf (last accessed 9/2020); Secretary of State, “Voter ID FAQ ,” available at
https://www.msvoterid.ms.gov/forms/FAQ%20Voter%20ID.pdf (last accessed 9/2020).
Mississippians are not qualified to vote if they have been disenfranchised due to conviction of one of the 22 disenfranchising felonies. These are vote fraud or any crime listed in
Section 241 of the Mississippi Constitution of 1890 as interpreted by the Attorney General; in sum, these are: vote fraud, armed robbery, arson, bigamy, bribery, carjacking,
embezzlement, extortion, felony bad check, felony shoplifting, forgery, larceny, murder, obtaining money or goods under false pretense, perjury, rape, receiving stolen property,
robbery, statutory rape, theft, timber larceny, and unlawful taking of a vehicle. See 2009 WL 2517257, at *1 (Miss. A.G. July 9, 2009). All 22 disenfranchising offenses are listed on
Mississippi’s voter registration application.
This means that most felonies in Mississippi are not disenfranchising, including illegal drug possession and intent to sell drugs (Miss. AG Opinion No. 2000-0473, 2000 WL 1511821
(Aug. 25, 2000)); burglary (Miss. AG Opinion No. 2000-0454, 2000 WL 1511843 (Aug. 18, 2000)); assault and aggravated assault (Miss. AG Opinion No. 2009-00077, 2009 WL
927963 (Mar. 6, 2009)); manslaughter (Miss. AG Opinion, 1980 WL 28849 (Jul. 7, 1980)).
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