Can a Mississippi county install culverts on private property used as a polling place?

Plain-English summary

Walthall County's fourth-district polling place in Tylertown is owned by the American Legion. A drainage ditch cuts off a chunk of potential parking and is also a fall hazard. The American Legion asked the county to put culverts in the ditch and cover them, creating both more parking and a safer walkway. The Walthall County Board of Supervisors asked the AG: can we use Section 23-15-281(2) to do that?

The AG said no. Section 23-15-281(2) lets the board of supervisors purchase property (improved or unimproved) and then construct, reconstruct, repair, renovate, and maintain polling places on that purchased property. When the polling place is on private land the county does not own, the statute authorizes only "reasonable rental fees" tied to the election day window. The opinion reads the statute as offering two distinct authorities separated by "or," and concludes it does not authorize the board to purchase and install culverts to improve private property used as a polling place.

What this means for you

If you are a county supervisor or county election official

The opinion holds Section 23-15-281(2) does not authorize the board to purchase and install culverts to improve private property used as a polling place. It reads the statute as authorizing the board to construct, repair, renovate, and maintain polling places on property the board has purchased, or to pay private property owners reasonable rental fees when their property is used as a polling place for the day before, the day of, and the day after the election. The same provision requires the board, on or before May 1, 2019, to ensure each polling place is accessible to all voters, structurally sound, capable of heating and air conditioning, and ADA-compliant.

If your private property is used as a polling place

The opinion holds the county's authorized payment for private property used as a polling place is a "reasonable rental fee" for the day before, the day of, and the day after the election, not a county-funded permanent improvement to the land.

If you are an attorney advising a county

The opinion states that "to the extent any previous opinions conflict, they are modified prospectively to conform herewith." It reads the statute to allow capital improvements on property the board has purchased, distinct from the rental-fee authority for private property.

Common questions

Q: What payment may the county make for private property used as a polling place?
A: The opinion holds the authorized payment is a "reasonable rental fee" for a period not to exceed the day before, the day of, and the day after the election.

Q: Could the county buy the property to install the culverts?
A: The opinion reads Section 23-15-281(2) to authorize the board to purchase improved or unimproved property and to construct, reconstruct, repair, renovate, and maintain polling places on it. The improvement authority attaches to property the board has purchased.

Q: What does the statute say about ADA compliance?
A: Section 23-15-281(2), as quoted in the opinion, requires the board of supervisors, on or before May 1, 2019, to ensure each polling place is accessible to all voters, structurally sound, capable of heating and air conditioning, and compliant with the Americans with Disabilities Act. The opinion does not address how a county discharges that duty for a private polling place it cannot improve.

Background and statutory framework

Mississippi Code Annotated Section 23-15-281(2) is the operative provision:

The board of supervisors is authorized, by order spread upon the minutes of the board setting forth the cost and source of funds therefor, to purchase improved or unimproved property and to construct, reconstruct, repair, renovate and maintain polling places, or to pay to private property owners reasonable rental fees when the property is used as a polling place for a period not to exceed the day immediately preceding the election, the day of the election, and the day immediately following the election.

The AG read the statute as offering counties two distinct authorities, separated by "or": (1) buy property and build/repair/maintain on county-owned property, or (2) pay rental fees for private property. The statute does not blend the two by allowing capital improvements on rented private property.

Section 7-5-25 boxes the AG in to prospective opinions. The AG noted in this opinion that he could not validate or invalidate any action already taken.

Citations

• Miss. Code Ann. § 23-15-281(2)
• Miss. Code Ann. § 7-5-25

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/04/C.Mord-April-2-2024-Countys-Authority-to-Install-Culverts-on-Private-Property-Used-for-a-Polling-Place.pdf

Original opinion text

April 2, 2024
Conrad Mord, Esq.
Attorney, Walthall County Board of Supervisors
Post Office Drawer 311
Tylertown, Mississippi 39667
Re: County's Authority to Install Culverts on Private Property Used for a Polling Place

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

Background
According to your request, Walthall County's fourth district Tylertown polling place is owned by the American Legion. The property currently has a ditch cutting off a potentially large parking area from the voting public as well as presenting a danger to pedestrians. The American Legion has requested that the county place culverts in the ditch and cover them to make a parking area and eliminate the danger of someone falling into the ditch.

Question Presented
May the board of supervisors, pursuant to Mississippi Code Annotated Section 23-15-281(2) and consistent with the facts presented, purchase and install culverts and cover them to improve private property used for a polling place?

Brief Response
Section 23-15-281(2) does not authorize the board of supervisors to purchase and install culverts and cover them to improve private property used for a polling place.

Applicable Law and Discussion
To the extent your request involves any action already taken by the board of supervisors, this office may not validate or invalidate any past action. Rather, pursuant to Section 7-5-25, this office may only opine upon prospective questions of law.

Section 23-15-281(2) provides:

The board of supervisors is authorized, by order spread upon the minutes of the board setting forth the cost and source of funds therefor, to purchase improved or unimproved property and to construct, reconstruct, repair, renovate and maintain polling places, or to pay to private property owners reasonable rental fees when the property is used as a polling place for a period not to exceed the day immediately preceding the election, the day of the election, and the day immediately following the election. On or before May 1, 2019, the county board of supervisors shall ensure each polling place is accessible to all voters, structurally sound, capable of providing air conditioning and heating and compliant with the Americans with Disabilities Act.

In sum, Section 23-25-281(2) allows boards of supervisors to "construct, repair, renovate and maintain polling places" located on "improved or unimproved propert[ies]" purchased by the board of supervisors, but not on private properties. Rather, private property owners may receive "reasonable rental fees when the property is used as a polling place." It is thus the opinion of this office that Section 23-15-281(2) does not authorize the board of supervisors to purchase and install culverts and cover them to improve private property used for a polling place.

To the extent any previous opinions conflict, they are modified prospectively to conform herewith.

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