Mississippi Advisory Opinions November 07, 2003: AGO 000015918 (November 7, 2003)

AGO 000015918.

Dear Commissioners:

Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and response. Your letter reads as follows:

Absentee ballots for the Newton County elections were printed approximately 45 days prior to the elections. The ballots along with the requests were mailed out shortly thereafter and approximately 60-65 ballots were returned to the clerk's office within the allotted time. On October 30, 2003, it was brought to the Deputy Clerk's attention by an absentee voter that the ballot was incorrect because the coroner race was printed twice on the ballot. After checking all ballots it was discovered that one district comprised of three precincts had an error on the ballots made by the printer. The error being that on District 4, some had no coroner race and some had the coroner race on it twice. The new absentee ballots and regular voting ballots were immediate reprinted correctly for the district but there was not enough time to have the incorrect ballots re-voted by the voters. Newton County voting system is a data voter, which is a punch card. As soon as the error was discovered, the deputy clerks voted several of the ballots with the mistake to see if the data counter would count those particular ballots, and it would not. It was the decision of the Election Commissioners to hold those 60-65 absentee ballots in the Circuit Clerk's office to be hand counted Wednesday morning prior to verifying the affidavit ballots. When the count was over election night our tax assessor/collector had the democrat party leading by 10 votes. We informed both candidates, democrat and republican, about our situation on the absentee ballots in district 4. A meeting was set up for them to witness, along with their friends, the counting of those 62 absentee ballots that were to be counted Wednesday morning. Before we started to count, the democratic candidate questioned that the Election Commissioners were in error by not sending those ballots to the three precincts. They requested all 62 absentee ballots not be counted. Our question is: Should the ballots be counted or not?

* * * * *

In response to the first portion of your request, Section 23-15-637 provides that, upon receipt, the registrar is to place absentee ballots which have been timely cast in the ballot boxes. Section 23-15-639 provides direction for the examination of absentee ballots by the poll workers at the close of the polls. The poll workers are to examine and count the absentee ballots, not the election commissioners. Clearly, under the set of facts you have presented an irregularity occurred.

However, we must determine whether there exist sufficient grounds to disenfranchise some 60-65 voters who cast their votes in a lawful manner due to this technical irregularity beyond their control. The mistakes made in the facts presented were made by the election officials, not by the voters in requesting and/or executing the absentee ballots in question. The Mississippi Supreme Court has held on a number of occasions that strict compliance with election statutes is required. Straughter v. Collins, 819 So.2d 1244 (Miss. 2002); Campbell v. Whittington, 733 So.2d 820 (Miss. 1999); Lewis v. Griffith, 664 So.2d 177 (Miss. 1995); Rogers v. Holder, 636 So.2d 645 (Miss. 1994). But, the Court has also held that "[i]f a statute does not expressly declare that a particular act is essential to the election's validity or that omission of the particular act will render the election void, the statute is considered directory rather than mandatory, so long as the irregular act is not intended to affect the integrity of the election." Lewis at 186. The Court has also recognized on several occasions that, absent any allegations of fraud or intentional wrongdoing, mere technical irregularities in the voting process are not grounds for invalidating ballots. Campbell at 826. Straughter at 1252. The facts in your letter do not identify any allegations of fraudulent intent or intentional wrongdoing on the part of the voters or the election officials. A mistake was made by the election officials in the manner in which the absentee ballots were counted.

We can find no express declaration in the affected statutes providing that the failure of the poll workers to examine and count the absentee ballots at the close of the polls will invalidate the election or is cause to invalidate those ballots. The failure of the election officials to strictly comply with these provisions was an irregularity, but there is nothing presented which would indicate the intent behind the irregularity was to affect the integrity of the election. Therefore, we are of the opinion that, under the unusual circumstances presented, the failure to strictly comply with the statutory provisions regarding the examination and counting of absentee ballots by the poll workers should not serve to invalidate lawfully cast ballots and to disenfranchise these voters, and that the absentee ballots in question should be counted.

If our office may be of further assistance, please advise.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Heather P. Wagner

Assistant Attorney General