Mississippi Advisory Opinions November 10, 2003: AGO 000015926 (November 10, 2003)

AGO 000015926.

Dear Ms. Rhodes:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter states:

The Hinds County Election Commissioners identified 546 paper ballots (General Election held November 4, 2003) from Precinct 94 - District 3 that were not initialed by the initialing manager. In a recently convened meeting, Saturday, November 8, 2003 at 1:00 p.m. with the manager of Precinct 94 and three poll workers, it was noted that all four voting machines were in a malfunctioning mode when the polls opened at 7:00 a.m. and did not become operable, with the assistance of a "roving technician", until 11:00 a.m. During this period paper ballots were in use by many voters who stood in long lines to vote. Hinds County purchased from Advanced Voting Solutions, (AVS) of Frisco, Texas 530 voting machines - Direct Recording Electronic System (DRE - touchscreen) which were in use for the first time during the General Election 2002.

The commissioners respectfully request an opinion - should the un-initialed paper ballots be counted?

Mississippi Code Annotated Section 23-15-541 (Revised 2001) sets forth the procedure that is to be followed in the conduct of an election in which all voters are voting paper ballots. It provides in part:

At all elections, the polls shall be opened at seven o'clock in the morning and be kept open until seven o'clock in the evening and no longer. Upon the opening of the polls, and not before, the managers of the election shall designate two (2) of their number, other than the manager theretofore designated to receive the blank ballots, who shall thereupon be known respectively as the initialing manager and the alternate initialing manager. The alternate initialing manager, in the absence of the initialing manager, shall perform all of the duties and undertake all of the responsibilities of the initialing manager. When any person entitled to vote shall appear to vote, the managers shall identify the voter, ....... and then such person shall sign his name in a receipt book or booklet provided for that purpose and to be used at that election only ....; whereupon and not before, the initialing manager or, in his absence, the alternate initialing manager shall indorse his initials on the back of an official blank ballot, prepared in accordance with law, and at such place on the back of the ballot that the initials may be seen after the ballot has been marked and folded, and when so indorsed he shall deliver it to the voter, which ballot the voter shall mark in the manner provide by law, which when done the voter shall deliver the same to the initialing manager or, in his absence, to the alternate initialing manager, in the presence of the others, and the manager shall see that the ballot so delivered bears on the back thereof the genuine initials of the initialing manager, or alternate initialing manager, and if so, but not otherwise, the ballot shall be put into the ballot box; and when so done one (1) of the managers or a duly appointed clerk shall make the proper entry on the pollbook. .... .

In Wilbourn v. Hobson, 608 So.2d 1187 (Miss. 1992) the Mississippi Supreme Court ruled that the initialing requirement is not applicable to affidavit ballots. Also in discussing irregularities by voters and election officials the Court cites Chinn v. Cousins, 27 So.2d 882,883 (Miss. 1946) in which the Court, in discussing Section 3164, Code of 1942 (the predecessor statute to Section 23-15-541) said:

We have had frequent occasion to appraise the effect of non-conformity with this statute. We have been alert to the danger of rendering inefficient the machinery of nomination by a blind insistence upon absolute and ritualistic conformity with minute detail. A sane and practical relaxation indulged under circumstances where, despite trivial lapses, the voters have expressed their will by lawful ballot is not inconsistent with a rigid requirement that such ballot be lawful.

The Court then said:

Long ago in Guice v. McGehee, 155 Miss. 858, 124 So. 643, 644 (1929), we held:

In determining the effect of irregularities through mistakes of voters and election officials, all statutes limiting the voter in the exercise of his right of suffrage are construed liberally in his favor, in order to ascertain the will of the majority of the voters.

The Court then said " (t)his principle is still sound. If the integrity of a ballot is unquestioned, there is no good reason to disenfranchise a voter for some technical aberration beyond his control."

While the Court in Chinn did invalidate uninitialed paper ballots, we adhere to the principles that the Court set forth above; the unique and exigent facts and circumstances surrounding the failure to initial paper ballots in the election in question are distinguishable from a regular paper ballot election.

We are aware of no allegations of fraud or intentional wrongdoing on the part of the poll workers or other election officials. Therefore, we must assume that the voters who cast the unititialed paper ballots in question were entitled to vote in the election and did, in fact, follow the law in casting those ballots and but for a failure on the part of the poll workers the legality of those ballots would not be in question.

Therefore, in response to your question, we are of the opinion that the ballots in question must be counted.

This opinion is not, in any way, intended to eliminate or weaken the existing requirement that ballots in a regular paper-ballot election must be initialed, but rather is limited to the specific and exigent facts and circumstances of the instant election.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General