Mississippi Advisory Opinions October 31, 2005: AGO 000016821 (October 31, 2005)

Mississippi Attorney General Opinions

2005.

AGO 000016821.

Dear Senator Simmons:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter concerns the Secretary of State's reimbursement formula provided for in Senate Bill 2829 (2005 Reg. Sess.) for counties to purchase Help America Vote Act (HAVA) compliant voting devices. You ask the following questions :

A question has arisen about the formula for reimbursement. I believe the intent of the Legislature was for the formula to reflect what would have been the actual cost for the purchase of a DRE system for the county under the state's bulk purchase plan.

That is to say the at the maximum that a county purchases can be reimbursed for a purchase of HAVA compliant voting is what it would have cost to purchase DRE's for the county under the bulk purchase plan. The bill gives the Secretary of State the authority to determine the amount of the reimbursement but the formula he utilizes must be objective and relate to the statewide bulk purchase of the voting systems. Is the reimbursement for counties that opt out of the statewide plan based upon what would have been the cost to equip the county with DRE's under the statewide bulk purchase plan? If not, what is the criteria for the reimbursement formula?

In addition, you also asked a question about the printing capabilities of the DRE ("touch screen") voting devices selected by the Secretary of State. We understand this question with regard to the Diebold voting devices has been addressed by the

Secretary of State in his negotiations with the Diebold vendor to provide printers with the voting devices. See article dated August 11, 2005, in the Clarion Ledger.

Our response to your other questions is as follows:

The authority of the Secretary of State to utilize and distribute HAVA funds must be traced from the federal Help America Vote Act (HAVA) (42 U.S.C. Sections 15301 et seq.(2002)), to general laws enacted pursuant to HAVA(Senate Bill 2857 (2004 Reg. Sess.) and SB 2829 (2005 Reg. Sess.)), provisions of the Mississippi Election Code, the Mississippi state HAVA plan adopted pursuant to the federal HAVA law, and regulations filed by the Secretary of State's office which have the purpose of implementing provisions of the state HAVA plan regarding "opt out" procedures for counties.

Pursuant to Sections 101, 102, and 257 of HAVA, Mississippi has received or is scheduled to receive approximately $35 million in federal money to carry out the mandates contained in HAVA. This includes approximately $5.4 million in funds already received under Title I of HAVA (called "early money" for the replacement of punchcard and lever voting machines used in the November 2000 general election) and additional funds received under Title II, ("requirements payments") to be used, inter alia, for voting device procurement and development of a statewide voter registration computer system.

As one of the conditions for receipt of HAVA requirements payments the chief state election official was required to develop a state HAVA plan which includes each item of information required by Section 255 of HAVA. The Mississippi state HAVA plan was submitted by the Secretary of State to the federal Elections Assistance Commission August 12, 2003.

Paragraph 2 of the state HAVA plan is required by HAVA to contain a description of how the state will distribute and monitor the distribution of the requirements payments to units of local government:

The State of Mississippi, through its chief State elections official, the Secretary of State, will centrally manage initiatives funded by requirements payments....(para.2A, state HAVA plan)

Section 253 of HAVA provides that:

...the ''chief State election official'' of a State is the individual designated by the State under section 10 of the National Voter Registration Act of 1993 (42 U.S.C. 1973gg 8) to be responsible for coordination of the State's responsibilities under such Act.

Miss. Code Ann. Section 23-15- 211.1 (1972) states that:

For purposes of the National Voter Registration Act of 1993, the Secretary of State is designated as Mississippi's chief election officer.

Although HAVA has numerous provisions that will require expenditures by state and local governments, there are two primary requirements requiring multimillion dollar expenditures: the development of a statewide voter registration system, and the purchase of new voting devices which meet HAVA requirements.

The Secretary of State, in the state HAVA plan, estimated that approximately $10 million would be spent on the statewide voter registration system, approximately $15 million would be spent on voting device procurement, and the remaining would be spent on other HAVA costs, including training and administrative requirements.

The text of the federal HAVA law contains an explicit statement regarding the precise manner in which a state complies with the state HAVA plan:

(c) METHODS OF COMPLIANCE LEFT TO DISCRETION OF STATE. The specific choices on the methods of complying with the elements of a State plan shall be left to the discretion of the State. (Section 253(c) HAVA)

The state HAVA plan contains several references to the Secretary of State's intent to establish a statewide, uniform system of DRE's , including:

Mississippi will purchase centrally at the state level some five thousand (5000) DRE devices for use by all present non-DRE counties by the first federal election of 2006. (para. 1A, state HAVA plan)

It appears clear from the federal HAVA law that the manner in which requirements payments are expended to comply with HAVA requirements would be left to the states, and that the federal HAVA law requires each state to submit a "state plan" which would describe, at least in outline form, that manner. The state plan clearly indicates that the Secretary of State will centrally manage the statewide purchase of DRE voting devices for all counties.

Turning to state legislation regarding implementation of HAVA, the Mississippi Legislature, in the 2004 and 2005 Regular Sessions, passed two major pieces of legislation regarding state implementation of HAVA: Senate Bill 2857 (2004 Reg. Sess.) and Senate Bill 2829 (2005 Reg. Sess.).

Senate Bill 2857 (2004 Reg. Sess.) provided as follows, in Section 5 and Section 7:

SECTION 5. (1) The Secretary of State shall have the authority to accept federal funds authorized under the Help America Vote Act of 2002 and to meet all the requirements of the Help America Vote Act of 2002 in order to expend the funds.

(2) Counties that purchase voting systems that comply with the requirements of the Help America Vote Act of 2002 shall be eligible for federal funds accepted by the Secretary of State for Help America Vote Act of 2002 compliance efforts. The only restriction that the Secretary of State may place on the expenditure of federal funds for the purchase of voting systems is that the systems comply with the criteria established in the Help America Vote Act of 2002 for voting systems.

* * *

SECTION 7. The Secretary of State shall promulgate rules and regulations necessary to effectuate the provisions of the Help America Vote Act of 2002 in this state.

Thus, SB 2857 gives the Secretary of State the authority to issue regulations regarding HAVA and the authority to expend HAVA funds, with the only restriction on the expenditure of funds for purchase of voting systems being that the systems comply with

HAVA requirements. This language addressing expenditures would later be expanded in greater detail in SB 2829 (2005 Reg. Sess.).

Pursuant to his authority to issue regulations for implementation of HAVA in Section 7 of SB 2857 (codified at Miss. Code Ann. Section 23-15-169.5 (1972)), the Secretary of State has issued administrative rules which establish the procedures which must be followed by counties not participating in the bulk purchase plan (Administrative Rules for Implementation of Statewide HAVA Compliant Voting Systems proposed July 25, 2005).

Section 16 of Senate Bill 2829 (2005 Reg. Sess.), which amends and expands on the language in Section 5 of SB 2857, reads as follows:

SECTION 16. Section 23-15-169.3, Mississippi Code of 1972, is amended as follows:

23-15-169.3. (1) The Secretary of State shall have the authority to accept federal funds authorized under the Help America Vote Act of 2002 and to meet all the requirements of the Help America Vote Act of 2002 in order to expend the funds.

(2) Counties that purchase or have purchased since January 1, 2001, voting systems that comply with the requirements of the Help America Vote Act of 2002 shall be eligible for federal funds accepted by the Secretary of State for Help America Vote Act of

2002 compliance efforts. The only restriction that the Secretary of State may place on the expenditure of federal funds for the purchase of voting systems is that the systems comply with the criteria and rules established in the Help America Vote Act of 2002 for voting systems.

(3) Counties may purchase voting systems under the Help America Vote Act of 2002 (HAVA) if:

(a) The system selected is HAVA compliant as determined by the rules promulgated to effectuate the Help America Vote Act of 2002 in this state; and

(b) The County Board of Supervisors spreads upon its minutes a certification of the following:

(i) The county determined it is in its best interest to opt out of any statewide bulk purchase to be effectuated by the Secretary of State pursuant to his duties under HAVA;

(ii) The voting system selected by the county meets all of the foregoing requirements under HAVA ;

(iii) The county understands and accepts any and all liability for said system; and

(iv) The county is solely responsible for the purchase of said system.

Upon meeting the foregoing requirements, a county shall be reimbursed for its costs for said system from the HAVA funds for this purpose; however, the county shall be limited in its reimbursement to an amount to be determined by the Secretary of State based upon an objective formula implemented for the statewide, bulk purchase of said voting systems. Any costs over and above the set formula described herein shall be the sole responsib ility of the county. (emphasis added)

(c) In addition to other information required by paragraph (b) of this subsection, any county that purchases voting systems after the effective date of this act shall spread upon its minutes certification of the following:

(i) All voting systems within the county are the same, except those machines that are handicap accessible as required by HAVA; and

(ii) The voting systems have a device or mechanism that allows any votes cast to be verified by paper audit trail.

Section SB 2829 provides that the Secretary of State shall establish an objective formula by which counties will be reimbursed should they "opt out" by electing not to participate in the Secretary of State's bulk purchase of voting devices and instead independently purchase a voting system which complies with Section 16 of the bill, or if they have otherwise purchased after January 1, 2001 a voting system which complies with Section 16 of SB 2829.

The Secretary of State's Administrative Rules for Implementation of Statewide HAVA Compliant Voting Systems proposed July 25, 2005, contains the following statement describing the reimbursement formula:

Counties that opt out of the statewide bulk purchase will be reimbursed proportionally from the funds remaining after all expenses are paid for the participating counties. (para. 103)

We find no language either in the federal HAVA legislation, the state HAVA plan, or in state HAVA legislation which requires the Secretary of State to apportion HAVA funds for voting device purchase or reimbursement on an equal, pro rata, basis among the counties. Nor is there any statutory requirement that counties be reimbursed an amount equal to the value of the voting devices it would have received under the Secretary of State's bulk purchase. The Legislature, through SB 2829, granted the Secretary of State broad discretion by delegating to him the establishment of the formula by which HAVA funds will be reimbursed to those counties who choose to not accept the Secretary of State's bulk purchase plan, and that formula clearly states that the reimbursement allowed to "opt out" counties is linked to the amount of funds left after the bulk purchase of voting devices for participating counties.

Miss. Code Ann. Section 7-5-25 (1972) authorizes this office to issue opinions only on matters of law. The determination of whether the formula for reimbursement established by the Secretary of State is objective, fair, or equitable, or whether the criteria used in developing the formula are valid or appropriate, is beyond our authority to make. SB 2829 provides no such criteria, and instead delegates the authority to develop the overall reimbursement formula to the Secretary of State. By not providing the criteria for the reimbursement formula in SB 2829, the Legislature has by implication delegated not just the development of the formula to the Secretary of State, but also the criteria to be used in developing or applying the formula.

As a matter of law, we conclude the Secretary of State has the authority to establish the voting device reimbursement formula for those counties which "opt out" of the statewide bulk purchase, the criteria of which were up to the Secretary of State to determine when developing the formula. Likewise, any issue regarding disparity between what the Secretary of State provides to participating counties and what it provides to "opt out" counties under the reimbursement formula was up to the Secretary of State to assess when devising the formula.

While many different objective formulas for reimbursement are possible, the Secretary of State is required to devise a formula he believes best achieves the purpose of HAVA and serves the overall public interest. SB 2829 and SB 2857 grant him the statutory and regulatory authority to do so.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Reese

Partridge Special Assistant Attorney General