Mississippi Advisory Opinions November 22, 2006: No. 2006-00612 (November 22, 2006)

No. 2006-00612.

2006-00612

Dear Mr. Bankhead:

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

Should we as Election Commissioners proceed with the canvassing and certification of the election after the return of the seized absentee ballots with envelopes, absentee affidavits, and absentee registers without being immune to civil or criminal liability.

Our understanding of this situation is that following allegations of absentee ballot fraud being reported to the Mississippi Bureau of Investigation (MBI), a warrant was obtained by agents of MBI to seize absentee ballots in the possession of the Noxubee County Election Commission and the Noxubee County Circuit Clerk.

According to statements made to an investigator with the Attorney General's Office and representatives of the Secretary of State's office on November 20, 2006, the Noxubee County Election Commission has completed a count of all ballots for the November 7, 2006, General Election, including all absentee ballots, but not including affidavit ballots for Supervisor Districts 4 and 5. We further understand that affidavit ballots for Supervisor Districts 4 and 5 are in the possession of the Noxubee County Circuit Clerk.

Under Miss. Code Ann. Section 23-15-601 (1972), Election Commissioners have a duty to certify general elections:

(1) When the result of the election shall have been ascertained by the managers they, or one (1) of their number, or some fit person designated by them, shall, by noon of the second day after the election, deliver to the commissioners of election, at the courthouse, a statement of the whole number of votes given for each person and for what office; and the commissioners of election shall canvass the returns, ascertain and declare the result, and, within ten (10) days after the day of the election, shall deliver a certificate of his election to the person having the greatest number of votes for representative in the Legislature of districts composed of one (1) county or less, or other county office, board of supervisors, justice court judge and constable.

If it appears that two (2) or more candidates for Representative of the county, or part of the county, or for any county office, board of supervisors, justice court judge or constable standing highest on the list, and not elected, have an equal number of votes, the election shall be decided by lot fairly and publicly drawn by the commissioners, with the aid of two (2) or more respectable electors of the county, and a certificate of election shall be given accordingly. The foregoing provisions shall apply to Senators, if the county be a senatorial district.

(2) The commissioners of election shall transmit to the Secretary of State, on such forms and by such methods as may be required by rules and regulations promulgated by the Secretary of State, a statement of the total number of votes cast in the county for each candidate for each office and the total number of votes cast for such candidates in each precinct in the district in which the candidate ran.

Moreover, the Election Commission is required to transmit the result of General Elections to the Secretary of State within 10 days of the date of the election. Miss. Code Ann. Section 23-15-603 (1972) provides in pertinent part:

(1) The commissioners of election shall, within ten (10) days after the general election, transmit to the Secretary of State, to be filed in his office, a statement of the whole number of votes given in their county and the whole number of votes given in each precinct in their county, for each candidate for any office at the election;

The Mississippi Supreme Court in Hudson v. Rausa, 462 So.2d 689 (Miss. 1984) stated:

The public officials of the state, elected or appointed, enjoy a qualified immunity to a civil action for damages when acting in the performance of official functions discretionary in nature. They lose that immunity only when they substantially exceed their authority and commit wrongs under color of office. They have no immunity where they commit willful wrongs or malicious acts.

Stokes v. Newell, 174 Miss. 629, 642, 165 So. 542, 545 (1936). See also, Jackson v. Hollowell, 714 F.2d 1372 (5th Cir. 1983); Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978).

We understand the allegations of absentee ballot fraud at this time are directed at a Noxubee County resident and not members of the Noxubee County Election Commission. So long as members of the Noxubee County Election Commission had no knowledge of or were not a participant in any illegal or criminal activities associated with the November 7, 2006, General Election, they will not be liable civilly or criminally for proceeding with their duty to complete the canvass and to certify the General Election result in accordance with Section 23-15-601 and transmitting the result to the Secretary of State in accordance with Section 23-15-603.

Furthermore, if the Noxubee County Election Commission has already counted the legally acceptable ballots now in the possession of MBI, we are aware of no provision of state law which would prohibit the Noxubee County Election Commission from proceeding with certification once all legal affidavit ballots from Supervisor Districts 4 and 5 are counted in accordance with Miss. Code Ann. Section 23-15-573 (1972).

We note that the Noxubee County Election Commission is already in violation of the deadlines provided in Sections 23-15-601 and 23-15- 603. Further delay may result in the Noxubee County Election Commission members being liable under several provisions of state law for failure to fulfill their lawful duties, including Miss. Code Ann Sections 97-11-37 (1972) Miss Code Ann. Section 25-1-45 (1972).

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