Mississippi Advisory Opinions May 12, 2006: No. 2006-00191 (May 12, 2006)

No. 2006-00191.

DOCK 2006-00191

Dear Ms. Mitchell:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. Your letter states:

1. May a circuit clerk claim the same number of statutory days for assisting the county executive committees as they claim for assisting the county election commission?

2. Also, we now have electronic voting machines that must be programmed. Is the circuit clerk in charge of that programming? If so, what type of compensation will the clerk receive for their services? Will it be necessary to enter into a contract with the board of supervisors for programming services?

In response to your first question, Mississippi Code Annotated Section 23-15-225 (3) (Revised 2001) provides:

As compensation for their services in assisting the county election commissioners in performance of their duties in the revision of the registration books and the pollbooks of the several voting precincts of the several counties and in assisting the election commissioners, executive committees or boards of supervisors in connection with any election, the registrar shall receive the same daily per diem and limitation on meeting days as provided for the board of election commissioners as set out in Sections 23-15-153 and 23-15-227 to be paid from the general fund of the county.

The Circuit Clerk is the County Registrar. Mississippi Code Annotated Section 23-15-211 (1) (Revised 2001).

The above quoted statute specifically authorizes compensation for county registrars who assist party executive committees in connection with a primary election subject to the limitations set forth in Section 23-15-153. Therefore, the answer to your first question is in the affirmative.

We understand your second question to be in regard to the upcoming primary elections. Section 23-15-531.4 (1) provides in part:

The officials in charge of the election of each county or municipality shall:

(a) Cause the proper ballot design and style to be programmed for each DRE unit which is to be used in any precinct within the county or municipality; ...

Section 23-15-301 provides for the payment of election expenses. It provides in part:

All the expenses of printing the tickets or primary election ballots, for necessary stationary, and for paying the managers, clerks and returning officer of every primary election authorized by this chapter held in any county shall be paid by the board of supervisors of such county out of the general funds of the county,.... .

We are of the opinion that programming the new direct recording electronic voting equipment (DRE) is the modern day equivalent of "printing the tickets or primary election ballots" and is, therefore, an expense that is to be paid by the county board of supervisors out of the county general fund.

For primary elections, the appropriate executive committee is charged with causing the ballot design and style to be programmed for each DRE unit. Causing the ballot design to be programmed is separate and distinct from the programming itself. While the circuit clerk is not responsible for such programming, the executive committee may wish to seek an agreement with the clerk or one or more election commissioner to perform that task pursuant to Sections 23- 15-266 and 23-15-333. Since we have said that programming DRE units are the equivalent of printing ballots and is an expense to be borne by the county under Section 23-15-301, we are of the opinion that a circuit clerk or election commissioner who enters such an agreement with an executive committee would be entitled to compensation in an amount agreed upon by the two parties and approved by the county board of supervisors.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter Special Assistant Attorney General