Mississippi Advisory Opinions June 01, 2007: No. 2007-00273 (June 1, 2007)

Mississippi Attorney General Opinions

2007.

No. 2007-00273.

Dear Ms. Ivy:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. You present eleven (11) questions which we will respond to in the order presented:

QUESTION 1: Are election commissioners under Senate Bill 2291 passed on June 29, 2006 allow up to 12 days of training and demo under code 23-15-211? (2006 Election Commissioners' Association Workshop booklet in Grenada on page 14 and 15) please clearly explain what Section 1 under (1) and (2). We have a population of about 23,000 residents.

RESPONSE: We preface our response by stating that our answers to your questions will be based on applicable state statutes and not on the interpretation of the booklet referenced in your letter, any other such publications or agency regulations.

We assume that the term "demo" is referring to the demonstration of the direct recording electronic voting equipment (DRE) mandated by Mississippi Code Annotated Section 23-15-531.7.

Section 23-15-211 provides in part:

(2) The board of supervisors of each county shall pay members of the county election commission for attending training events a per diem in the amount provided in Section 23-15-153; however, except as otherwise provided in this section, the per diem shall not be paid to an election commissioner for more than twelve (12) days of training per year and shall only be paid to election commissioners who actually attend and complete a training event and obtain a training certificate.

(3) Included in this twelve (12) days shall be an elections seminar, conducted and sponsored by the Secretary of State. Election commissioners and chairpersons of each political party executive committee, or their designee, shall be required to attend.

(4) Each participant shall receive a certificate from the Secretary of State indicating that the named participant has received the elections training seminar instruction and that each participant is fully qualified to conduct an election.

The twelve days of training authorized by Section 23-15-211 are for training events in which the commissioners are being trained as opposed to the demonstration of DRE voting devices by commissioners mandated by Section 23-15-531.7. We have previously issued an opinion to the Chancery Clerk of your county wherein we said:

The demonstration of DRE units is a statutory duty of county election commissions. Therefore, we are of the opinion that county boards of supervisors are without authority to compensate election commissioners for demonstrating the new Diebold voting machines except pursuant to Section 23-15-153.

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We are of the opinion that the demonstration of the new Diebold voting machines in accordance with Section 23-15- 531.7 constitutes an integral part of the conduct of an election by a county election commission. Therefore, in our opinion, individual county election commissioners are entitled to per diem compensation pursuant to Section 23- 15-153 for conducting such demonstrations. However, we caution that election commissioners must insure that they properly allocate their days in a manner that will allow them to properly perform all other duties relating to the revision of the registration books and poll books and the proper conduct of elections. ..... . MS AG Op. Robinson (February 24, 2006).

However, we note that in 2006, subsequent to Robinson, the Mississippi Legislature adopted the provisions now found in Section 23-15-491 that authorize certain additional days, based on population, to conduct training sessions to educate qualified electors regarding the operation of electronic voting systems authorized pursuant to Section 23-15-461 et seq. which is Subarticle C of Article 15 of the Election Code which is entitled "Voting Systems." Subarticle C is entitled "Electronic Voting Systems." The particular system authorized in that subarticle is what is commonly called the "punch-card" system. However, we no longer have any counties that utilize that system.

Subarticle E entitled "Direct Recording Electronic Voting Equipment (DRE) became effective on June 6, 2005, the date the U.S. Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965.

It is obvious that the intent was for the authorization for such training to apply to the new DRE voting equipment which most of our counties were acquiring at the time of passage of Senate Bill 2291.

In support of that conclusion, we note that in statutory construction one should not adopt a construction that will result in an absurdity or inequity. Quitman County v. Turner, 196 Miss. 746, 18 So.2d 122 (Miss. 1944). The construction of a statute which will be more beneficial and avoid objectionable consequences should be adopted. McCaffery's Food Market v. Mississippi Milk Commission, 227 So.2d 459 (Miss. 1969). One should give consideration to the purpose and policy the legislature had in view when it adopted the law. Aikerson v. State, 274 So.2d 124 (Miss. 1973); Brady v. John Hancock Life Insurance, 342 So.2d 295 (Miss. 1977); Absurd and unthought of results will not be attributed to the Legislature. If such results follow from the plain letter of the statute, if it can be reasonably done, some other construction of the statute must be found. Davenport v. State, 143 Miss. 121, 108 So. 433 (Miss. 1926).

Therefore, it is the opinion of this office that Section 23-15- 491(2)(b) authorizes counties utilizing DRE voting equipment with approximately 23,000 residents to conduct such training sessions and be compensated a per diem of eighty-four dollars ($84.00) for not more than six (6) days per year.

Such training that is conducted during the month preceding a primary or general election would, in our opinion, satisfy the mandatory demonstration requirements of Section 23-15-531.7. We further note that Section 23-15-491 has a repealer date of July 1, 2009.

QUESTION 2: Are training days separate from the revising and purging the pollbooks under code 23-15-153?

RESPONSE: Yes. In addition to compensation for purging and the conduct of elections pursuant to Section 23-15-153, Section 23-15- 211 provides that commissioners are to receive a per diem in the amount provided for in Section 23-15-153 for not more that twelve (12) training events that they attend and complete and obtain a certificate, and any additional days, up to a maximum of eight, authorized by the Secretary of State pursuant to Section 23-15- 211(5).

QUESTION 3: Which training sessions are allowed to be paid out of the general fund such as ECAM, Secretary of State, Diebold, Demo of TSX machines to voters, and SEMS?

RESPONSE: We have previously said that while one of the authorized training events for which commissioners may receive a per diem must be a seminar sponsored by the Secretary of State, other training events may be sponsored by other entities. MS AG Op., Phillips (February 1, 2002). In Phillips we specifically said that election commissioners are entitled to receive a per diem as prescribed in Section 23-15-153 for attending and completing a training event sponsored by the Election Commissioners Association of Mississippi (ECAM), provided a training certificate is obtained and the statutory limit on "training days" is not exceeded.

Likewise, election commissioners would be entitled to receive a per diem for attending and completing a training event sponsored by some other entity that deals specifically with the commissioners' duties and responsibilities, provided a training certificate is obtained and the statutory limit on "training days" is not exceeded.

However, as we said in our response to your first question, the twelve days of training authorized by Section 23-15-211 are for training events in which the commissioners are being trained as opposed to the demonstration of DRE voting devices. Therefore, the demonstration of TSX machines (DRE devices) does not qualified as a "training event" pursuant to Section 23-15-211.

QUESTION 4: On page 16, in 2006 Election Commissioners' Association Workshop booklet can you please explain Section 2 Section 23-15-153? We have a population of about 23,000 residents. Does this include demo of the machines, revising and purging of pollbooks, holding elections for the whole year? If not, explain. Please read the attachments.

RESPONSE: As indicated in our response to Question 1, our answers to your questions are based on applicable state statutes and not on any interpretation of the booklet referenced in your letter or any other such publications.

Section 23-15-153 (2) provides in part:

(S)ubject to the following annual limitations, the commissioners of election shall be entitled to receive a per diem in the amount of Eighty-four Dollars ($84.00), to be paid from the county general fund, for every day or period of no less that five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties in the conduct of an election or actually employed in the performance of their duties for the necessary time spent in the revision of the registration books and pollbooks ..... .

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(b) In counties having fifteen thousand (15,000) residents according to the latest federal decennial census but less than thirty thousand (30,000) residents according to the latest federal decennial census, not more than seventy-five (75) days per year, with no more than twenty-five (25) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;

As can be seen from the above quoted statutory provisions, the days for commissioners are for "the conduct of an election or actually employed in the performance of their duties for the necessary time spent in the revision of the registration books and pollbooks." It does not include the demonstration of machines.

QUESTION 5: Who has duties for inventory and charging the voting machine (TSX) in primary, general and special elections? Please give code number. What are the duties of the Diebold technical and Diebold rover in the county on election day? Whom do the Diebold personnel take orders from when they are in a county for elections such as circuit clerk, board of supervisors, chairman of election commissioners only or Diebold? Please tell me where I can find the information between Diebold and County concerning Diebold Technical and Diebold Rover. Who selects the Diebold personnel (Technical and Rover) to the county?

RESPONSE: Section 23-15-531.7 requires the circuit clerk to store the DRE units and related equipment and provide compensation for the safe storage and care of such units and related equipment if the units and related equipment are stored by a person or entity other than the circuit clerk. We find no specific statute that addresses the "charging" of the machines. Absent a duly adopted regulation by the Secretary of State, we are of the opinion that the officials in charge of the election, with the assistance of the circuit clerk, would be responsible for that task. The respective party executive committees are the officials in charge of primaries. Sections 23-15-331 et seq. The county election commissions are the officials in charge of special and general elections. Sections 23- 15-351 et seq.

We find nothing in the state statutes that addresses the appointment or duties of Diebold personnel to assist in the conduct of elections.

QUESTION 6: Please explain page 19 through 21 about Senate Bill 2291. We have a population of about 23,00 residents.

RESPONSE: We assume you are referring the booklet cited in your letter. As indicated previously, while we will gladly respond to your specific legal questions, we do not, by way of official opinions, attempt to interpret training booklets, other such publications or agency regulations.

QUESTION 7: How many mandated dates must election commissioners work in election codes?

RESPONSE: Section 23-15-153 mandates that county election commissions meet at the office of the registrar (circuit clerk) and revise the poll books and registration books on the following dates:

(a) On the Tuesday after the second Monday in January 1987 and every following year;

(b) On the first Tuesday in the month immediately preceding the first primary election for congressmen in the years when congressmen are elected;

(c) On the first Monday in the month immediately preceding the first primary election for state, state district legislative, county and county district offices in the years in which those offices are elected; and

(d) On the second Monday of September preceding the general election or regular special election day in years in which a general election is not conducted.

As you know, in addition to the purging duties of election commissions, there are many duties that the commissions have relating to the conduct of special and general elections such as appointing and training poll workers, ruling on candidate qualifications, preparing the ballots, certifying election results, etc. for which there are no specific statutory provisions that mandate that the commissions meet on specific dates.

QUESTION 8: Please explain the structure of the Board of Election Commissioners? Can the chairman of the election commission make decisions only for the board or does the board of election commissioners have to agree before action is taken on an election matter?

RESPONSE: Section 23-15-213 requires county election commissions to organize by electing a chairman and a secretary. We have previously opined that there is no authority for an individual commissioner to take official action. Any official business, whether it pertains to one district or the entire county must be conducted by the commission as a whole or a quorum thereof. MS AG Op., Mitchell (February 13, 1990).

QUESTION 9: How long should commissioners wait for a quorum on a scheduled work day before leaving for lack of a quorum? Please give an example.

RESPONSE: In Mitchell we said that, in purging activities, individual commissioners may perform the preliminary work on identifying those individuals who have died, moved away or otherwise have become disqualified as voters with a quorum of commissioners present. However, as stated above, any official business must be conducted with a quorum present.

We find no statutory guidance as to how long commissioners should wait for a quorum to conduct official business. We are of the opinion that the commission should establish its own policy.

QUESTION 10: Under new Senate Bill 2291, what are the roles of the board of election commissioners?

RESPONSE: The basic role of a county board of election commissioners is to insure that the county voter rolls are up to date and accurate pursuant to Section 23-15-153 and conduct general and special elections. Conducting such elections entails many duties including, but not limited to, ruling on candidate qualifications, approving ballots, appointing and training poll workers and certifying election results. Senate Bill 2291 does not change that basic role.

Senate Bill 2291, among other things: 1) authorizes election commissioners to sponsor and conduct training sessions and receive a per diem to educate voters on the operation of electronic voting devices (as discussed above); 2) provides that any who does not receive a certificate issued by the Secretary of State indicating that he or she has completed the required elections seminar and is fully qualified to conduct elections, shall not receive any compensation; 3) increases the number of annual paid training days for election commissioners from 6 days to 12 days; 4) allows the Secretary of State, upon approval of the appropriate board of supervisors, to authorize an additional 8 paid training days in one or more counties; 5) requires election commissioners to file with their chancery clerk the certificate indicating that the commissioner has received the training seminar instruction and is fully qualified to conduct an election; 6) provides that if a commissioner fails to file the certificate by April 30 of each year his or her office is automatically vacated; 7) authorizes election commissioners to receive per diem compensation for time spent conducting training sessions for poll workers prior to an election; and 8) limits the number of days for which election commissioners may be compensated.

QUESTION 11: Explain the roles for the following groups: Secretary of State, Diebold, SEMS, Board of Supervisors, Circuit Clerk, and Election Commissioners before an election and during an election.

RESPONSE: Generally, the Secretary of State is the chief election officer for the State of Mississippi, is a member of the State Board of Election Commissioners which rules on the qualifications of candidates for statewide and state district offices, approves the ballots and certifies the results of such elections. Additionally, the Secretary of State provides technical assistance and training for local election officials.

Since there are no statutory provisions concerning Diebold or SEMS, we defer to the Secretary of State to explain those roles.

The boards of supervisors, generally, provide funding and approve the budget for the election commissions and are required to perform the duties of the election commission should the commissioners fail to do so. Section 23-15-215.

The circuit clerk, generally, is required to assist the election commissioners in the performance of their duties (Section 23-15-225(3)) and handle the absentee balloting in all elections (Section 23-15-715 et seq.).

The election commissions general duties concerning the conduct of an election are as we listed in our response to Question 10. For a detailed discussion of these duties we suggest you consult the latest version of the County Election Officials' Handbook published by the Secretary of State.

The above is not intended to be a complete listing of the duties of these public officials.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter Special

Assistant Attorney General