Mississippi Advisory Opinions October 24, 2008: No. 2008-00571 (October 24, 2008)

Mississippi Attorney General Opinions

2008.

No. 2008-00571.

2008-00571

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Dear Ms. Poff:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and reply.

Issue Presented

Does the Benton County Board of Supervisors have the authority to set a limit on the number of voting machines used in the general election?

Response

No. It is the opinion of this office that the Benton County Board of Supervisors has no authority to limit the number of voting machines to be used in the upcoming general election. Moreover, we are of the opinion that it is within the sole discretion of the Benton County Board of Election Commissioners, the officials in charge of elections, to determine the number of voting machines to be used in general and special elections.

Applicable Law and Discussion

Our office has previously opined that in general and special elections, "the officials in charge of elections" refer to the county board of election commissioners. See MS AG Ops., Robinson (March 14, 2008); Ivy (June 1, 2007). "The basic role of a county board of election commissioners is . . . [to] conduct general and special elections." MS AG Op., Ivy (June 1, 2007).

Generally, the boards of supervisors provide funding with respect to elections and approve the budgets for county boards of election commissioners. Id. A county board of supervisors, however, is required to perform the duties of the county board of election commissioners when the county board of election commissioners fails to act. Miss. Code Ann. Section 23-15-215 (1972). Your letter provided no indication that your county board of election commissioners has failed to perform its duties.

There are many duties involved in conducting a general or special election. Duties of a county board of election commissioners include but are not limited to revising registration books and pollbooks, hiring and training poll managers, testing voting machines, preparing ballot boxes, appointing a resolution board to make determinations with respect to damaged or defective ballots, canvassing the returns and declaring the results. In a prior opinion issued to Honorable Trey Evans, we stated that " . . . the ultimate responsibility to insure that voting machines are in place and in proper working order lies with either the election commissioners or the members of a party executive committee depending on the type of election being conducted." MS AG Op., Evans (April 6, 1994). In insuring that voting machines are in place, it follows that "the officials in charge of elections" are responsible for providing a sufficient number of machines for conducting the election. The "officials in charge of elections" do not include the county board of supervisors. Assuming machines have already been purchased and are available, it is the opinion of this office that the Benton County Board of Supervisors has no authority to limit the number of voting machines to be used in the upcoming general election. Moreover, we are of the opinion that it is within the sole discretion of the Benton County Board of Election Commissioners to determine the number of voting machines to be used in general and special elections. Furthermore, the Help America Vote Act ("HAVA") requires the use of voting devices that comply with federal specifications.

Conclusion

Accordingly, it is the opinion of this office that the Benton County Board of Supervisors has no authority to limit the number of available voting machines to be used in the upcoming general election. Moreover, we are of the opinion that it is within the sole discretion of the Benton County Board of Election Commissioners to determine the number of voting machines to be utilized in general and special elections.

Please feel free to contact our office if we may be of further assistance.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By: Margarette L. Meeks

Special Assistant Attorney General