Mississippi Advisory Opinions March 05, 2010: No. 2010-00082 (March 05, 2010)

No. 2010-00082.

Dear Mr. Glaskox:

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

Questions Presented

After the resolution board has completed its duties to review certain absentee ballots as required by Miss. Code Ann. Section 23-15-523 (1972) and has disbanded, is the resolution board thereafter required to reassemble to review affidavit ballots?

Response

No. The examination and counting of affidavit ballots is governed by Miss. Code Ann. Section 23-15-573 (1972), the statute which specifically addresses administration and counting of affidavit ballots.

Applicable Law

Miss. Code Ann. Section 23-15-523 (1972) reads in pertinent part:

(1) All proceedings at the counting center shall be under the direction of the commissioners of elections or officials in charge of the election, and shall be conducted under the observations of the public, but no persons except those authorized for the purpose shall touch any ballot. All persons who are engaged in processing and counting of the ballots shall be deputized in writing and take oath that they will faithfully perform their assigned duties.

(2) The commissioners of elections or the officials in charge of the election shall appoint qualified electors who have received the training required by subsection (11) of this section to serve as judges on the "resolution board." An odd number of not less than three (3) members shall be appointed to the resolution board. The members of the board shall take the oath provided in Section 268, Mississippi Constitution of 1890. All ballots that have been rejected by the OMR tabulating equipment and that are damaged or defective, blank or overvoted will be reviewed by said board. Commissioners of election, candidates who are on the ballot at the election and the parents, siblings or children of such a candidate shall not be appointed to the resolution board. If the election is not a primary election, members of the party executive committees shall not be appointed to the resolution board unless members of all of the party executive committees who have a candidate on the ballot are appointed to the resolution board.

(3)(a) If any ballot is damaged or defective so that it cannot be properly counted by the OMR tabulating equipment, the ballot will be deposited in an envelope provided for that purpose marked "RESOLUTION BOARD. " All such ballots shall be carefully handled so as to avoid altering, removing or adding any mark on the ballot.

(b) The commissioners of election or the officials in charge of the election shall have the judges on the resolution board manually count any damaged or defective ballots, who shall determine the intent of the voter and record the vote consistent with this determination.

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(4) Ballots that have been rejected by the OMR tabulating equipment for appearing to be "blank" shall be examined to verify if they are blank or were marked with a "nondetectable" marking device. If it is determined that the ballot was marked with a nondetectable device, the resolution board may mark over the voter's mark with a detectable marking device.

(5) All ballots that are rejected by the OMR tabulating equipment and which contain overvotes shall be inspected by the resolution board. Regarding those ballots upon which an overvote appears and voter intent cannot be determined by inspection of the resolution board, the officials in charge of the election may use the OMR tabulating equipment in determining the vote in the races which are unaffected by the overvote. All other ballots which are overvoted shall be counted manually following the provisions of this section at the direction of the officials in charge of the election. If for any reason it becomes impracticable to count all or a part of the ballots with the OMR tabulating equipment, the officials in charge may direct that they be counted manually, and voter intent shall be determined by following the provisions of this section. The return printed by the OMR tabulating equipment to which have been added the manually tallied ballots, which shall be duly certified by the officials in charge of the election, shall constitute the official return of each voting precinct. Unofficial and incomplete returns may be released during the count. Upon the completion of the counting, the official returns shall be open to the public.

(6) When the resolution board reviews any OMR ballot in which the voter has failed to fill in the arrow, oval, circle or square for a candidate or a ballot measure in accordance with the ballot instruction, the resolution board shall, if the intent of the voter can be ascertained, count the vote if:

(a) The voter marks the ballot with a "cross" (X) or "checkmark" (v) and the lines that form the mark intersect within or on the line of the arrow, oval, circle or square by the ballot measure or the name of the candidate.

(b) The voter blackens the arrow, oval, circle or square adjacent to the ballot measure or the name of the candidate in pencil or ink and the blackened portion extends beyond the boundaries of the arrow, oval, circle or square.

(c) The voter marks the ballot with a "cross" (X) or "checkmark" (v) and the lines that form the mark intersect adjacent to the ballot measure or the name of the candidate.

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Miss. Code Ann. Section 23-15-573 (1972) reads in pertinent part:

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(3)(b) In canvassing the returns of the election, the executive committee in primary elections, or the election commissioners in other elections, shall examine the records and allow the ballot to be counted, or not counted as it appears legal.

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Generally, Section 23-15-523 provides that a "resolution board" be appointed to serve at the counting center to, inter alia, examine certain ballots cast on paper ballots in elections where "optical mark reader" (OMR) equipment is utilized to read and tabulate such paper ballots. Counties will appoint a resolution board if they utilize OMR equipment for its normal election voting. Counties will also appoint a resolution board if they use DRE "touch screen" devices for election day voting, but use OMR paper ballots for absentee ballots and affidavit ballots. (Under Miss. Code Ann. Section 23-15-483 (1972), resolution boards may also be utilized in certain local elections where "punch card" voting devices are used.)

The primary duty of the resolution board is to determine the voter's intent if their ballot preferences are unclear or the OMR equipment cannot read the ballot. Typically, the resolution board examines election day ballots which are damaged or defective (ex: the ballot is mangled or damp), if the ballot cannot be read by the OMR equipment because it was marked with a pen which the OMR equipment cannot recognize, or, if the ballot has been marked in a non-standard or ambiguous manner which the OMR equipment cannot read (ex: writing the candidate's name in the margin instead of filling in the oval, or circling the oval instead of filling it in).

Unlike election day ballots, affidavit ballots are normally not counted the night of the election and are often not counted until the day after or sometimes two or more days after the election day ballots are counted. Affidavit ballots are required to be cast by voters if their name does not appear on the pollbook, or in a number of other situations provided for in law. In general and special elections, the election commission is required by Section 23-15-573 to examine and review the information contained on the affidavit and count the ballot if "it appears legal."

The general rule of statutory construction that a specific statute controls over a general statute. Benoit v. United Companies Mortgage of Mississippi , Inc., 504 So.2d 196, 198 (Miss. 1987). Here, Section 23-15-573 is the statute dealing specifically with administration and counting of affidavit ballots and specifically assigns the election commission the responsibility to determine the legality of affidavit ballots, to count those which are legal and reject those which are not. Therefore, our opinion is that in general and special elections the election commission shall determine the legality of affidavit ballots and make any necessary determinations regarding voter intent, and it is not required to reassemble the resolution board to examine affidavit ballots to make determinations regarding voter intent.

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

Assistant Attorney General