Mississippi Advisory Opinions October 21, 2011: No. 2011-00298 (October 21, 2011)

No. 2011-00298.

Dear Mr. White:

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

Whether the removal of individual printers attached to the DRE voting units violates state law?

No.

Senate Bill 2829 of the 2005 Regular Session, codified as Miss. Code Ann. Sections 531 through 531.13 and precleared by the U.S. Department of Justice on June 6, 2005, authorized the use of DRE voting equipment to cast ballots and record votes at elections in this state. Senate Bill 2829 incorporated requirements of the Help America Vote Act of 2002 ("HAVA") as a part of the state's statutory scheme regulating voting systems.

DRE, "direct recording electronic voting equipment," means a computer driven unit for casting and counting votes on which a voter touches a video screen or a button adjacent to a video screen to cast his or her vote. Miss. Code Ann. Section 23-15-531.

In 2005, the State of Mississippi made a bulk purchase of DRE voting devices under a statewide bulk purchase agreement with Diebold, Inc. for distribution to 77 of the 82 Mississippi counties that participated in the statewide bulk purchase. The electronic voting device purchased was the Diebold AccuVote TSX with the Diebold AccuView Printer Module. The Diebold AccuVote TSX is the DRE touchscreen voting device and the AccuView Printer Module is commonly referred to as the external printer.

Section 23-15-531.1 of the Mississippi Code, which sets forth the minimum requirements that DRE voting systems must meet in order to be used in elections in Mississippi, states:

Each DRE unit shall:

(a) Permit the voter to verify, in a private and independent manner, the votes selected by the voter on the ballot before the ballot is cast and counted;

(b) Provide the voter with the opportunity, in a private and independent manner, to change the ballot or correct any error before the ballot is cast and counted, including, but not limited to, the opportunity to correct the error through the issuance of a replacement ballot if the voter is otherwise unable to change the ballot or correct any error;

(c) If the voter selects votes for more candidates for a single office than are eligible for election:

(i) Notify the voter that he has selected more candidates for that office than are eligible for election;

(ii) Notify the voter before his vote is cast and counted of the effect of casting multiple votes for such an office; and

(iii) Provide the voter with the opportunity to correct the ballot before the ballot is cast and counted.

(d) Produce a permanent paper record with a manual audit capacity which shall be available for any recount conducted with respect to the election in which the DRE unit is used;

(e) Have the capability to print the ballots cast by electors to be utilized in the event of a recount conducted with respect to the election in which the DRE is used;

(f) Be accessible for individuals with disabilities, including, but not limited to, nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation, including privacy and independence, as for other voters. This requirement may be satisfied through the use of at least one (1) DRE unit or other voting unit equipped for individuals with disabilities at each polling place;

(g) Provide alternative language accessibility pursuant to the requirements of the Voting Rights Act of 1965; and

(h) Have a residual vote rate in counting ballots attributable to the voting system and not to voter error that complies with error rate standards established under the voting system standards issued by the Federal Election Commission which were in effect as of October 29, 2002.

While we think it is good public policy (as reflected in the Secretary of State's original purchase contract) to continue the availability of external printers to give voters the opportunity to verify that the selections printed on the paper correspond to the selections that the voters have made in voting their electronic ballots, we do not find that state law requires external printers for private and independent verification of votes selected. At the conclusion of making ballot selections, a screen appears that summarizes the voter's ballot selections. We believe this summary screen, which permits the voter to review the ballot selections made from previous screens and to choose the option to go back and make changes, satisfies the private and independent manner of voter verification requirement. The removal of the external printer would not, in our opinion, violate the state's minimum requirements for DRE voting units.

Accordingly, it is the opinion of this office that the removal of external printers attached to DRE voting units would not violate state law for the minimum DRE system requirements pursuant to Miss. Code Ann. Section 23-15-531.1.

Please 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