Mississippi Advisory Opinions March 15, 2013: AGO 2013-00086 (March 15, 2013)

Advisory Opinion Text

Gary L. Austin, Esquire

Attorney for City of Indianola

Post Office Box 1590

Indianola, Mississippi 38751

Re: Use of Votamatic Punch Card Voting Machines

Dear Mr. Austin:

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

Issues Presented

You ask the following questions:

1. May the City use the Votamatic Punch Card voting machines for its upcoming City election, which is the system it has used in the past?

2. Must the accuracy of the machine which counts the votes be certified prior to the election?

Responses

In response to your first question, Votamatic Punch Card voting machines may be used in the upcoming municipal election.

In response to your second question, the accuracy of the automated tabulating equipment must be tested prior to the counting of the ballots in accordance with Mississippi Code Annotated Section 23-15-481 (Revised 2007).

Applicable Law and Discussion

We first note that, pursuant to Section 5 of the Voting Rights Act of 1965, since the Votamatic Punch Card system is the voting system that has been used in the past, any change to a different system would have to be "precleared" by the U.S. Department of Justice.

"Punch Card" voting systems are authorized by Section 23-15-461 et seq.

Section 23-15-463 provides in part:

The board of supervisors of any county in the State of Mississippi and the governing authorities of any municipality in the State of Mississippi are hereby authorized and empowered, in their discretion, to purchase or rent voting devices and automatic tabulating equipment used in an electronic voting system which meets the requirements of Section 23-15-465, and may use such system in all or a part of the precincts within its boundaries, or in combination with paper ballots in any election or primary.

Section 23-15-481 provides:

Prior to the start of the count of the ballots, the commissioners of elections, in conjunction with the circuit clerks or officials in charge of the election shall have the automatic tabulating equipment tested to ascertain that it will accurately count the votes cast for all offices and on all measures. Public notice of the time and place of the test shall be given at least forty-eight (48) hours prior thereto by publication once in one or more daily or weekly newspapers published in the county, city or jurisdiction where such equipment is used, if a newspaper is published therein, otherwise in a newspaper of general circulation therein. The test shall be witnessed by representatives of the political parties, candidates, the press and the public. It shall be conducted by processing a pre-audited group of ballots so punched or marked as to record a predetermined number of valid votes for each candidate and on each measure, and shall include for each office one or more ballots which have votes in excess of the number allowed by law in order to test the ability of the automatic tabulating equipment to reject such votes. If any error is detected, the cause therefor shall be ascertained and corrected and an errorless count shall be made and certified to by the officials in charge before the count is started. The tabulating equipment shall pass the same test at the conclusion of the count before the election returns are approved as official. On completion of the count, the programs, test materials and ballots shall be sealed and retained as provided for paper ballots.

Sincerely,

Jim Hood, Attorney General.

Phil Carter, Special Assistant Attorney General.