Mississippi Advisory Opinions July 29, 2003: AGO 2003-0363 (July 29, 2003)

Advisory Opinion Text

The Honorable Donna H. Dill

Circuit Court Clerk

Tishomingo County

1008 Battleground Drive

Iuka, Mississippi 38852

Re: Voting Twice

Dear Ms. Dill:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter states:

Would you please issue an official opinion on the following situation regarding an absentee ballot as soon as possible.

A voter came to the office and requested to vote an absentee ballot. The voter was asked which party primary he wished to vote in. The voter replied Republican. A ballot for his correct precinct was given to him for the Republican Primary. The voter marked his ballot, put it in the absentee envelope, signed across the flap, and gave it to the deputy clerk to be deposited in the ballot box. The next day, the voter called to request his ballot back. He stated he thought something was wrong because all the candidates he wanted to vote for were not on the ballot, therefore, he wrote the names of the candidates he wished to vote for in. A week later, I received a call to see if the voter will be allowed to go to the polls and vote in the Democratic Primary on election day and cross out the Republican absentee ballot.

I have been advised by the Secretary of State's Office that if someone went to the polls to vote in the primary, they would have to vote in the same Party as there is no crossover voting allowed in a primary election.

(1) If a voter has cast an absentee ballot for the party that he requested should he be allowed the following day to have that ballot voided and then cast an absentee ballot in the other party primary?

(2) If a voter has cast an absentee ballot in a particular party primary in the circuit clerk's office and then goes to the polls on election day, can he cast a lawful ballot in the opposite party?

(3) By law an absentee list is furnished to each precinct regarding absentee voters, is it permissible to furnish each party an absentee list of who voted in the other party by absentee?

In response to your first question, Mississippi Code Annotated Section 23-15-637 (Revised 2001) provides in part:

The registrar shall deposit all absentee ballots which have been timely cast in the ballot boxes upon receipt.

Section 23-15-719 requires that a person voting an absentee ballot “subscribe and swear to” an affidavit which provides in part:

I hereby authorize the registrar to place this envelope in the ballot box on my behalf, and I further authorize the election managers to open this envelope and place my ballot among the other ballots cast before such ballots are counted, and record my name on the poll list as if I were present in person and voted.

We find no authority that would allow a county registrar to open the ballot box and retrieve an absentee ballot cast in one party primary election and then allow the voter to cast another ballot in another party primary.

In response to your second question Section 97-13-35 is a criminal statute which prohibits one from voting in two different primaries on the same day. Therefore, we are of the opinion that a voter who cast an absentee ballot in one party's primary may not lawfully cast a regular ballot in another party's primary.

In response to your third question, the list of voters who vote by absentee ballot is a public record. Therefore, it is permissible to furnish the election managers in one party's primary with a list of individuals who cast absentee ballots in another party's primary.

If our office can be of any further service, please let us know.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.