Mississippi Advisory Opinions September 26, 2003: AGO 2003-0517 (September 26, 2003)

Advisory Opinion Text

The Honorable Deborah Hood Neal

Circuit Court Clerk, Webster County

Post Office Box 308

Walthall, Mississippi 39771

Re: Examination of Ballot Boxes

Dear Ms. Neal:

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

Please issue a legal opinion as to the number of times an examination is allowed by a candidate or his/her representative within the twelve (12) days after the canvass and examination of the ballot box and its contents by the election commission or executive committee.

In the Chancery Clerk's race we had a candidate that lost by only a few votes. The candidate requested an examination of the ballot boxes and their contents within the twelve (12) days. The candidate also asked for a recount of all ballots which was done by our optical scanner machine and everything was accounted for and no objection was voiced by either candidate. The ballot boxes were then re-sealed and stored away.

Nine (9) days later, the candidate returned again with a second (2 nd ) request to have the ballots hand counted. I contacted Reese Partridge with the Secretary of State's Office concerning this matter and he told me the candidate could be allowed to do a second count as long as it was within the twelve (12) days and the opposing candidate had three (3) days notification.

I had planned to have this count done in the courtroom of the courthouse for the extra space, but was told the courtroom was taken Monday the 8 th and Tuesday the 9 th there was Chancery Court scheduled. I then set it up for Wednesday the 10 th in order that we would have adequate space for the examination and hand-count. I didn't realize that the second count had to be done within that twelve day period. This was an oversight on my part.

On September the 9 th the opposing candidate filed with the Democratic Chairman an objection to the count stating that the time had expired for another count and that only one count is allowed.

On September the 10 th I tried to contact Reese Partridge as to advice on this matter, but he was in a meeting. I then contacted Phil Carter concerning this matter and was advised that one (1) examination is all that is allowed within the twelve (12) day period.

I ask for an opinion as to whether or not a candidate and/or his representative is allowed to a second examination. I also ask for it to be clarified as to if the candidate requests that the ballots be re-counted does the candidate have a choice of how he/she wants the ballots to be counted by a machine or by hand? And also, does the candidate have the authority to request that both a scanner machine count and hand-count be done at the same time or within the twelve (12) day period? The candidate now has filed a petition with the Democratic Executive Committee as per code section 23-15-921 and the committee has set up a meeting for the grounds upon which she is contesting the election.

The General Election is right around the corner and I want to be prepared if this should happen again.

I have enclosed the documents that have been filed and served concerning each event that has occurred with each candidate that I would like for you to review.

Mississippi Code Annotated Section 23-15-911 (1) (Revised 2001) sets forth the procedure for a candidate to examine the contents of the ballot boxes subsequent to an election. It provides:

When the returns for a box and the contents of the ballot box and the conduct of the election thereat have been canvassed and reviewed by the county election commission in the case of general elections or the county executive committee in the case of primary elections, all the contents of the box required to be placed and sealed in the ballot box by the managers shall be replaced therein by the election commission or executive committee, as the case may be, and the box shall be forthwith resealed and delivered to the circuit clerk, who shall safely keep and secure the same against any tampering therewith. At any time within twelve (12) days after the canvass and examination of the box and its contents by the election commission or executive committee, as the case may be, any candidate or his representative authorized in writing by him shall have the right of full examination of said box and its contents upon three (3) days' notice of his application therefor served upon the opposing candidate or candidates, or upon any member of their family over the age of eighteen (18) years, which examination shall be conducted in the presence of the circuit clerk or his deputy who shall be charged with the duty to see that none of the contents of the box are removed from the presence of the clerk or in any way tampered with. Upon the completion of said examination the box shall be resealed with all its contents as theretofore. And if any contest or complaint before the court shall arise over said box, it shall be kept intact and sealed until the court hearing and another ballot box, if necessary, shall be furnished for the precinct involved.

We offer the following responses solely for your guidance in future elections and specifically do not comment on the propriety of any actions taken with regard to the primary election as described in your letter. Questions raised with regard to the primary election may only be resolved at this point through the statutorily prescribed appeal process.

In response to your first question, we are of the opinion that the above quoted statute contemplates that once the examination begins it is to be a continuous one from day to day until completion. It is our opinion that once the examination is completed and the boxes resealed a second examination by that candidate is not contemplated or authorized. We note that the examination must be completed within the twelve (12) day period. Weeks v. Bates , 115 So. 2d 298 (Miss. 1959) .

In response to your second and third questions, we find no statutory provisions for a formal “recount” of the ballots. The statutes provide for an “examination” of the ballot boxes. The examining candidate may manually recount the ballots as a part of the examination of the boxes. The circuit clerk has the responsibility, either personally or through a deputy, to be present and observe the examination or “recount” to insure that none of the election materials are compromised in any way.

We are also of the opinion that the circuit clerk would have the discretionary authority to conduct or have conducted a “machine count” should the examining candidate so request, in addition to a manual recount. Again, pursuant to the rulings in Weeks and Noxubee County Democratic Executive Comm. v. Russell , 443 So. 2d 1191 (Miss. 1983), the entire examination must be completed within twelve (12) days from the date of certification. We note that there is no requirement that the examination take place in the court room or in any particular place.

Sincerely,

Mike Moore Attorney General

Phil Carter Special Assistant Attorney General