Mississippi Advisory Opinions July 30, 2004: AGO 2004-0348 (July 30, 2004)

Advisory Opinion Text

The Honorable Carl W. Payne

Election Commissioner

DeSoto County Courthouse

Highway 51 South

Hernando, Mississippi 38314

Re: Challenged Ballots

Dear Commissioner Payne:

Attorney General Jim Hood has received your letter of request and assigned it to me for research and reply. A copy of your letter is attached for reference.

You quote Mississippi Code Annotated Section 23-15-579 (Revised 2001) which sets forth the procedure for challenging one's right to vote and then ask two questions concerning challenged ballots which we will respond to in the order presented.

QUESTION 1: Do the words counted, tallied and totaled refer to:

A. The time of closing of the polls after the absentee ballots are counted when the election results are locked on the PCMCIA card and sealed to be returned by the returning manager and a printed tabulation of the voting at that box printed?

B. When the boxes are opened at the location of the public counting of all the ballots?

C. When the Commissioners of Election meet to review the affidavit ballots? or

D. At some other time?

RESPONSE: Mississippi Code Annotated Sections 23-15-501 through 23-15-525 (Revised 2001) authorizes the use of Optical Mark Reading (OMR) equipment to count ballots. Section 23-15-505 provides that “the provisions of this chapter shall be controlling with respect to elections where any OMR system is used, and shall be liberally construed so as to carry out the purpose of this chapter. The provisions of the election law relating to the conduct of elections with paper ballots, that are to be manually tabulated, insofar as they are applicable and not in conflict with the efficient conduct of the systems, shall apply.” We understand that DeSoto County has such equipment at the individual polling places as opposed to a system in which all ballots are brought to a central location to be counted. Such devices are commonly described as “precinct counter” scanners.

The statutory language you quote in your letter was enacted at a time when ballots in all elections were manually counted at the individual polling places. It clearly provides that after the unchallenged ballots, including unchallenged absentee ballots, have been counted, tallied and totaled, the challenged ballots shall then be counted, tallied and totaled and a separate return be made of such challenged ballots. The statute (23-15-579) clearly contemplates that such counting, tallying and totaling of challenged ballots be done at the individual polling places. It does not appear that the counting, tallying, and totaling of the challenged ballots at the individual polling places would “conflict with the efficient conduct of the system” when OMR counting equipment is available and utilized in each polling place.

This is not to say that such procedure must be followed in those counties in which the ballots of all voting precincts are delivered to the courthouse or other central location to be counted by OMR equipment. Since, in those counties, all unchallenged ballots are counted at the courthouse or other central location, it follows and is our opinion that the challenged ballots should be counted, tallied and totaled and a separate return made at the courthouse or other central location after all unchallenged ballots have been counted, tallied and totaled.

QUESTION 2: Since there was no unanimous conclusion reached by the election managers who are the only ones to know the circumstances of the challenge, and since there is no provision to identify the elector on the ballot, except a rejected ballot, is the result of this count to be included in any report or just to be stored with the other election material retained by law?

RESPONSE: The separate envelope containing the rejected ballots and the separate envelope containing the challenged ballots must be sealed and returned in the appropriate ballot box to be preserved in the registrar's office. Should an election contest be filed, the court before whom the contest is heard will decide what impact, if any, such ballots had on the election and will rule accordingly.

Sincerely,

Jim Hood Attorney General.

Phil Carter Special Assistant Attorney General.