Mississippi Advisory Opinions February 23, 2001: AGO 2001-0101 (February 23, 2001)

Advisory Opinion Text

The Honorable Ann Watts

Election Commissioner

Lauderdale County

Post Office Box 1005

Meridian, Mississippi 39301

Re: Printing Ballots

Dear Ms. Watts:

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

On behalf of the Lauderdale County Election Commission (the Commission), I am requesting an official opinion on the following matter.

Lauderdale County utilizes the Optech III-P Eagle Precinct Ballot Tabulator which is a type of Optical Mark Reading (OMR) equipment. Mississippi Code Annotated, Section 23-15-357 (Revised 1990) is a general statute which provides:

On the back and outside of the ballot shall be printed the words “OFFICIAL BALLOT, ” the name of the voting precinct or place for which the ballot is prepared, and the date of the election.

Sections 23-15-501 through 23-15-525 are specific statutes pertaining to OMR voting systems. Section 23-15-505 provides in part:

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.

Your office previously rendered an opinion to me dated August 31, 1994 in which you said that, in addition to the “bar code” that appears on each ballot giving the information required by Section 23-15-357, the same information should be printed on OMR ballots.

The Commission is concerned about the cost involved in printing the ballot on both sides in order to comply with the technical provisions of Section 23-15-357 . It costs approximately 20-25% more to print on both sides of the ballot. Therefore, our question is whether it is legally permissible to print the information required by that code section on the front of the ballot only.

Mississippi Code Annotated, Section 23-15-505 (Revised 1990) is specifically applicable to Optical Mark Reading (OMR) equipment. It provides in part:

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.

In Fouche' v. Ragland, 424 So.2d 559 (Miss. 1982) the Mississippi Supreme Court refused to invalidate certain absentee ballots that did not have the precinct name printed on the back of the ballot as required by Section 23-15-357 .

Section 23-15-357 was enacted many years ago when all elections were conducted by paper ballots which were folded by the voter to conceal their votes before depositing them in the ballot box to be manually counted

We addressed an analogous situation in our opinion to you dated August 31, 1994 which you cite in your letter. Section 23-15-541 directs, inter alia, that the initials of the initialing manager be placed on the back of the ballot. In that opinion we said:

In regard to the requirement of the above quoted statute that the initials be placed on the back of the ballot, we note that the “security envelope” required by Section 23-15-511 is a device designed to maintain the secrecy of OMR ballots since such ballots cannot be folded. We understand that most, if not all, “security envelopes” have a slot that allows for the required initials to be placed on the front of the ballot and viewed for verification without violating the secrecy of said ballot. Reading Sections 23-15-541 and 23-15-511 in pari materia, we conclude that the proper initialing on the front of an OMR ballot where the secrecy of said ballot is preserved by the use of the required “security envelope” is legally permissible.

In response to your specific question and based on the above, we are of the opinion that the printing of the information required by Section 23-15-357 on the front of the OMR ballots accomplishes the purpose of the statute and promotes the most efficient use of the voting system. Therefore, in our opinion, it is legally permissible to print the required information on the front of the ballot only.

Sincerely,

Mike Moore, Attorney General

Phil Carter, Special Assistant Attorney General