Mississippi Advisory Opinions November 22, 1995: AGO 95-0759 (November 22, 1995)

Advisory Opinion Text

Honorable Carl Mickens

Circuit Clerk

Post Office Box 431

Macon, Mississippi 39341

Re: Absentee Ballots

Dear Mr. Mickens:

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

“Please provide me with a written opinion on whether or not a voter's absentee ballot should be available for public viewing and examination before the election is held.”

Mississippi Code Annotated, Section 23-15-637 (Revised 1990) provides in part:

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

Section 23-15-643 sets forth a portion of the procedure to be followed in examining absentee ballots after the close of the polls and consideration of any challenges thereto and provides in part:

“... (A)n official shall announce the name of the voter and shall give any person present an opportunity to challenge in like manner and for the came cause as the voter could have been challenged had he presented himself personally in such precinct to vote. The ineligibility of the voter to vote by absentee ballot shall be a ground for a challenge. Also, the officials shall consider any absentee voter challenged when a person has previously filed a written challenge of such voter's right to vote. The election officials shall handle any such challenge in the same manner as other challenged ballots are handled.”

In order for one to be able to challenge a voter on the basis of the voter's ineligibility to vote an absentee ballot it seems logical that a potential challenger should be allowed to see the application showing the reason that the voter is voting by absentee ballot.

In this regard, this office issued an opinion addressed to Mrs. Audrey W. Kern dated August 2, 1979. Although certain portions of that opinion are no longer applicable, our statement regarding the examination of absentee ballot applications remain the opinion of this office. In Kern we cited and quoted Section 23-9-421 (now 23-15-643, quoted above) and said that the absentee ballot application “may be examined by any person desiring to do so at any time prior to the deposit of said application in the ballot box and when such examination would not be disruptive of the operation of the office of the registrar”. Likewise we know of nothing that would prohibit one from seeing the sealed envelope prior to their deposit in the ballot box to verify that it is in fact sealed and that it is lawfully notarized or witnessed, etc. Obviously, you as the registrar must insure that no person handle these materials out of your presence or deputy registrar's presence to insure that none of the applications and envelopes are, in any manner, tampered with or altered.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.