Mississippi Advisory Opinions December 20, 1995: AGO 95-0842 (December 20, 1995)

Advisory Opinion Text

Honorable Lee Westbrook

Circuit Clerk

Post Office Drawer 1626

Canton, Mississippi 39046

Re: Retention of Election Materials

Dear Ms. Westbrook:

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

“How long should our county retain the following items from an election:

Poll Books

Voter Register Books

Used Ballots

Unused Ballots

Affidavit Ballots

Absentee Ballots

Ballot Tally Sheets

Miscellaneous Paperwork from Poll Workers

Also, when discarding unused ballots is it necessary that the ballots be shredded?”

We assume that by the term “voter register books” you are referring to the receipt books containing the signatures of voters who received a ballot in a particular election.

In response to your question none of the listed materials should be destroyed if an election in which they were used is the subject of an election contest or other litigation. If no state or local election in which the materials in question were used is in litigation, and the statutory deadline for filing a contest has passed, the materials in question may, in our opinion, be destroyed. However, insofar as materials from an election involving a federal office is concerned, 42 USCA 1974 provides:

“Every officer of election shall retain and preserve, for a period of twenty-two months from the date of any general, special, or primary election of which candidates for the office of President, Vice President, presidential elector, Member of the Senate, Member of the House of Representatives, or Resident Commissioner from the Commonwealth of Puerto Rico are voted for, all records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election, except that, when required by law, such records and papers may be delivered to another officer of election and except that, if a State or the Commonwealth of Puerto Rico designates a custodian to retain and preserve these records and papers at a specified place, then such records and papers may be deposited with such custodian, and the duty to retain and preserve any record or paper so deposited shall devolve upon such custodian. Any officer of election or custodian who willfully fails to comply with this section shall be fined not more than $1,000 or imprisoned not more than one year, or both.”

While materials from elections where none of the federal offices specified in the above quoted federal statute are involved are not subject to the requirements of said statute, a good general “rule of thumb” for both state and federal elections would be to maintain the materials in question for a period of twenty-two months and, if the election in which the materials were used is not in litigation, said materials could be destroyed. We know of no requirement that any of these materials be shredded. Before destroying such materials you should obtain the consent of the Director of the Mississippi Department of Archives and History. See Mississippi Code Annotated, Section 25-59-21 (Revised 1991).

Sincerely,

Mike Moore Attorney General

Phil Carter Special Assistant Attorney General.