Mississippi Advisory Opinions April 22, 1992: 19920422 (April 22, 1992)

Advisory Opinion Text

Honorable S.A. Tapp

Tippah County Election Commission

Route 1, Box 131A

Tiplersville, Mississippi 38764

Re: DUTIES OF ELECTION COMMISSIONERS AND CIRCUIT CLERK

Dear Mr. Tapp:

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

“As an election commissioner of Tippah County, I am concerned about several things that are not being handled to the letter of the law and would like for you to clarify these laws for me.

First: Mississippi Code (1972), section 23-15-481 states that the Circuit Clerk and the Commissioners of Election are to test the automatic counting machines and serve notice that this is being done.

My question is, should this law be strictly adhered to, and what is the liability of the commissioners of elections if this is not done?

Second: Mississippi Code (1972), section 23-15-483 states that all proceedings at the counting center shall be under the direction of the Commissioners of Election or officials in charge of the election.

My question is, who, the Election Commissioners or the Circuit Clerk, is in charge of the counting and which of these two should name the person or persons to operate the automated counter.

Third: I would like to ask who should be responsible for taking names off the computer after the election commissioners have marked them off.

My third question concerns the poll boxes that have been sealed because of the contested election in the first supervisor's district. How long are these boxes to be sealed or how long before the next election should these boxes be opened?”

It is our understanding that Tippah County utilizes the Optical Mark Reading (OMR) equipment governed by Mississippi Code Annotated §§ 23-15-501 through 23-15-525 (Revised 1990). Based on this understanding the provisions of Section 23-15-481 are not applicable to your inquiry. The testing of the OMR equipment is governed by Section 23-15-521 which must be strictly adhered to. That statute requires the commissioners of election (for general and special elections) and the party executive committees (for primary elections) to test the equipment. If the commissioners or party executive members deliberately fail to conduct the test in accordance with the statute they could be criminally liable. Please see the enclosed copy of Section 97-13-19.

In response to your second question, Section 23-15-523 is applicable in counties utilizing OMR equipment and specifically provides that the counting center employees shall be appointed by the commissioners of election. It further provides that “all proceedings at the counting center shall be under the direction of the commissioners of elections or officials in charge of the election”. Again, the party executive committees would be the officials in charge of primary elections.

In response to your third question, please see the enclosed copy of an opinion addressed to Honorable Henry Dean Horton, dated March 21, 1990. In Horton we expressed the opinion that it is the exclusive duty and responsibility of the circuit clerk as the county registrar or one duly authorized by the clerk to enter the appropriate data into the computer to reflect the necessary changes to the registration books and pollbooks. In response to your last question, the contents of the ballot boxes must be preserved as long as the election is in litigation and any appeals time has not expired. We know of nothing that would prohibit the removal of such contents from the ballot boxes so that said boxes may be prepared for another election provided said contents are securely and carefully preserved in the office of the registrar with the court's permission.

Sincerely,

Mike Moore Attorney General