Mississippi Advisory Opinions September 02, 1992: 19920902 (September 02, 1992)

Advisory Opinion Text

Ms. Debbi Johnson

Chairman

Adams County Democratic Executive Committee

211 South Commerce Street

Natchez, Mississippi 39120

Re: KEYS TO TABULATING EQUIPMENT

Dear Ms. Johnson:

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

“I am the chairman of the Adams County Democratic Executive Committee and am requesting that your office issue an official opinion on a primary election matter that has surfaced in Adams County. This matter is not in any litigation whatsoever, nor is any anticipated.

Adams County recently purchased an optical scanning voting system to replace mechanical voting machines. The system consists of one (1) scanner/counter for each precinct. It has been proposed by the Election Commission and the Republican Party of Adams County that for primary elections both parties would use the same scanner/counter at the precinct. Although there would be separate color coded ballots for each party, and each party would have their own bailiffs handling and inserting the ballots into the machines, control of the machines would be divided over the county, with the Republicans keeping the keys to the machines at 10 of the precincts with the Democrats keeping the keys to the machines at the other 10 precincts.

My concern is this procedure would be violative of the primary election laws for one party to have the only key to the voting machine at the precinct where the other party was conducting a primary election. The party with the key would have to open up the machine at the end of the day and print out the vote totals.

The specific question to be answered is whether or not that would be lawful in a primary election for one party to have the only key and internal access to the voting machine at a precinct where the other party was also conducting a primary election with that machine.”

We preface our response by stating that this opinion is prospective in nature only and is not intended to reflect on the procedures used in any primaries which have already be conducted.

In response to your question we find no statutory procedures relating to the possession of the keys to optical mark reading equipment. However, Mississippi Code Annotated § 23–15–523 (Revised 1990) prescribes the procedure that must be followed in counting the ballots. It specifies that all proceedings at a counting center shall be under the direction of the officials in charge of the election, and shall be conducted under the observation of the public. It further specifies that no persons except those authorized for the purpose shall touch any ballot. We also note that Section 23–15–515 provides that the circuit clerk shall be the custodian of the tabulating equipment and is charged with the proper storage, maintenance and repair of said equipment. Since the counting of the ballots from each primary will be conducted in the presence of officials of both parties and the general public, we know of no prohibition against a representative of one party using a key to a particular machine to initiate a counting process which would include the counting of ballots for another party. As noted above once the counting is completed the tabulating equipment is returned to the circuit clerk who is then responsible for the security of said equipment.

We encourage the respective parties to cooperatively agree on an acceptable arrangement as to who has possession of the keys in question in a situation where the tabulation of votes is conducted in each precinct as opposed to a central counting center.

Sincerely,

Mike Moore Attorney General

Phil Carter Assistant Attorney General