Mississippi Advisory Opinions August 07, 1991: 19910807 (August 07, 1991)

Advisory Opinion Text

Honorable Sue Sautermeister

Hinds County Election Commission

Post Office Box 946

Jackson, Mississippi 39205-0946

Dear Ms. Sautermeister:

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

“Questions have arisen over the initialing of ballots during an election.

1. In which cases must a ballot be initialed in order for it to be legal and counted:

a. absentee ballot (in all cases whether mailed to voter or voted in person at the Circuit Clerk's office).

b. affidavit ballot

c. challenged ballot

d. paper ballot

e. paper ballot that is counted by a scanner

f. punch card ballot (such as CES or Vot-o-Matic)

2. May a ballot be counted if the initials on the back of the ballot were those of one other than the initialing manager or the alternate initialing manager?

3. May an affidavit ballot be counted if it does not have the signature of the voter and a manager as well as the correct address of the voter?

4. May an absentee ballot be legally counted if the signature of the voter or the witness is NOT across the flap of the ballot envelope?”

Mississippi Code Annotated § 23-15-541 (1972) provides in part:

“Upon the opening of the polls, and not before, the managers of the election shall designate two (2) of their number, other than the manager theretofore designated to receive the blank ballots, who shall thereupon be known respectively as the initialing manager and the alternate initialing manager. The alternate initialing manager, in the absence of the initialing manager, shall perform all of the duties and undertake all of the responsibilities of the initialing manager. When any person entitled to vote shall appear to vote, he shall first sign his name in a receipt book or booklet provided for that purpose and to be used at that election only and said receipt book or booklet shall be used in lieu of the list of voters who have voted formerly made by the managers or clerks; whereupon and not before, the initialing manager or, in his absence, the alternate initialing manager shall indorse his initials on the back of an official blank ballot, prepared in accordance with law, and at such place on the back of the ballot that the initials may be seen after the ballot has been marked and folded, and when so indorsed he shall deliver it to the voter, which ballot the voter shall mark in the manner provided by law, which when done the voter shall deliver the same to the initialing manager or, in his absence, to the alternate initialing manager, in the presence of the others, and the manager shall see that the ballot so delivered bears on the back thereof the genuine initials of the initialing manager, or alternate initialing manager, and if so, but not otherwise, the ballot shall be put into the ballot box; and when so done one (1) of the managers or a duly appointed clerk shall make the proper entry on the pollbook....”

Sections 23-15-501 through 23-15-525 are the specific statutes that govern the procedures that are to be followed when optical mark reading equipment (commonly known as scanner equipment) is utilized. 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.”

In response to your first question, it is the opinion of this office that all paper ballots voted at the polling places including affidavit ballots, challenged ballots and “scanner” ballots are subject to the initialing requirement. Since the initialing and alternate initialing managers are not involved in the absentee balloting process, it is our opinion that absentee ballots are not subject to the initialing requirement. Also we have previously opined that the “punch-card” ballots which are serially numbered are not subject to the initialing requirement. See Attorney General's Opinion addressed to Mrs. Charlotte B. Williams, dated September 14, 1983 (copy enclosed). Please note that since the issuance of the Williams opinion the initialing requirement has been made applicable to all elections instead of primary elections only.

In response to your second question, the Mississippi Supreme Court has ruled that the failure of the initialing manager or alternate initialing manager to initial a ballot constitutes such a substantial failure to comply in material particulars with the requirements of the statute regulating the holding of primary elections that it renders such ballot illegal. See Chinn v. Cousins , 27 So.2d 882 (1946); Starnes v. Middleton , 83 So.2d 752 (1955); W allace v. Leggett , 158 So.2d 746 (1963) . Again, while these cases deal with primary elections, the initialing requirement is now applicable to special and general elections as well. Therefore, a ballot subject to the initialing requirement that is initialed by one other than the initialing manager or alternate initialing manager could not be lawfully counted.

In response to your third question, section 23-15-573 sets forth the procedure for voting by affidavit ballot. It provides:

“No person whose name does not appear upon the pollbooks shall be permitted to vote in an election; but if any person offering to vote in any election whose name does not appear upon the pollbook shall make affidavit before one (1) of the managers of election in writing that he is entitled to vote, or that he has been illegally denied registration, his vote may be prepared by him and handed to the proper election officer who shall enclose the same in an envelope with the written affidavit of the voter and seal it and mark plainly upon it the name of the person offering to vote. In canvassing the returns of the election, the executive committee in primary elections, or in a general election the election commissioners, shall examine the records and allow the ballot to be counted, or not, as shall appear to be legal.”

While the signature of the voter must appear on the affidavit and the name of the voter must be plainly marked on the envelope containing the affidavit and ballot, we find no requirement that the signature of a manager or the address of the voter appear on the affidavit or the envelope. That information may, of course, be requested of the individual voters to facilitate the election officials in making the proper determination on the validity of the affidavit ballots.

In response to your fourth question, section 23-15-633 provides:

“On any envelope where the elector's signature and the signature of the attesting witness are required, the signature lines and the signatures shall be across the flap of the envelope to insure the integrity of the ballot.”

A similar provision in a prior statute (Chapter 237, Laws of 1950) required the officer before whom an absent voter signs his affidavit to “impress his seal upon the lids of said envelope in such manner and so firmly that same cannot be opened without detection”. In discussing that requirement the Mississippi Supreme Court in Walker v. Smith, 56 So.2d 84 (1952) said:

“... The special tribunal held that this provision of the law is directory and not mandatory. We think that the trial court was correct in so holding. Section 9 of said Chapter 237, supra, does require that ‘the officer shall thereupon impress his seal upon the lids of said envelope in such manner and so firmly that same cannot be opened without detection.’ This doubtless a salutary provision. But Section 10, of said chapter, which deals with the reception and counting of absent voter ballots, makes no reference to the improper impression of the officer's seal, and contains no mandate for the rejection of a ballot in an envelope on which the seal has not been impressed in accordance with Section 9 thereof. Consequently, in the absence of such a requirement, the provision must be held to be directory only. In Hunt v. Mann , 136 Miss. 590, 101 So. 369, 370, this Court said: ‘In determining how far irregularities in party nominations for office will affect the result of the general election, the fundamental inquiry is whether or not the irregularity complained of has prevented a full, fair, and free expression of the public will. Unless the statute which has been violated in making the nomination expressly declares that the particular act in question is essential to the validity of the election, or that its omission shall render the election void, the statute will be treated as directory, and not mandatory, provided such act of irregularity is not calculated to affect the integrity of the election.’

It must be kept in mind that the legislature was endeavoring to provide means for absent voters to exercise their right of suffrage. The result, therefore, ought no to be lightly tossed aside, unless the irregularity has prevented a full, fair and free expression of the public will....”

It is clear that the purpose of Section 23-15-633 and the statute examined by the Court is the same, that is to insure the integrity of the ballot. Therefore, it is the opinion of this office that the provisions of Section 23-15-633 must be viewed as directory and not mandatory. The fact that a required signature is not across the flap of the ballot envelope does not automatically void the ballot. Only when it is determined by the proper election officials, consistent with the facts, that such irregularity was calculated to affect the integrity of the election would said officials be justified in declaring a ballot illegal.

Sincerely,

Mike Moore, Attorney General.

Phil Carter, Special Assistant Attorney General.