Mississippi Advisory Opinions August 15, 1983: 19830815 (August 15, 1983)

Advisory Opinion Text

Honorable Samuel E. Smith

Circuit Clerk

Wilkinson County Courthouse

Woodville, Mississippi 39669

Re: Elections - Primary

Dear Mr. Smith:

Attorney General Allain has received your letter of request and has assigned it to me for research and reply.

Your letter states:

“As per telephone conversation of this date, I need a written opinion on Section 23-3-23, Miss. Code 1972 annotated in response to the attached letters. Certification of election was completed August 3, 1983. I need to know the following:

“(1) Is a notice filed by a candidate on August 15th 1983 sufficient to permit a full examination of ballots of a Primary Election conducted on August 2, 1983 with Sect. 23-3-23 (See weeks vs. Bates, 115 So.2d 298).

“(2) If answer to above is affirmative, how many persons are permitted to examine ballot boxes and its contents?

“(3) Does Sect. 23-3-23 require that examination be held within 12 days after the canvass and examination by the Executive Committee.”

Mississippi Code Annotated § 23-3-23 (1972) which provides for the examination of ballot boxes by candidates in primary elections states in part:

“At any time within twelve days after the canvass and examination of the box and its contents by the executive committee, any candidate or his representative authorized in writing by him, shall have the right of full examination of said box and its contents upon three days' “notice of his application therefor served upon the opposing candidate or candidates, or upon any member of their family over the age of eighteen years, which examination shall be conducted in the presence of the circuit clerk or his deputy . . . .”

The Mississippi Supreme Court in H. R. Weeks v. T. B. Bates , 115 So.2d 298 (1959), said:

“Section 3169 [now § 23-3-23] is unambiguous. It states that a candidate has a right of examination of the ballot boxes 'at any time within twelve days' after the county executive committee's canvass. Appellant made his examination 14 days after the canvass, and over appellee's objection. We are not authorized to alter this statutuory limitation on the right to examine ballot boxes in a primary election. The determination of a time limit within which such examinations may be made is a legislative question.

“In Shaw v. Burnham, 1939, 186 Miss. 647, 658, 191 So. 484, 486, the Court, discussing this act, referred to the fact that 'any candidate has the privilege of a full examination of the boxes and their contents, within the early and appropriate time therein mentioned.' In Sartin v. Barlow, 1944, 196 Miss. 159, 165, 16 So.2d 372, 374, the clerk had erroneously refused to permit an examination of the ballot boxes. Reversing that action, it was said: 'The statute expressly allows twelve days, ' and the chief device for preserving the integrity of primary elections 'was this provision for the allowance of an examination of the boxes by any candidate within twelve days after any primary election.' Lopez v. Holleman, 1954, 219 Miss. 822, 836, 69 So.2d 903, 907, dealth with a special election conducted under the general election laws, and thus is not directly pertinent, but, referring to the primary election statutes, it was observed that under Sec. 3169 a candidate may examine the ballot boxes 'at any time within twelve days after the canvass by the executive committee.'

“These interpretations of the act reflect that the Court has consistently construed it as requiring an examination of the ballot boxes in primary elections within 12 days after the executive committee's canvass . Appellant failed to comply with this statutory restriction, and “based his entire contest upon alleged facts developed as a result of an examination of the boxes which came too late. . . .” (Emphasis added)

The Mississippi Supreme Court has specifically held that ballot boxes must be examined by candidates in a primary election within twelve (12) days after the executive committee's canvass.

Section 23-3-23 requires that candidates who wish to examine the ballot boxes from a primary election give three (3) days written notice thereof to the opposing candidates.

Since the executive committee in question canvassed and examined the boxes on August 3, 1983, notice to the opposing candidates would have to have been served on August 12, 1983, in order to examine said boxes during the twelve day period of which August 15, 1983, is the last day.

Therefore, in response to your first question, the Supreme Court has held that a candidate may not be allowed to extend the statutory twelve (12) day period within which to examine the ballot boxes by issuing notice within said period.

Our response to your first question renders your second question moot.

In response to your third question and as previously stated the Mississippi Supreme Court has specifically held that the examination of primary election ballot boxes by candidates must be held within twelve (12) days after the canvass and examination by the appropriate executive committee.

Very truly yours,

Bill Allain Attorney General