Mississippi Advisory Opinions April 18, 2014: AGO 2014-00144 (April 18, 2014)

Advisory Opinion Text

AUTH: Liz Bolin

RQNM: Lee Thaggard

SUBJ: Elections

SBCD: 67

TEXT: Mr. Lee Thaggard

Barry, Thaggard, May & Bailey, LLP

P.O. Box 2009

Meridian, MS 39302-2009

Re: Removal of printers on Direct Recording Electronic Voting Equipment

Dear Mr. Thaggard:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Questions Presented

Your letter states in part:

This firm represents the Lauderdale County Board of Supervisors. The Lauderdale County Election Commission has requested authority to remove individual printers attached to the Direct Recording Electronic (DRE) voting units. We are aware that approximately 52 counties have removed the printers from the DRE voting units. We are further aware of your Opinion Number 2011 -298 issued to the Neshoba County Board of Supervisors on this subject. Out of an abundance of caution, the precise issue presented for your opinion is as follows:

Whether the removal of individual printers attached to the DRE voting units violates state law including but not limited to Mississippi Code Sections 23-15-531.1 and 23-15-531.4 and 23-15-639?

Even with the removal of the individual printers, the DRE voting units will remain capable of producing a permanent paper record with a manual audit capacity which will be available for any recount conducted with respect to the election in which the DRE unit was used, as well as to print the ballots cast by electors to be utilized in the event of a recount conducted with respect to the election in which the DRE voting unit is used.

Brief Response

The removal of the external printers attached to the DRE voting units does not violate state law.

Applicable Law and Discussion

Mississippi Code Section 23-15-531.1 states the following with regard to DRE unit requirements:

Each DRE unit shall:

(a) Permit the voter to verify, in a private and independent manner, the votes selected by the voter on the ballot before the ballot is cast and counted;

(b) Provide the voter with the opportunity, in a private and independent manner, to change the ballot or correct any error before the ballot is cast and counted, including, but not limited to, the opportunity to correct the error through the issuance of a replacement ballot if the voter is otherwise unable to change the ballot or correct any error;

(c) If the voter selects votes for more candidates for a single office than are eligible for election:

(i) Notify the voter that he has selected more candidates for that office than are eligible for election;

(ii) Notify the voter before his vote is cast and counted of the effect of casting multiple votes for such an office; and

(iii) Provide the voter with the opportunity to correct the ballot before the ballot is cast and counted.

(d) Produce a permanent paper record with a manual audit capacity which shall be available for any recount conducted with respect to the election in which the DRE unit is used;

(e) Have the capability to print the ballots cast by electors to be utilized in the event of a recount conducted with respect to the election in which the DRE is used;

(f) Be accessible for individuals with disabilities, including, but not limited to, nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation, including privacy and independence, as for other voters. This requirement may be satisfied through the use of at least one (1) DRE unit or other voting unit equipped for individuals with disabilities at each polling place;

(g) Provide alternative language accessibility pursuant to the requirements of the Voting Rights Act of 1965; and

(h) Have a residual vote rate in counting ballots attributable to the voting system and not to voter error that complies with error rate standards established under the voting system standards issued by the Federal Election Commission which were in effect as of October 29, 2002.

Mississippi Code Section 23-15-531.4 sets forth the duties of election officials regarding the use and preparation of DRE voting units. Section 23-15-639 addresses the examination and counting of absentee ballots in elections in which direct recording electronic voting systems are utilized.

As you mention in your letter, this office has previously addressed the question of whether it is lawful for a county to remove the external printers from DRE voting devices. In an opinion to the Neshoba County Board of Supervisors, we opined that "the removal of external printers attached to the DRE voting units would not violate state law for the minimum DRE system requirements pursuant to Miss. Code Ann. Section 23-15-531.1." MS AG Op., White (October 21, 2011). As noted in White, when a voter finishes making ballot selections, a final electronic summary screen appears for the voter to verify the choices and make any changes if necessary. Further, if the external printer is removed, the voting device maintains the capability to print ballots, and it will also continue to produce a permanent paper record of vote totals with a manual audit capacity. Although we find it permissible to remove the external printer device, we are of the opinion that it is good public policy to continue using the external printers in order to give voters the opportunity to verify their choices on paper in addition to the electronic summary screen verification.

Conclusion

The DRE units comply with the minimum requirements found in Section 23-15-531.1 even if the external printer is removed. Accordingly, removal of the external printers attached to the DRE voting units does not violate state law.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Elizabeth S. Bolin, Special Assistant Attorney General.

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Notes:

These features of the DRE voting devices were verified by the Secretary of State's office.

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