Mississippi Advisory Opinions November 14, 1991: AGO 000005490 (November 14, 1991)

AGO 000005490.

Dear Mr. Townsend:

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

"I represent the Democratic Executive Committee of Sunflower County, Mississippi. We have a hearing scheduled on Saturday, November 16, 1991.

I may be asked to comment on voting an absentee ballot, in the instance of an illiterate or disabled person in need of assistance, which cannot be done if the witness follows the affidavit set out in Section 23-15-635.

I would appreciate an opinion from your office on this issue."

We then received a supplemental letter concerning the committee's authority to act on a primary election contest subsequent to the general election. It states:

"As heretofore stated, I represent the Democratic Executive Committee of Sunflower County, Mississippi. In addition to my request regarding Section 23-15-635, Mississippi Code of 1972 as amended, I have two additional questions for your comments and opinion.

Following the Democratic Primary held on October 8, 1991, the Democratic Executive Committee certified that Charles T. Rogers was the Democratic nominee, defeating incumbent Sheriff Ned Holder by 48 votes. On October 24, 1991, Ned Holder filed a petition with the Democratic Executive Committee to contest the election.

Hearing convened on October 31, 1991, with the Contestor and Contestee asking for a continuance. The Committee continued the case until November 16, 1991, at 9:00 A.M.

Apparently no action was taken by the Contestor to enjoin the General Election, held on November 5, 1991.

Charles T. Rogers appeared on the ballot as the Democratic nominee and was elected over his Independent or Republican opponent.

My question is what authority does the Democratic Executive Committee have to act, since the general election has been held and Charles T. Rogers has been elected?

One attorney has raised a question of the authority of the Executive Committee to act based on your opinion of October 22, 1991, which states that the Committee has no authority, after certifying the results to call for a new election. I was of the opinion that the election Committee could still review the facts and recertify the results based on their findings. Please issue an opinion on this."

In response to your first question, Mississippi Code Annotated Section 23-15-635 (Rev. 1990) is a part of the "Absentee Balloting Procedures Law" and sets forth the "Elector's Certificate" and the "Certificate of Attesting Witness" which must be executed when one votes an absentee ballot. A copy of that code section is attached for reference. By signing the "Elector's Certificate" the voter swears that he marked his ballot in secret. By signing the "Certificate of Attesting Witness" the witness is certifying that the voter exhibited the blank ballot, then retired out of his presence, but within his sight, and voted his ballot in secret and that the voter was not solicited or advised by the witness to vote for any candidate, question or issue.

The literal wording of these two certificates would seem to preclude any assistance to an absent voter. We are of the opinion that a voter who is blind or is unable to read the ballot or mark the ballot and possesses the mental capacity to express his will as to how he wishes to vote and is qualified to vote by absentee ballot, is not disenfranchised but is entitled to receive the needed assistance that is statutorily provided for persons who vote at the polls pursuant to Section 23-15-549 which states:

"Any voter who declares to the managers of the election that he requires assistance to vote by reason of blindness, disability or inability to read or write may be given assistance by a person of the voter's choice other than the voter's employer, or agent of that employer, or officer or agent of the voter's union."

Also, it is our understanding that it has been a long- standing practice in Sunflower County as it has been in other counties to allow such assistance. Before any change in such practice could be legally instituted it would have to be submitted to and precleared by the U.S. Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965.

We understand that the potential for abuse by unscrupulous candidates or their supporters is great and emphasize that the voter must freely and knowingly request his own ballot and must freely and knowingly request the assistance of the person of his choice. Anyone who forces his assistance upon a voter for the purpose of influencing how his ballot is marked or who does not allow the voter to freely express how he wishes to vote or who deliberately marks the voter's ballot contrary to the expressed wishes of the voter is guilty of a crime. See Mississippi Code Annotated Sections 97-13-31, 97-13-37, & 23-15-753 (1972).

In response to your question regarding the authority of a party executive committee to act on a contest of a primary election after the general election has been conducted, Section 23-15-921 provides in part:

"Except as otherwise provided by Section 23-15-961, a person desiring to contest the election of another person returned as the nominee of the party to any county or county district office, .... may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested; and it shall be the duty of the executive committee to assemble by call of the chairman or three (3) members of said committee, notice of which contest shall be served five (5) days before said meeting, and after notifying all parties concerned proceed to investigate the grounds upon which the election is contested and, by majority vote of members present, declare the true results of such primary."

Section 23-15-927 provides in part:

"When and after any contest has been filed with the county executive committee, .... and the said executive committee having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and the law, the contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred,...." (emphasis ours).

The Mississippi Supreme Court in Turner v. Henry, 193 So. 631 (1940) in discussing these statutory provisions and the proceedings before a party executive committee leading up to judicial review said:

"In the recent case of Harris v. Stewart, Miss., 193 So. 339, ...., although not decisive of the exact question upon which this case turns, there is a discussion of the applicable principles. The Court said, among other things:

'An examination of the provisions of the Act under consideration will disclose the purpose that the proceedings preliminary to and during the course of a judicial review of a primary election contest shall be conducted with such diligence, expedition, and dispatch as will enable the trial court to have a full and orderly hearing and to conclude it in such time that, if practicably possible, a new primary, if ordered, may be held before the day of the general election in November of the same year. The requirement that the petition shall be filed 'forthwith' is one in pursuance of the aforesaid object; and if the hearing is actually had on such a petition and as a result thereof, a new primary has been ordered and held before the general election, as was done here, the statute has been satisfied in the particular case although the petition was filed as late as October 25, 1939, and when the general election was to be held November 7, 1939.'

Based on the above, it is the opinion of this office that a party executive committee is under an obligation to dispose of an election contest sufficiently in advance of the general election as will allow the orderly preparation of the ballot and conduct of said election by the county election commission. It is, in our opinion, imperative that there be some finality to the nomination process. Therefore, once a county executive committee has certified a nominee for a particular office and an election contest has been timely and properly filed in accordance with Section 23-15-921, it is incumbent on said committee to hear the contest and certify the true results thereof to the county election commission in time for the ballots for the general election to be printed.

If the executive committee delays disposing of the contest and the election commission proceeds to have the ballots for the general election printed with the certified nominee's name included thereon and, in this case, conducts the general election and certifies the nominee in question as the winner, the committee, in our opinion, loses its jurisdiction over the matter and any findings by the committee thereafter would be of no effect.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General PC:mfd Enclosure