Mississippi Advisory Opinions December 22, 1999: AGO 000013560 (December 22, 1999)

AGO 000013560.

Dear Mr. Hafter:

Attorney General Mike Moore has received your request for an opinion and has assigned it to me for research and response. As your letter is quite lengthy, it is attached hereto for reference. We will respond to each of the inquiries separately.

Question 1: Does Miss. Code Ann. (1972) Section 23-15-627, as amended by Chapter 420 of the Laws of 1999, effective June 17, 1999, or any other provision of the Mississippi Code prevent the Greenville Election Commission from counting the absentee ballots of otherwise qualified absentee voters on account of the absence on the application forms used to obtain absentee ballots which do not contain the seal and/or the initials or signature of the Clerk or her Deputy? This is asked separately in regard to (a) those application forms which contain neither the Clerk's seal nor the Clerk's signature or initials and (b) those application forms which do not contain the Clerk's seal but do contain the signature of the City Clerk or one of her Deputies.

Response: Section 23-15-627 reads, in pertinent part, as follows:

"An absentee ballot application must have the seal of the circuit or municipal clerk affixed to it and be initialed by the registrar or his deputy in order to be utilized to obtain an absentee ballot." (emphasis added).

Pursuant to this statute, an application form which does not contain both the seal and the initials of the Clerk or deputy may not be utilized to obtain an absentee ballot. The Mississippi Supreme Court has also addressed this issue, and requires strict compliance with the statutes concerning absentee ballots in order to ensure the integrity of absentee ballots. See McFarland v. State, 707 So.2d 166, 177 (Miss. 1997) and Lewis v. Griffith, 664 So.2d 177, 185 (Miss. 1995). It is, therefore, the opinion of this office that the Greenville Election Commission may not count the absentee ballots which were obtained pursuant to improper application forms.

Question 2: If the Municipal Clerk, as the Registrar of voters for the City of Greenville, did not follow the procedures set forth in Miss. Code Ann. (1972) Section 23-15-625, first unnumbered paragraph, does this invalidate (or otherwise affect the Election Commission's counting) absentee ballots of otherwise eligible absentee voters in a municipal general election?

Response: It is the opinion of this office that the provisions of Section 23-15-625 which refer to the sequential numbering of absentee ballots and the filing of the affidavit by the clerk upon receipt of same have not obtained the required preclearance from the United States Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, and therefore, have not taken effect.

Question 3: Does Miss. Code Ann. (1972) Section 23-15-625 or any other provision of the Mississippi Code, invalidate (or otherwise affect the Election Commission's counting) the votes of absentee voters otherwise qualified to cast absentee ballots because such voters' names may have been omitted from the lists of absentee voters posted at the Clerk's Office and at the polling places?

Response: It is the opinion of this office that an inadvertent omission of names from the list of absentee voters would not cause such vote to be invalid. However, as discussed in our response to Question 1, the application form must still be valid for the vote to be counted.

Question 4: Under Miss. Code Ann. (1972) Section 23-15-573, or any other applicable laws, can the Election Commission count (a) the ballots of electors who were qualified to vote in this election but whose names did not appear on the poll book at their assigned polling place but who placed their votes in plain envelopes containing on the outside only their name and address, without the language set forth in Section 23-15-573 to the effect that the voter "is entitled to vote or has been illegally denied registration" and/or (b) the ballots of such voters who were not able to place their ballots inside envelopes, due to the shortage of envelopes at the poll, and who wrote their name and address on a piece of paper and folded their ballot inside such piece of paper and then placed those ballots inside a locked ballot box?

Response: The Mississippi Supreme Court has addressed the issue of affidavit ballots in the case of Hatcher v. Fleeman, 617 So.2d 634 (Miss. 1993). The Court discussed the validity of affidavit ballots, which are defined by the Court as "those which are issued to individuals whose names do not appear on the pollbooks but who aver in writing that they are eligible to vote in that precinct."(citing Wilbourn v. Hobson, 608 So.2d 1187, 1188 (Miss. 1992)). The Court went on to hold that "the affidavit required by Section 23-15-573 is a condition precedent to permission to vote. In other words, the making of the proper affidavit in writing before an election manager is mandatory, not directory." Hatcher at 640. It is, therefore, the opinion of this office that, consistent with holdings of the Mississippi Supreme Court, the ballots cast by individuals not appearing on the pollbooks that did not contain accompanying affidavits as required by Section 23-15-573 were improperly cast and should not be counted. Having said that, there is no need to address the issue of envelopes.

Question 5: In the contested race for Mayor in which all citizens of the City were eligible to vote, can the Election Commission count a vote cast by a person registered to vote in the City but cast as an Affidavit Ballot at a polling place other than the polling place in the ward in which that voter resides and is registered to vote?

Response: No. Only individuals qualified and registered to vote in a particular voting precinct or ward may vote at that precinct. Section 23-15-11 states that a person who meets the qualifications set forth therein is a qualified elector in and for the county, municipality and voting precinct of his residence. Section 23-15-33 states that every person who completes an application for registration to vote and is otherwise qualified to vote shall be registered on the registration books of the voting precinct of residency. Further, Section 23-15-571 specifies as one of the causes for which a person's vote may be challenged is that the person is not a registered voter in the precinct in which he offers to vote. It is the opinion of this office that, even in a city-wide election, an individual may only cast a ballot in the voting precinct or ward in which they are registered to vote. However, we would draw your attention to Section 23-15-13, which states that certain individuals may be eligible to vote by affidavit ballot in a new precinct or ward, having changed ward or precinct residency within thirty days of the election.

If our office may be of further assistance, please advise.

Sincerely,

MIKE MOORE

ATTORNEY GENERAL

By: Heather P. Wagner

Special Assistant Attorney General