Mississippi Advisory Opinions June 17, 2013: AGO 2013-00221 (June 17, 2013)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Mr. Eddie R. Myers

SUBJ: Elections

SBCD: 63-B

TEXT: Mr. Eddie R. Myers

Director of Administration / City Clerk

City of Hattiesburg

Post Office Box 1898

Hattiesburg, Mississippi 39403-1898

Re: Examination of Ballot Boxes

Dear Mr. Myers:

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

Issue Presented

Your letter states:

Per our phone conversation on Friday morning, June 14, 2013, I would appreciate your guidance and opinion related to a request for ballot box examination in accordance with MS Code Section 23-15-911.

I received a request for a ballot box examination from one of the candidates for Mayor in the recent Hattiesburg election [Candidate A]. The request indicated that all of the other four candidates had been notified. The ballot box examination started on Tuesday, June 11, 2013, by representatives for [Candidate A]. There were no objections from any of the other candidates. The ballot box examination by [Candidate A’s] representatives has not been completed and will continue on Monday, June 17, 2013.

I received another request for ballot box examination from [Candidate B] who was certified the winning candidate by the Hattiesburg Election Commission on June 7, 2013. His notice also indicated that all of the other candidates had been notified. However, representatives for [Candidate A] advised me that [Candidate A] was out of town and had not been notified, and they objected to me allowing a ballot box examination by [Candidate B] or his representatives. It was discovered that the notice for [Candidate A] had been left with the Clerk of Council.

I have been notified that [Candidate B] has attempted to notify [Candidate A] again on Friday, June 14, 2013, by leaving a copy posted on his door at his place of residence and by email. [Candidate B] would like to start his examination on Tuesday, June 18, 2013. The last day for ballot box examination will be Wednesday, June 19, 2013, since the election was certified on June 7.

I would appreciate an opinion letting me know if I should allow a ballot box examination if any candidate objects to the examination because they have not been notified. Since the twelve days allowed for examination ends on June 19, and [Candidate B] has requested a ballot box examination be allowed to start on Tuesday, June 18, I would appreciate an expedited opinion.

Response

We are of the opinion that Candidate B is legally entitled to examine the ballot boxes in question.

Applicable Law and Discussion

Mississippi Code Annotated Section 23-15-911 provides in part:

(1) When the returns for a box and the contents of the ballot box and the conduct of the election thereat have been canvassed and reviewed by thecounty election commission in the case of general elections or the county executive committee in the case of primary elections, all the contents of the box required to be placed and sealed in the ballot box by the managers shall be replaced therein by the election commission or executive committee, as the case may be, and the box shall be forthwith resealed and delivered to the circuit clerk, who shall safely keep and secure the same against any tampering therewith. At any time within twelve (12) days after the canvass and examination of the box and its contents by the election commission or executive committee, as the case may be, 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 (3) 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 (18) years , which examination shall be conducted in the presence of the circuit clerk or his deputy who shall be charged with the duty to see that none of the contents of the box are removed from the presence of the clerk or in any way tampered with. Upon the completion of said examination the box shall be resealed with all its contents as theretofore. And if any contest or complaint before the court shall arise over said box, it shall be kept intact and sealed until the court hearing and another ballot box, if necessary, shall be furnished for the precinct involved. (Emphasis added)

Although Section 23-15-911 does not specify or mandate the particular manner in which a candidate must serve notice on opposing candidates, this office has consistently advised election officials that personal service of notice on opposing candidates is required. However, our advice assumed that opposing candidates are reasonably available for personal service during the statutory twelve day examination period.

When an opposing candidate makes personal service overly burdensome or impossible to accomplish by removing himself, in this instance outside the municipality, for several days, a candidate must be allowed to employ alternate means of service of the statutory notice.

Conclusion

While personal service remains the best and preferred method of service for the notice specified in Section 23-15-911, alternate means of service, i. e., service by email and by posting at a candidate’s residence, will satisfy the notice requirement in Section 23-15-911, when personal service is impossible or overly burdensome.

Therefore, it is the opinion of this office that the examination of the ballot boxes should be allowed to begin on Tuesday, June 18, 2013 and continue, if necessary, through Wednesday, June 19, 2013, which is the last day of the statutory twelve day period for candidates to conduct such examination.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General