Mississippi Advisory Opinions January 07, 2000: AGO 1999-0703 (January 07, 2000)

Advisory Opinion Text

Ms. Juanita Hayes

Election Commissioner

District 5, Clarke County

102 Kathy Avenue

Quitman, Mississippi 39355

Re: Notices under Section 23-15-911

Dear Ms. Hayes:

Attorney General Mike Moore has received your request for an Official Opinion from this office and has assigned it to me for research and reply.

Your letter states and asks:

In my position as Election Commissioner, District 5, Clarke County, Mississippi, I, together with two other Election Commission members, would request the opinion of your office regarding the examination of ballot boxes by candidates pursuant to Section 23-15-911 of the Mississippi Code of 1972 .

As background, the general election was held on November 2, 1999, and the returns of the election were certified on November 10, 1999. By letter dated November 18, 1999, the unsuccessful candidate in a justice court race requested an examination of the ballot boxes and material as provided in Section 23-15-911 .

We will quote your questions and answer each separately. All references to Sections hereinafter are references to sections of the Mississippi Code of 1972 .

Section 23-15-911 provides as follows:

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 the county 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.

1. Does Section 23-15-911 require that three (3) days notice of a candidate's application to be served upon the opposing candidate or upon any member of their family over the age of eighteen (18) be in writing?

2. What does the term “served upon the opposing candidate” require under this statute?

3. Does a telephone call to the opposing candidate's spouse informing her that an application has been filed without designating a time and place for examination comply with the statute?

4. Does a written notice received in the mail by the opposing candidate on November 20, 1999, from the Circuit Clerk entitle the requesting candidate to an examination on November 22, 1999, which is the last day that the ballot boxes may be examined, but does not provide the opposing candidate the three (3) days notice?

5. Does this statute require that the notice to the opposing candidate be addressed to him, or can the notice be addressed to the Circuit Clerk?

6. Who is required to prepare the notice to the opposing candidate and who can serve the notice?

7. Can an examination of the ballot boxes be made pursuant to this section after twelve (12) days following certification of the election?

8. Does the Circuit Clerk have the authority to open the ballot boxes without the opposing candidate having three (3) days notice of the examination?

It appears from the express language of Section 23-15-911 that all actions that are the subject of your first eight questions are in regard to duties of the Circuit Clerk and/or an opposing candidate and not to the duties of an election commissioner, since Section 23-15-911 provides for inspection of ballot boxes by candidates only after canvass and review by the election commission. Pursuant to Section 7-5-25, we are only permitted to render an official opinion on questions of law in response to the request of a public official, and then only in regard to the duties of office of the requesting official. Therefore, since your first eight questions are in regard to actions which may be taken only after the duties of a county election commission have been completed, we may not respond with an official opinion.

9. If the opposing candidate did not receive the required three (3) days notice, and the Circuit Clerk proceeded with the opening and examination of the ballot boxes, what penalties, if any, are associated in this circumstance and who must initiate the complaint and who decides the penalty?

We find no statute which specifically makes it a crime to fail to comply with Section 23-15-911 in general. We note that for wilful violations of law, Section 97-13-19 provides:

If any manager, clerk, or any other officer whatever, assisting or engaged in conducting any election, or charged with any duty in reference to any election, shall designedly omit to do any official act required by law, or designedly do any illegal act in relation to any general or special election, by which act or omission the votes taken at any such election in any district shall be lost, or the electors thereof shall be deprived of their suffrage at such election, or shall designedly do any act which shall render such election void, or shall be guilty of any corrupt conduct or partiality in his official capacity at such election, he shall, upon conviction, be imprisoned, in the penitentiary for a term not exceeding two years.

In general, any person may initiate a complaint regarding a violation of a law of the State of Mississippi. The penalty for a violation of a criminal law is normally set by statute, or imposed by a judge within a range permitted by statute. Section 97-13-19, for example, imposes a penalty of not more than two years in the penitentiary; the trial judge, upon conviction of a person for violating Section 97-13-19 would decide the penalty for the person convicted, not to exceed the statutory maximum.

Very truly yours,