Mississippi Advisory Opinions June 17, 2005: AGO 2005-0288 (June 17, 2005)

Advisory Opinion Text

The Honorable Benton L. Sanford

Jackson County Election Commissioner

2926 South Pascagoula Street

Pascagoula, Mississippi 39567

Re: Over-ride Feature on Voting Equipment

Dear Mr. Sanford:

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

Mississippi Code 23-15-523 (4) states that ballots that have been rejected by OMR voting equipment shall be reviewed by the resolution board to determine voter intent. My assumption is that this procedure applies when the voter is not present.

My question is “if the voter is present and the OMR voting equipment rejects a ballot, should the voter be allowed to use the over-ride feature and cast an over-voted or blank ballot if he/she so chooses?”

Mississippi Code Annotated Section 23-15-523 (Supp. 2004) sets forth the procedure for counting votes when optical mark reading equipment (OMR) is used. Section 23-15-523 states in part:

(2) The commissioners of elections or the officials in charge of the election shall appoint qualified electors to serve as judges on the “resolution board.” An odd number of not less than three (3) members shall take the oath provided in Section 268, Mississippi Constitution of 1890 . All ballots that have been rejected by the OMR tabulating equipment and that are damaged or defective, blank or overvoted will be reviewed by said board.

...

(5) All ballots that are rejected by the OMR tabulating equipment and which contain overvotes shall be inspected by the resolution board. Regarding those ballots upon which an overvote appears and voter intent cannot be determined by inspection of the resolution board, the officials in charge of the election may use the OMR tabulating equipment in determining the vote in the races which are unaffected by the overvote. All other ballots which are overvoted shall be counted manually following the provisions of this section at the direction of the officials in charge of the election.…

We also note that 23-15-523(7) sets forth certain criteria that is to be followed by the resolution board in determining the intent of the voter when inspecting a ballot which contains or appears to contain one or more overvotes or is damaged or defective or is rejected by the OMR equipment for any reason.

It is our understanding that Jackson County has individual precinct scanners as opposed to a centralized scanner. However, both scanner systems are governed by Mississippi Code Sections 23-15-501 through 23-15-525 which includes the above quoted statutes. We find nothing that speaks to or authorizes the use of an over-ride feature on an OMR scanner either by a voter or poll worker in a precinct scanner system or counting center employees in a centralized scanner system.

Section 23-15-523 (5) specifically requires that all ballots that are rejected by OMR tabulating equipment and which contains over-votes be inspected by the resolution board. If a voter (or anyone else) is allowed to utilize the over-ride feature of a scanner, it would be impossible to comply with the mandate of the statute.

Sincerely,

Jim Hood Attorney General

Phil Carter Special Assistant Attorney General