Mississippi Advisory Opinions August 31, 1994: AGO 94-0603 (August 31, 1994)

Advisory Opinion Text

Honorable Ann Watts

Election Commissioner

President, Election Commissioners Association of Mississippi

4216 33rd Avenue

Meridian, Mississippi 39305

Re: Optech III-P Eagle Precinct Ballot Tabulator

Dear Ms. Watts:

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

Several counties have recently acquired the above referenced tabulating machines that are presently being used to electronically count votes in their elections. Several questions have arisen regarding the preparation and conduct of elections using this new equipment. The Elections Commissioners Association of Mississippi (ECAM) is involved in the certification training sponsored by the Office of Secretary of State. In the interest of uniformity in the use of the equipment now being utilized by these counties, answers to certain questions relating to such use are necessary. As President of ECAM and on behalf of the election commissioners of the counties that now have this equipment I hereby request your official opinion on the following questions:

We will restate each question and respond in sequence.

Question 1. Should the name of the precinct be printed on the ballot in addition to the ‘bar code’?

Response: Subarticle D, Article 15, Chapter 15, Mississippi Code Annotated (Revised 1990) is the controlling statutory law regarding the conduct of elections when Optical Mark Reading (OMR) equipment is used. Said subarticle includes Sections 23-15-501 through 23-15-525. We understand that the Optech III-P Eagle Precinct Ballot Tabulator meets the definition of OMR equipment. See Section 23-15-503 (b).

Section 23-15-505 provides:

. . . . The provisions of this chapter shall be controlling with respect to elections where any OMR system is used, and shall be liberally construed so as to carry out the purpose of this chapter. The provisions of the election law relating to the conduct of elections with paper ballots, that are to be manually tabulated, insofar as they are applicable and not in conflict with the efficient conduct of the systems, shall apply.

Section 23-15-357 specifies what is to be printed on the back of paper ballots. It provides:

On the back and outside of the ballot shall be printed the words ‘OFFICIAL BALLOT, ’ the name of the voting precinct or place for which the ballot is prepared, and the date of the election. (emphasis added)

Therefore, the answer to your first question is yes.

Question 2. Should ballot security envelopes be offered in all elections even if the ballot is only printed on one side?

Response: Section 23-15-511 provides in part:

A separate ballot security envelope or suitable equivalent in which the voter can place his ballot after voting, shall be provided to conceal the choices the voter has made. Absentee voters will receive a similar ballot security envelope provided by the county in which the absentee voter will insert their voted ballot, which then can be inserted into a return envelope to be mailed back to the election official. . . . .

It is our opinion that the above requirement for security envelopes is applicable for all elections in which OMR equipment is utilized.

Question 3. Who is responsible for laying out the ballot?

Response: Section 23-15-263 provides in part:

The county executive committee at primary elections shall discharge the functions imposed upon the county election commissioners, except as to revising the registration and pollbooks . . . .

The appropriate party executive committee is responsible for the laying out and printing of the ballot in a primary election. See Section 23-15-333. The appropriate election commission is responsible for the laying out and printing of the ballot in a general or special election. See Section 23-15-351.

Question 4. Who is responsible for programming the precinct counters (memory packs)?

Response: Section 23-15-515 provides in part:

The circuit court clerk shall be the custodian of OMR tabulating equipment acquired by the county, who shall be charged with the proper storage, maintenance and repair of the OMR equipment and preparation of them for tabulating prior to elections. (emphasis added)

It is the opinion of this office that the circuit clerk's duty to prepare OMR equipment for tabulating includes the duty to insure the proper programming of the precinct counters.

Question 5. Should the memory packs be taken to the polling places by the receiving/returning manager or should they be sealed in the individual counters?

Response: We find no statutory directive as to whether the memory packs are to be sealed in the counters or carried separately to the polling places by the receiving/returning officer. However, we are of the opinion that the memory packs should be sealed in the individual counters before they are transported to the individual polling places. We note that Section 23-15-521 requires the officials in charge of an election to test the equipment, prior to the start of the count, to insure that it is giving an accurate count of the votes cast for all offices and measures on the ballot

Question 6. Should all ballots be picked up by the receiving/returning managers the day before the election and returned to the courthouse on election night?

Response: Section 23-15-513 (OMR section) provides:

The official ballots, sample ballots and other necessary forms and supplies of the forms and description required by this chapter or required for the conduct of elections with an electronic voting system shall be prepared and furnished by the same official, in the same manner and time, and delivered to the same officials as provided by law with respect to paper ballots that are to be counted manually.

Section 23-15-251 provides:

The commissioners, in appointing the managers of election, shall designate one (1) of the managers at each voting place to receive and distribute the official ballots, and shall deliver to him the proper number of ballots and cards of instruction for his district not less than one (1) day before the election; and the manager receiving the ballots from the commissioners shall distribute the same to the electors of his district in the manner herein provided. It shall be the duty of said person so designated as aforesaid for service at a voting place other than the courthouse, to carry to the said voting place, on the day previous to the election, the ballot box, the pollbook, the blank tally sheets, the blank forms to be used in making returns, the other necessary stationery and supplies and the official printed ballots aforesaid, and all of the same used and unused shall be returned by the manager designated as aforesaid to the commissioners of election on the day next following the election.

Section 23-15-519 (OMR Section) provides:

The managers shall prepare a report in duplicate of the number of voters who have voted, as indicated by the poll list, and shall place this report in the ballot box, which thereupon shall be sealed with a paper seal signed by the managers so that no additional ballots may be deposited or removed from the ballot box. The manager or other person who acts as returning officer shall forthwith deliver the ballot box to the counting center or other designated place and receive a signed, numbered receipt therefor. The poll list, register of voters, unused ballots, spoiled ballots, and other records and supplies, shall be returned as directed by the officials in charge of the election. (emphasis added)

In reading the above quoted statutes in pari materia and keeping in mind the general rule of law that the provisions of a statute which is specifically applicable to a particular subject matter, in this instance OMR equipment, controls over the provisions of a statute that is general in nature, we conclude: 1) that each ballot box containing the official ballots should be picked up by the receiving manager on the day before the election; and 2) that each box should be returned to the courthouse on election night rather than waiting until the following day.

Question 7. Should each ballot be checked for the initials of the initialing manager or alternate initialing manager before it is placed in the precinct counter?

Response: Again, the statutory provisions of Section 23-15-505 require that elections conducted using OMR equipment be conducted in accordance with the law governing the conduct of elections with regular paper ballots, hand counted. Section 23-15-541 then becomes the applicable statute and provides in part:

. . . . When any person entitled to vote shall appear to vote, he shall first sign his name in a receipt book or booklet provided for that purpose and to be used at that election only and said receipt book or booklet shall be used in lieu of the list of voters who have voted formerly made by the managers or clerks; whereupon and not before, the initialing manager or, in his absence, the alternate initialing manager shall indorse his initials on the back of an official blank ballot, prepared in accordance with law, and at such place on the back of the ballot that the initials may be seen after the ballot has been marked and folded, and when so indorsed he shall deliver it to the voter, which ballot the voter shall mark in the manner provided by law, which when done the voter shall deliver the same to the initialing manager or, in his absence, to the alternate initialing manager, in the presence of the others, and the manager shall see that the ballot so delivered bears on the back thereof the genuine initials of the initialing manager, or alternate initialing manager, and if so, but not otherwise, the ballot shall be put into the ballot box; . . . . (emphasis added)

It is obvious from the above that each ballot cast in an election where OMR equipment is used must be initialed and that each ballot must be checked for valid initials by the initialing manager or alternate initialing manager.

In regard to the requirement of the above quoted statute that the initials he placed on the back of the ballot, we note that the “security envelope” required by Section 23-15-511 is a device designed to maintain the secrecy of OMR ballots since such ballots cannot be folded. We understand that most, if not all, “security envelopes” have a slot that allows for the required initials to be place on the front of the ballot and viewed for verification without violating the secrecy of said ballot. Reading Sections 23-15-541 23-15-511 in pari materia, we conclude that the proper initialing on the front of an OMR ballot where the secrecy of said ballot is preserved by the use of the required “security envelope” is legally permissible.

Question 8. When using a precinct counter, is it necessary to have a resolution board? If so, is this to be on a precinct level or only one board at the courthouse?

Section 23-15-503 defines the term “counting center” as “one or more locations used for the automatic counting of ballots”.

Section 23-15-523 provides in part:

All proceedings at the counting center shall be under the direction of the commissioners of election or officials in charge of the election, and shall be conducted under the observations of the public, . . . .

The commissioners of elections or the officials in charge of the election shall appoint counting center employees, members of the public or qualified electors to serve as judges on the ‘resolution board’. 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.

By definition any location where the OMR equipment is used to count ballots is a “counting center”. However, it is the opinion of this office that Section 23-15-523 provides for a single “resolution board” at a central location, usually the courthouse, rather than individual boards at the respective polling places. To interpret said statute to require individual boards would result in additional and unnecessary cost to the county and, in our opinion, is not contemplated by Section 23-15-523. This necessarily means that when ballots are “kicked out” by a tabulator located at a polling place away from the courthouse, those ballots must be transported to the courthouse by the returning manager in the regular performance of his duties following the completion of the activities at the polling place.

Question 9. What are the testing requirements for the precinct counters prior to general, special and primary elections?

Response: Section 23-15-521 requires the party executive committee in primary elections and the election commissioners in all other elections to have the OMR equipment tested to insure that it will accurately count the votes cast for all offices and on all measures. It provides that such testing be conducted in public. It further requires that the test be conducted by processing a preaudited group of ballots so marked as to record a predetermined number of valid votes for each candidate and on each measure, which must include for each office one or more ballots which have votes in excess of the number allowed by law in order to test the ability of the OMR equipment to reject such votes. If an error is detected, the cause therefor must be determined and corrected and an errorless count must be made and certified to by the officials in charge before the official count is started. The test materials, the program and test ballots must be sealed and retained in the office of the circuit clerk.

Question 10. What is the procedure for tabulating votes on election night for general, special and primary elections?

Response: Again, the appropriate party executive committee is responsible for seeing that the proper procedure is followed in counting the votes in a primary election. The election commission is responsible for seeing that the proper procedure is followed in counting the votes in all other elections. Section 23-15-523 sets forth the specific procedure that must be followed when tabulating votes on election night. A copy of said statute is enclosed for your convenience.

Question 11. What is the appropriate number of receiving and returning managers when there are multiple boxes for a particular polling place?

Response: As previously noted, section 23-15-263 requires party executive committees, in primary elections, to discharge the functions imposed upon the county election commissioners except as to revising the registration and pollbooks.

Section 23-15-251 provides in part:

The commissioners of election, in appointing the managers of election, shall designate one (1) of the managers at each voting place to receive and distribute the official ballots, . . . . and all of the same used and unused shall be returned by the manager designated as aforesaid to the commissioners of election . . . . (emphasis added)

Therefore, there is to be one (1) receiving and returning manager appointed for each polling place regardless of the number of boxes at that polling place.

Very truly yours,

Mike Moore Attorney General

Phil Carter, Assistant Attorney General.

SOURCES: Derived from 1972 Code § 23-7-519 [Laws, 1984, ch. 509, § 10; Repealed by Laws, 1986, ch. 495, § 340]; En, Laws, 1986, ch. 495, § 166, eff from and after January 1, 1987.

§ 23-15-521. Testing of tabulating equipment.

Prior to the start of the count of the ballots, the commissioners of elections or officials in charge of the election shall have the OMR tabulating equipment tested to ascertain that it will accurately count the votes cast for all offices and on all measures. Representatives of the political parties, candidates, the press and the general public may witness the test conducted on the OMR tabulating equipment. The test shall be conducted by processing a preaudited group of ballots so marked as to record a predetermined number of valid votes for each candidate and on each measure, and shall include for each office one or more ballots which have votes in excess of the number allowed by law in order to test the ability of the OMR tabulating equipment to reject such votes. If any error is detected, the cause therefor shall be ascertained and corrected and an errorless count shall be made and certified to by the officials in charge before the count is started. On completion of the count, the programs, test materials and ballots shall be sealed and retained as provided for paper ballots.

SOURCES: Derived from 1972 Code § 23-7-521 [Laws, 1984, ch. 509, § 11; Repealed by Laws, 1986, ch. 495, § 340]; En, Laws, 1986, ch. 495, § 167, eff from and after January 1, 1987.

§ 23-15-523. Counting vote.

All proceedings at the counting center shall be under the direction of the commissioners of elections or officials in charge of the election, and shall be conducted under the observations of the public, but no persons except those authorized for the purpose shall touch any ballot. All persons who are engaged in processing and counting of the ballots shall be deputized in writing and take oath that they will faithfully perform their assigned duties.

The commissioners of elections or the officials in charge of the election shall appoint counting center employees, members of the public or qualified electors to serve as judges on the “resolution board.” 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.

If any ballot is damaged or defective so that it cannot be properly counted by the OMR tabulating equipment, the ballot will be deposited in an envelope provided for that purpose marked “DAMAGED BALLOTS.” The commissioners of the elections or the officials in charge of the election shall have the judges on the resolution board hand tally any damaged or defective ballots.

Ballots that have been rejected by the OMR tabulating equipment for appearing to be “blank” shall be examined to verify if they are blank or were marked with a “nondetectible” marking device. If it is determined that the ballot was marked with a nondetectible device, the resolution board may mark over the voter's mark with a detectible marking device.

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 governing the counting of paper ballots at the direction of the officials in charge of the election. If for any reason it becomes impracticable to count all or a part of the ballots with the OMR tabulating equipment, the officials in charge may direct that they be counted manually, following as far as practicable the provisions governing the counting of paper ballots. The return printed by the OMR tabulating equipment to which have been added the manually tallied ballots, which shall be duly certified by the officials in charge of the election, shall constitute the official return of each voting precinct. Unofficial and incomplete returns may be released during the count. Upon the completion of the counting, the official returns shall be open to the public.

SOURCES: Derived from 1972 Code § 23-7-523 [Laws, 1984, ch. 509, § 12; Repealed by Laws, 1986, ch. 495, § 340]; En, Laws, 1986, ch. 495, § 168, eff from and after January 1, 1987.

§ 23-15-525. Authority of Secretary of State and commissioners of elections.

The Secretary of State shall have the power to issue supplementary instructions and procedures for the sale and efficient use of OMR tabulating equipment within the State of Mississippi and to carry out the purpose of this chapter. Subject to such instructions and procedures and the provisions of this chapter, the commissioners of elections shall have the power to make all necessary and desirable provisions for the conduct of elections with approved electronic voting systems.

SOURCES: Derived from 1972 Code § 23-7-525 [Laws, 1984, ch. 509, § 13; Repealed by Laws, 1986, ch. 495, § 340]; En, Laws, 1986, ch. 495 § 169, eff from and after January 1, 1987.