Mississippi Advisory Opinions October 04, 1995: AGO 95-0658 (October 04, 1995)

Advisory Opinion Text

Honorable Judy K. Butler

Circuit Clerk

Post Office Box 843

Aberdeen, Mississippi 39730

Re: Duplicate Scanner Ballots

Dear Ms. Butler:

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

“Per one of our many phone conversations, I am writing to request a legal opinion regarding the ‘resolution board’ pursuant to Section 23-15-523, Mississippi Code .

Monroe County presently uses an OMR tabulating system for all elections. Therefore we are required to have a resolution board to review all ballots that are rejected by the scanner. Based upon an oral opinion from the Attorney General's Office, our resolution board presently duplicates damaged or defective ballots and runs said duplicated ballots through the scanner to be counted. Each original ballot is clearly marked ‘Original # 1’ and each duplicate ballot is clearly marked ‘Duplicate # 1’, etc. so if ever questioned said ballots could be easily compared.

Since the August 29th election a question has been raised as to the validity of this practice. Therefore I respectfully request a written legal opinion regarding same as soon as possible.”

Mississippi Code Annotated, Section 23-15-523 (Revised 1990) sets forth the procedure for counting votes when optical mark reading (OMR) tabulating equipment is utilized. It provides in part:

“ ...

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 election or the officials in charge of the election shall have the judges on the resolution board hand tally any damaged or defective ballots. ...

“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. ....”

In response to your inquiry, we are of the opinion that the review of the damaged or defective ballots and the determination by the resolution board of how each voter who cast a damaged or defective ballot voted and the number of such votes to be credited to each candidate satisfies the requirement that the ballots be manually counted. If the officials in charge of the election choose to have those ballots duplicated and totaled by running the duplicate ballots through the counting equipment, they may, in our opinion do so provided proper safeguards are in place. The procedure described in your letter of marking each damaged or defective ballot “Original # 1” etc. and each duplicate ballot as “Duplicate # 1” etc. so that each duplicate ballot can be easily compared to the appropriate original is, in our opinion, sufficient. Therefore, we are of the opinion that the above described procedure for handling damaged or defective ballots when an OMR system is utilized is lawful.

Very truly yours,

Mike Moore Attorney General

Phil Carter Special Assistant Attorney General.