Mississippi Advisory Opinions August 02, 1979: 19790802 (August 02, 1979)

Advisory Opinion Text

Mrs. Audrey W. Kern

Secretary

The Harrison County Board of Election Commissioners

Post Office Box 235

Pass Christian, Mississippi 39571

Elections — Miscellaneous

Dear Mrs. Kern:

Attorney General A. F. Summer has received your letter and has assigned it to me for research and reply.

The questions in your letter and our responses thereto are set out below in the same order as the questions were presented in your letter.

QUESTION 1. “May someone other than the absent voter; his or her family (such as a friend, a candidate or a candidate's volunteer worker) obtain an application for an absentee ballot from the Registrar's office and deliver it to the absent voter?”

RESPONSE: ABSENTEE ELECTORS VOTING IN THE CIRCUIT CLERK'S OFFICE:

Regarding absentee electors' voting in the office of the circuit clerk, Section 23-9-605, Mississippi Code of 1972, Annotated and Amended, requires the elector to appear in person before the registrar of the county in which he resides not more than fifteen (15) days nor later than five o'clock p. m. on the second day immediately prior to such election and execute and file the application in the form specified in Section 23-9-407, ibid.

ABSENTEE VOTERS VOTING AWAY FROM THE CIRCUIT CLERK'S OFFICE :

Regarding absentee voting away from the office of the circuit clerk, Section 23-9-605, supra, provides that an absentee ballot may be obtained within thirty days next prior to the election by making application to the registrar. However, the statute does not set forth the means or method for the obtaining of such application. It necessarily follows, therefore, that it is the opinion of this office that the registrar may exercise sound discretion in the furnishing of an application and that such application may be mailed to the absent elector or sent to him or her by any person duly authorized by the elector to obtain such application.

QUESTION 2. “May someone other than the absent voter; his or her family (such as a friend, a candidate or a candidate's volunteer worker) deliver the completed application for an absentee ballot to the Circuit Clerk's office (rather than mailing same) directly?”

RESPONSE: Since the statute is silent as to the means or method for the returning of an absent elector's completed ballot application, it is the opinion of this office that such application may be returned by the absent voter either personally, by mail, or by some person duly authorized by such absent voter. (Note: This refers to the completed application and not the absentee ballot.)

QUESTION 3. “Must all absentee ballots be mailed to the absent voter by the circuit clerk's office?”

RESPONSE: The statutory form of application for absent elector's ballot is set out in Section 23-9-407, supra, which provides, among other things, the following: “I hereby make application for an official ballot, or ballots, to be voted by me at the election to be held in __, on __. Send 'Absent Elector's Ballot' to me (1) at the following address __, or (2) deliver same to me in person. (Strike (1) or (2) whichever is inapplicable.)” (Emphasis added).

Subsection (2) of Section 23-9-605, Mississippi Code of 1972, as amended, provides in part “Within thirty days next prior to any election, any elector who cannot comply with subsection (1) of this section by reason of temporarily residing outside the county or by reason of being physically incapacitated may make application for an absentee ballot by mailing the appropriate application to the registrar. Only persons temporarily residing outside of the county of their residence or physically incapacitated may obtain absentee ballots by mail, under the provisions of this sub-section. ...”

The statutory form of application uses the language “send absent elector's ballot to me at the following address, or deliver same to me in person.” The language of the statute and use of the word “send” to the following address must be considered in conjunction with sub-section (2) of Section 23-9-605, which requires that such ballot be mailed to the named elector only.

Section 23-9-409, Mississippi Code of 1972, as amended, Sub-section (a) provides “All absentee voters, excepting those physically incapacitated, who mark their ballots in the county of their residence shall use the registrar of that county as the witness. Said absentee voter shall come to the office of the registrar and neither the registrar nor his deputy shall be required to go out of the registrar's office to serve as an attesting witness.” This provision requires all persons marking their ballot within the county of their residence, exclusive of the physically incapacitated, to come to the office of the registrar for the purpose of casting their ballot.

Moreover, from the clear wording of the cited statutes, it is the opinion of this office that with regard to the physically incapacitated electors whether within or without the county that there is no statutory authority for the furnishing to them of absentee ballots except by mail.

QUESTION 4. “In addition to posting a list showing the names of absent voters who were mailed absentee ballots, is there any requirement that the Circuit Clerk also post a list of persons who have requested applications for absentee ballots?”

RESPONSE: I am unable to find any statute requiring either the posting of a list showing the names of absent voters who were mailed absentee ballots or the posting of a list showing the names of persons who have requested applications for absentee ballots in the circuit clerk's office.

However, in further response to your question No. 4, it is the opinion of this office that Section 23-9-405, ibid, requires the keeping by the registrar of an accurate list of all persons voting by absentee ballot in a conspicuous place accessible to the public near the entrance to the office upon receiving the envelope containing the absentee ballot. The statute goes on further to provide that: “The registrar shall also furnish to each precinct manager a list of the names of all persons in each respective precinct voting absentee ballots to be posted in a conspicuous place at the polling place for public notice.” Of course, this list is the completed list of all such absentee voters only, there being no requirement to furnish or post a list of those simply requesting applications.

QUESTION 5. “May the Election Commissioners, from time to time, inspect the applications for absentee ballots from absentee voters prior to an election?”

RESPONSE: Again, I respectfully refer you to § 23-9-405, supra, which also provides: “The application on file with the Registrar and the envelopes containing the ballots shall be kept by the Registrar and deposited in the proper precinct ballot boxes before any boxes are delivered to the Election Commissioners or Managers.” It is the opinion of this office that the cited statutes confer sole custodial control of the applications and ballots in the Registrar subject to the conditions set forth in the statute.

However, it would appear necessary to refer to the provisions of the cited statute which requires the keeping by the registrar of an accurate list of all persons voting by absentee ballot in a conspicuous place accessible to the public near the entrance to the office and the furnishing of such list to each precinct by the registrar to be posted in a conspicuous place at the polling place for public notice.

Also, Section 23-9-421, ibid, provides that the precinct election managers “ ... shall consider any absentee voter challenged when a person has previously filed a written challenge of such voter's right to vote.”

It is reasonable to conclude that the legislative intent is that public notice be given of anyone voting an absentee ballot in the manner and form set forth in the statute so that such absentee ballot may be challenged either in writing previously filed or at such time as the absentee ballot is considered by the officials conducting the election.

Since the list of such absentee voters may not reflect the basis of the claimed eligibility to vote by absentee ballot, the application on file with the clerk would be a source from which to obtain the claimed grounds for eligibility for the absentee ballot.

Since the statute requires the application to remain on file in the custody of the registrar until it is placed in the ballot box along with the envelope containing the absentee ballot, it is the opinion of this office that such application may be examined by any person desiring to do so at any time prior to the deposit of said application in the ballot box and when such examination would not be disruptive of the operation of the office of the registrar.

QUESTION 6. “Assuming the Circuit Clerk's office has ample space, may a voting booth be placed in his office to assure privacy when an absentee voter casts his ballot in the Circuit Clerk's office?”

RESPONSE: We find no reason why such could not be done, but there is no such statutory requirement to do so. Section 23-9-409 of the Code states instructions for marking the absentee ballot:

“... (B) Upon receipt of the enclosed ballot you will not mark same except in view of the attesting witness....”

We do not interpret this to mean that the attesting witness can stand in the booth with the voter. Said attesting witness, however, must observe the fact that the voter is marking the ballot but must not be allowed to see for whom the person votes.

QUESTION 7. “May voted absentee ballots be delivered in person, rather than by mail, by either a member of his family or a person so designated by the voter to the Circuit Clerk's office?”

RESPONSE: There are only two instances when an absentee ballot may be voted outside the registrar's office: (1) in those cases of physical incapacity and (2) those cases when the person is temporarily residing outside the county. Therefore, any absentee ballot voted in accordance with (1) or (2) is required by the applicable statutes cited to be mailed.

QUESTION 8. (a) “Does the circuit clerk have the authority to question an absent voter as to why he will be absent from the county on election day?”

(b) “Does he have sole discretion to adjudicate whether the cause is one which permits eligibility to cast an absentee ballot?”

(c) “If the circuit clerk has this sole discretion and the absent voter disagrees with the circuit clerk's decision, may he cast a challenged ballot and if so, who decides the challenge (i.e., the Circuit Clerk or Election Commissioners)?”

RESPONSE: The response hereinafter set forth shall be applicable to the above and foregoing question No. 8 in its entirety, including divisions a, b, and c thereof.

The registrar would be authorized to rely upon the sworn application unless he has knowledge of a violation of the statutes previously cited subjecting the registrar to the penalties of these statutes.

Those cases not clearly falling within the above paragraph should be left for determination by the election manager and thereafter by the proper executive committee. The law presumes a person will follow the law. If it is later determined that a person has knowingly violated the law, then such person could be called upon to answer for his acts. Accordingly, unless the clerk has knowledge beforehand of a violation and refuses to issue the ballot, the law does not make the clerk an adjudicator of facts and the clerk may rely on a properly executed affidavit presented to the clerk.

QUESTION 9. “The present Circuit Clerk is a candidate for reelection and at least one other person has qualified as a candidate for that office. Since, for the purpose of casting absentee ballots, the Circuit Clerk's office is the designated voting place, is it permissible for the Circuit Clerk or a Deputy Circuit Clerk to campaign on behalf of the Circuit Clerk during the period that absentee ballots are being distributed and / or cast in his office?”

RESPONSE: We know of no statutes that prohibit the circuit clerk or the deputy circuit clerk from soliciting votes in the clerk's office.

QUESTION 10. “Is Section 23-9-11 pertaining to absentee voter registration in effect?”

RESPONSE: No. Section 23-9-11 of the Code appearing in Main Volume 6 of the Code was repealed by Chapter 490, Laws of 1972. See Article 1, Chapter 9, Title 23 of the Code at Page 194 of the 1978 Supplement to Main Volume 6 of the Code. However, see § 23-9-501, et seq., providing for absentee registration by Armed Services absentee voters.

QUESTION 11. “Is Section 23-9-609 pertaining to absentee voter registration in effect?”

RESPONSE: No. Section 23-9-609 now appearing at Page 213 of the 1978 Supplement to Main Volume 6 of the Code was repealed by House Bill 326, Chapter 432, Laws of 1978. Chapter 432 was approved by the Attorney General of the United States on May 22, 1978.

QUESTION 12. “May an Election Commissioner, who is a Notary Public, act as the attesting witness for the application for absentee ballots and / or the Elector's Certificate on the back of the envelope which accompanys the absentee ballot?”

RESPONSE: The application for absent elector's ballot must be sworn to and subscribed before an official authorized to administer oaths for absentee balloting. See Sections 23-9-407 and 23-9-409 of the Code. An election commissioner who is a notary public can be that official for the purpose of primary elections. Such commissioner can be the attesting witness for the certificate on the back of the envelope only for those physically incapacitated absentee voters in primary elections. See Sections 23-9-409 and 23-9-413 of the Code.

It is obvious from previous answers that all but those temporarily residing outside the county and the physically incapacitated within or outside the county require an attesting witness for this ballot. (Since all the rest would be voting in the registrar's office.) The commissioner who is a notary could only attest those physically incapacitated within the county and this only in a primary election. A notary's commission is valid only within the county for this purpose.

QUESTION 13. “Is there any statute which would prohibit an Election Commissioner from campaigning for a candidate whose name will appear on the ballot used in the General Election?”

RESPONSE: We find no legal prohibition, except that relating to your questions above, that the form of “Certificate of Attesting Witness” set out in Section 23-9-413 of the Code provides in part that, “...the said voter was not solicited or advised by me to vote for any candidate....”

The propriety of a commissioner getting involved in partisan politics in an election he or she might be the ultimate judge of is not a legal question which this office can answer.

QUESTION 14. “May a candidate designate a poll watcher to observe absentee voting procedures in the Circuit Clerk's office?”

RESPONSE: There is no statutory authorization for such designation.

With kind regards, I am

Very truly yours,

A. F. Summer Attorney General.