Mississippi Advisory Opinions December 06, 1988: 19881206 (December 06, 1988)

Advisory Opinion Text

DE-CERTIFICATION

Mr. Lawrence Mann

Chairman

Benton County Election Commission

P.O. Box 262

Ashland, MS 38603

Dear Mr. Mann:

Attorney General Mike Moore has received your letter requesting an opinion of this office and has assigned it to me for research and reply. Your letter, which is attached hereto and incorporated herein by reference poses the following question as paraphrased, to-wit:

Can the Election Commission, subsequent to its certification of the election results and its adjournment, reassemble and amend its certification in light of subsequent evidence that an error may have been made in the original count?

In Oglesby v. Sigman , 58 Miss. 502 (1880), the Supreme Court of Mississippi held as follows:

“We do not think that the commissioners of election can be required to meet and recanvass the returns of the election. Having made their canvas and declared the results, and transmitted a statement of it to the secretary of state, their connection with the returns ended! Any error committed by them is not to be corrected by requiring them to reassemble and correct it. The legality of their action may be the subject of judicial investigation in cases in which provision is made for contesting the election by an appeal to the courts of the state, but only in those cases.”

The above holding is supported by other authority, to-wit:

“In the absence of statutory authority, election officers who have completed the count and executed and delivered their returns are ordinarily without power to withdraw the returns, or to add to, change, or alter them, or to make a new return.” [Footnotes omitted] 26 Am.Jur.2nd, Elections § 297;

and,

“Where a board of canvassers has fully performed its duty, proclaimed the result of the count according to law, and adjourned sine die, its duty must be considered as having been performed once and for all time. The board is then deemed functus officio, so that the persons who composed it do not have any power or authority voluntarily to reassemble, and recanvass the returns. And they may not be compelled to do so by mandamus.” [Footnotes omitted] 26 Am.Jur.2d, Elections § 303.

Section 25-15-911, Miss.Code Ann. (Supp.1988) does authorize a candidate or his representative to examine the contents of a ballot box after the returns have been canvassed, but such statute does not authorize the election commissioners to reassemble and alter or amend its original certification of the results of the election.

In light of the above authorities, it is the opinion of this office that the Election Commission of Benton County, having already made its certification, does not have the authority to reassemble and change the certification of the results of the school board election for District 3. Any error that may have been made in the original canvass of the returns can now be corrected only by a court of competent jurisdiction.

Sincerely,

Mike Moore, Attorney General.

November 14, 1988

Hon. Mike Moore

Attorney General

Carroll Gartin Justice Building

P.O. Box 220

Jackson, MS 39205-0220

Dear Attorney General Moore:

On November 8, 1988, Benton County Mississippi used for the first time an optical mark scanner for the purpose of counting the ballots of election. On November 9, 1988, we election commissioners met for the purpose of certifying said election. During that certifying procedure, we counted the number of votes cast as indicated by voter signature on the poll record book; accounted for any affidavit ballots that were not allowed; declared all absentee ballots as being in proper order; and then declared the election “certified” as all of the above mentioned totals matched exactly. We saw no reason to doubt that there was or could have been an error in the counting procedure.

Subsequently, one candidate that was defeated in the election for third district Board of Education member asked for a hand count of the precinct involved in this race. Upon completion of this hand count, the vote resulted in a tie vote. We have since recounted the ballots on the machine and it gave the same totals as it produced the first count on election night. This leads us to believe that, even though the voter was instructed time and time again as to the proper procedure involved in marking their ballots, he did mark some in such a manner as to not be readable by the machine. Thus resulting in the difference in the hand and machine count.

In light of the above information, we, the Election Commissioners, feel that an error has been made with respect to voter desire. Even though the machine did its job correctly in counting the ballots that were properly marked according to instruction, the hand count reveals that voter intent was that the election end in a tie vote. For that reason, we ask that we, as Election Commissioners, be allowed to de-certify our certification and declare the election a tie in the Third District Board of Education race.

Respecfully Submitted this 14th day of November 1988, Waymon Needham—4th District

Lawrence Mann, Chairman

Ronnie Thompson—5th District

Joan Faulkenbery, 1st District