Mississippi Advisory Opinions December 20, 1989: 19891220 (December 20, 1989)

Advisory Opinion Text

Honorable Cecil G. Anderson

Circuit Clerk

Post Office Box 1082

Prentiss, Mississippi 39474

Dear Mr. Anderson:

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

“This office would like an official opinion concerning an absentee ballot cast by a qualified elector prior to a primary election. After casting the absentee ballot in the Circuit Clerk's Office, the voter died prior to election day.

Should this ballot be counted? This individual was well at that time”

We preface this opinion by stating that it is prospective in nature only and can neither validate nor invalidate any prior action of the election officials of your county.

Mississippi Code Annotated § 23–15–639 (Supp.1989) provides in part:

“At the close of the regular balloting and at the close of the polls, the election managers of each voting precinct shall first take the envelopes containing the ballots of such electors from the box, and the name, address and precinct inscribed on each such envelope shall be announced by the election managers. The signature on the application shall then be compared with the signature on the back of the envelope. If it corresponds and the affidavit, if one is required, is sufficient and the election managers find that the applicant is a registered and qualified voter or otherwise qualified to vote, and that he has not appeared in person and voted at the election, the envelope shall then be opened and the ballot removed from the envelope..... (emphasis added)

Section 23–15–641(1) provides:

“If an affidavit or the certificate of the officer before whom the affidavit is taken is required and such affidavit or certificate is found to be insufficient, or if it is found the signatures do not correspond, or that the applicant is not a duly qualified elector in the precinct, ..... Without opening the voter's envelope the election managers shall mark across its face “REJECTED', with the reason therefor....” (emphasis added)

The above quoted statutory provisions require the election managers to determine, after the polls have closed, whether each absent voter is a qualified elector. If an individual who has cast a lawful absentee ballot dies prior to the time these determinations are made he is no longer a qualified elector and therefore, in our opinion, his ballot cannot be counted.

Sincerely,

Mike Moore, Attorney General.