Mississippi Advisory Opinions July 03, 1991: 19910703 (July 03, 1991)

Advisory Opinion Text

Honorable Sally Berkley

Chairman

Franklin County Election Commission

Post Office Box 267

Meadville, Mississippi 39653

Dear Mrs. Berkley:

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

“I request an opinion on the following:

1) When a person votes an affidavit ballot, does he sign the Voter Receipt Book or Voter List?

2) If a voter does not sign the Voter Receipt of Voter List, should his name be added to this and the pollbook marked ‘voted’ by his name if the officials in charge of the election determine his vote should be counted when they are canvassing and certifying the election returns?

The Voter Receipt Book or Voter List is an important document used in canvassing and certifying an election. It would also be an important document in a contested election and should accurately document all who voted.”

Mississippi Code Annotated § 23-15-573 (1972 Revised) provides:

“No person whose name does not appear upon the pollbooks shall be permitted to vote in an election; but if any person offering to vote in any election whose name does not appear upon the pollbook shall make affidavit before one (1) of the managers of election in writing that he is entitled to vote, or that he has been illegally denied registration, his vote may be prepared by him and handed to the proper election officer who shall enclose the same in an envelope with the written affidavit of the voter and seal it and mark plainly upon it the name of the person offering to vote. In canvassing the returns of the election, the executive committee in primary elections, or in a general election the election commissioners, shall examine the records and allow the ballot to be counted, or not, as shall appear to be legal.”

Section 23-15-541 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 ...” (emphasis added)

Section 23-15-545 provides:

“At each election, the managers shall cause one (1) of the clerks to write in the pollbook the word ‘VOTED, ’ in the column having at its head the date of the election, opposite the name of each elector as he votes.”

We find no provision that indicates that persons who cast affidavit ballots are to sign the receipt book or that the names of individuals who cast valid affidavit ballots are to be entered in the pollbook. It is the opinion of this office that a separate list of voters who cast valid affidavit ballots must be compiled and that the results of such affidavit voting must be added to the vote totals as determined by the pollworkers and certified by the election commissioners (or executive committee in a primary). The registrar should review the list to insure that the names of such voters are on the voter registration list.

The affidavit envelopes and ballots of individuals who were found not to be entitled to vote as well as the envelopes which contained the valid ballots must be preserved as a record for at least the period of time during which an election contest may be filed and in federal elections for a period of twenty two (22) months. See 42 U.S.C. 1973 .

Sincerely,

Mike Moore, Attorney General

Phil Carter, Special Assistant Attorney General