Mississippi Advisory Opinions November 16, 1984: 19841116 (November 16, 1984)

Advisory Opinion Text

Ms. Blanche E. Clay

Circuit Clerk

Kemper County

Kemper County Courthouse

DeKalb, Mississippi 39328

Dear Ms. Clay:

Attorney General Edwin Lloyd Pittman has received your opinion request and has assigned it to me for research and reply, your letter stating in substance:

Listed below are four questions that I need an answer to. Would you or your staff please respond.

1. When a voter votes improperly for one race on a ballot, do the poll workers discard the entire ballot, or just he race that is improperly voted?

2. How many days does a candidate have in which to call for a recount of the ballot?

3. Who has the authority to summon poll workers to the Courthouse, in order to instruct them in the laws of the voting precinct, and voting?

4. Is it illegal for an Election Commissioner to remove someone from the poll books, before the person has registered in another County or State and the Circuit Clerk has received notification of this.

1) Section 23-5-153, Mississippi Code of 1972, states:

If the voter mark more names than there are persons to be elected to an office, or if, for any reason, it be impossible to determine from the ballot the voter's choice for any office voted for, his ballot so cast shall not be counted for that office. A ballot not provided in accordance with law shall not be deposited or counted. (Emphasis supplied.)

Whether a specific ballot may be counted just has to be a judgment call by the election commission. Whether it has an “identifying mark” suggesting possibly that the intent of the voter was to mark the ballot in such a way that it could be traced to him if need be or whether it is an honestly made defect in marking that should not keep the vote from being counted is a judgment decision of the commission with all the facts before it.

2) Section 23-3-23, ibid , is the only statutory direction available for an examination of the boxes by a candidate and it allows 12 days. There is no “right” to a “recount”, only to an examination within 12 days after the “canvass and examination of the box and its contents, in compliance with the terms of the statute. The candidate may do his own recounting or the circuit clerk or election commission may do the recounting, but there is no statutory provision for a recount as such. Any examination of the boxes hereunder must be completed within the 12 days. Section 23-3-23, though a primary statute, applies to other elections, also, per Lopez v. Holleman , 219 M 822, 69 So.2d 903 (1954).

3) Sections 23-5-101, -103, -105, -109 and -125 set out some of the duties of, respectively, the managers, clerk and bailiff and election commission, but I find no statutory authority for anyone to “summon” anyone to an instruction session. Those selected to serve should do their best to attend any reasonable instruction sessions, but the workers, although statutorily compensated, are still volunteer workers and some can attend a training session and some cannot.

4) Section 23-5-81, Mississippi Code of 1972, authorizes the election commission to revise the registration books and pollbooks and to “erase therefrom the names of all persons erroneously thereon, or who have died, removed or become disqualified as electors for any cause . . .” Before removing the names of “those who have removed” it is not a statutory requisite that the commissioners receive notification of registration in another county or elsewhere.

Yours very truly,

Edwin Lloyd Pittman, Attorney General