Mississippi Advisory Opinions April 25, 2014: AGO 2014-00155 (April 25, 2014)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Connie Cochran

SUBJ: Elections - Ballots

SBCD: 63-A

TEXT: The Honorable Connie Cochran

Chairman, Hinds County Election Commission

Post Office Box 946

Jackson, Mississippi 39205-0946

Re: Method of Counting Absentee Ballots

Dear Mrs. Cochran:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

You cite Mississippi Code Annotated Section 23-15-639 (2013 Supp.) which is the general statute that governs the examination and counting of absentee ballots. That statute provides two different sets of instructions as to how absentee ballots are to be handled and counted depending on whether an election is being conducting utilizing a Direct Recording Electronic Voting System (DRE) or some other system such as an Optical Mark Reading Equipment (OMR).

Section 23-15-639 provides that in an election in which DRE systems are not utilized the absentee ballots are to be placed in the ballot box before any ballots are counted and the election managers in each precinct shall immediately count such absentee ballots and add them to the votes cast in the voting machines or devices.

For elections in which DRE systems are used, Section 23-15-639 specifically provides that the absentee ballots shall be processed through the central optical scanner.

We understand that Hinds County now utilizes an OMR system for counting votes.

Issue Presented

Your stated question is: Why would the voting device utilized dictate the process in which absentee ballots are counted? Once the absentee ballots are ACCEPTED or REJECTED at the precinct, it would seem it should be the choice of the county to count the ballots at election central, using a central scanner, therefore, cutting down on the work load and time spent by the poll manager and workers at the end of at least a 12 hour day.

Response

It is the opinion of this office that, in elections utilizing an OMR system for counting ballots, absentee ballots should be counted by the OMR scanning equipment in the same manner as the regular ballots are counted.

Applicable Law and Discussion

Section 23-15-639 provides:

(1) In elections in which direct recording electronic voting systems are not utilized, the examination and counting of absentee ballots shall be conducted as follows :

(a) 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 absentee ballots of such electors from the box, and the name, address and precinct inscribed on each envelope shall be announced by the election managers.

(b) 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, without its being unfolded, or permitted to be unfolded or examined.

(c) Having observed and found the ballot to be regular as far as can be observed from its official endorsement, the election managers shall deposit it in the ballot box with the other ballots before counting any ballots and enter the voter's name in the receipt book provided for that purpose and mark "VOTED" in the pollbook or poll list as if he had been present and voted in person. If voting machines are used, all absentee ballots shall be placed in the ballot box before any ballots are counted, and the election managers in each precinct shall immediately count such absentee ballots and add them to the votes cast in the voting machine or device .

(2) In elections in which direct recording electronic voting systems are utilized, the examination and counting of absentee ballots shall be conducted as follows :

(a) 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 absentee ballots of such electors from the box, and the name, address and precinct inscribed on each envelope shall be announced by the election managers.

(b) 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 unopened envelope shall be marked "ACCEPTED" and the election managers shall enter the voter's name in the receipt book provided for that purpose and mark "VOTED" in the pollbook or poll list as if he had been present and voted in person.

(c) All absentee ballot envelopes shall then be placed in the secure ballot transfer case and delivered to the officials in charge of conducting the election at the central tabulation point of the county . The official in charge of the election shall open the envelopes marked "ACCEPTED" and remove the ballot from the envelope.

(d) Having observed the ballot to be regular as far as can be observed from its official endorsement, the absentee ballot shall be processed through the central optical scanner. The scanned totals shall then be combined with the direct recording electronic voting system totals for the unofficial vote count.

When there is a conflict between an electronic voting system and a paper record, then there is a rebuttable presumption that the paper record is correct.

(3) The election managers shall also take such action as may be prescribed by the Secretary of State to ensure compliance with the identification requirements of Section 23-15-563.

Sections 23-15-501 through 23-15-525 govern the conduct of elections which utilize OMR systems. Section 23-15-511 provides in part:

Ballots shall be printed in plain clear type in black ink and upon clear white materials of such size and arrangement as to be compatible with the OMR tabulating equipment. Absentee ballots shall be prepared and printed in the same form and shall be on the same size and texture as the regular official ballots, except that they shall be printed on tinted paper; or the ink used to print the ballots shall be of a color different from that of the ink used to print the regular official ballots.

(Emphasis added)

Section 23-15-639 is a general statute that governs the examination and counting of absentee ballots.

Section 23-15-511 is a specific statute applicable to the printing of absentee ballots when an OMR system is utilized to count ballots.

The Mississippi Supreme Court has consistently held that when construing two statutes which encompass the same subject matter, the specific statute will control. Cities of Oxford, Carthage, Louisville, Starkville and Tupelo v. Northeast Mississippi Elec. Power Ass'n, 704 So.2d 59 (Miss. 1998) and Mauney v. State, 707 So.2d 1093 (Miss. 1998).

Section 23-15-511 requires that the absentee ballots be printed "on the same form and shall be on the same size and texture as the regular official ballots." Such requirement makes the absentee ballots "scanner ballots" (ballots capable of being counted by OMR scanners). By requiring absentee ballots to be "scanner ballots", the statute obviously contemplates that absentee ballots will be counted in the same manner as the regular ballots i.e. the optical scanner and not hand counted by the poll workers.

The use of the term "voting machine or device" in Section 23-15-639(1)(c) which requires that the election managers count the absentee ballots, in our opinion, is in reference to the old lever type voting machines and, possibly, the old punch card system of voting and is not applicable to the OMR voting systems.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.