Mississippi Advisory Opinions October 31, 2014: AGO 2014-00443 (October 31, 2014)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: John Creekmore

SUBJ: Elections - Referendum

SBCD: 72-A

TEXT: John M. Creekmore, Esquire

Attorney for City of Amory

Post Office Box 716

Amory, Mississippi 38821

Re: Ballot Box Examination Relating to Alcohol Referendum

Dear Mr. Creekmore:

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

Issue Presented

Your letter states:

As I advised you by phone today, on the 14 day of October, 2014, the City of Amory held an election regarding the sale of light wine, beer, and alcoholic beverages. Residents of the City of Amory voted against the sale of light wine, beer, and alcoholic beverages.

On October 23, 2014, the City of Amory received a Notice of Election Examination by an individual requesting authority to examine the ballot boxes, election materials and other related items from the October 14, 2014 Alcohol Referendum, with said Notice citing Section 23-15-911, Mississippi Code Annotated, 1972, as amended. I am enclosing a copy of that Notice for your review. A review of that statute contemplates the examination being conducted by a candidate conditioned upon notice to the opposing candidate. It does not appear to have applicability to a referendum or a local option election.

Please advise if the City of Amory is required to allow an examination of ballot boxes in a local option election.

Response

No.

As indicated in your letter, Section 23-15-911 is applicable only to candidates in a primary, special or general election. It does not give individuals or groups who support or oppose a local option referendum the right to examine ballot boxes containing materials from such referendum.

Applicable Law and Discussion

Section 23-15-911 provides in part:

(1) When the returns for a box and the contents of the ballot box and the conduct of the election thereat have been canvassed and reviewed by the county election commission in the case of general elections or the county executive committee in the case of primary elections, all the contents of the box required to be placed and sealed in the ballot box by the managers shall be replaced therein by the election commission or executive committee, as the case may be, and the box shall be forthwith resealed and delivered to the circuit clerk, who shall safely keep and secure the same against any tampering therewith. At any time within twelve (12) days after the canvass and examination of the box and its contents by the election commission or executive committee, as the case may be, any candidate or his representative authorized in writing by him shall have the right of full examination of said box and its contents upon three (3) days' notice of his application therefor served upon the opposing candidate or candidates, or upon any member of their family over the age of eighteen (18) years, which examination shall be conducted in the presence of the circuit clerk or his deputy who shall be charged with the duty to see that none of the contents of the box are removed from the presence of the clerk or in any way tampered with. Upon the completion of said examination the box shall be resealed with all its contents as theretofore. And if any contest or complaint before the court shall arise over said box, it shall be kept intact and sealed until the court hearing and another ballot box, if necessary, shall be furnished for the precinct involved. (Emphasis added)

***

We previously addressed a similar issue regarding whether opponents and supporters of a referendum are statutorily authorized to have poll watchers at a polling place. We opine that opponents and supporters of a referendum have no authority to have poll watchers at a polling place. We specifically noted that Section 23-15-577 establishes the authority of a candidate or his representative to be present at the polling places to observe the manner in which the election is held and challenge the qualifications of any person offering to vote. MS AG Op., Esposito (November 13, 2009).

Similarly, in Esposito, we noted that Section 23-15-245 authorizes political parties to have two (2) challengers of good conduct and behavior to be present at the polling places during elections when party nominees are competing in general elections.

Conclusion

Neither Section 23-15-911 nor any other statute gives opponents and supporters of a referendum, including a local option election, the authority to examine the contents of ballot boxes. Absent such authority, Section 23-15-911 requires that the ballot boxes and the contents therein remain sealed and in the custody of the city clerk.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.