Mississippi Advisory Opinions October 07, 2016: AGO 2016-00439 (October 07, 2016)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: F. Charles Phillips

SUBJ: Elections - Commissioners

SBCD: 64

TEXT: The Honorable F. Charles Phillips

The Honorable Nancy Faye Noble

Forrest County Election Commission

Post Office Box 1310

Hattiesburg, Mississippi 39403

Re: Duties of Election Commissioners

Dear Commissioners Phillips and Noble:

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

Issues Presented

Your letter states:

In performing our duties on election day and night at the election center, what are our limitations, if any, as Election Commissioners if we have an opponent?

Also, in the processing of Affidavit and Absentee Ballots, in the following days after the election, are we allowed to participate in checking these ballots?

Two of the Election Commissioners here in Forrest County have an opponent and we need to know what the law states about their duties on election day/night.

Response

We find no statutory limitations on election night activities of election commissioners who have opponents; or in the processing of affidavit ballots; or canvassing and certifying the results following the election.

However, in order to avoid any appearance of impropriety, the commissioners who have opponents may wish to recuse themselves from participation in the rulings on the legality of affidavit ballots cast pursuant to Mississippi Code Annotated Section 23-15-573 by voters in their respective districts and in the certification of the results in their respective districts.

In regard to “checking” absentee ballots, please keep in mind that in canvassing election returns, election commissioners perform only a ministerial duty. Any review of determinations by poll workers as to whether absentee ballots are accepted or not, pursuant to Sections 23-15-639 and 23-15-643 (if ballots are challenged), is a judicial function to be exercised by a court of competent jurisdiction, not by election commissioners. Misso v. Oliver, 666 So.2d 1366 (Miss. 1996).

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General.