Mississippi Advisory Opinions September 27, 1995: AGO 000010121 (September 27, 1995)

AGO 000010121.

Dear Ms. Fortenberry:

Attorney General Mike Moore has received your letter of request regarding the recent primary elections and has assigned it to me for research and reply. A copy of your letter is attached for reference.

Your letter presents two questions, which we will restate and respond to in the order presented. We preface our response by stating that this opinion is prospective in nature only and is not to be viewed as addressing any past actions.

Question 1: Can the election commissioners, upon the approval of the board of supervisors, conduct the first and second primary with the assistance of the county executive party?

Response: No. Mississippi Code Annotated, Section 23-15-263(1) (Supp. 1995) provides in part:

"Unless otherwise provided in this chapter, the county executive committee at primary elections shall perform all duties that relate to the qualification of candidates for primary elections, print ballots for primary elections, appoint the primary election officers, resolve contests in regard to primary elections, and perform all other duties required by law to be performed by the county executive committee; ...."

Section 23-15-931 sets forth the procedure for a primary election contest in circuit court. It provides in part:

"When the day for the hearing has been set, the circuit clerk shall issue subpoenas for witnesses as in other litigated cases, and he shall also issue a summons to each of the five (5) election commissioners of the county, unless they waive summons, requiring them to attend said hearing, throughout which hearing the said commissioners shall sit with the judge or chancellor as advisors or assistants in the trial and determination of the facts, and as assistants in counts, calculations and inspections, and in seeing to it that ballots, papers, documents, books and the like are diligently secured against misplacement, alteration, concealment or loss both in the sessions and during recesses or adjournments; ...."

In our opinion the dual function of conducting an election and then sitting as advisors in a contest of that election constitutes an impermissible, inherent conflict of interest.

Question 2: Did circuit clerk err in starting the absentee voting process with the assistance of the election commission?

Section 23-15-333 provides in part:

"The county executive committee shall have printed all necessary ballots, for use in primary elections. ...."

Section 23-15-715 provides in part:

"Any elector desiring an absentee ballot as provided in this subarticle may secure same if:

(a) Not more than forty-five (45) days nor later than 12:00 noon on the Saturday immediately preceding elections held on Tuesday, ... he shall appear in person before the registrar of the county in which he resides, ... and, when the elector so appears, he shall execute and file an application as provided in Section 23-15-627 and vote by absentee ballot, except that if the ballot has not been printed by forty-five (45) days preceding the election, the elector may appear and file an application anytime before the election. Then the absentee ballot shall be mailed by the circuit clerk to the elector as soon as the ballot has been printed. ..."

Subsection (b) of said statute sets forth the procedure for obtaining and voting an absentee ballot by mail for voters who cannot comply with the provisions of subsection (a). The circuit clerk as county registrar is responsible for mailing applications and ballots to voters who are entitled to vote by mail.

This office has, on an informal basis, consistently advised circuit clerks that it is legally permissible and constitutes the better practice to prepare "in-house" ballots if necessary to have absentee ballots available for eligible voters at the beginning of the statutory period for absentee balloting. Such ballots must, of course, be prepared in accordance with the official ballot approved by the county and state party executive committees for primary elections and by the county and state board of election commissioners for general and special elections. Any such ballots must be strictly accounted for. Therefore, it is our opinion that, in order for the circuit clerk as the county registrar to perform the statutory duties regarding absentee ballots, it is permissible for said clerk to begin the absentee balloting process as outlined above and in Section 23-15-715 without having obtained permission of the appropriate party executive committee. However, county election commissioners should not be involved in this process. The involvement of the election commissioners in primary elections, other than sitting as advisors in a contest, is limited to the preparation of the poll books in accordance with Sections 23-15-125 through 23-15-133.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

By:

Phil Carter Special Assistant Attorney General