Mississippi Advisory Opinions October 06, 2000: AGO 000014020 (October 6, 2000)

AGO 000014020.

Dear Mr. Reece:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. A copy of your letter is enclosed for reference. You present five (5) questions which we will state and respond to individually.

QUESTION 1: Is the "X" alone a person's signature?

RESPONSE: Please see the enclosed copy of our opinion addressed to Mr. Carl L. Mickens, dated July 23, 1999. In summary that opinion sets forth an acceptable form of execution of an absentee ballot application and says that all the words in the execution are to be written by the witness with the voter making the "X" or mark within a set of parentheses.

That opinion further says that the witness may write the name of the applying elector around or adjacent to the mark, indicate that the mark is that of the applying elector, and sign the witness's name adjacent to the mark with words identifying the witnesses' signature as a witness to the mark.

Therefore, in response to your question, the "X" alone does not constitute a proper execution of an absentee ballot application or other election materials such as a voter registration application.

QUESTION 2: If a person signs the name of a voter who made an "X", is any of the following acceptable?

Voter's name is John Doe.

a.

b.

c.

RESPONSE: The above examples do not include all the elements of a valid execution as set forth in our response to your first question. There is no indication by the witness that the "X" is the voter's mark, no signature of the witness and no words identifying the witness. Therefore, none of the above examples satisfy the requirements of a valid execution of an absentee ballot application, voter registration application or other election materials.

QUESTION 3: What is the correct way to sign for a person who made an "X"?

RESPONSE: A proper execution of an absentee ballot application or a voter registration application by a voter who is unable to write his name must contain all the elements set forth in our responses to your first and second questions. An example of a proper execution is contained in the Mickens opinion.

QUESTION 4: A person giving assistance to an "Absentee Voter" must complete a statement and affix (attach) the statement to his/her ballot, does affix mean glue, clip, tape or what?

RESPONSE: Mississippi Code Annotated, Section 23-15-719(2) (Supp. 2000) sets forth certain procedures for voting an absentee ballot. It provides:

If the voter has received assistance in marking his ballot, the person providing the assistance shall complete the following form which shall be printed on the back of the envelope containing the applicant's ballot:

"CERTIFICATE OF PERSON PROVIDING VOTER ASSISTANCE (To be completed only if the voter has received assistance in marking the enclosed ballot.) I hereby certify that the above-named voter declared to me that he or she is blind, temporarily or permanently physically disabled, or cannot read or write, and that the voter requested that I assist the voter in marking the enclosed absentee ballot. I hereby certify that the ballot preferences on the enclosed ballot are those communicated by the voter to me, and that I have marked the enclosed ballot in accordance with the voter's instructions.

____________________________________ Signature of person providing assistance

____________________________________ Printed name of person providing assistance

____________________________________ Address of person providing assistance

____________________________________ Date and time assistance provided

____________________________________ Family relationship to voter (if any)"

QUESTION 5: When voting an absentee ballot, what does name across the flap mean? When there is absent the appearance of fraud, is the following acceptable?

a. b.

RESPONSE: Section 23-15-633 pertains to absentee balloting. It provides:

On any envelope where the elector's signature and the signature of the attesting witness are required, the signature lines and the signatures shall be across the flap of the envelope to insure the integrity of the ballot.

Section 23-15-631 provides in part:

(1) The registrar shall enclose with each ballot provided to an absent elector separate printed instructions furnished by him containing the following:

(c) After marking the ballot, fill out and sign the "ELECTOR'S CERTIFICATE" on back of the envelope so as to insure the integrity of the ballot. All absent electors shall have the attesting witness sign the "ATTESTING WITNESS CERTIFICATE" across the flap on back of the envelope. ....

(2) The foregoing instructions required to be provided by the registrar to the elector shall also constitute the substantive law pertaining to the handling of absentee ballots by the elector and registrar.

The Mississippi Supreme Court in Rogers v. Holder, 636 So.2d 645 (Miss. 1994) held that the provisions of our absentee balloting laws that are intended to insure the integrity of the ballot are mandatory and that strict compliance is required. The Court has also ruled that votes not in compliance with mandatory provisions of election statutes are illegal. Lewis v. Griffith, 664 So.2d 177 (Miss. 1995); Hatcher v. Fleeman, 617 So.2d 634 (Miss. 1993).

Based on the above we are of the opinion that, even with the absence of the appearance of fraud, example (a) is clearly unacceptable because there are no signature lines across the flap, no portion of the actual signature is written across the flap, and there is no attesting witness signature line or signature across the flap. It is our further opinion that, even with the absence of the appearance of fraud, example (b) is unacceptable because there are no signature lines across the flap and there is no signature of an attesting witness.

Sincerely,

MIKE MOORE

ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General