MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Apportionment and Elections
By: Representative Tullos
AN ACT TO AMEND SECTION 23-15-637, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY VOTES CAST BY ABSENTEE BALLOT, WHETHER BY MAIL OR IN PERSON IN THE REGISTRAR'S OFFICE, SHALL BE FINAL; TO PROVIDE THAT THE REGISTRAR SHALL DEPOSIT ALL ABSENTEE BALLOTS WHICH HAVE BEEN TIMELY CAST IN THE REGISTRAR ABSENTEE BALLOT BOX UPON RECEIPT; TO PROVIDE THAT THE REGISTRAR ABSENTEE BALLOT BOX SHALL REMAIN IN THE OFFICE OF THE REGISTRAR ON ELECTION DAY; TO AUTHORIZE THE SECRETARY OF STATE TO PROMULGATE CERTAIN RULES AND REGULATIONS; TO AMEND SECTIONS 23-15-625, 23-15-635, 23-15-639, 23-15-641, 23-15-645, 23-15-719, 23-15-731, 23-15-517, 23-15-519 AND 23-15-531.10, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 23-15-637, Mississippi Code of 1972, is amended as follows:
23-15-637. (1) (a) Absentee ballots received by mail, except presidential ballots as provided for in Sections 23-15-731 and 23-15-733 and except as otherwise provided by Section 23-15-699, must be received by the registrar by 5:00 p.m. on the date preceding the election; any received after such time shall be handled as provided in Section 23-15-647 and shall not be counted.
(b) All ballots cast by the absent elector appearing in person in the office of the registrar shall be cast not later than 12:00 noon on the Saturday immediately preceding elections held on Tuesday, the Thursday immediately preceding elections held on Saturday, or the second day immediately preceding the date of elections held on other days.
(c) Any votes cast by absentee ballots, whether received by mail or cast by the absent elector appearing in person in the registrar's office, shall be final. No person who votes by absentee ballot before the election shall appear in person to vote on election day and have his or her vote counted.
(2) The registrar shall deposit all absentee ballots which have been timely cast in the registrar absentee ballot boxes upon receipt. The registrar shall clearly mark the ballot boxes for absentee ballots as "registrar absentee ballot box." The registrar's office shall keep the registrar absentee ballot box with the absentee ballots inside in such registrar's office on election day.
(3) For each precinct, the registrar shall prepare a list of the persons who are registered to vote in the precinct and who cast an absentee ballot, either by mail or in the registrar's office, by 5:00 p.m. on the date preceding the election. The list shall be delivered to the election manager at each precinct before the polls open on election day. If any person on the list appears in person to vote, he or she shall not be allowed to vote. The election managers shall deliver the list with notations of those who tried to vote in person to the registrar as soon as possible after the polls have closed.
(4) The Secretary of State shall promulgate rules and regulations necessary to ensure that when a qualified elector who is qualified to vote absentee votes by absentee ballot, either by mail or in person at the registrar's office, that person's absentee vote is final and he or she may not vote at the polling place on election day. The Secretary of State shall also promulgate rules and regulations necessary to ensure that absentee ballots are deposited into the secure registrar absentee ballot box and remain at the registrar's office for counting on the day of the election.
SECTION 2. Section 23-15-625, Mississippi Code of 1972, is amended as follows:
23-15-625.
(1) The registrar shall be responsible for providing applications for absentee
voting as provided in this section. At least sixty (60) days * * * before any election in which
absentee voting is provided for by law, the registrar shall provide a
sufficient number of applications. In the event a special election is called
and set at a date which makes it impractical or impossible to prepare
applications for absent elector's ballot sixty (60) days * * * before the election, the
registrar shall provide applications as soon as practicable after the election
is called. The registrar shall fill in the date of the particular
election on the application for which the application will be used.
(2) The registrar shall be authorized to disburse applications for absentee ballots to any qualified elector within the county where he or she serves. Any person who presents to the registrar an oral or written request for an absentee ballot application for a voter entitled to vote absentee by mail, other than the elector who seeks to vote by absentee ballot, shall, in the presence of the registrar, sign the application and print on the application his or her name and address and the name of the elector for whom the application is being requested in the place provided for on the application for that purpose. However, if for any reason such person is unable to write the information required, then the registrar shall write the information on a printed form which has been prescribed by the Secretary of State. The form shall provide a place for such person to place his or her mark after the form has been filled out by the registrar.
(3) It shall be unlawful for any person to solicit absentee ballot applications or absentee ballots for persons staying in any skilled nursing facility as defined in Section 41-7-173. This prohibition shall not apply to:
(a) A family member of the person staying in the skilled nursing facility; or
(b) A person designated by the person for whom the absentee ballot application or absentee ballot is sought, the registrar or the deputy registrar.
As used in this subsection, "family member" means a spouse, parent, grandparent, sibling, adult child, grandchild or legal guardian.
(4)
The registrar in the county wherein a voter is qualified to vote upon receiving
the envelope containing the absentee ballots shall keep an accurate list of all
persons preparing such ballots, which list shall be kept in a conspicuous place
accessible to the public near the entrance to his or her office. The
registrar shall also furnish to each precinct manager a list of the names of
all persons in each respective precinct voting absentee ballots to be posted in
a conspicuous place at the polling place for public notice. The application on
file with the registrar and the envelopes containing the ballots shall be kept
by the registrar and deposited in the * * * registrar
absentee ballot box. At the time * * * the ballot boxes are delivered to
the election commissioners or managers, the registrar shall also turn over a
list of all such persons who have voted and whose ballots are in the registrar
absentee ballot box.
(5) The registrar shall also be authorized to mail one (1) application to any qualified elector of the county for use in a particular election.
(6) The registrar shall process all applications for absentee ballots by using the Statewide Election Management System. The registrar shall account for all absentee ballots delivered to and received from qualified voters by processing such ballots using the Statewide Election Management System.
SECTION 3. Section 23-15-635, Mississippi Code of 1972, is amended as follows:
23-15-635. (1) The form of the elector's certificate, attesting witness certification and certificate of person providing voter assistance on the back of the envelope used by voters who do not use the registrar of their county of residence as an attesting witness and who are not absent voters as defined in Section 23-15-673, shall be as follows:
"ELECTOR'S CERTIFICATE
STATE OF __________
COUNTY OR PARISH OF __________
I, __________, under penalty of perjury do solemnly swear that this envelope contains the ballot marked by me indicating my choice of the candidates or propositions to be submitted at the election to be held on the ___ day of __________, 2____, and I hereby authorize the registrar to place this envelope in the registrar absentee ballot box on my behalf, and I further authorize the election managers to open this envelope and place my ballot among the other ballots cast before such ballots are counted, and record my name on the poll list as if I were present in person and voted.
I further swear that I marked the enclosed ballot in secret.
Penalties for vote fraud are up to five (5) years in prison and a fine of up to Five Thousand Dollars ($5,000.00). (Miss. Code. Ann. Section 23-15-753.) Penalties for voter intimidation are up to one (1) year in jail and a fine of up to One Thousand Dollars ($1,000.00). (Miss. Code. Ann. Section 97-13-37.)
____________________
(Signature of voter)
CERTIFICATE OF ATTESTING WITNESS
Under penalty of perjury I affirm that the above named voter personally appeared before me, on this the ___ day of __________, 2____, and is known by me to be the person named, and who, after being duly sworn or having affirmed, subscribed the foregoing oath or affirmation. That the voter exhibited to me his or her blank ballot; that the ballot was not marked or voted before the voter exhibited the ballot to me; that the voter was not solicited or advised by me to vote for any candidate, question or issue, and that the voter, after marking his or her ballot, placed it in the envelope, closed and sealed the envelope in my presence, and signed and swore or affirmed the above certificate.
_________________________ _________________________
(Attesting witness) (Address)
_________________________ _________________________
(Official title) (City and State)
CERTIFICATE OF PERSON PROVIDING VOTER ASSISTANCE
(To be completed only if the voter has received assistance in marking the enclosed ballot.) I, under penalty of perjury, 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.
Penalties for vote fraud are up to five (5) years in prison and a fine of up to Five Thousand Dollars ($5,000.00). (Miss. Code. Ann. Section 23-15-753.) Penalties for voter intimidation are up to one (1) year in jail and a fine of up to One Thousand Dollars ($1,000.00). (Miss. Code. Ann. Section 97-13-37.)
___________________________________________
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)"
(2) The envelope used pursuant to this section shall not contain the form prescribed pursuant to Section 23-15-719 and shall have printed on the flap on the back of the envelope in bold print and in a distinguishing color, the following: "YOUR VOTE WILL BE REJECTED AND NOT COUNTED IF THIS ENVELOPE IS NOT SIGNED ACROSS THE FLAP OF THIS ENVELOPE BY YOU AND AN ATTESTING WITNESS."
SECTION 4. Section 23-15-639, Mississippi Code of 1972, is amended as follows:
23-15-639.
(1) In elections in which direct recording electronic voting systems are not * * * used, 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 registrar absentee ballot 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, * * * 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 or she had been
present and voted in person. If voting machines are used, all absentee ballots
shall be placed in the registrar absentee ballot box before any ballots
are counted, and the election managers * * * at the clerk's office
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 * * * used, 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 * * * shall first take the envelopes containing the
absentee ballots of such electors from the registrar absentee ballot
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, * * * 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 or she 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.
SECTION 5. Section 23-15-641, Mississippi Code of 1972, is amended as follows:
23-15-641.
(1) If an affidavit or the certificate of the officer before whom the
affidavit is taken is required and such affidavit or certificate is found to be
insufficient, or if it is found that the signatures do not correspond, or that
the applicant is not a duly qualified elector in the precinct, or otherwise
qualified to vote, or that the ballot envelope is open or has been opened and
resealed, or the voter is not eligible to vote absentee * * *
the previously cast vote shall not be allowed. Without opening the voter's
envelope the election commissioners * * *, designated executive
committee members or election managers, as appropriate, shall mark across its
face "REJECTED", with the reason therefor.
(2) If the ballot envelope contains more than one (1) ballot of any kind, the ballot shall not be counted but shall be marked "REJECTED", with the reason therefor. The voter's envelopes and affidavits, and the voter's envelope with its contents unopened, when such vote is rejected, shall be retained and preserved in the same manner as other ballots at the election. Such votes may be challenged in the same manner and for the same reasons that any other vote cast in such election may be challenged.
(3) If an affidavit is required and the officials find that the affidavit is insufficient, or if the officials find that the absentee voter is otherwise disqualified to vote, the envelope shall not be opened and a commissioner or executive committee member shall write across the face of the envelope "REJECTED" giving the reason therefor, and the registrar shall promptly notify the voter of such rejection.
(4) The ballots marked "REJECTED" shall be placed in a separate envelope 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.
SECTION 6. Section 23-15-645, Mississippi Code of 1972, is amended as follows:
23-15-645.
After the votes have been counted, the officials shall
preserve all applications, envelopes and the list of absent voters * * * and other election
materials and return the same to the registrar.
SECTION 7. Section 23-15-719, Mississippi Code of 1972, is amended as follows:
23-15-719. (1) Immediately upon completion of an application filed pursuant to the provisions of paragraph (a) of Section 23-15-715, the registrar shall deliver the necessary ballots to the applicant. The registrar shall identify the applicant by requiring him or her to present identification as required by Section 23-15-563, and shall then deliver the ballots to the applicant by mail or to the applicant in the registrar's office. The registrar shall not personally hand deliver ballots to voters, unless he or she delivers the ballots in the office of the registrar. The elector shall fill in his or her ballot in secret. After the applicant has properly marked the ballot and properly folded it, he or she shall deposit it in the envelope furnished him or her by the registrar.
After he or she has sealed the envelope, he or she shall subscribe and swear to an affidavit in the following form, which shall be printed on the back of the envelope containing the applicant's ballot:
"STATE OF MISSISSIPPI
COUNTY OF ___________
I, __________, do solemnly swear that this envelope contains the ballot marked by me indicating my choice of the candidates or propositions to be submitted at the election to be held on the ___ day of __________, 2___, and I hereby authorize the registrar to place this envelope in the registrar absentee ballot box on my behalf, and I further authorize the election managers to open this envelope and place my ballot among the other ballots cast before such ballots are counted, and record my name on the poll list as if I were present in person and voted.
I further swear that I marked the enclosed ballot in secret.
_______________________
(Signature of voter)
SWORN TO AND SUBSCRIBED before me, __________, this the ___ day of __________, 2___.
(Registrar) _______________________
(Registrar)"
After the completion of the requirements of this section, the elector shall deliver the envelope containing the ballot to the registrar.
(2) If the voter has received assistance in marking his or her 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)"
(3) The envelope used pursuant to this section shall not contain the form prescribed by Section 23-15-635 and shall have printed on the flap on the back of the envelope in bold print and in a distinguishing color, the following: "YOUR VOTE WILL BE REJECTED AND NOT COUNTED IF THIS ENVELOPE IS NOT SIGNED ACROSS THE FLAP OF THIS ENVELOPE BY YOU AND AN ATTESTING WITNESS."
SECTION 8. Section 23-15-731, Mississippi Code of 1972, is amended as follows:
23-15-731.
Any presidential absentee ballots received by the registrar * * * after
the delivery of ballot boxes to the election managers and * * * before the
time for the closing of the polls on election day shall be retained
by the registrar * * * in the registrar absentee ballot box,
together with the applications of the qualified absentee elector * * *.
* * * The designated election
officials shall, upon the canvassing of the returns, count such ballots * * * and such ballots shall be considered
valid for all purposes * * *. The appropriate election officials shall
examine the affidavit of each envelope. If the officials are satisfied that
the affidavit is sufficient and that the absentee voter is otherwise qualified
to vote, an official shall announce the name of the voter and shall give any
person present an opportunity to challenge in like manner and for the same
cause as the voter could have been challenged had he or she presented
himself or herself personally in such precinct to vote.
The ineligibility of the voter to vote by absentee ballot shall be a ground for
a challenge. The officials shall consider any absentee voter challenged when a
person has previously filed a written challenge of such voter's right to
vote. The election officials shall handle any such challenge in the same
manner as other challenged ballots are handled, and if the challenge is not
affirmed, the officials shall then open the envelope. The officials shall then
open the envelope in such manner as not to destroy the affidavit printed
thereon and shall deposit the ballot marked "OFFICIAL ABSENTEE
BALLOT," in a ballot box reserved for absentee ballots. The commissioners
shall endorse on their pollbooks a proper notation to indicate that the
absentee voter has voted in such election by absentee ballot.
SECTION 9. Section 23-15-517, Mississippi Code of 1972, is amended as follows:
23-15-517.
At least one (1) hour before the opening of the polls, the officials in charge
of the election shall arrive at the polling place and set up the voting booths
so that they will be in clear view of the poll managers; the poll managers
shall examine the ballots to verify that they have the correct ballots for
their precinct and check the supplies, records and forms, and post the sample
ballots and instructions to the voters. * * *
Each
voter shall receive written and/or verbal instructions by the poll managers
instructing the voter how to properly vote the paper ballot before the voter
enters the voting booth. If any voter needs additional instructions after
entering the voting booth, two (2) poll managers may, if necessary, enter the
booth and give him or her such additional instructions. If any voter spoils a
ballot the voter may obtain others, one (1) at a time, not exceeding three (3)
in all, upon returning each spoiled ballot. The word "SPOILED" shall
be written across the face of the ballot and it shall be deposited into the
sealed ballot box. When the polls close once the last ballot has been cast or
at 7:00 p.m., whichever is later, the poll managers shall break the seal on the
ballot box to process the * * * ballots. Ballots marked as
spoiled shall be bundled together and placed in an envelope designated for
spoiled ballots. Once the polls have officially closed, the envelope that
contains the spoiled ballots and the unused ballots shall be placed in
the ballot box or other container provided for that purpose which shall be
sealed and returned to the officials in charge of the election.
SECTION 10. Section 23-15-519, Mississippi Code of 1972, is amended as follows:
23-15-519.
The poll managers shall prepare a ballot accounting report that documents the
number of voters who have voted, as indicated by the receipt book and the
number of ballots used in the election. The poll managers shall place the
report in the ballot box, with the seal logs, receipt books, * * * affidavit ballots,
challenged ballots, curbside ballots, emergency ballots, spoiled ballots and
unused ballots, which thereupon shall be sealed with a tamper-evident seal,
which is a seal that has been designed in such a way to allow someone to easily
detect any tampering, so that no additional ballots may be deposited or removed
from the ballot box. The poll managers, while they have possession of the
election materials, and the officials in charge of the election, once the poll
managers have delivered the ballot box to the counting center or other
designated place, shall be required to keep a seal log to document each time a
tamper-evident seal for a ballot box is opened or changed. The seal log shall
require the name of the person who opened the seal, the old seal number, the
new seal number, the date the seal was opened and the purpose for opening the
seal. The receiving and returning poll manager shall deliver the ballot box to
the counting center or other designated place and receive a signed, numbered
receipt therefor. The poll books and other records and supplies shall
be returned as directed by the officials in charge of the election. Failure to
strictly comply with the provisions of this section shall not result in a
presumption of fraud.
SECTION 11. Section 23-15-531.10, Mississippi Code of 1972, is amended as follows:
23-15-531.10. (1) In elections in which DRE units are used, the ballots shall be counted at the precinct under the direction of the officials in charge of the election. All persons who perform any duties at the precinct shall take the oath provided in Section 268, Mississippi Constitution of 1890 and only those persons shall touch any ballot, container, paper or machine used in the conduct of the count or be permitted in the immediate area where the ballots are counted.
(2) All proceedings at the precincts shall be open to the view of the public, but no person except one employed and designated for the purpose by the officials in charge of the election shall touch any ballot, any DRE unit or the tabulating equipment.
(3) After the polls have closed and all voting in the precinct has ceased, the poll manager shall shut down the DRE units and extract the election results from each unit as follows:
(a) The poll manager shall obtain the results tape from each DRE unit and verify that the number of ballots cast as recorded on the tape matches the public count number as displayed on the DRE unit; and
(b) The poll manager shall extract the memory card, if applicable, from each DRE unit.
(4) (a) Upon completion of shutting down each DRE unit and extracting the election results, the poll manager shall cause to be completed and signed a ballot recap form, in sufficient counterparts, showing:
(i) The number of valid ballots;
(ii) The number of spoiled ballots;
(iii) The number of affidavit ballots;
(iv) The number of accepted and rejected absentee ballots;
(v) The number of challenged and rejected ballots; and
(vi) The number of unused paper ballots.
(b)
The poll manager shall cause to be placed in the ballot box or supply
container, should the supply container be capable of being sealed and secured,
one (1) copy of the recap form, affidavit ballots, * * * spoiled ballots,
challenged and rejected ballots and any unused paper ballots.
(5) The poll manager shall collect and retain the zero tape and the results tape for each DRE unit and place the tapes with the memory card, if any, for each unit and enclose all such items for all of the DRE units used in the precinct in the memory card transport bag which shall be sealed and initialed by the poll manager so that it cannot be opened without breaking the seal. The memory card transport bag shall be placed in the ballot box.
(6) The receiving and returning poll manager shall then deliver the sealed ballot box to the tabulating center for the county or municipality or to such other place designated by the officials in charge of the election and shall receive a receipt therefor. The copies of the recap forms, unused ballots, records and other materials shall be returned to the designated location and retained as provided by law.
(7) Upon receipt of the sealed ballot box and memory card transport bag that contains the zero tapes, results tapes and memory cards, the officials in charge of the election shall break the seal of the memory card transport bag and remove its contents. The officials in charge of the election shall then download the results stored on the memory card from each DRE unit into the election management system located at the central tabulation point of the county in order to obtain election results for certification.
SECTION 12. This act shall take effect and be in force from and after July 1, 2019.