MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Apportionment and Elections

By: Representative Denny

AN ACT TO AUTHORIZE THE COUNTY EXECUTIVE COMMITTEE TO DELEGATE ITS DUTIES TO THE COUNTY ELECTION COMMISSION FOR ONE YEAR; TO PROVIDE THAT THE COUNTY EXECUTIVE COMMITTEE MAY PROVIDE THE COUNTY ELECTION COMMISSION WITH A PROPOSED LIST OF PERSONS TO SERVE AS POLL MANAGERS AT PRIMARY ELECTIONS; TO AMEND SECTIONS 23-15-263, 23-15-265, 23-15-267, 23-15-295, 23-15-299, 23-15-333, 23-15-335, 23-15-593, 23-15-595, 23-15-597, 23-15-841, 23-15-911, 23-15-921, 23-15-923, 23-15-927 AND 23-15-931, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. All duties of the county executive committee, including but not limited to ruling on candidate qualifications, preparation and printing of the primary election ballot, training of poll managers, preparation and distribution of ballot boxes, ruling on and counting of legal affidavit ballots, and certification of the primary election, may be delegated for one (1) calendar year to the county election commission, if a majority of the members of the county executive committee vote to approve the delegation of these duties and submit in writing a request for the delegation of these duties to the election commission, and if a majority of the election commission agrees in writing with the delegation of these duties not later than ten (10) calendar days before the deadline for assessments to be paid by candidates, as provided in Section 23-15-299. However, the delegating county executive committee may submit to the election commission a written proposed list of persons to serve as poll managers at the primary election, from which list the election commission shall choose a sufficient number of persons qualified to serve as poll managers in the primary election. However, if the list provided by the executive committee shall not contain a sufficient number of persons qualified to serve as poll managers, the election commission may make additional appointments of poll managers.

SECTION 2. Section 23-15-263, Mississippi Code of 1972, is amended as follows:

23-15-263. (1) Unless otherwise provided in this chapter and except as otherwise provided by Section 1 of this act, 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; however, each house of the Legislature shall rule on the qualifications of the membership of its respective body in contests involving the qualifications of such members. The executive committee shall be subject to all the penalties to which county election commissioners are subject, except that Section 23-15-217 shall not apply to members of the county executive committee who seek elective office.

(2) A member of a county executive committee shall be automatically disqualified to serve on the county executive committee, and shall be considered to have resigned therefrom, upon his qualification as a candidate for any elective office. The provisions of this subsection shall not apply to a member of a county executive committee who qualifies as a candidate for a municipal elective office.

(3) The primary election officers appointed by the executive committee of the party shall have the powers and perform the duties, where not otherwise provided, required of such officers in a general election, and any and every act or omission which by law is an offense when committed in or about or in respect to such general elections, shall be an offense if committed in or about or in respect to a primary election; and the same shall be indictable and punishable in the same way as if the election was a general election for the election of state and county officers, except as specially modified or otherwise provided in this chapter.

SECTION 3. Section 23-15-265, Mississippi Code of 1972, is amended as follows:

23-15-265. Except as otherwise provided by Section 1 of this act, the county executive committee of each county shall meet not less than two (2) weeks before the date of any primary election and appoint the managers and clerks for same, all of whom may be members of the same political party. The number of managers and clerks appointed by the county executive committee shall be the same number as commissioners of election are allowed to appoint pursuant to Sections 64 and 66 of this act. If the county executive committee fails to meet on the date named, supra, further notice shall be given of the time and place of meeting.

SECTION 4. Section 23-15-267, Mississippi Code of 1972, is amended as follows:

23-15-267. Except as otherwise provided by Section 1 of this act, the ballot boxes provided by the regular commissioners of election in each county shall be used in primary elections, and the county executive committees shall distribute them to the voting precincts of the county before the time for opening the polls, in the same manner, as near as may be, as that provided for in general elections. If an adjournment shall take place after the polls are open and before all votes are counted, the ballot box shall be securely locked so as to prevent the admission into it or the taking of anything from it during the time of adjournment; and the box shall be kept by one of the managers, and the key by another of the managers, and the manager having the box shall carefully keep it, and neither undertake to open it himself or permit it to be done, or to permit any person to have access to it during the time of adjournment. The box shall not be removed from the polling building or place after the polls are open until the count is completed if as many as three (3) electors qualified to vote at the election object. After each election, the ballot boxes of those provided by the regular commissioner of election shall be delivered, with the keys thereof immediately and as soon thereafter as possible, and without delay to the clerk of the circuit court of the county. The person, or persons, whose duty it is to comply with the provisions of this section and who shall fail, or neglect, from any cause, to deliver said boxes or any of them as herein provided shall, upon conviction, be fined not less than Two Hundred Dollars ($200.00) and be imprisoned in the county jail of the residence of the person, or persons, who violates any of the provisions of this section, for a period of not less than thirty (30) days or more than six (6) months, and fined not more than Five Hundred Dollars ($500.00).

SECTION 5. Section 23-15-295, Mississippi Code of 1972, is amended as follows:

23-15-295. When any person has qualified in the manner provided by law as a candidate for party nomination in any primary election, such person shall have the right to withdraw his name as a candidate by giving notice of his withdrawal in writing to the secretary of the proper executive committee at any time prior to the printing of the official ballots, and in the event of such withdrawal the name of such candidate shall not be printed on the ballot. When a candidate for party nomination for a state or district office who has qualified with the state executive committee withdraws as a candidate as is herein set forth after the sample of the official ballot has been approved and certified by the State Executive Committee the Secretary or Chairman of the State Executive Committee shall forthwith notify the county executive committee of each county affected or involved of the fact of such withdrawal and such notification shall authorize said county executive committees to omit the name of the withdrawn candidate from the ballot if such notification is received prior to the printing of the ballot. In the case of the withdrawal of any candidate, the fee paid by such candidate shall be retained by the state or county executive committee, as the case may be. However, if the county executive committee has delegated its duties to the county election commission, all notifications shall be given to the election commission, and the commission shall omit the withdrawn candidates name from the ballot.

SECTION 6. Section 23-15-299, Mississippi Code of 1972, is

amended as follows:

23-15-299. (1) Assessments made pursuant to paragraphs (a), (b) and (c) of Section 23-15-297, and assessments made pursuant to paragraph (d) of Section 23-15-297 for legislative offices for districts composed of more than one (1) county or parts of more than one (1) county, shall be paid by each candidate to the secretary of the state executive committee with which the candidate is affiliated by 5:00 p.m. on March 1 of the year in which the primary election for the office is held or on the date of the qualifying deadline provided by statute for the office, whichever is earlier.

(2) Assessments made pursuant to paragraphs (d) and (e) of Section 23-15-297, other than assessments made for legislative offices for districts containing more than one (1) county or parts of more than one (1) county, shall be paid by each candidate to the circuit clerk of such candidate's county of residence by 5:00 p.m. on March 1 of the year in which the primary election for the office is held or on the date of the qualifying deadline provided by statute for the office, whichever is earlier. The circuit clerk shall forward the fee and all necessary information to the secretary of the proper county executive committee within two (2) business days.

(3) Assessments made pursuant to paragraphs (f) and (g) of Section 23-15-297 must be paid by each candidate to the Secretary of the State Executive Committee with which the candidate is affiliated by 5:00 p.m. on Friday, January 26, 1996, for the presidential preference primary in 1996 and must be paid sixty (60) days before the presidential preference primary in the years after 1996. Assessments made pursuant to paragraphs (f) and (g) of Section 23-15-297, in years when a presidential preference primary is not being held, shall be paid by each candidate to the Secretary of the State Executive Committee with which the candidate is affiliated by 5:00 p.m. on March 1 of the year in which the primary election for the office is held.

(4) The fees paid pursuant to subsections (1), (2) and (3) of this section shall be accompanied by a written statement containing the name and address of the candidate, the party with which he or she is affiliated, and the office for which he or she is a candidate.

(5) The secretary or circuit clerk to whom such payments are made shall promptly receipt for same stating the office for which such candidate making payment is running and the political party with which he or she is affiliated, and he or she shall keep an itemized account in detail showing the exact time and date of the receipt of each payment received by him or her and, where applicable, the date of the postmark on the envelope containing the fee and from whom, and for what office the party paying same is a candidate.

(6) The secretaries of the proper executive committee shall hold said funds to be finally disposed of by order of their respective executive committees. Such funds may be used or disbursed by the executive committee receiving same to pay all necessary traveling or other necessary expenses of the members of the executive committee incurred in discharging their duties as committeemen, and of their secretary and may pay the secretary such salary as may be reasonable.

(7) Upon receipt of the proper fee and all necessary information, the proper executive committee shall then determine whether or not each candidate is a qualified elector, and whether any candidate has been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, or is a fugitive from justice for this state or any other state, and such charge upon which a candidate has fled has not been dismissed. If the proper executive committee finds that a candidate is not a qualified elector, or that such candidate has been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, and not pardoned nor has served his or her sentence, or is a fugitive from justice as aforesaid, then the name of such candidate shall not be placed upon the ballot.

Where there is but one (1) candidate, the proper executive committee when the time has expired within which the names of candidates shall be furnished shall declare such candidate the nominee.

All duties given to the county executive committee by this section may be delegated to the county election commissioners as provided in Section 1 of this act.

SECTION 7. Section 23-15-333, Mississippi Code of 1972, is amended as follows:

23-15-333. Except as otherwise provided by Section 1 of this act, the county executive committee shall have printed all necessary ballots, for use in primary elections. The ballots shall contain the names of all the candidates to be voted for at such election, and there shall be left on each ballot one (1) blank space under the title of each office for which a nominee is to be elected; and in the event of the death of any candidate whose name shall have been printed on the ballot, the name of the candidate duly substituted in the place of the deceased candidate may be written in such blank space by the voter. The order in which the titles to the various offices shall be printed, and the size, print and quality of the paper of the ballot is left to the discretion of the county executive committee. Provided, however, that in all cases the arrangement of the names of the candidates for each office shall be alphabetical. No ballot shall be used except those so printed.

The county executive committee shall also prepare full instructions for the guidance of electors at elections as to obtaining ballots, the manner of marking them, and the mode of obtaining new ballots in the place of those spoiled by accident. The instructions shall be printed in large, clear type on "Cards of Instruction," and the county executive committee shall furnish the same in sufficient numbers for the use of electors. The cards shall be preserved by the officers of election and returned by them to the county executive committee and they may be used, if applicable, in subsequent elections.

SECTION 8. Section 23-15-335, Mississippi Code of 1972, is amended as follows:

23-15-335. Except as otherwise provided by Section 1 of this act, the county executive committee shall designate a person whose duty it shall be to distribute all necessary ballots for use in a primary election, and shall designate one (1) among the managers at each polling place to receive and receipt for the blank ballots to be used at that place. When the blank ballots are delivered to a local manager, the distributor shall take from the local manager a receipt therefor signed in duplicate by both the distributor and the manager, one of which receipts the distributor shall deliver to the circuit clerk and the other shall be retained by the local manager and said last mentioned duplicate receipt shall be inclosed in the ballot box with the voted ballots when the polls have been closed and the votes have been counted. The printer of the ballots shall take a receipt from the distributor of the ballots for the total number of the blank ballots delivered to the distributor. The printer shall secure all ballots printed by him in such a safe manner that no person can procure them or any of them, and he shall deliver no blank ballot or ballots to any person except the distributor above mentioned, and then only upon his receipt therefor as above specified. The distributor of the blank ballots shall so securely hold the same that no person can obtain any of them, and he shall not deliver any of them to any person other than to the authorized local managers and upon their respective receipts therefor. The executive committee shall see to it that the total blank ballots delivered to the distributor, shall correspond with the total of the receipts executed by the local managers. Any person charged with any of the duties prescribed in this section who shall willfully or with culpable carelessness violate the same shall be guilty of a misdemeanor.

SECTION 9. Section 23-15-593, Mississippi Code of 1972, is amended as follows:

23-15-593. Except as otherwise provided by Section 1 of this act, when the ballot box is opened and examined by the county executive committee in the case of a primary election, or county election commissioners in the case of other elections, and it is found that there have been failures in material particulars to comply with the requirements of Section 23-15-591 and Section 23-15-895 to such an extent that it is impossible to arrive at the will of the voters at such precinct, the entire box may be thrown out unless it be made to appear with reasonable certainty that the irregularities were not deliberately permitted or engaged in by the managers at that box, or by one (1) of them responsible for the wrong or wrongs, for the purpose of electing or defeating a certain candidate or candidates by manipulating the election or the returns thereof at that box in such manner as to have it thrown out; in which latter case the county executive committee, or the county election commission, as appropriate, shall conduct such hearing and make such determination in respect to said box as may appear lawfully just, subject to a judicial review of said matter as elsewhere provided by this chapter. Or the executive committee, or the election commission, or the court upon review, may order another election to be held at that box appointing new managers to hold the same.

SECTION 10. Section 23-15-595, Mississippi Code of 1972, is amended as follows:

23-15-595. The box containing the ballots and other records required by this act shall, as soon as practical after the ballots have been counted, be delivered by one (1) of the precinct managers to the clerk of the circuit court of the county and said clerk shall, in the presence of the manager making delivery of the box, place upon the lock of such box a metal seal similar to the seal commonly used in sealing the doors of railroad freight cars. Such seals shall be numbered consecutively to the number of ballot boxes used in the election in the county, and the clerk shall keep in a place separate from such boxes a record of the number of the seal of each separate box in the county. The board of supervisors of the county shall pay the cost of providing such seals. Except as otherwise provided by Section 1 of this act, upon demand of the chairman of the county executive committee in the case of primary elections, or the county election commissioner in the case of other elections, the boxes and their contents shall be delivered to the county executive committee, or the county election commission, as appropriate, and after such committee or commission, as appropriate, has finished the work of tabulating returns and counting ballots as required by law, the said committee or commission, as appropriate, shall return all papers and ballots to the box of the precinct where such election was held, and it shall make redelivery of such boxes and their contents to the circuit clerk who shall reseal said boxes. Upon every occasion said boxes shall be reopened and each resealing shall be done as provided in this act.

SECTION 11. Section 23-15-597, Mississippi Code of 1972, is amended as follows:

23-15-597. Except as otherwise provided by Section 1 of this act, the county executive committee shall meet on the first or second day after each primary election, shall receive and canvass the returns which must be made within the time fixed by law for returns of general elections and declare the result, and announce the name of the nominees for county and county district offices and legislative offices for districts containing one (1) county or less, and the names of those candidates to be submitted to the second primary. The vote for state and state district offices and legislative offices for districts containing more than one county or parts of more than one county shall be tabulated by precincts and certified to and returned to the State Executive Committee, such returns to be mailed by registered letter or any safe mode of transmission within thirty-six (36) hours after the returns are canvassed and the result ascertained. The State Executive Committee shall meet a week from the day following the first primary election held for state and state district offices and legislative offices for districts containing more than one county or parts of more than one county, and shall proceed to canvass the returns and to declare the result, and announce the names of those nominated for the different offices in the first primary and the names of those candidates whose names are to be submitted to the second primary election. The State Executive Committee shall also meet a week from the day on which the second primary election was held and receive and canvass the returns for state and district offices, if any, and legislative offices for districts containing more than one county or parts of more than one county, if any, voted on in such second primary. An exact and full duplicate of all tabulations by precincts as certified under this section shall be filed with the circuit clerk of the county who shall safely preserve the same in his office.

SECTION 12. Section 23-15-841, Mississippi Code of 1972, is amended as follows:

23-15-841. Except as otherwise provided by Section 1 of this act, nominations for candidates to fill vacancies in county or county district offices shall be made upon dates to be fixed by the county executive committee for county or county district offices. The first and second primaries shall be held on the dates to be fixed by such executive committees, which committees shall also fix the dates when the returns are to be made of the results of such primaries. If there is not sufficient time, after the election is ordered, for the holding of second primary to fill such vacancies, on account of the nearness of the election, from the date at which it is ordered, the executive committee having such nomination in charge, may submit the result to the first primary election, the nomination going to the candidate receiving the highest popular vote. Such special primary election shall be conducted, as far as applicable, under the laws governing other primary elections.

SECTION 13. Section 23-15-911, Mississippi Code of 1972, is amended as follows:

23-15-911. Except as otherwise provided by Section 1 of this act, 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.

SECTION 14. Section 23-15-921, Mississippi Code of 1972, is amended as follows:

23-15-921. Except as otherwise provided by Section 1 of S.B. No. 2796, a person desiring to contest the election of another person returned as the nominee of the party to any county or county district office, or as the nominee of a legislative district composed of one (1) county or less, may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested; and it shall be the duty of the executive committee to assemble by call of the chairman or three (3) members of said committee, notice of which contest shall be served five (5) days before said meeting, and after notifying all parties concerned proceed to investigate the grounds upon which the election is contested and, by majority vote of members present, declare the true results of such primary. However, if the county executive committee has delegated its duties to the county election commission, then the petition shall be filed with the commission and the commission shall investigate and declare the results of the election.

SECTION 15. Section 23-15-923, Mississippi Code of 1972, is amended as follows:

23-15-923. Except as otherwise provided in Section 1 of S.B. No. 2796, a person desiring to contest the election of another returned as the nominee in state, congressional and judicial districts, and in legislative districts composed of more than one (1) county or parts of more than one (1) county, upon complaint filed with the Chairman of the State Executive Committee, by petition, reciting the grounds upon which the election is contested. If necessary and with the advice of four (4) members of said committee, the chairman shall issue his fiat to the chairman of the appropriate county executive committee, and in like manner as in the county office, the county committee shall investigate the complaint and return their findings to the chairman of the state committee. However, if the county executive committee has delegated its duties to the county election commission, then the fiat shall be issued to the commission, and the commission shall investigate and return its findings to the chairman of the state committee. The State Executive Committee by majority vote of members present shall declare the true results of such primary.

SECTION 16. Section 23-15-927, Mississippi Code of 1972, is amended as follows:

23-15-927. When and after any contest has been filed with the county executive committee or the county election commission, if the county executive committee has delegated its duties to the commission as authorized by Section 1 of this act, or complaint with the State Executive Committee, and the said executive committee or commission having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and the law, the contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred, or if more than one county to be involved then in one (1) of said counties, a sworn copy of his said protest or complaint, together with a sworn petition, setting forth with particularity wherein the executive committee or commission has wrongfully failed to act or to fully and promptly investigate or has wrongfully denied the relief prayed by said contest, with a prayer for a judicial review thereof. But such petition for a judicial review shall not be filed unless it bear the certificate of two (2) practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such investigation they verily believe that the said protest and petition should be sustained and that the relief therein prayed should be granted, and the petitioner shall give a cost bond in the sum of Three Hundred Dollars ($300.00), with two (2) or more sufficient sureties conditioned to pay all costs in case his petition be dismissed, and an additional bond may be required, by the judge or chancellor, if necessary, at any subsequent stage of the proceedings. The filing of such petition for judicial review in the manner set forth above shall automatically supersede and suspend the operation and effect of the order, ruling or judgment of the executive committee or commission appealed from.

SECTION 17. Section 23-15-931, Mississippi Code of 1972, is amended as follows:

23-15-931. (1) 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; the judge or chancellor being, however, the controlling judge both of the facts and the law, and to have all the power in every respect of a chancellor in term time; and the tribunal shall be attended by the sheriff, and clerk, each with sufficient deputies, and by a court reporter. The special tribunal so constituted shall fully hear the contest or complaint de novo, and the original contestant before the party executive committee shall have the burden of proof and the burden of going forward with the evidence in the hearing before the special tribunal. The special tribunal, after the contest or complaint shall have been fully heard anew, shall make a finding dictated to the reporter covering all controverted material issues of fact, together with any dissents of any commissioner, and thereupon, the trial judge shall enter the judgment which the county executive committee should have entered, of which the election commissioners shall take judicial notice, or if the matter be one within the jurisdiction of the State Executive Committee, the judgment shall be certified and promptly forwarded to the Secretary of the State Executive Committee, and in the absence of an appeal, it shall be the duty of the State Executive Committee forthwith to reassemble and revise any decision theretofore made by it so as to conform to the judicial judgment aforesaid; provided that when the contest is upon a complaint filed with the State Executive Committee and the petition to the court avers that the wrong or irregularity is one which occurred wholly within the proceedings of the state committee, the petition to the court shall be filed in the circuit or chancery court of Hinds County and, after notice served, shall be promptly heard by the circuit judge or chancellor of that county, without the attendance of commissioners.

(2) If any county executive committee has delegated its authority to conduct primary elections to the county election commission as authorized by Section 1 of this act, then the presiding judge or chancellor shall not appoint any members of the county election commission to serve on the tribunal as described in paragraph (1) of this section, or to serve as advisors or assistants to the judge or chancellor in the trial.

SECTION 18. The Attorney General of the State of Mississippi shall submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.

SECTION 19. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.