MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Apportionment and Elections
By: Representative Sanford
AN ACT TO AMEND SECTION 23-15-365, MISSISSIPPI CODE OF 1972, TO PROVIDE THE REQUIREMENTS FOR WRITE-IN CANDIDATES TO SEEK PUBLIC OFFICE IN COUNTY, COUNTY DISTRICT, STATE, STATE DISTRICT AND FEDERAL GENERAL ELECTIONS; TO PROVIDE HOW A PERSON MUST QUALIFY AS A WRITE-IN CANDIDATE; TO AUTHORIZE THE PROPER ELECTION COMMISSIONERS TO DETERMINE WHETHER A PERSON IS QUALIFIED TO BE A WRITE-IN CANDIDATE; TO ESTABLISH HOW TO CAST A VOTE FOR A WRITE-IN CANDIDATE; TO ALLOW A WRITE-IN CANDIDATE TO WITHDRAW HIS OR HER CANDIDACY NO MORE THAN FIVE DAYS BEFORE THE GENERAL ELECTION; TO PROHIBIT A PERSON WHO LOST IN A PRIMARY ELECTION FROM QUALIFYING AS A WRITE-IN CANDIDATE FOR THAT SAME OFFICE; TO PROVIDE THAT A PERSON MAY NOT QUALIFY AS A WRITE-IN CANDIDATE FOR MORE THAN ONE OFFICE OR FOR AN OFFICE IF HE OR SHE HAS OTHERWISE QUALIFIED AS A CANDIDATE FOR ANOTHER OFFICE AND HIS OR HER NAME WILL BE PRINTED ON THE OFFICIAL BALLOT FOR THAT OFFICE; TO PROVIDE HOW TO COUNT A BALLOT THAT HAS BEEN OVERVOTED; TO PROVIDE THAT A WRITE-IN CANDIDATE SHALL HAVE HIS OR HER NAME PRINTED ON THE OFFICIAL BALLOT OF A RUN-OFF ELECTION IF ONE IS REQUIRED; TO PROVIDE THAT THE LAWS OF THE MISSISSIPPI ELECTION CODE APPLY TO WRITE-IN CANDIDATES IN THE SAME MANNER THAT THEY ARE APPLIED TO OTHER QUALIFIED CANDIDATES; TO AMEND SECTION 23-15-523, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; TO BRING FORWARD SECTIONS 23-15-469 AND 23-15-531.5, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 23-15-365, Mississippi Code of 1972, is amended as follows:
23-15-365. (1) There shall be left on each ballot one (1) blank space under the title of each office to be voted for, and in the event of the death, resignation, withdrawal or removal of any candidate whose name shall have been printed on the official ballot, the name of the candidate duly substituted in the place of such candidate may be written in such blank space by the voter.
(2) The provisions of subsection (1) of this section shall not apply to elections conducted under the Nonpartisan Judicial Election Act.
(3) (a) Except as otherwise provided in subsections (1) and (2) of this section, write-in votes shall only be permitted in the general elections for county, county district, state, state district and federal district public offices.
(b) All persons who seek to qualify for election to a county, county district, state, state district or federal district public office through the write-in ballot procedure provided in this section shall pay the appropriate filing fee as provided in Section 23-15-297 and file a written affidavit containing the name and address of the person, the party with which he or she is affiliated, if any, the office for which he or she seeks election as a write-in candidate and a statement declaring his or her intent to seek public office as a write-in candidate.
(c) For county and county district offices, the write-in candidate shall file the affidavit and assessment required under paragraph (b) of this subsection (3) with the circuit clerk in the county of the candidate's residence not later than 5:00 p.m. on the second Friday before the general election. For state, state district or federal district offices, the candidate shall file the affidavit and assessment required under paragraph (b) of this subsection (3) with the Secretary of State's office not later than 5:00 p.m. on the second Friday before the general election. Any candidate who pays the required fee and files the required affidavit after 5:00 p.m. on the second Friday before the general election shall not be qualified as a write-in candidate.
(d) Upon receipt of the affidavits and assessments required under subparagraphs (b) and (c) of this subsection (3), the proper election commissioners shall then determine whether the write-in candidate is a qualified elector of the county, county district, state, state district or federal district which he or she seeks to serve, and whether the write-in candidate meets all other qualifications to hold the office he or she is seeking or presents absolute proof that he or she will, subject to no contingencies, meet all qualifications on or before the date of the general election at which he or she could be elected to office. The proper election commissioners also shall determine whether the write-in candidate has been convicted of any felony in a court of this state, or has been convicted on or after December 8, 1992, of any offense in another state which is a felony under the laws of this state, or has been convicted of any felony in a federal court on or after December 8, 1992. Excepted from the above are convictions of manslaughter and violations of the United States Internal Revenue Code or any violations of the tax laws of this state unless the offense also involved misuse or abuse of his or her office or money coming into his or her hands by virtue of his or her office. If the proper election commissioners find that a candidate either (a) is not a qualified elector, (b) does not meet all qualifications to hold the office he or she seeks and fails to provide absolute proof, subject to no contingencies, that he or she will meet the qualifications on or before the date of the general election at which he or she could be elected, or (c) has been convicted of a felony as described in this subsection, and not pardoned, then such person shall not be qualified as a write-in candidate.
(e) In order for an elector to cast a valid vote for a write-in candidate who has qualified as provided in this subsection (3), he or she must legibly write in the candidate's name or nickname, if the candidate has a known nickname, in the blank space provided for that office and also mark the space provided next to the blank space to indicate his or her choice to cast a vote for the write-in candidate. No vote for a write-in candidate who has qualified pursuant to the provisions of this subsection (3) shall be regarded as defective due to misspelling the candidate's name, or by abbreviation, addition or omission or use of a wrong initial in the name, but a reasonably ascertainable spelling of the candidate's name will be sufficient as long as the intent of the voter can be determined.
(f) A write-in candidate may withdraw his or her intent to run for public office no later than five (5) days before the general election for that office. The write-in candidate shall file his or her withdrawal with the same office in which he or she was qualified.
(g) If a candidate who qualified to run for nomination for public office in any primary election loses that primary election, whether in the first primary or second primary, that candidate may not qualify to run as a write-in candidate for the same public office in the following general election.
(h) (i) No person may be qualified as a write-in candidate for more than one (1) office or as a write-in candidate for an office if he or she has otherwise qualified as a candidate for another office and his or her name will be printed on the official ballot for that office if the election for those offices occurs on the same day.
(ii) If a person has taken the steps necessary to qualify for more than one (1) office as provided in subparagraph (i) of this paragraph (h), then the appropriate election commissioners shall determine the last office for which the person qualified and the person shall be considered to be qualified as a candidate for that office only, and the election commissioner shall provide notice to that person of the determination.
(i) If an elector casts a vote for a write-in candidate and the vote results in the elector casting more votes for an office than he or she is entitled to cast, all the elector's votes for that office are invalid and the voter shall be deemed to have voted for none of them. However, the remaining properly cast votes on the elector's ballot shall be counted as otherwise provided in the Mississippi Election Code.
(j) If a write-in candidate receives enough votes to require a run-off election following the general election, then the name of the write-in candidate shall appear on the official ballot that is prepared and printed for the run-off election.
(k) The provisions of the Mississippi Election Code that are applicable to all qualified candidates in any general election shall also apply to any person who has been qualified to run for public office as a write-in candidate under the provisions of this section. Any person who has been qualified to run for public office as a write-in candidate shall adhere to all of the election laws that other qualified candidates are required to follow. The failure of a write-in candidate to follow an election law shall result in the same penalty that any other qualified candidate would receive.
SECTION 2. Section 23-15-523, Mississippi Code of 1972, is amended as follows:
23-15-523. (1) All proceedings at the counting center shall be under the direction of the commissioners of elections or officials in charge of the election, and shall be conducted under the observations of the public, but no persons except those authorized for the purpose shall touch any ballot. All persons who are engaged in processing and counting of the ballots shall be deputized in writing and take oath that they will faithfully perform their assigned duties.
(2) The commissioners of elections or the officials in charge of the election shall appoint qualified electors who have received the training required by subsection (11) of this section to serve as judges on the "resolution board." An odd number of not less than three (3) members shall be appointed to the resolution board. The members of the board shall take the oath provided in Section 268, Mississippi Constitution of 1890. All ballots that have been rejected by the OMR tabulating equipment and that are damaged or defective, blank or overvoted will be reviewed by said board. Commissioners of election, candidates who are on the ballot at the election and the parents, siblings or children of such a candidate shall not be appointed to the resolution board. If the election is not a primary election, members of the party executive committees shall not be appointed to the resolution board unless members of all of the party executive committees who have a candidate on the ballot are appointed to the resolution board.
(3) (a) If any ballot is damaged or defective so that it cannot be properly counted by the OMR tabulating equipment, the ballot will be deposited in an envelope provided for that purpose marked "RESOLUTION BOARD." All such ballots shall be carefully handled so as to avoid altering, removing or adding any mark on the ballot.
(b) The commissioners of election or the officials in charge of the election shall have the judges on the resolution board manually count any damaged or defective ballots, who shall determine the intent of the voter and record the vote consistent with this determination.
(c) As an alternative to the procedure provided for in paragraph (b) of this subsection, the resolution board may be instructed by the officials in charge of the election to prepare a duplicate to the damaged or defective ballot in the following manner:
(i) The resolution board shall prepare a duplicate to the original damaged or defective ballot marked identically to the original.
(ii) The resolution board shall mark the first original they examine as "Original #1" and the duplicate of this original as "Duplicate #1." Subsequent originals and duplicates shall be likewise marked and numbered consecutively so the duplicate of each original can be identified. Duplicate ballots shall be stamped in a different manner from the original ballots so that they may be easily distinguished from the originals.
(iii) The duplicate ballots prepared pursuant to this paragraph shall be counted by the OMR tabulating equipment.
(4) Ballots that have been rejected by the OMR tabulating equipment for appearing to be "blank" shall be examined to verify if they are blank or were marked with a "nondetectable" marking device. If it is determined that the ballot was marked with a nondetectable device, the resolution board may mark over the voter's mark with a detectable marking device.
(5) All ballots that are rejected by the OMR tabulating equipment and which contain overvotes shall be inspected by the resolution board. Regarding those ballots upon which an overvote appears and voter intent cannot be determined by inspection of the resolution board, the officials in charge of the election may use the OMR tabulating equipment in determining the vote in the races which are unaffected by the overvote. All other ballots which are overvoted shall be counted manually following the provisions of this section at the direction of the officials in charge of the election. If for any reason it becomes impracticable to count all or a part of the ballots with the OMR tabulating equipment, the officials in charge may direct that they be counted manually, and voter intent shall be determined by following the provisions of this section. The return printed by the OMR tabulating equipment to which have been added the manually tallied ballots, which shall be duly certified by the officials in charge of the election, shall constitute the official return of each voting precinct. Unofficial and incomplete returns may be released during the count. Upon the completion of the counting, the official returns shall be open to the public.
(6) When the resolution board reviews any OMR ballot in which the voter has failed to fill in the arrow, oval, circle or square for a candidate or a ballot measure in accordance with the ballot instruction, the resolution board shall, if the intent of the voter can be ascertained, count the vote if:
(a) The voter marks the ballot with a "cross" (X) or "checkmark" (√) and the lines that form the mark intersect within or on the line of the arrow, oval, circle or square by the ballot measure or the name of the candidate.
(b) The voter blackens the arrow, oval, circle or square adjacent to the ballot measure or the name of the candidate in pencil or ink and the blackened portion extends beyond the boundaries of the arrow, oval, circle or square.
(c) The voter marks the ballot with a "cross" (X) or "checkmark" (√) and the lines that form the mark intersect adjacent to the ballot measure or the name of the candidate.
(d) The voter underlines the ballot measure or the name of a candidate.
(e) The voter draws a line from the arrow, oval, circle or square to a ballot measure or the name of a candidate.
(f) The voter draws a circle or oval around the ballot measure or the name of the candidate.
(g) The voter draws a circle or oval around the arrow, oval, circle or square adjacent to the ballot measure or the name of the candidate.
(7) The resolution board, when inspecting an OMR ballot which contains or appears to contain one or more overvotes, appears to be damaged or defective, or is rejected by the OMR tabulating equipment for any reason or cannot be counted by the OMR tabulating equipment, shall make its determination in accordance with the following:
(a) When an elector casts more votes for any office or measure than he or she is entitled to cast at an election, all the elector's votes for that office or measure are invalid and the elector is deemed to have voted for none of them except as provided in paragraph (b) of this subsection. If an elector casts less votes for any office or measure than he or she is entitled to cast at an election, all votes cast by the elector shall be counted but no vote shall be counted more than once.
(b) If an elector casts more than one (1) vote for the same candidate for the same office, the first vote is valid and the remaining votes are invalid.
(c) No write-in vote for a candidate whose name is printed on the ballot and no write-in vote for a candidate whose name is not printed on the ballot but who has otherwise qualified as a write-in candidate as provided in Section 23-15-365 shall be regarded as defective due to misspelling a candidate's name, or by abbreviation, addition or omission or use of a wrong initial in the name, as long as the intent of the voter can be ascertained.
(d) In any case where a voter writes in the name of a candidate for President of the United States whose name is printed on the general election ballot, the failure by the voter to write in the name of a candidate for the Office of Vice President of the United States on the general election ballot does not invalidate the elector's vote for the slate of electors for any candidate whose name is written in for the Office of President of the United States.
(e) For any ballot measure in which the words "for" or "against" are printed on a ballot, if the voter shall write the word "for" or the word "against" instead of or in addition to marking the ballot in accordance with the ballot instruction in the space adjacent to the preprinted words "for" or "against," the resolution board shall, in reviewing such ballot, count the vote in accordance with the voter's handwritten preference, unless the voter marks the ballot in the space adjacent to the preprinted words "for" or "against" contrary to the handwritten preference, in which case no vote shall be recorded for such ballot in regard to the ballot measure.
(f) For any ballot measure in which the words "yes" or "no" are printed on a ballot, if the voter shall write the word "yes" or the word "no" instead of or in addition to marking the ballot in accordance with the ballot instructions in the space adjacent to the preprinted words "yes" or "no," the resolution board shall, in reviewing such ballot, count the vote in accordance with the voter's handwritten preference, unless the voter marks the ballot in the space adjacent to the preprinted words "yes" or "no" contrary to the handwritten preference, in which case no vote shall be recorded for such ballot in regard to the ballot measure.
(8) OMR tabulating equipment shall be programmed, calibrated, adjusted and set up to reject ballot cards that appear to be damaged or defective. Any switch, lever or feature on OMR tabulating equipment that enables or permits the OMR tabulating equipment to override the rejection of damaged or defective ballot cards so that such cards will not be reviewed by the resolution board, shall not be utilized.
(9) Ballots shall be manually counted by the resolution board only when the ballots are:
(a) Properly before the resolution board due to being rejected by the OMR tabulating equipment because the ballots appear to be damaged or defective or are rejected by the OMR equipment for any other reason; or
(b) Properly before the resolution board due to a malfunction in the OMR tabulating equipment.
(10) The resolution board shall make and keep a record regarding the handling and counting of all ballots inspected under this section.
(11) Qualified electors who are appointed to serve as members of the resolution board shall be required to have the training required for election managers pursuant to Section 23-15-239.
SECTION 3. Section 23-15-469, Mississippi Code of 1972, is brought forward as follows:
23-15-469. Ballots and ballot labels shall, as far as practicable, be in the same order of arrangement as provided for paper ballots, except that such information may be printed in vertical or horizontal rows, or in a number of separate pages which are placed on the voting device. Ballot labels shall be printed in plain clear type in black ink and upon clear white materials of such size and arrangement as to fit the construction of the voting device. Arrows may be printed on the ballot labels to indicate the place to punch the ballot card, which may be to the right or left of the names of candidates and propositions. The titles of offices may be arranged in vertical columns or on a series of separate pages, and shall be printed above or at the side of the names of candidates so as to indicate clearly the candidates for each office and the number to be elected. In case there are more candidates for an office than can be printed in one (1) column or on one (1) ballot page, the ballot or ballot label shall be clearly marked that the list of candidates is continued on the following column or page, and, so far as possible, the same number of names shall be printed on each column or page. The names of candidates for each office shall be printed in vertical columns or on separate pages, grouped by the offices which they seek. In partisan elections, the party designation of each candidate, which may be abbreviated, shall be printed following his name.
Two (2) sample ballots, which shall be facsimile copies of the official ballot or ballot labels, and instructions to voters, shall be provided for each precinct and shall be posted in each polling place on election day.
Sample ballots may be printed on a single page or on a number of pages stapled together. A separate write-in ballot, which may be in the form of a paper ballot, card or envelope in which the voter places his ballot card after voting, shall be provided if required to permit voters to write in the title of the office and the name of a person not on the printed ballot for whom he wishes to vote.
SECTION 4. Section 23-15-531.5, Mississippi Code of 1972, is brought forward as follows:
23-15-531.5. (1) The arrangement of offices, names of candidates and questions upon the DRE ballots shall conform as nearly as practicable to the arrangement of offices, names of candidates and questions on paper ballots.
(2) A separate write-in ballot, which may be in the form of a paper ballot, card or envelope in which the voter places his ballot card after voting, shall be provided if required to permit voters to write in the title of the office and the name of the person not on the printed ballot for whom he wishes to vote. The design of the write-in ballot shall permit the officials in charge of the election and poll workers when obtaining the vote count from such systems to determine readily whether an elector has cast any write-in vote not authorized by law.
SECTION 5. This act shall take effect and be in force from and after July 1, 2016.