MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Elections; Accountability, Efficiency, Transparency
By: Senator(s) Tate
AN ACT TO CREATE NEW SECTION 23-15-615, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE SECRETARY OF STATE TO AUDIT ELECTION PROCEDURES IN THE COUNTIES OF THIS STATE; TO REQUIRE THE REGISTRAR OF EACH COUNTY TO SUBMIT CERTAIN TOTALS TO THE SECRETARY OF STATE WITHIN A PERIOD OF DAYS AFTER AN ELECTION; TO AUTHORIZE THE SECRETARY OF STATE TO CONDUCT AN AUDIT IF A DISCREPANCY IN THE SUBMITTED TOTALS MEETS OR EXCEEDS ENUMERATED THRESHOLDS; TO REQUIRE RANDOM AUDITS; TO PROVIDE CERTAIN PROCEDURES FOR THE AUDIT; TO CREATE NEW SECTION 23-15-617, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A RISK-LIMITING AUDIT FOR ELECTIONS THAT OCCUR AFTER AUGUST 31, 2026; TO REQUIRE THE ELECTION COMMISSIONERS IN CONJUNCTION WITH THE REGISTRARS TO CONDUCT AN AUDIT UPON THE SELECTION OF THE SECRETARY OF STATE; TO AUTHORIZE THE SECRETARY OF STATE TO SET CERTAIN RISK-LIMITING THRESHOLDS; TO REQUIRE A MANUAL RECOUNT OF AN ELECTION IN THE EVENT OF A DIFFERENCE BETWEEN THE TABULATION FROM THE MANUAL RECOUNT AND THE TABULATION REPORTED FROM A VOTING SYSTEM; TO PROVIDE PROCEDURES FOR THE RISK-LIMITING AUDIT; TO DEFINE THE TERM "AUDITABLE VOTING SYSTEM"; TO PROVIDE WHICH RECORD IS THE OFFICIAL RECORD OF THE VOTE CAST IN THE EVENT OF A RISK-LIMITING AUDIT; TO AUTHORIZE A PILOT PROGRAM FOR AT LEAST FIVE COUNTIES BEGINNING WITH THE ELECTION TAKING PLACE ON NOVEMBER 8, 2022; TO AMEND SECTIONS 23-15-153 AND 23-15-603, MISSISSIPPI CODE OF 1972, TO CONFORM; TO REPEAL SECTION 23-15-613, MISSISSIPPI CODE OF 1972, WHICH IS THE PROVISION THAT REQUIRES CERTAIN ELECTION OFFICIALS TO REPORT RESIDUAL VOTES TO THE SECRETARY OF STATE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 23-15-615, Mississippi Code of 1972:
23-15-615. (1) The Secretary of State is authorized to audit election procedures in the counties of this state. The Secretary of State may, in order to fulfill the requirements of this section, enter into an agreement with a third party for the conduction of a post-election audit.
(2) (a) The registrar of each county shall, within ten (10) days after a primary or general election, submit to the Secretary of State:
(i) The total number of voters marked as VOTED in the poll book of each precinct in the county;
(ii) The sum of the total number of voters who signed the receipt book at the polling place on election day and the total number of voters who cast an absentee ballot;
(iii) The total number of ballots received by the poll manager from local election officials;
(iv) The sum of the total number of paper ballots voted on election day, the number of unused ballots, and the number of spoiled ballots;
(v) The total number of electronic ballots cast; and
(vi) The total number of ballots cast.
(b) If a discrepancy meets or exceeds the threshold set forth in paragraph (c) of this subsection, the Secretary of State may conduct an audit in that county.
(c) A discrepancy occurs if the difference between the reported totals in paragraph (a) of this subsection meet or exceed:
(i) One (1), if the total number of total votes cast in a precinct is not more than twenty (20).
(ii) Two (2), if the total number of total votes cast in a precinct is:
1. More than twenty (20); but
2. Not more than forty (40).
(iii) Three (3), if the total number of total votes cast in a precinct is:
1. More than forty (40); but
2. Not more than sixty (60).
(iv) Four (4), if the total number of total votes cast in a precinct is:
1. More than sixty (60); but
2. Not more than eighty (80).
(v) Three percent (3%) of the total number of total votes cast, rounded up to the nearest whole number, if the total number of total votes cast in a precinct is:
1. More than eighty (80); but
2. Not more than five hundred (500).
(vi) Fifteen (15), if the total number of total votes cast in a precinct is more than five hundred (500).
(d) The audit shall begin no earlier than thirty (30) days and no later than ninety (90) days after the regularly scheduled general or special election.
(3) (a) The Secretary of State shall randomly select and audit each county over a four-year period.
(b) No county shall be selected for audit if that county has been audited in the last four (4) years unless an audit is triggered pursuant to subsection (2) of this section.
(c) The Secretary of State shall select the precinct(s) to be audited in each county.
(4) The Secretary of State shall not conduct an audit under this section at any precinct in which an election occurred that is subject to an elections challenge that has commenced under Section 23-15-927, 23-15-951 or 23-15-955.
(5) (a) No later than one hundred twenty (120) days after the election that the Secretary of State is auditing, the Secretary of State shall post a report of any completed audit on the official website of the Secretary of State. The registrar of the affected county may post the results of the completed audit on the official website of the county.
(b) Not later than one hundred fifty (150) days after the election, the Secretary of State shall submit a report to the Governor, Lieutenant Governor and Speaker of the House of Representatives analyzing the reports required to be filed pursuant paragraph (a) of this subsection.
(c) In the event that the Secretary of State, in the conduction of an audit, finds that the length of time to conduct an audit should be extended, he or she may certify that such need exists and post the certification to the website of the Secretary of State.
(d) Any documents, materials, notes or communications used in the preparation of the reports provided for in this subsection shall be exempt from and shall not be subject to inspection, examination, copying or reproduction under the Mississippi Public Records Act of 1983.
(6) The Secretary of State shall promulgate administrative rules to carry out the provisions of this act.
SECTION 2. The following shall be codified as Section 23-15-617, Mississippi Code of 1972:
23-15-617. Risk-limiting audit. (1) This section applies to an election:
(a) That occurs after August 31, 2026;
(b) That contains a race or measure that is voted on statewide; and
(c) In which an auditable voting system described by subsection (5) of this section is used.
(2) (a) Not later than twenty-four (24) hours after all ballots have been counted in an election, the election commissioners, in conjunction with the registrar, shall conduct a risk-limiting audit for a selected statewide race or measure.
(b) The Secretary of State shall select, in accordance with rules adopted by the secretary, the office or proposition to be audited.
(c) The election commissioners, in conjunction with the registrar, shall complete the audit before the certification of the election pursuant to Section 23-15-603.
(d) If the audit provides that the ballots cast in the election do not meet the risk-limiting threshold, with the threshold being set by administrative rule by the Secretary of State under subsection (3) of this section, the election commissioners must conduct a manual recount of the election. In the event the tabulation from the manual recount differs from that of the tabulation reported from the auditable voting systems, the tabulation from the manual recount shall be the certified results.
(e) The election commissioners, in conjunction with the registrar, shall publish notice of the date, hour, and place of the audit in the courthouse and on the county's website, if the county maintains a website.
(f) A watcher may be present for the audit if appointed by a candidate whose name is on the ballot in a race audited. A watcher must present credentials to the election commissioners or registrar at the time the watcher reports for service. The certificate must be in writing and must include any information also required by Section 23-15-577.
(g) The Secretary of State may appoint personnel to assist with the audit, including applicable voting system technicians or representatives and persons who have assisted with the design and implementation of the audit.
(3) (a) The Secretary of State shall adopt rules prescribing procedures necessary to implement this section.
(b) Rules adopted under this section must include a rule, using widely accepted statistical methods, that provides for the number or percentage of paper records that must be counted in a risk-limiting audit under subsection (2) of this section.
(4) The results of a risk-limiting audit conducted under this section must be published on the website of the Secretary of State not later than three (3) days after the completion of the audit.
(5) (a) As used in this section, "auditable voting system" means a voting system that:
(i) Uses, creates, or displays a paper record that may be read by the voter; and
(ii) Is not capable of being connected to the internet or any other computer network or electronic device.
(b) The electronic vote is the official record of the vote cast if a risk-limiting audit conducted under subsection (2) of this section produces strong evidence that the reported outcome of the election matches the results that a full counting of the paper records would reveal.
(c) The paper record is the official record of the vote cast if a risk-limiting audit conducted under subsection (2) of this section fails to produce strong evidence that the reported outcome of the election matches the results that a full counting of the paper records would reveal.
(6) The Secretary of State shall adopt rules as necessary to implement this section.
(7) (a) Notwithstanding subsection (1)(a) of this section, the Secretary of State shall conduct a pilot program, beginning with the election taking place November 8, 2022, of the Risk-Limiting Audit Program created under this section.
(b) The Secretary of State shall select at least five (5) counties to participate in the pilot program.
(c) After each election conducted under the pilot program, the Secretary of State shall send a detailed report to the Governor, Lieutenant Governor, Speaker of the House of Representatives, Chairman of the Senate Elections Committee, and Chairman of the House Committee on Elections and Apportionment evaluating the success of the program and making a recommendation as to whether the Legislature should act to delay the statewide implementation of the program.
(d) This subsection shall stand repealed on September 31, 2026.
SECTION 3. Section 23-15-153, Mississippi Code of 1972, is amended as follows:
23-15-153. (1) At least during the following times, the election commissioners shall meet at the office of the registrar or the office of the election commissioners to carefully revise the county voter roll as electronically maintained by the Statewide Elections Management System and remove from the roll the names of all voters who have requested to be purged from the voter roll, died, received an adjudication of non compos mentis, been convicted of a disenfranchising crime, or otherwise become disqualified as electors for any cause, and shall register the names of all persons who have duly applied to be registered but have been illegally denied registration:
(a) On the Tuesday after the second Monday in January 1987 and every following year;
(b) On the first Tuesday in the month immediately preceding the first primary election for members of Congress in the years when members of Congress are elected;
(c) On the first Monday in the month immediately preceding the first primary election for state, state district legislative, county and county district offices in the years in which those offices are elected; and
(d) On the second Monday of September preceding the general election or regular special election day in years in which a general election is not conducted.
Except for the names of those voters who are duly qualified to vote in the election, no name shall be permitted to remain in the Statewide Elections Management System; however, no name shall be purged from the Statewide Elections Management System based on a change in the residence of an elector except in accordance with procedures provided for by the National Voter Registration Act of 1993. Except as otherwise provided by Section 23-15-573, no person shall vote at any election whose name is not in the county voter roll electronically maintained by the Statewide Elections Management System.
(2) Except as provided in this section, and subject to the following annual limitations, the election commissioners shall be entitled to receive a per diem in the amount of One Hundred Dollars ($100.00), to be paid from the county general fund, for every day or period of no less than five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties in the conduct of an election or actually employed in the performance of their duties for the necessary time spent in the revision of the county voter roll as electronically maintained by the Statewide Elections Management System as required in subsection (1) of this section:
(a) In counties having less than fifteen thousand (15,000) residents according to the latest federal decennial census, not more than fifty (50) days per year, with no more than fifteen (15) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;
(b) In counties having fifteen thousand (15,000) residents according to the latest federal decennial census but less than thirty thousand (30,000) residents according to the latest federal decennial census, not more than seventy-five (75) days per year, with no more than twenty-five (25) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;
(c) In counties having thirty thousand (30,000) residents according to the latest federal decennial census but less than seventy thousand (70,000) residents according to the latest federal decennial census, not more than one hundred (100) days per year, with no more than thirty-five (35) additional days allowed for the conduct of each election in excess of one (l) occurring in any calendar year;
(d) In counties having seventy thousand (70,000) residents according to the latest federal decennial census but less than ninety thousand (90,000) residents according to the latest federal decennial census, not more than one hundred twenty-five (125) days per year, with no more than forty-five (45) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;
(e) In counties having ninety thousand (90,000) residents according to the latest federal decennial census but less than one hundred seventy thousand (170,000) residents according to the latest federal decennial census, not more than one hundred fifty (150) days per year, with no more than fifty-five (55) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;
(f) In counties having one hundred seventy thousand (170,000) residents according to the latest federal decennial census but less than two hundred thousand (200,000) residents according to the latest federal decennial census, not more than one hundred seventy-five (175) days per year, with no more than sixty-five (65) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;
(g) In counties having two hundred thousand (200,000) residents according to the latest federal decennial census but less than two hundred twenty-five thousand (225,000) residents according to the latest federal decennial census, not more than one hundred ninety (190) days per year, with no more than seventy-five (75) additional days allowed for the conduct of each election in excess of one (l) occurring in any calendar year;
(h) In counties having two hundred twenty-five thousand (225,000) residents according to the latest federal decennial census but less than two hundred fifty thousand (250,000) residents according to the latest federal decennial census, not more than two hundred fifteen (215) days per year, with no more than eighty-five (85) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;
(i) In counties having two hundred fifty thousand (250,000) residents according to the latest federal decennial census but less than two hundred seventy-five thousand (275,000) residents according to the latest federal decennial census, not more than two hundred thirty (230) days per year, with no more than ninety-five (95) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;
(j) In counties having two hundred seventy-five thousand (275,000) residents according to the latest federal decennial census or more, not more than two hundred forty (240) days per year, with no more than one hundred five (105) additional days allowed for the conduct of each election in excess of one (l) occurring in any calendar year.
(3) In addition to the number of days authorized in subsection (2) of this section, the board of supervisors of a county may authorize, in its discretion, the election commissioners to receive a per diem in the amount provided for in subsection (2) of this section, to be paid from the county general fund, for every day or period of no less than five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties in the conduct of an election or actually employed in the performance of their duties for the necessary time spent in the revision of the county voter roll as electronically maintained by the Statewide Elections Management System as required in subsection (1) of this section, not to exceed five (5) days.
(4) (a) The election commissioners shall be entitled to receive a per diem in the amount of One Hundred Dollars ($100.00), to be paid from the county general fund, not to exceed ten (10) days for every day or period of no less than five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties for the necessary time spent in the revision of the county voter roll as electronically maintained by the Statewide Elections Management System before any special election. For purposes of this paragraph, the regular special election day shall not be considered a special election. The annual limitations set forth in subsection (2) of this section shall not apply to this paragraph.
(b) The election commissioners shall be entitled to receive a per diem in the amount of One Hundred Fifty Dollars ($150.00), to be paid from the county general fund, for the performance of their duties on the day of any primary, runoff, general or special election. The annual limitations set forth in subsection (2) of this section shall apply to this paragraph.
(c) The board of supervisors may, in its discretion, pay the election commissioners an additional amount not to exceed Fifty Dollars ($50.00) for the performance of their duties at any election occurring from July 1, 2020, through December 31, 2020, which shall be considered additional pandemic pay. Such compensation shall be payable out of the county general fund, and may be payable from federal funds available for such purpose, or a combination of both funding sources.
(5) The election commissioners shall be entitled to receive a per diem in the amount of One Hundred Dollars ($100.00), to be paid from the county general fund, not to exceed fourteen (14) days for every day or period of no less than five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties for the necessary time spent in the revision of the county voter roll as electronically maintained by the Statewide Elections Management System and in the conduct of a runoff election following either a general or special election.
(6) The election commissioners shall be entitled to receive only one (1) per diem payment for those days when the election commissioners discharge more than one (1) duty or responsibility on the same day.
(7) The election commissioners shall be entitled to receive a per diem in the amount of One Hundred Fifty Dollars ($150.00), to be paid from the county general fund for the dates when the election commissioners conduct a recount of an election, as required by Section 23-15-617.
( * * *8) In preparation for a municipal
primary, runoff, general or special election, the county registrar shall
generate and distribute the master voter roll and pollbooks from the Statewide Elections
Management System for the municipality located within the county. The municipality
shall pay the county registrar for the actual cost of preparing and printing
the municipal master voter roll pollbooks. A municipality may secure
"read only" access to the Statewide Elections Management System and
print its own pollbooks using this information.
( * * *9) County election commissioners who
perform the duties of an executive committee with regard to the conduct of a
primary election under a written agreement authorized by law to be entered into
with an executive committee shall receive per diem as provided for in
subsection (2) of this section. The days that county election commissioners are
employed in the conduct of a primary election shall be treated the same as days
county election commissioners are employed in the conduct of other elections.
( * * *10) In addition to any per diem
authorized by this section, any election commissioner shall be entitled to the
mileage reimbursement rate allowable to federal employees for the use of a
privately owned vehicle while on official travel on election day.
( * * *11) Every election commissioner shall
sign personally a certification setting forth the number of hours actually
worked in the performance of the commissioner's official duties and for which
the commissioner seeks compensation. The certification must be on a form as
prescribed in this subsection. The commissioner's signature is, as a matter of
law, made under the commissioner's oath of office and under penalties of
perjury.
The certification form shall be as follows:
COUNTY ELECTION COMMISSIONER
PER DIEM CLAIM FORM
NAME: ____________________________ COUNTY: _______________
ADDRESS: _________________________ DISTRICT: _____________
CITY: ______________ ZIP: ________
PURPOSE APPLICABLE ACTUAL PER DIEM
DATE BEGINNING ENDING OF MS CODE HOURS DAYS
WORKED TIME TIME WORK SECTION WORKED EARNED
________________________________________________________________
________________________________________________________________
________________________________________________________________
TOTAL NUMBER OF PER DIEM DAYS EARNED
EXCLUDING ELECTION DAYS ________
PER DIEM RATE PER DAY EARNED X $100.00
TOTAL NUMBER PER DIEM DAYS EARNED
FOR ELECTION DAYS ________
PER DIEM RATE PER DAY EARNED X $150.00
TOTAL AMOUNT OF PER DIEM CLAIMED $_______
I understand that I am signing this document under my oath as an election commissioner and under penalties of perjury.
I understand that I am requesting payment from taxpayer funds and that I have an obligation to be specific and truthful as to the amount of hours worked and the compensation I am requesting.
Signed this the _____ day of ______________, ____.
________________________
Commissioner's Signature
When properly completed and signed, the certification must be filed with the clerk of the county board of supervisors before any payment may be made. The certification will be a public record available for inspection and reproduction immediately upon the oral or written request of any person.
Any person may contest the accuracy of the certification in any respect by notifying the chair of the commission, any member of the board of supervisors or the clerk of the board of supervisors of the contest at any time before or after payment is made. If the contest is made before payment is made, no payment shall be made as to the contested certificate until the contest is finally disposed of. The person filing the contest shall be entitled to a full hearing, and the clerk of the board of supervisors shall issue subpoenas upon request of the contestor compelling the attendance of witnesses and production of documents and things. The contestor shall have the right to appeal de novo to the circuit court of the involved county, which appeal must be perfected within thirty (30) days from a final decision of the commission, the clerk of the board of supervisors or the board of supervisors, as the case may be.
Any contestor who successfully contests any certification will be awarded all expenses incident to his or her contest, together with reasonable attorney's fees, which will be awarded upon petition to the chancery court of the involved county upon final disposition of the contest before the election commission, board of supervisors, clerk of the board of supervisors, or, in case of an appeal, final disposition by the court. The commissioner against whom the contest is decided shall be liable for the payment of the expenses and attorney's fees, and the county shall be jointly and severally liable for same.
(11) Any election commissioner who has not received a certificate issued by the Secretary of State pursuant to Section 23-15-211 indicating that the election commissioner has received the required elections seminar instruction and that the election commissioner is fully qualified to conduct an election, shall not receive any compensation authorized by this section or Section 23-15-239.
SECTION 4. Section 23-15-603, Mississippi Code of 1972, is amended as follows:
23-15-603. (1) The election commissioners shall, within ten (10) days after the general election, transmit to the Secretary of State, to be filed in his or her office, a statement of the whole number of votes given in their county and the whole number of votes given in each precinct in their county, for each candidate for any office at the election; but the returns of every election for Governor, Lieutenant Governor, Secretary of State, Attorney General, Auditor of Public Accounts, State Treasurer, Commissioner of Insurance and other state officers, shall each be made out separately, sealed up together and transmitted to the seat of government, directed to the Secretary of State, and endorsed the "VOTE FOR STATE OFFICERS," to be delivered by the Secretary of State to the Speaker of the House of Representatives at the next ensuing session of the Legislature. In addition to the other information required pursuant to this subsection, the returns for state officers shall contain a statement of the whole number of votes given in each House of Representative district or portion thereof for each candidate for state office at the election.
(2) Constitutional amendments shall be voted for at the time fixed by the concurrent resolution. The election, whether held separately or with other elections, shall be conducted, in all respects, as required for elections generally. The election commissioners shall, within ten (10) days after the election, transmit to the Secretary of State a statement of the whole number of votes given in their county and the whole number of votes given in each precinct in their county for or against constitutional amendments.
(3) The statements certified by the election commissioners and transmitted to the Secretary of State, as required by this section, shall be tabulated by the Secretary of State and submitted to each branch of the Legislature, at the session next ensuing. Certified county vote totals shall represent the final results of the election.
(4) The statements required by this section shall contain a certification, signed and dated by a majority of the election commissioners, which shall read as follows:
"We, the undersigned election commissioners, do hereby certify that this statement of the whole number of votes contains the official vote for the election reflected therein."
(5) The statements required by this section shall be transmitted to the Secretary of State on such forms and by such methods as may be required by rules and regulations promulgated by the Secretary of State.
(6) Notwithstanding the ten-day deadlines in subsections (1) and (2) of this section, in the event that a risk-limiting audit requires that an election be manually recounted by the county election commissioners, the county election commissioners shall transmit the results to the Secretary of State no later than five (5) business days. The transmission of results under this subsection (6) shall conform to all other requirements set forth in this section.
SECTION 5. Section 23-15-613, Mississippi Code of 1972, which is the provision that requires certain election officials to report residual votes to the Secretary of State, is hereby repealed.
SECTION 6. This act shall take effect and be in force from and after July 1, 2022.