MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Apportionment and Elections
By: Representative Hurst
AN ACT TO AMEND SECTION 23-15-523, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT, IN GENERAL AND SPECIAL ELECTIONS, THE RESOLUTION BOARD MEMBERS SHALL NOT BE ALL OF THE SAME POLITICAL PARTY IF A POLITICAL PARTY IDENTIFIES SUITABLE PERSONS AVAILABLE TO BE APPOINTED; TO BRING FORWARD SECTIONS 23-15-615, 23-15-639, 23-15-641 AND 23-15-231, 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 23-15-523, 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 election commissioners 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 take the oath provided in Section 268, Mississippi Constitution of 1890.
(2) The election
commissioners 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 members of 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 equipment and that are damaged or defective, blank or
overvoted * * *
shall be reviewed by the board. Election commissioners, candidates who
are on the ballot and the spouse, parents, siblings or children of such a
candidate shall not be appointed to the resolution board. In general and special
elections, the resolution board members shall not be all of the same political
party if a political party identifies suitable persons available to be appointed.
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 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 election commissioners or the officials in charge of the election shall have the members of the resolution board ascertain the intent of the voter, if possible, and, if so, manually count any damaged or defective ballots.
(c) The resolution board shall 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." Later 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 equipment.
(4) The resolution board shall examine ballots that have been rejected by the OMR equipment for appearing to be "blank" 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 shall prepare a duplicate to the original blank ballot in the same manner and in accordance with the same process provided in subsection (3)(c).
(5) All ballots that are rejected by the OMR equipment and that contain overvotes shall be inspected by the resolution board. Regarding those rejected ballots upon which an overvote appears, if the voter intent cannot be determined by the resolution board, the officials in charge of the election may use the OMR equipment in determining the vote in the races that are unaffected by the overvote. All other ballots that are overvoted shall be counted manually following the provisions of this section at the direction of the officials in charge of the election. The return printed by the OMR 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, 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 that contains or appears to contain one or more overvotes, appears to be damaged or defective, or is rejected by the OMR equipment for any reason or cannot be counted by the OMR 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. 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 for that candidate are invalid.
(c) No write-in vote for a candidate whose name is printed on the ballot shall be regarded as invalid 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 equipment shall be programmed, calibrated, adjusted and set up to reject ballots that appear to be damaged or defective. Any switch, lever or feature on OMR equipment that enables or permits the OMR equipment to override the rejection of damaged or defective ballots so that such ballots will not be reviewed by the resolution board, shall not be used.
(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 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 equipment.
(10) The resolution board shall make and keep a record regarding the handling and counting of all ballots inspected under this section.
(11) The executive committee of each county or municipality, in the case of a primary election, or the election commissioners of each county or municipality, in the case of all other elections, in conjunction with the circuit or municipal clerk respectively, shall sponsor and conduct, a training session for up to two (2) hours, not less than five (5) days before each election, to instruct those qualified electors who are appointed to serve as members of the resolution board as to their specific duties in the election. No member appointed to serve on the resolution board shall serve in any election unless he or she has received such instruction once during the twelve (12) months immediately preceding the date upon which the election is held. Online training courses developed by the Secretary of State, though not sponsored or conducted by the executive committee or the election commissioners, may be used to meet the requirements of this subsection (11).
SECTION 2. Section 23-15-615, Mississippi Code of 1972, is brought forward as follows:
23-15-615. The Secretary of State shall be authorized to audit election procedures of the 2023, 2024, 2026 and 2027 general elections in the counties of this state. The conduction of an audit shall not create excessive interference with the general duties and responsibilities of the Secretary of State, county registrar, and county election commission.
(a) The Secretary of State shall audit all eighty-two (82) counties by randomly selecting from each of the congressional districts during the 2023, 2024, 2026 and 2027 general elections, and randomly selecting no more than twenty-five percent (25%) of the total precincts or no more than five (5) precincts, whichever is less in each county. No county or precinct shall be selected for audit on the basis of race, geographical location or voting trends.
(i) If the Secretary of State finds any issues that could affect the outcome of an election or cause voters to be disenfranchised, then the Secretary of State, in partnership with the local county election officials, shall develop a plan to correct those issues, which shall include additional training.
(ii) The Secretary of State will have the discretion to randomly select the counties and precincts that will be audited, but must do so at least ninety (90) days before the election to be audited. No audit shall occur if the election is challenged as provided in Sections 23-15-927, 23-15-951 or 23-15-955. No audit shall occur until after a ballot box examination has occurred and the period to contest an election has expired, or if a runoff election occurs, the audit shall occur after the runoff election.
(b) In conducting a procedural audit, the Secretary of State shall audit the following:
(i) Procedures for testing of OMR equipment before counting ballots, including the ballots used for testing of OMR equipment, as required by Section 23-15-521;
(ii) Ballot accounting reports, seal logs, poll books, and receipt books as required to be kept by Section 23-15-519;
(iii) Absentee ballots, absentee ballot applications, and absentee ballot envelopes, along with the list provided to the resolution board, to ensure appropriate processing and counting of absentee ballots as required by Section 23-15-631 et seq.; and
(iv) Affidavit ballots and affidavit ballot envelopes, including affidavit ballot receipt book to ensure compliance with appropriate processing and counting of affidavit ballots as required by Section 23-15-573.
(c) By January 20, 2027, the Secretary of State shall provide a recommendation to the Mississippi Legislature on whether the procedures to be audited in paragraph (b) should be expanded or reduced.
(d) The Secretary of State shall develop a post-election audit manual which shall detail the policies and procedures for conducting post-election audits. The post-election audit manual shall not be altered less than ninety (90) days before an election in which the post-election audit manual shall be utilized in conducting a post-election audit.
(e) No later than one hundred twenty (120) days after the election that the Secretary of State is auditing, the Secretary of State shall compile a report of the procedural audits conducted and shall submit the report to the Governor, Lieutenant Governor, Speaker of the House of Representatives and Chairmen of the Senate and House Election Committees. Prior to submitting the report, the Secretary of State shall allow the local county election officials to review the report and provide comments that will be submitted along with the report. The report shall first list all counties audited alphabetically with any major finding which may affect the outcome of the election and whether any voters were disenfranchised, then list out a detailed report of any major or minor findings, along with recommended changes to both county and Secretary of State practices.
SECTION 3. Section 23-15-639, Mississippi Code of 1972, is brought forward as follows:
23-15-639. (1) The examination and counting of all absentee ballots shall be conducted as follows:
(a) At the opening of the regular balloting and at the opening of the polls, the resolution board established under Section 23-15-523 and trained in the process of canvassing absentee ballots shall first take the envelopes containing the absentee ballots of such electors from the secure location at the circuit clerk's office, 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 resolution board 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 resolution board 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. All absentee ballots received prior to 7:00 p.m. the day before the election shall be counted in the registrar's office by the resolution board when the polls close and then added to the votes cast in each precinct. All absentee ballots received after 7:00 p.m. the day before the election but not later than the fifth business day after the election shall be processed by the resolution board.
(2) The resolution board 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.
(3) The resolution board shall process the absentee ballots using the procedure provided in subsection (1) of this section.
SECTION 4. Section 23-15-641, Mississippi Code of 1972, is brought forward as follows:
23-15-641. (1) For all absentee votes received by mail, 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 resolution board shall mark across its face "REJECTED", with the reason therefor.
(2) For all absentee votes received by mail, 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, and the registrar shall promptly notify the voter of such rejection. 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.
(5) All electors voting absentee shall be provided with written information to inform the person how to ascertain whether his or her ballot was counted and, if rejected, the reason therefor.
SECTION 5. Section 23-15-231, Mississippi Code of 1972, is brought forward as follows:
23-15-231. Before every election, the election commissioners shall appoint three (3) persons for each voting precinct to be poll managers, one (1) of whom shall be designated by the election commissioners as election bailiff. For general and special elections, the poll managers shall not all be of the same political party if suitable persons of different political parties can be found in the district. If any person appointed shall fail to attend and serve, the poll managers present, if any, may designate someone to fill his or her place; and if the election commissioners fail to make the appointments or in case of the failure of all those appointed to attend and serve, any three (3) qualified electors present when the polls should be opened may act as poll managers. Provided, however, any person appointed to be poll manager or act as poll manager shall be a qualified elector of the county in which the polling place is located.
SECTION 6. This act shall take effect and be in force from and after July 1, 2024.