IN THE SUPREME COURT OF MISSISSIPPI

CAUSE NO. 2014-M-00967

IN RE: CHRIS MCDANIEL PETITIONER
THE STATE OF MISSISSIPPIS RESPONSE
TO EMERGENCY PETITION FOR WRIT OF MANDAMUS
JIM HOOD, ATTORNEY GENERAL
Harold E. Pizzetta, III (Bar No. 99867)
Justin L. Matheny (Bar No. 100754)
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205-0220
Telephone: (601) 359-3680
Facsimile: (601) 359-2003
hpizz@ago.state.ms.us
jmath@ago.state.ms.us
Counsel for the State of Mississippi
E-Filed Document Jul 16 2014 13:51:38 2014-M-00967 Pages: 19
TABLE OF CONTENTS
Page
TABLE OF CONTENTS.................................................................................................i
TABLE OF AUTHORITIES..........................................................................................ii
ARGUMENT...................................................................................................................1
CONCLUSION.............................................................................................................13
CERTIFICATE OF SERVICE......................................................................................15
i
TABLE OF AUTHORITIES
CASES Page
Callahan v. Leake County Democratic Executive Committee,
773 So. 2d 938 (Miss. 2000).................................................................................1
Governors Office of Admin. v. Purcell,
35 A.3d 811 (Pa. Commw. Ct. 2011).................................................................10
Goyer v. N.Y. State Dept of Envtl. Conservation,
813 N.Y.S.2d 628 (N.Y. Sup. Ct. 2005)...............................................................8
Natl Archives & Records Admin. v. Favish,
541 U.S. 157, 174 (2004).....................................................................................9
Oliva v. United States,
756 F.Supp. 105 (E.D. N.Y. 1991)....................................................................8-9
Project Vote/Voting for America, Inc. v. Long,
682 F.3d 331 (4 Cir. 2012)...............................................................................12
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Sartin v. Barlow,
16 So. 2d 372 (Miss. 1944)...................................................................................4
Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co.,
955 P.2d 534 (Ariz. 1998)....................................................................................8
State v. Traylor,
56 So. 521 (Miss. 1911)........................................................................................1
Texas Comptroller of Pub. Accounts v. Attorney Gen. of Texas,
354 S.W. 3d 336 (Tex. 2010)...........................................................................8-11
U.S. Dept. of Defense v. Fed. Labor Relations Auth.,
510 U.S. 487 (1994)...........................................................................................10
U.S. Dept. of Justice v. Reporters Comm. For Freedom of Press,
489 U.S. 749 (1989)..................................................................................8, 10, 13
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STATUTES
Miss. Code Ann. 23-15-165..........................................................................................6
Miss. Code Ann. 23-15-335..........................................................................................3
Miss. Code Ann. 23-15-581.......................................................................................4-5
Miss. Code Ann. 23-15-591..........................................................................................3
Miss. Code Ann. 23-15-911................................................................................passim
Miss. Code Ann. 25-61-5..............................................................................................7
42 U.S.C. 1793gg-6....................................................................................................12
OTHER AUTHORITIES
Administrative Procedures for Electronic Case Filing,
United States District Court for the Southern District of
Mississippi, Section 9..........................................................................................7
Berryman Op., 2013 WL 1720563 (Miss. A.G. Mar. 22, 2013)..................................6-7
Mississippi Appellate E-filing Administrative Procedures,
Section 6(a)...........................................................................................................7
Morgan Op., 2009 WL 2184236 (Miss. A.G. June 26, 2009).........................................7
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ARGUMENT
Poll Books are not Subject to a Candidate Ballot Box Inspection Pursuant
to Mississippi Code Section 23-15-911(1)
The Harrison County Circuit Court correctly determined that a candidates
right to inspect the contents of sealed ballot boxes under Mississippi Code Section
23-15-911(1) does not include poll books and denied McDaniels Petition for
Mandamus against Circuit Clerk Gayle Parker. The Circuit Court decided a matter
of straightforward statutory interpretation. This Court should affirm.
When a statute is plain and unambiguous there is no room for construction.
Callahan v. Leake County Democratic Executive Committee, 773 So. 2d 938, 940
(Miss. 2000); see also State v. Traylor, 56 So. 521, 523 (Miss. 1911) (The court
cannot create a law. Its sole power is to enforce the statute as written by the
Legislature. The court has no right to add anything or take anything from a
statute, where the meaning of the statute is clear.). Section 23-15-911(1) is plain
and unambiguous. The code provision grants candidates for office a narrowly
defined statutory right to inspect sealed ballot boxes contents after an election. If a
particular election record is contained in the sealed ballot box, then a candidate has
a right to inspect it using the statutes prescribed procedure. However, if an
election record such as a poll book is not contained in the sealed ballot box, then
a candidates right to inspect it must be found elsewhere under Mississippi law.
Specifically, Section 23-15-911(1) defines the circuit clerks duties in
preserving precinct ballot boxes after an election, and codifies a candidates right to
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inspect the boxes contents. The statute first explains when the boxes must be
provided to the circuit clerks and establishes the clerks duty of safekeeping:
[w]hen 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 shall be forth with resealed and delivered to the circuit
clerk, who shall safely keep and secure the same against any
tampering therewith.
Miss. Code Ann. 23-15-911(1) (emphasis added). Next, the candidates strictly
defined right to inspect the boxes contents, and the timing and procedures for
exercising it, are plainly set forth:
[a]t any time within the 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.
Id. (emphasis added). Lastly, the statute specifies the circuit clerks duties
following a candidates examination of the boxes contents:
[u]pon 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.
Id. (emphasis added). In establishing all the circuit clerks duties regarding sealed
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ballot boxes, and candidates statutory rights to inspect them, nothing in the statute
expressly or implicitly extends a candidates right of examination beyond the
contents of a sealed ballot box.
The Legislature has made it equally clear that poll books are not contents of
a sealed ballot box. Code Section 23-15-591 specifies when ballot boxes must be
sealed following an election and what documents must be contained in those sealed
boxes:
[w]hen the votes have been completely and correctly counted and
tallied by the managers they shall publicly proclaim the result of the
election at their box and shall certify in duplicate a statement of the
said result, said certificate to be signed by the managers and clerks,
one (1) of the certificates to be inclosed in the ballot box, and the other
to be delivered to and to be kept by one (1) of the managers and to be
inspected at any time by any voter who so requests. When the count of
the votes and the tally thereof have been completed, the managers
shall lock and seal the ballot box, having first placed therein all ballots
voted, all spoiled ballots and all unused ballots. There shall be
inclosed therein also one (1) of the duplicate receipts given by the
manager who received the blank ballots received for that box; and the
total ballots voted, and the spoiled ballots and the unused ballots must
correspond in total with the said duplicate receipt or else the failure
thereof must be perfectly accounted for by a written statement, under
oath of the managers, which statement must be inclosed in the ballot
box. There shall be also inclosed in said box the tally list, the receipt
booklet containing the signed names of the voters who voted; and the
number of ballots voted must correspond with the number of names
signed in said receipt booklet.
Miss. Code Ann. 23-15-591; see also Miss. Code Ann. 23-15-335 (unused blank
ballots and receipt must be placed in sealed ballot boxes for primary elections).
Specifically, sealed ballot boxes contain: (1) a signed certificate of the election
results; (2) all ballots voted, all spoiled ballots, and all unused ballots; (3) a receipt
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accounting for the number of total ballots voted, total spoiled ballots, and unused
ballots; (4) the tally list; and (5) the receipt booklet containing the signatures of
voters who voted. That list of required sealed ballot box contents obviously excludes
poll books. McDaniels Petition fails to cite any authority suggesting that poll books
are, or should be, contents of a sealed ballot box. Further, the Harrison County poll
books at issue are obviously being safeguarded by Circuit Clerk Parker and kept
apart from the sealed ballot boxes. As a matter of law, and a matter of fact, the
Harrison County poll books are not contents of the countys sealed ballot boxes. The
Harrison County Circuit Court correctly interpreted and applied Section 23-15-
911(1) in denying McDaniels Petition for Mandamus.
This Courts opinion seventy years ago in Sartin v. Barlow, 16 So. 2d 372
(Miss. 1944) does not expand the scope of a candidates rights currently codified in
Section 23-15-911(1). Sartin confirms what the statute specifically says and what
the Harrison County Circuit Court held: candidates have a right to inspect the
contents of sealed ballot boxes. 16 So. 2d at 375. However, nothing in Sartin
establishes that a candidates right of inspection pursuant to Section 23-15-911(1)
extends beyond those contents. Sartin does not create a right to inspect poll books
or any other non-contents of sealed ballot boxes where the Legislature has refused
to do so.
Mississippi Code Section 23-15-581 likewise does not improve McDaniels
claim that Section 23-15-911(1) extends beyond sealed ballot box contents. That
statute grants candidates, or their authorized representatives, a right to
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reasonably view and inspect the ballots as and when they are taken from the box
and counted, and to reasonably view and inspect the tally sheets, papers and other
documents used in said election during the proceedings, but not including, of course,
the secret ballots being voted and placed and held in the box. Miss. Code Ann.
23-15-581. Arguably, papers and other documents used in said election . . . could
include poll books or election records other than the contents of a sealed ballot box.
But, that statute strictly pertains to a right of inspection when the votes are
counted on election day, as and when ballots are counted at the individual
precincts. Those events have already occurred. Section 23-15-581 is irrelevant to
viewing poll books currently in Circuit Clerk Parkers custody, and maintained
outside the sealed ballot boxes.
The statutory interpretation question decided by the Harrison County Circuit
Court is simple. Section 23-15-911(1) simply means precisely what it says.
McDaniel has the right to inspect the contents of Harrison Countys sealed ballot
boxes under the statutes timetable and procedures. But that specific statutory
right does not encompass inspecting materials preserved outside sealed ballot
boxes. The Harrison County Circuit Court correctly determined as much in denying
McDaniels requested mandamus relief. This Court should hold the same.
Voter Dates of Birth Contained in Poll Books or Other Election Records
Should be Redacted Prior to Inspection or Copying
McDaniel lacks any statutory right under Section 23-15-911(1) extending to
inspection and/or copying of poll books, or any other records not contained in sealed
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ballot boxes. But that does not ultimately prohibit him from inspecting or copying
those materials. The Harrison County Circuit Court correctly held McDaniel can
review and photocopy any poll books or other election materials preserved outside
sealed ballot boxes pursuant to the Mississippi Public Records Act, and voters dates
of birth contained in the records must be redacted.
Requiring redaction of voter dates of birth from election records when
McDaniel or anyone else requests them is appropriate. The Legislature, in the
Public Records Act and elsewhere throughout the Mississippi Code, has enacted
measures which balance the publics interest in obtaining public information with
private individuals interest in privacy and protection of personal identifying
information. The State has an established policy against divulging birth dates and
other private information to anyone in voter records.
As the Circuit Court below recognized, the Elections Code itself specifically
stakes out the States policy of excluding voters private information, including
dates of birth, from inspection and copying of election-related records. Miss. Code
Ann. 23-15-165(6) (exempting dates of birth from inspection, examination, copying
or reproduction of voter registration information). Furthermore, the legislative
policy advanced by Code Section 23-15-165(6) to protect a voters date of birth from
inspection, examination, copying, or reproduction under the Public Records Act is
part of the State of Mississippis general policy that sensitive personal
information, including social security numbers and birth dates, which appear in
public records should be protected by redaction. Berryman Op., 2013 WL 1720563,
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at * 2 (Miss. A.G. Mar. 22, 2013); see also Miss. Code Ann. 25-61-5 (public agencies
shall redact information exempted under the Act before examination and may
charge a reasonable fee for redacting, not to exceed the agencys actual cost).
Other statutes and court rules also reflect the States policy of protecting
citizens dates of birth in public records. By statute, the Legislature requires the
redaction of a government employees date of birth from disseminated public
records. See Morgan Op., 2009 WL 2184236, at * 3 (Miss. A.G. June 26, 2009)
(citing Miss. Code. Ann. 25-1-100(1)). By administrative rule, this Court, along
with the federal courts, requires the redaction of dates of birth in electronically filed
documents under penalty of sanction for the attorney who fails to ensure redaction.
See Mississippi Appellate E-Filing Administrative Procedures, Section 6(a);
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Administrative Procedures for Electronic Case Filing, United States District Court
for the Southern District Mississippi, Section 9. Mississippi citizens who are
required to submit their date of birth to the State of Mississippi in order to exercise
their right to vote should be entitled to no less legal protection and for good reason.
Mississippi voters have a fundamental and important interest in preventing
the public dissemination of their date of birth in connection with their name and
address, including the voters interest in protecting their private information and
avoiding identify theft. With respect to privacy of personal information, courts
Users are cautioned that failure to redact personal identifiers and/or the
1
inclusion of irrelevant personal information in a pleading or exhibit filed electronically with the
Court may subject counsel to the disciplinary and remedial powers of the Court, including sanctions
pursuant to M.R.A.P. 46. Appellate E-Filing Administrative Procedures, Section 6.
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across the country recognize that is a fundamental and important interest. For
example, the United States Supreme Court has acknowledged the common law and
the literal understandings of privacy encompass the individuals control of
information concerning his or her person. U.S. Dept. of Justice v. Reporters Comm.
For Freedom of Press, 489 U.S. 749, 763-64 (1989). The Texas Supreme Court has
noted that there is little question that one can take personal information thats not
sensitive, like birth date, and combine it with other publicly available data to come
up with something very sensitive and confidential. Texas Comptroller of Pub.
Accounts v. Attorney Gen. of Texas, 354 S.W. 3d 336, 344 (Tex. 2010) (finding state
employees date of birth were exempt from disclosure under Texas public records
act) (internal quotation omitted). And, the Arizona Supreme Court has observed:
[w]ith both a name and birth date, one can obtain information about
an individuals criminal record, arrest record ... driving record, state of
origin, political party affiliation, social security number, current and
past addresses, civil litigation record, liens, property owned, credit
history, financial accounts, and, quite possibly, information concerning
an individual's complete medical and military histories, and insurance
and investment portfolio.
Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 955 P.2d 534, 539 (Ariz.
1998) (finding teachers date of birth were exempt from disclosure under Arizona
public records act); see also Goyer v. N.Y. State Dept of Envtl. Conservation, 813
N.Y.S.2d 628, 639 (N.Y. Sup. Ct. 2005) (holding that personal information
(including dates of birth) in hunting licenses were exempt from disclosure under
states unwarranted invasion of personal privacy standard); Oliva v. United
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States, 756 F.Supp. 105, 107 (E.D. N.Y. 1991) (holding that under the federal FOIA
dates of birth[ ] are a private matter, particularly when coupled with ... other
information and disclosure would constitute a clearly unwarranted invasion of
personal privacy).
It is important to note that the privacy issues implicated by McDaniels
Petition would impact millions of Mississippians. There are approximately 1.8
million registered voters in the State. In Harrison County alone there are
approximately 109,000 registered voters. McDaniel has filed materially identical
petitions against other circuit clerks seeking access to the dates of birth of hundreds
of thousands of voters. Once disclosed, there appears to be no practical restriction
on further use or dissemination of the information. See Natl Archives & Records
Admin. v. Favish, 541 U.S. 157, 174 (2004) (recognizing in the context of a federal
FOIA request that [i]t must be remembered that once there is disclosure, the
information belongs to the general public and [t]here is no mechanism under
FOIA for a protective order allowing only the requester to see whether the
information bears out his theory, or for proscribing its general dissemination.).
Further, a requesters representation that the information would not be further
disseminated and would only be used for appropriate purposes is ineffectual. If the
information is disclosed to McDaniel, it must be disclosed to any applicant,
including those who would employ it for illegitimate purposes. Texas Comptroller
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of Pub. Accounts, 354 S.W. 3d at 343.
2
Disclosure of names, addresses, and dates of birth will also place Mississippi
voters at an increased risk of falling victim to the crime of identify theft. Identity
theft is the fastest growing white-collar crime in the United States today. See
What to do When Theres More Than One of You, Office of the Mississippi
Attorney General, Consumer Protection Division, at 1. At least one court has
3
concluded that the disclosure of the date of birth of public employees would likely
result in a substantial and demonstrable risk of identify theft and fraud.
Governors Office of Admin. v. Purcell, 35 A.3d 811, 818 (Pa. Commw. Ct. 2011)
(adopting expert witnesses conclusion). Indeed, knowing a voters date of birth can
lead a criminal to discover a voters actual social security number. Texas
Comptroller of Pub. Accounts, 354 S.W.3d at 345 (remarking that protections for
social security numbers would be meaningless, however, if birth dates were
disclosed, because those dates, when combined with name and place of birth, can
reveal social security numbers). Accordingly, almost every major consumer
That a persons date of birth may be obtained from a different source by the requester has
2
been rejected by courts as an argument to find the information to be entitled to less protection. An
individual's interest in controlling the dissemination of information regarding personal matters does
not dissolve simply because that information may be available to the public in some form. U.S. Dep't
of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 500 (1994) (holding that government
employees have a privacy interest in nondisclosure of their home addresses, even though home
addresses often are publicly available through sources such as telephone directories and voter
registration lists); accord Texas Comptroller of Pub. Accounts, 354 S.W.3d at 343. For purposes of
the protection of privacy, [p]lainly there is a vast difference between the public records that might
be found after a diligent search of courthouse files, county archives, and local police stations
throughout the country and a computerized summary located in a single clearinghouse of
information. Reporters Comm. For Freedom of Press, 489 U.S. at 763-64.
Available on-line at www.ago.state.ms.us/wp-content/uploads/2013/07/IdTheftBook.pdf.
3
10
protection entity, whether governmental or non-governmental (including the
Federal Trade Commission, the Presidents Task Force on Identity Theft, and the
Texas Attorney Generals website [and the Mississippis Attorney Generals
website] ), advises citizens against publicizing their dates of birth or using their
4
dates of birth as pin numbers and passwords. Id. at 344.
As opposed to voters fundamental interests in the protection of private
information and preventing identity theft, McDaniel does not have a legitimate
countervailing interest in gaining access to voter dates of birth contained in poll
books or other election records subject to the Public Records Act. He mistakenly
claims that personal information in the form of voters dates of birth is necessary
to verify identities, make correct record entries, and to prevent fraudulent voting.
For the same reasons, Petitioner must have access to original election
documentation in order to distinguish from invalid and/or fraudulent votes.
Emergency Petition for Writ of Mandamus at p. 10. However, a voters date of birth
is not necessary to identify any voter or distinguish one voter from another in a poll
book.
Poll books used in Mississippi elections identify each listed voter by a unique
voter number and identification number bar code. Those voter numbers are not
5
voters private information and subject to redaction under the Public Records Act.
Available on-line at www.ago.state.ms.us/victims/identity-theft/.
4
See Mock Poll Book exemplar, affixed hereto as Exhibit 1.
5
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To the extent McDaniel (or anyone else) wants to match a voters name and
information appearing in one poll book with another to determine who voted in
what election, or for whatever purpose, that can easily be accomplished using the
voter numbers instead of relying on a voters date of birth. Viewing or copying a
voters date of birth is simply not necessary for any conceivable purpose in
formulating an election challenge or otherwise.
Furthermore, the federal motor voter registration law does not provide
McDaniel a right to inspect or copy unredacted precinct poll books used for the June
2014 Republican primary and run-off. McDaniels recent July 16 supplement lays a
false comparison and a trap before this Court by citing to the National Voter
Registration Act (NVRA), 42 U.S.C. 1793gg-6 and Project Vote/Voting for
America, Inc. v. Long, 682 F.3d 331 (4 Cir. 2012). Whether the NVRA requires
th
Mississippi counties to produce to the general public and out-of-state special
interest groups unredacted poll books, including all voters dates of birth, is
presently the subject of disputed litigation pending in the United States District
Court for the Southern District of Mississippi. Meanwhile, the Project Vote decision
is inapposite to McDaniels claim of a state law right obtain the date of birth of all
registered voters here. The Project Vote court merely held that a state could not
redact the date of birth from completed voter registration forms, where the
requesting party sought to review a limited subset of completed registration forms
rejected by state officials in the months before the election. 682 F.3d at 333.
Project Vote has no application to whether McDaniel possesses the statutory right
12
he claims under Missisippi law, no application to poll books in general, and no
application to a request to obtain the date of birth of all voters compiled within poll
books. Cf. Reporters Comm. For Freedom of Press, 489 U.S. at 763-64 (privacy
intrusion is heightened when information sought is a computerized summary
located in a single clearinghouse of information).
In sum, the general policy of the State of Mississippi, as evidenced by the
Legislatures statutes, this Courts administrative rules, and the opinions of the
Attorney General, establish that sensitive information such as date of birth must be
redacted from public documents prior to inspection or copying. Mississippi citizens
are not forced to surrender their privacy and place themselves at increased risk of
identify theft when they exercise their civic right and duty to register to vote. For
all the reasons explained above, the Harrison County Circuit Court correctly
required that voters dates of birth be redacted in any inspection or production of
poll books demanded by McDaniel. Its conclusion should be affirmed.
CONCLUSION
Based on the foregoing, the State of Mississippi respectfully submits that
Petitioner Chris McDaniels Emergency Petition for Writ of Mandamus should be
denied and the Harrison County Circuit Courts July 11, 2014 Order should be
affirmed.
THIS the 16 day of July, 2014.
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13
Respectfully submitted,
JIM HOOD, ATTORNEY GENERAL
By: S/Justin L. Matheny
Harold E. Pizzetta, III (Bar No. 99867)
Justin L. Matheny (Bar No. 100754)
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205-0220
Telephone: (601) 359-3680
Facsimile: (601) 359-2003
hpizz@ago.state.ms.us
jmath@ago.state.ms.us
Counsel for the State of Mississippi
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing document has been filed electronically with
the Clerk of Court and thereby served on all counsel of record who have entered
their appearance to date, and also to the following persons in the manner of service
indicated:
Mitchell S. Tyner, Sr. Steve C. Thornton
Tyner Law Firm PA P.O. Box 16465
5750 I-55 North Jackson, MS 39236
Jackson, MS 39211 mail@lawlives.com
mtyner@tynerlawfirm.com VIA EMAIL AND US MAIL
VIA EMAIL AND US MAIL
Michael D. Watson, Jr. Timothy C. Holleman
Watson Legal, PLLC Boyce Holleman & Associates
P.O. Box 964 1720 23 Ave.
rd
Pascagoula, MS 39568 Gulfport, MS 39501
michael@watsonlegal.ms tim@boyceholleman.com
VIA EMAIL AND US MAIL VIA EMAIL AND US MAIL
Hon. Roger T. Clark
Circuit Court Judge
P.O. Box 1461
Gulfport, MS 39502
mhladner@co.harrison.ms.us
VIA EMAIL AND US MAIL
THIS the 16 day of July, 2014.
th
S/Justin L. Matheny
Justin L. Matheny


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