Opinion Number ( 2007 )

Dear Senator Fields:

Your recent request for an Attorney General opinion has been forwarded to me for research and reply. You ask whether there is any prohibition against the Secretary of State establishing a toll-free number to fax in ballots for displaced residents.

Toll-free numbers have been established by numerous state agencies for various public service reasons. (See Appendix A). There would not appear to be any prohibition against the Secretary of State establishing a toll-free number.

The gravamen of your question, however, is "to fax in ballots for displaced residents."

First, while the Secretary of State is Chief Elections Officer of the State, his primary powers and duties lie in administering the laws relative to the custody of voting machines and voter registration. The Clerk of Court is the Chief Elections Officer of the Parish, and as such, is responsible for the conduct of the elections held within their respective parish. The Registrar of Voter for each parish is responsible for the conduct of early voting held in conjunction with an election.

Depending on the particular election, each parish could conceivably have dozens of ballot styles for various wards and precincts, so the responsibility for the preparation and the conduct of all elections held in the parish rests with the Parish Board of Election Supervisors.See La. R.S. 18:423. Note, however, that it is the duty of the Secretary of State to prepare and distribute the ballots and to prepare the voting machines. See La. R.S. 18:551, La. R.S. 1851, et seq.

The parish board of election supervisors is also responsible for the counting and tabulation of all absentee by mail and early voting ballots in the parish. See La. R.S. 18:1313(A).

Chapter 7 of the Election Code is very specific with regard to the procedure for absentee by mail and early voting. La. R.S. 18 § 1308 (Absentee voting by mail) sets for the policy for voting by mail and by facsimile transmission.

A. (1)(a) Beginning with the date on which the registrar receives the absentee by mail ballots and other necessary paraphernalia from the secretary of state, and thereafter, immediately upon receipt of an application by mail, the registrar shall mail the necessary instructions, certificates, ballots, and envelopes to the applicant at the address furnished by the applicant. The registrar shall detach the perforated slip from the absentee by mail ballot before mailing it to the voter and shall retain the slip in the records of his office for six months.

(b) If the voter feels he will not have time to vote timely by mail, the voter may request that the registrar transmit to him by facsimile a ballot, including the affidavit, or a second ballot, as the case may be, and the registrar shall do so if he has a facsimile machine in his office. The voter may then mail his voted ballot, including the affidavit, back to the registrar or transmit it by facsimile if the registrar has a facsimile machine in his office. If the voter transmits his voted ballot to the registrar by facsimile, the documents to be transmitted shall contain the following statement: "I understand that by faxing my voted ballot I am voluntarily waiving my right to a secret ballot." This statement shall be followed by the voter's handwritten signature, date, and social security number. Upon receipt of the transmittal, the registrar shall place the voted ballot along with the signed statement and affidavit in an appropriately marked envelope and seal it. The registrar and his staff shall take the steps necessary to keep the voted ballots received by facsimile as confidential as practicable.

The voters are required to utilize the particular ballot for the ward and precinct in which they are registered to vote, and then mail, or transmit via facsimile, their vote to the Registrar of Voters in that particular Parish. This will allow the Registrar to gather these ballots and deliver them to the Parish Board for tabulation. Faxing a ballot to a toll free number with the Secretary of State rather than to the Registrar of Voters would not be in compliance with La. R.S. 18:1308 (b).

Accordingly, it is the opinion of this office that while there is no prohibition against the Secretary of State establishing a toll-free number, it is not in compliance with law to have the Secretary of State receive ballots cast by displaced residents. We hope this opinion adequately responds to your request. If we can be of further assistance to you, please do not hesitate to contact our office.

Yours very truly,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

By:__________________________ WILLIAM P. BRYAN, III Assistant Attorney General

SYLLABUS 23-Elections — Ballots-Absentee Votes-Military

While there is no prohibition against the Secretary of State establishing a toll-free number, it is not in compliance with the law to have the Secretary of State receive ballots cast by displaced residents.

Honorable Cleo Fields Senator District 14 P.O. Box 94183 Baton Rouge, LA 70804

William P. Bryan, III Assistant Attorney General

APPENDIX A La. R.S. 17 § 405(Drug free zone; notice; signs)

C(2) The Department of Public Safety and Corrections shall coordinate and provide rules for the establishment of toll free telephone numbers for use in submitting anonymous information regarding drug activity to local law enforcement agencies. Such telephone numbers shall be displayed on the drug free zone signs which shall be manufactured in correctional institutions subject to the regulation of the office of corrections in the Department of Public Safety and Corrections.

La. R.S. 32 § 429.1(Toll-free hotline)

The Department of Public Safety and Corrections shall establish a toll-free hotline to assist citizens in obtaining accurate and complete information relative to drivers' licenses and vehicle registration. This hotline shall be answered by a person, not an answering device, and shall operate during regular Department of Public Safety and Corrections business hours.

La. R.S. 46 § 2114 (Functions of the bureau)

B(2) The bureau shall provide a direct line of communication between handicapped persons, interested persons, and the state by utilization of a toll-free WATS line. The toll-free number shall be publicized across the state as a means whereby anyone wishing information and/or services for a handicapped individual may receive said information and/or service.

La. R.S. 47 § 9058 (Toll-free telephone assistance for compulsive gamblers; posting of signs on premises)

The corporation shall require the posting of one or more signs on licensed premises at each point of entry into areas where lottery tickets are sold to inform patrons of a toll-free telephone number available to provide information and referral services regarding compulsive or problem gambling. Failure by the owner of the licensed premises to post and maintain such a sign or signs shall be cause for the imposition of a fine not to exceed one thousand dollars per day.