Michigan Advisory Opinions April 21, 1987: AGO 6434 (April 21, 1987)

AGO 6434.

You have requested my opinion on the following questions regarding the election of city officials:

1. Does the Charter of the City of Essexville require that a person may only become a candidate for elective office by filing a nominating petition and thus prohibit the counting of ballots for a candidate whose name is written in on the ballot?

2. If a city charter only permits the candidates for local elective office to become candidates by petition, is that charter provision controlling over the general state election laws which allow write-in ballots for candidates who have not filed a nominating petition?

Election procedures for public office are contained in the Michigan Election Law, MCL 168.1 et seq; MSA 6.1001 et seq. Regarding the election of city officials, MCL 168.321(1); MSA 6.1321(1), provides, in pertinent part:

"[T]he qualifications, nomination, election, appointment, term of office and removal from office of any city officer shall be in accordance with the charter provisions governing the city."

The Michigan Election Law also provides for write-in candidates for elective office at MCL 168.737(d); MSA 6.1737(d), which states:

"If the elector wishes to vote for a candidate not on any ticket, the elector may write or place the name of that candidate on the elector's ballot opposite the name of the office and make a cross (X) or a check mark (/) in the circle under the party name."

The Essexville Charter, Article V, s 12, expressly acknowledges that the Michigan Election Law governs election procedures in the city. The Essexville Charter, Article V, s 12, provides, in pertinent part:

"The preparation, printing and distribution of all City Ballots, the equipment and supplies, the registration of electors, the conduct of all primary, regular and special elections, the voting of absent voters, the canvass and certification of returns, recounts, and all other matters relating to any City election for the election of any officer or to determine any question or ordinance submitted to the electors by initiative, referendum or otherwise shall be in accordance, as nearly as may be, with the provisions of the General Laws governing general primaries and elections, except as otherwise provided in this Charter." [Emphasis added.]

While the Essexville Charter does not expressly authorize write-in candidates, neither does it expressly prohibit it. The Essexville Charter, art V, s 12, states that the provisions of the Michigan Election Law will govern all other matters relating to a city election, which would include votes for write-in candidates.

It is my opinion, in answer to your first question, that votes for write-in candidates are expressly permitted by the Michigan Election Law and the Essexville Charter, and those ballots containing votes for write-in candidates must be counted if the ballots are otherwise valid.

In light of the answer to your first question, no answer to your second question is required.

Frank J. Kelley

Attorney General