Mississippi Advisory Opinions April 11, 2008: AGO 2008-00186 (April 11, 2008)

Advisory Opinion Text

The Honorable Delbert Hosemann

Secretary of State

State of Mississippi

Post Office Box 136

Jackson, Mississipp 39201

Re: Candidate Withdrawal

Dear Secretary Hosemann:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Issue Presented

You ask whether pursuant to Mississippi Code Annotated Section 23-15-363 (Revised 2007), a candidate may, by written request have his name omitted from the ballot for the April 22, 2008 special election to fill the remainder of the current term for Congressman from First Congressional District.

By supplemental letter you have informed us of the many steps involved in programming the DRE machines and, that absentee ballots have in fact been printed and voted prior to the date of the receipt of the candidate's withdrawal letter.

Response

We are of the opinion that, under the facts presented, official ballots have been printed and it is therefore too late for a candidate to have his name removed from the ballot. Applicable Law and Discussion

Section 23-15-363 provides:

After the proper officer has knowledge of or has been notified of the nomination, as provided, of any candidate for office, the officer shall not omit his name from the ballot, unless upon the written request of the candidate nominated, made at least ten (10) days before the election, and in no case after such ballot has been printed ; and every ballot shall contain the names of all candidates nominated as specified, and not duly withdrawn. (Emphasis added)

Obviously, this statute's reference to the “printed” ballot does not contemplate electronic voting, and clarification by the legislature is called for. Nevertheless, the statute is still applicable since every election is conducted at least in part through printed, absentee ballots. This statute provides a deadline after which no candidate's name may be taken off the ballot. This deadline is “after such ballot has been printed.” Under the facts presented, where absentee ballots have been not only printed but cast, it is our opinion that the deadline is in effect and that the candidate's name may not now be omitted from the ballot.

We have also previously opined that “programming the direct recording electronic voting equipment (DRE) is the modern day equivalent” of printing ballots. MS AG Op., Mitchell (May 12, 2006).

Conclusion

We are of the opinion that the name of one who attempts to withdraw as a candidate subsequent to the printing of the ballots cannot lawfully be omitted from the ballot.

However, we are of the further opinion that, upon request by the candidate, notices may be placed at the polling places informing the voters that the candidate whose name appears on the ballot has submitted a withdrawal letter and does not intend to serve if elected.

Sincerely,

Jim Hood Attorney General

Phil Carter Special Assistant Attorney General