Mississippi Advisory Opinions March 25, 1991: 19910325 (March 25, 1991)

Advisory Opinion Text

Honorable Joe W. Martin, Jr.

Circuit Clerk

Post Office Box 998

Pascagoula, Mississippi 39567

Dear Mr. Martin:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

“Subject: UNOPPOSED CANDIDATES ON BALLOT

Reference: Section 23-15-299(6), A/G Opinion to Helen Rae Preston of 6/21/83, copy enclosed

Quoting from the referenced opinion:

‘The purpose of the primary election is to determine party nominees. Since an unopposed candidate must be declared the nominee, it is the opinion of this office that the names of unopposed candidates should not appear on the primary ballot.’

For well over forty-four years in Jackson County, the names of unopposed candidates have not been placed on primary ballots. We need to know if there has been any change to your opinion since the one quoted above.

Placing names of unopposed candidates on primary ballots could double the man-hours and dollars spent on primary conduct. The worst example of this unwarranted cost would be conducting a primary in which there were no opposed candidates.

If any unopposed candidate is placed on a primary ballot, a precedent is set which would require all unopposed candidates' names be placed on the ballot. Our county has five supervisors' districts, four justice and constable districts, five different school board districts, four senate and six representative districts; the result is seventeen split precincts out of ninety-three with a potential of thirty-plus different ballots.

We view putting unopposed candidates on the ballot as a means to get free (to the candidate) campaign advertising at a great deal of expense to the taxpayers. The argument given by unopposed candidates is that the additional ink required to add their names couldn't cost much. A great deal more than ink is needed to conduct superfluous primaries or add excess precincts. Soaring election costs, in addition to ink, must include: punch-card ballots, ballot box supplies, poll workers, delivery and return of boxes, transfer cases, preparation of voting machines, additional counting center time, separate absentee ballots, added ballot layouts, programming time, etc.

In order to change this election procedure, we would need to obtain U.S. Justice Department preclearance. We could not, of course, make the statement that the procedure did not have the intent or effect of discrimination. We can envision situations where giving a candidate free (?) advertising at the expense of all of the taxpayers as enhancing the opportunity of a candidate's election and we are, obviously opposed to doing so. Certainly, the more ballot variables we submit to the voters, the more confusing it becomes to the voters who have no idea which offices and candidates should appear on their ballots.

We apologize for taking so much of your time to explain our beliefs about unopposed candidates on primary ballots. Because of the cost, precedent, voting rights and confusion, we wanted to make our position clear. Thank you very much for your consideration of our request for affirming our understanding of the Helen Rae Preston opinion.”

Mississippi Code Annotated § 23-15-299 (6) provides in part:

“Where there is but one (1) candidate, the proper executive committee when the time has expired within which the names of candidates shall be furnished shall declare such candidate the nominee.”

The above quoted statutory language has not changed since the opinion addressed to Honorable Rae Preston, dated June 21, 1983 was issued. It remains the opinion of this office that since an unopposed candidate is by law the party nominee his name should not appear on the primary ballot. However, as pointed out in your letter, if a party executive committee contemplates changing the established practice in a particular county, such proposed change must be submitted to and precleared by the U.S. Department of Justice pursuant to the Voting Rights Act of 1965 prior to its implementation.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.