Mississippi Advisory Opinions June 19, 2015: AGO 2015-00207 (June 19, 2015)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Rickey Cole

SUBJ: Elections - Primary

SBCD:70

TEXT:Mr. Rickey L. Cole

Chairman, Mississippi Democratic Party

Post Office Box 1583

Jackson, Mississippi 39215

Re: Filling Vacancy in Legislative Office

Dear Mr. Cole:

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

Facts

Your letter states, in part:

As you know, earlier this week our friend State Representative Esther Harrison passed away. She left a tremendous legacy of service, and will be sorely missed.

Representative Harrison was a candidate for the Democratic nomination in House District 41. Another candidate, Councilman Kabir Karriem, also filed and was certified as a candidate for the nomination.

Working with the Secretary of State's office and local election officials, we have arranged for the late Representative Harrison's name not to appear on the August 4 primary ballot. Councilman Karriem is now the sole candidate for the Democratic nomination in House District 41.

Questions and Responses

Question 1: Are write-in votes to be counted in this Democratic primary election in District 41?

Response: Yes. The Mississippi Supreme Court has ruled that write-in votes are allowed due to the death of a qualified candidate even though the candidate died prior to the printing of the ballots. See Upton v. McKenzie, 761 So.2d 167 (Miss. 2000).

Question 2: If write-in votes are to be counted in this Democratic primary, what is the meaning of the words "duly substituted" in Mississippi Code 23-15-365?

Response: The statutory write-in provisions applicable to primaries are those found in Section 23-15-333 which provides that "the ballots shall contain the names of all the candidates to be voted for at such election, and there shall be left on each ballot one (1) blank space under the title of each office for which a nominee is to be elected; and in the event of the death of any candidate whose name shall have been printed on the ballot, the name of the candidate duly substituted in the place of the deceased candidate may be written in such blank space by the voter." (Emphasis added)

The clear meaning of the phrase "candidate duly substituted" refers to the name of the write-in candidate chosen by each individual voter.

Question 3: If write-in votes are not to be counted in this primary, is the State Democratic Executive Committee to certify Councilman Karriem as our nominee?

Response: Our responses to Questions 1 and 2 render this question moot.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General