Mississippi Advisory Opinions October 23, 2019: AGO 2019-00360 (October 23, 2019)

Advisory Opinion Text

Joseph M. Stinson, Esquire

Attorney for the Town of Tylertown

Post Office Drawer 408

Tylertown, Mississippi 39667

Re: Runoff Election

Dear Mr. Stinson:

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

Facts

You state that the Alderman for Ward 2 of the Town of Tylertown recently passed away with more than six (6) months remaining on his term, thereby creating a vacancy. The Mayor and Aldermen adopted a resolution and order declaring a vacancy and calling a special election to be held on October 8, 2019 to fill the vacancy with a provision that should no candidate receive a majority vote at that election, the two (2) candidates receiving the highest number of votes would have their names placed on the ballot for the runoff election to be held three (3) weeks thereafter, all as provided in Section 23-15-857.

Three candidates, Candidate A, Candidate B and Candidate C, qualified to run in the special election and their names appeared on the October 8 Ballot. No candidate received a majority vote. Candidate A and Candidate B received the highest number of votes. Ballots were printed for the October 29 runoff election with the names of Candidate A and Candidate B appearing on the ballots. Absentee balloting is in progress.

Candidate B encountered severe and unexpected health problems after October 8 and on October 19, ten (10) days before the runoff election and after the ballots were printed, submitted to the Town and its Election Commissioners, a written announcement that, because of those health issues, he was withdrawing from the special election.

Questions Presented

Question 1: Is the withdrawal submitted by Candidate B ten (10) days before the runoff election and after the ballots were printed, an effective withdrawal or did it come too late under Miss. Code Ann., Section 23-15-363 (1972) because the ballots were already printed?

Question 2: If the withdrawal by Candidate B is not effective, should the election proceed with the names of Candidate A and Candidate B appearing on the ballot despite Candidate B's attempted withdrawal?

Question 3: If the withdrawal by Candidate B is effective, would the name of Candidate C, who was eliminated in the first election, be placed on the ballot with Candidate A for the runoff election, or may other candidates enter the race and, if so, by what means and what qualification procedure?

Responses

In response to your first question, it is the opinion of this office that Candidate B's attempted written withdrawal after the ballots were printed is not effective and any votes cast for him in the runoff are valid and must be considered in determining who is the winner of the special election.

Should Candidate B receive the most votes, he would be entitled to enter the office in question.

In response to your second question, the election must proceed with the names of Candidate A and Candidate B appearing on the ballot since the attempted withdrawal by Candidate B is not effective.

Our responses to your first and second questions render your third question moot.

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).

The obvious purpose of Section 23-15-363 is to prevent municipalities and counties from having to go to the trouble and expense of printing the ballots more than once.

Section 23-15-305 provides, in part:

The candidate who received the majority number of votes cast for the office which he seeks shall thereby become the nominee of his party for such office and no person shall be declared to be the nominee of his party unless and until he has received a majority of the votes cast for such office, except as hereinafter provided. If no candidate received such majority of the votes cast in the first primary, then the two (2) candidates who receive the highest number of votes cast for such office shall have their names submitted as such candidates to the second primary and the candidate who leads in such second primary shall be nominated for the office.

If the candidate who received the second highest number of votes cast for such office for any reason declines to enter the second primary, then in that event the candidate who received the third highest shall have his name submitted to the second primary, together with the candidate who received the highest number of votes cast for such office.

If the candidate who received the third highest number of votes cast for such office for any reason declines to enter the second primary, then in that event the candidate who received the fourth highest shall have his name submitted to the second primary, together with the candidate who received the highest number of votes cast for such office.

If no candidate will enter the second primary with the candidate who received the highest number of votes cast, then the candidate who received the highest number of votes cast in the first primary shall be declared the nominee of his party for such office. (Emphasis added).

While this statute is specific to primary elections, the Mississippi Supreme Court has held that statutory provisions that are indicative of a cognate subject matter regarding certain elections are also applicable to other elections when statutes governing such elections are silent on the matter. MS AG Op., Brock (May 31, 2013)(citing Lopez v. Holleman, 69 So.2d 903 (Miss. 1954)). Therefore, we are of the opinion that the provisions of Section 23-15-305 are applicable to special election runoffs, including municipal special election runoffs.

We are of the further opinion that the language in Section 23-15-305 and Section 23-15-363, when read in pari materia, provides that any second place candidate who withdraws from or “declines to enter” the run-off must do so prior to the printing of the ballots.

To say that a candidate who has earned the right to have his or her name placed on the runoff ballot may decline to enter the runoff after the ballots are printed would require the municipality to go to the expense and trouble to print the ballot a second time thereby defeating the purpose of Section 23-15-363. This would also put the municipality in the untenable position of having to get new ballots printed with the names of different candidates thereon after original absentee ballots have already been cast. It could also lead to the impossibility of getting new ballots printed in time for the runoff if a candidate declines to enter the runoff immediately prior to election day.

We have also previously opined that where absentee ballots have been not only printed but cast, that the deadline for withdrawal before the ballots are printed is in effect and that the name of the candidate who failed to meet that deadline may not be omitted from the ballot. We further said that, upon the request of the candidate, notices may be placed at the polling place(s) informing the voters that the candidate whose name appears on the ballot has submitted a withdrawal and does not intend to serve if elected. MS AG Op., Hosemann (April 11, 2008).

We note that Section 23-15-365 (1)(a) as amended by Chapter 441, Laws of 2017 now provides:

In general and special elections, one (1) blank space shall be left on each ballot under the title of each office to be voted for, and in the event of the death, resignation, withdrawal or removal of any candidate whose name was printed on the official ballot, the name of the candidate duly substituted in the place of such candidate who is qualified to hold the office may be written in the blank space by the voter.

(Emphasis added).

Sincerely,

Jim Hood, Attorney General.

Phil Carter, Special Assistant Attorney General.