Mississippi Advisory Opinions September 24, 1980: AGO 000001864 (September 24, 1980)

AGO 000001864.

Dear Mr. Floyd:

Attorney General Bill Allain has received your request for opinion and has referred it to the undersigned for re- search and reply.

You present for opinion the question of whether it is the prerogative of the Chairman of the Election Commission to determine the order in which the Presidential and Vice- Presidential Electors and other candidates for public of- fice in the November 4, 1980 Election will appear on the official ballot.

Perhaps, more specifically, the question presented is whether the Chairman of the County Election Commission may legally and validly exercise the authority to change the order in which the Presidential and Vice-Presidential Electors and other State and State District candidates appear on the Sample Ballot prepared and furnished the County Election Commission by the Secretary of State with the approval of the Governor pursuant to the pro- visions of Section 3263, Mississippi Code of 1942, Recompiled and Amended, appearing in the Appendix to the 1979 Cumulative Supplement to Volume 6 of the Mississippi Code of 1972, Annota- ted.

You will note that the instructions for the printing of the of- ficial ballot for the Regular November 4, 1980 Election as fur- nished by Honorable Edwin Lloyd Pittman, Secretary of State, contain an extensive quotation from this Code section.

Section 3263, Supra, is in full force and effect. It was last amended by Chapter 391 of the Laws of 1978, such amendment and reenactment having been approved by the United States Attorney General as required by the Voting Rights Act of 1965, as Amend- ed and Extended.

However, Section 3263, Supra, is here quoted for convenient reference with the significant words underlined:

"The arrangement of the names of the candidates, and the order in which the titles of the various offices shall be printed, and the size, print, and quality of paper of the official ballot is left to the discretion of the officer charged with printing the official ballot; but the arrange- ment need not be uniform. It is the duty of the secretary of state, with the approval of the governor, to furnish the designated commissioner of each county a sample of the offi- cial ballot, the general form of which shall be followed as nearly as practicable:

Section 23-5-3, Mississippi Code of 1972, Annotated and Amend- ed, as amended by Chapter 359 of the Laws of 1979 having been approved by the United States Attorney General is presently in force and effect as appears beginning on Page 193 of the 1979 Cumulative Supplement to Volume 6 of the Mississippi Code of 1972, Annotated. You will note that the last sentence of this statute appearing at the top of Page 195 of the Supplement pro- vides:

"It shall be the duty of the chairman to have the official ballot printed and distributed at each general or special election.".

Therefore, reading Section 23-5-3, Supra, in para materia with Section 3263, Supra, we find that it is the Chairman of the Board of Election Commissioners who is charged with printing the official ballot on the local and county level.

Further reference to Section 3263, Supra, reveals that not only does this statute apply to the official ballot on the local le- vel and county and county district office but that it also ap- plies to the ballot for state and state district office. Not only does it refer to the authority of the Chairman of the Coun- ty Board of Election Commissioners but it also refers to the du- ty of the Secretary of State and Governor regarding state and state district offices and the furnishing of the sample of the official ballot therefor.

The first part of the statute is explicit that the Chairman of the Election Commission "is left" with discretion regard- ing "The arrangement of the names of the candidates, and the order in which the titles of the various offices shall be printed, and the size, print, and quality of paper of the of- ficial ballot. The statute further provides that the arrange- ment need not be uniform.

Notwithstanding the above and foregoing discretion vested in the Chairman, the statute further states regarding the sample of the official ballot required to be furnished by the Secretary of State with the approval of the Governor to the Chairman that the general form of which shall be followed as nearly as practicable:

We return, therefore, to the question of whether this provision regarding the sample of the official ballot is sufficiently re- strictive of the discretion granted the Chairman to prevent the Chairman from a rearrangement of the names of the candidates for Presidential and Vice-Presidential Electors and other state and state district offices and, particularly, the placing of the na- mes of those candidates who are nominees of the Republican Party on the ballot before the names of the nominees of the Democratic Party, the nominees of the Democratic Party having been placed on the sample of the official ballot by the Secretary of State on ap- proval of the Governor before the names of the nominees of the Re- publican Party.

A reference to the Minutes of the State Board of Election Commis- sioners' Meeting on Tuesday, September 9, 1980, at which the names of the candidates for Presidential and Vice-Presidential Electors and other state and state district offices were approved for in- clusion on the ballot, at which meeting the Secretary of State and the Governor were in attendance, reflects that "Secretary of State Pittman moved that registered political parties be listed alphabe- tically on the ballot, and further, that the independent candidates be listed in alphabetical order."

Independent candidates for Presidential and Vice-Presidential Elec- tors were ordered to be listed alphabetically according to the name of the Presidential candidate to whom they were pledged.

Would the "general form" of the official sample ballot "be fol- lowed as nearly as practicable" by such described rearrangement of the names of the party nominees?

We have no Mississippi Supreme Court decisions, either directly or indirectly, deciding this question.

Party nominees for Presidential Electors as actually listed and placed upon the sample official ballot constitute along with the independent candidates for Presidential and Vice-Presidential Electors and candidates for state and state district office the "general form" of the official sample ballot.

With respect to the sample of the official ballot which per- tains only to Presidential and Vice-Presidential Electors and state and state district offices, the provisions of Section 3263, Supra, clearly and unambiguously mandate that the gener- al form be followed as nearly as practicable. As regards Presi- dential and Vice-Presidential Electors and state and state dis- trict office, and these offices only, it is the opinion of this office that the discretionary authority conferred in the first part of the statute upon the Chairman of the Election Commission is restricted to following as nearly as practicable the general form of the sample of the official ballot furnished by the Secre- tary of State. In other words, unless there is in truth and in fact circumstances rendering it impracticable to follow the gen- eral form of the sample of the official ballot, it is the opinion of this office that said form is statutorily required to be fol- lowed. To act otherwise would repeal the clear language of the statute which says: the general form of which shall be followed as nearly as practicable."

While the ascertainment of such impracticalities would require a finding and determination of fact by the Chairman subject to judicial review, you relate no facts or circumstances in this case upon which impracticality might be based.

Therefore, it is the opinion of this office that a reversal in the sequence of the listing of the names of candidates who are nominees of the political parties so that the nominees of one party instead of being listed following the nominees of another party are listed before such nominees would constitute an unau- thorized departure from the general form of the sample of the official ballot.

Your reference to Section 23-5-13, Mississippi Code of 1972, An- notated, is noted. This statute as last attempted to be amended by Chapter 509 of the Laws of 1970 constituted a part of the so- called "Open Primary Law", which has twice received the objection of the United States Attorney General under the Voting Rights Act of 1965, suspending the effectiveness thereof so that the appli- cable statutes are those cited, being Section 3263, Supra, and Section 23-5-3, Supra.

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY:

W. D. Coleman Deputy Attorney General

WDC : nm