Mississippi Advisory Opinions September 10, 2008: No. 2008-00516 (September 10, 2008)

Mississippi Attorney General Opinions

2008.

No. 2008-00516.

2008-00516

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Dear Chairman Bracey:

Attorney General Hood has received your request for an official opinion and it has been assigned to me for research and reply.

Question Presented

Where the order of offices on the sample of the official ballot received from the Secretary of State deviates from the order specified in Section 23-15-367, does the chairman of the county election commission have the authority to place the offices in an order that complies with Section 23-15-367?

Response

Yes. Section 23-15-367 requires that the official ballot list offices in a specific order. Where the arrangement of offices on the Secretary of State's sample ballot conflicts with the statute, the statute controls.

Background

A special election to fill a vacancy in the office of U. S. Senate has been set to coincide with the November 4, 2008, General Election. The sample ballot prepared by the Secretary of State and approved by the Governor places the special election for U. S. Senate at the end of the ballot.

Applicable law

Miss. Code Ann. Section 23-15-351 (1972) reads in pertinent part as follows:

It shall be the duty of the chairman of the election commission of each county to have printed all necessary ballots for use in elections...

Miss. Code Ann. Section 23-15-367 (1972) reads as follows:

(1) Except as otherwise provided by Sections 23-15-974 through 23-15-985 and subsection (2) of this section, 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 arrangement need not be uniform.

(2) The titles for the various offices shall be listed in the following order:

(a) Candidates for national office;

(b) Candidates for statewide office;

(c) Candidates for state district office;

(d) Candidates for legislative office;

(e) Candidates for countywide office;

(f) Candidates for county district office.

The order in which the titles for the various offices are listed within each of the categories listed in this subsection is left to the discretion of the officer charged with printing the official ballot.

(3) 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 official ballot, not less than fifty-five (55) days prior to the election, the general form of which shall be followed as nearly as practicable.

Miss. Code Ann. Section 23-15-833 (1972) reads in pertinent part as follows:

All special elections, or elections to fill vacancies, shall in all respects be held, conducted and returned in the same manner as general elections...

In those years when the regular special election day shall occur on the same day as the general election, the names of candidates in any special election and the general election shall be placed on the same ballot, but shall be clearly distinguished as general election candidates or special election candidates....

Analysis

Section 23-15-351 designates the chairman of the county election commission as the official responsible for having the official ballots printed in all county general and special elections. Under Section 23-15-367 the chairman is given discretion to establish for the official ballots:1) the arrangement of the names of the candidates; 2) the order in which the titles of the various offices shall be printed; and, 3) the size, print and quality of paper of the official ballot; all subject to the sequence or order listed in subsection (2) of Section 23-15-367.

Section 23-15-367 also makes it the duty of the Secretary of State to, "furnish the designated commissioner of each county a sample of the official ballot...the general form of which shall be followed as nearly as practicable." The ballot the Secretary of State furnishes is a sample only.

Prior to 2000, state law did not mandate the order of offices which are to appear on the official ballots.

However, in 2000, Section 23-15-367 was amended to specify that the order of offices shall be: national, statewide, state district, legislative, countywide and county district. The amendment was precleared by the U. S. Department of Justice on July 28, 2000. In 2002 the State Board of Election Commissioners, in accordance with the new statutory language, correctly placed a contested Court of Appeals special election on page 3 of a 22 page sample ballot along with other Court of Appeals state district races, which helped to assure that a contested state district race was not buried at the end of the ballot. See enclosed 2002 sample ballot.

Nowhere does state law allow or require that special elections be placed at the end of the general election ballot. Section 23-15-833 simply requires that candidates in a special election be "clearly distinguished" as such. This can be done easily, as was done in 2002, by placing on the ballot a banner or heading over that race, without violating Section 23-15-367(2).

Furthermore, state law does not permit any deviation from the order of offices established in Section 23-15-367. Moreover, Section 23-15-367 makes clear the required order of offices. Within the categories of offices established in Section 23-15-367, county election commissions have no discretion when it comes to the order of offices that are to appear on the official ballots.

Nor does Section 23-15-367 make any distinction between general and special elections on the same ballot. To separate general elections for U. S. Senate and special elections for U. S. Senate violates the intent of the Legislature that each voter's ballot be clearly divided into offices at the national, statewide, state district, legislative, countywide and county district levels. The intent of the Legislature was to avoid ballot arrangements that lead to voter confusion and which ultimately lead to the votes of citizens going unrecorded and uncounted.

Conclusion

Therefore, it is clear that since the effective date of the 2000 amendment to Section 23-15-367, statewide offices must be grouped together on the ballot, with any special elections to be clearly distinguished as such. Where the Secretary of State issues a sample ballot which violates the order of offices set out in Section 23-15-367(2), the chairman of the county election commission has the authority and duty to place the offices on the county's official ballots in the order required by Section 23-15-367.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely yours,

JIM HOOD, ATTORNEY GENERAL

By: Reese Partridge

Assistant Attorney General