Mississippi Advisory Opinions October 15, 2010: No. 2010-00580 (October 15, 2010)

Mississippi Attorney General Opinions

2010.

No. 2010-00580.

Dear Mr. Yarborough:

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

Background

Your letter encloses a copy of the City of Waveland's private charter and asks nine questions regarding the conduct of the city's upcoming elections.

From my conversations with you and other local officials who have contacted this office, we understand that the facts are that an individual has appeared in local media, including newspapers and talk radio, urging voters to write in his name for the office of alderman at large.

Our further understanding is that no candidate in the upcoming elections has died, resigned, withdrawn or been removed.

Additionally, your letter goes on to state

Regarding the upcoming elections, questions have arisen related to the propriety of the City of Waveland's operation under its Special Charter. Specifically, some citizens contend that special (or private) charter municipalities do not exist, and the City of Waveland is obligated to have an "alderman at large" position.

Questions Presented and Responses

Your questions are presented below with our responses provided seriatim .

Question 1: Can the City of Waveland operate pursuant to a special charter, or are all municipalities requiredto operate under a "code" charter form of government?

RESPONSE: Miss. Code Ann. Section 21-1-9 (1972), which establishes the forms of municipal government authorized in Mississippi and makes reference to Private Charters, which are frequently referred to as "special charters".

Miss. Code Ann. Section 21-3-1 (1972) provides the procedure by which municipalities which are not currently operating under a code charter may adopt a code charter. This procedure requires any such municipality which wishes to adopt the code charter form of government to hold an election in which a majority of the electors therein vote in favor at a special or general election to adopt the code charter. Similar provisions apply for municipalities wishing to adopt the council form of government, the mayor-council form of government, the commission form of government, and the council-manager form of government.

There are numerous Mississippi Supreme Court cases where the provisions of municipal special charters have been upheld. See, inter alia , Tisdale v. City Council of Aberdeen , 856 So.2d 323 (Miss. 2003), Myers v. City of McComb , 943 So.2d 1 (Miss. 2006), City of Grenada v. Harrelson , 725 So.2d 770 (Miss.1998).

Accordingly, without question, municipalities are authorized in Mississippi to operate under a special charter in conformance with state law.

Question 2. If the City of Waveland operates under its Special Charter, is it correct that the City of Waveland has only four aldermen positions and a mayor's position? Is it also correct that the City of Waveland has no "alderman at large" position.

RESPONSE: According to our reading of the Special Charter, the City of Waveland has a mayor and four aldermen elected by ward, but has no alderman at large.

Question 3. If the City of Waveland operates under its Special Charter, is it correct that qualified voters of the City of Waveland cannot vote for any candidate residing in any other ward except for mayor?

RESPONSE: That is correct.

Question 4. Is it correct that the City of Waveland is only required to place blank "write-in" spaces below the title of each office for which a person is to be elected, namely below the positions of mayor and the four alderman?

RESPONSE: That is correct. As provided in Miss. Code Ann. Section 23-15-365 (1972), write-in lines are printed on the ballot only for "each office to be voted for". There is no authority to provide write-in lines for any other office or offices. Section 23-15-365 reads as follows:

There shall be left on each ballot one (1) blank space 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 shall have been printed on the official ballot, the name of the candidate duly substituted in the place of such candidate may be written in such blank space by the voter.

Question 5. Is it correct that "write-in" votes are relevant in the instance of death, resignation, withdrawal or removal of qualified candidates?

RESPONSE: That is correct. Unlike many other states, Mississippi authorizes write-in votes in only the limited circumstances set out in Section 23-15-365. See also MS AG Op., Hatcher (March 23, 2001). See also the provisions of Miss. Code Ann. Section 23-15-333 (1) (1972).

Question 6. Is it correct that "writing in" names of unqualified candidates in a primary election renders the vote invalid?

RESPONSE: See response to Question 5. In the facts you have presented, where there has been no death, resignation, withdrawal or removal of qualified candidates, all write-in votes are invalid.

Question 7: Is it correct that "writing-in" names of unqualified candidates when a candidate has not died, resigned, withdrawn or been removed renders that vote invalid?

RESPONSE: See response to Question 5. In the facts you have presented, where there has been no death, resignation, withdrawal or removal of qualified candidates, all write-in votes are invalid.

Question 8: Is it correct if a voter marks more names than are to be elected for an office (e.g., "writes in" the name of a candidate for ward 2 alderman and also selects a qualified candidate for ward 2 alderman) that vote may not be counted for that office?

RESPONSE: Question 8 describes an overvote. When an elector casts more votes for any office or measure than the voter is entitled to cast, all the elector's votes for that office or measure are invalid and the voter shall be deemed to have voted for none of them. See Miss. Code Ann. Section 23-15-483 (1972) and Miss. Code Ann. Section 23-15-523 (1972).

Question 9: Is it correctthat if a voter "writes in" a candidate name such that it is impossible to determine the voter's choice for any office voted on, his ballot shall not be counted for those offices for which his choice is impossible to determine?

RESPONSE:Miss. Code Ann. Section 23-15-523 provides a procedure by which the resolution board shall attempt the determine the intent of a voter when the voter's marks on the ballot itself are unclear or cannot be read by the optical mark reader. If the intent of the voter cannot be determined by the resolution board consistent with the provisions of Section 23-15-523, then the vote cannot be counted.

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

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Reese Partridge

Assistant Attorney General