Mississippi Advisory Opinions August 08, 2003: AGO 2003-0428 (August 08, 2003)

Advisory Opinion Text

Hon. Judy K. Butler

Monroe County Circuit Clerk

P.O. Box 843

Aberdeen, MS 39730

Re: appointment of city clerk

Dear Ms. Butler:

I have received your recent letter via facsimile requesting an opinion on the question of whether one should count over and under votes in the Monroe Justice Court Judge District 3 County Primary Election when determining whether a majority vote has occurred in that particular election.

The word “ballot” is not synonymous with the word “vote.” A ballot is the means on which votes are recorded for elections. Miss. Code Ann. Section 23-15-505 . Mississippi Code Ann. Section 23-15-305 states that “no person shall be declared to be the nominee of his party unless and until he has received a majority of votes cast for such office ... “. [Emphasis added] Furthermore, Miss. Code Ann. Section 23-15-547 states:

If a voter marks more names than there are persons to be elected to an office, or if for any reason it be impossible to determine from the ballot the voter's choice for any office vote for, his ballot so cast shall not be counted for that office. A ballot provided in accordance with law shall not be deposited or counted.

If a voter voted in one or more of the Monroe County Democratic Primary elections but did not vote in the Monroe Justice Court Judge District 3 County Primary Election, then their ballot should not be counted for purposes of determining the total number of qualified electors who voted in the Monroe Justice Court Judge District 3 County Primary Election. Likewise, if a voter's ballot is not counted for the office of Monroe Justice Court Judge District 3 in the County Primary Election because it violates Miss. Code Ann. Section 23-15-547, then that ballot shall not be counted for purposes of determining the total number of qualified electors who voted in the Monroe Justice Court Judge District 3 County Primary Election.

Yours truly,

Mike Moore Attorney General.