Mississippi Advisory Opinions November 30, 1983: 19831130 (November 30, 1983)

Advisory Opinion Text

Mr. J. P. V. Heath

Chairman

Montgomery County Election Commission

Post Office Box 765

Winona, Mississippi 38967

Dear Mr. Heath:

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

You present the following facts upon which you base your questions for opinion:

“Frank Surles gained the nomination of the Democratic Party for the office of Superintendent of Education of Montgomery County, Mississippi, in the August 1983 Primaries conducted by the Democratic Executive Committee of Montgomery County, Mississippi. No other political party nominated a candidate for this office and no independent qualified as a candidate for the office. Under these circumstances and pursuant to the provision of MCA § 23-5-134, the Montgomery County Election Commission placed only Mr. Surles' name upon the ballot for the November 1983 General Election as a candidate for said office. In further compliance with the provisions of MCA § 23-5-137, the aforesaid General Election Ballot contained a blank space in addition to the name of Mr. Surles under the title of Superintendent of Education.

“Mr. Surles died on November 2, A.D., 1983, subsequent to the date the official ballots were printed. The name of no other candidate was substituted by way of political party nomination, independent petition, or action of the Montgomery County Election Commission.

“The General Election was conducted and held on November 8, 1983, in and for Montgomery County, Mississippi, wherein a total of 4, 834 ballots were cast. Of the total ballots cast, 2, 651 had the name of a person written in on the blank line under the title of the office of Superintendent of Education.

“The write-in votes were distributed between 18 persons with the four highest persons receiving the following number of write-in votes, to-wit: 856, 752, 583, and 447. The other write-in names received 13 votes in the aggregate.”

You present the following questions, each of which is to be followed by the opinion in response thereto:

“1. Whether or not a name may be written in on a General Election Ballot for an office where the only person whose name appears as a candidate for that office dies subsequent to the final date for the certification of political party nominees or qualification of independents by petition and prior to the date of the election but after the ballots have been printed; and, if not”

The answer to this question is found in § 23-5-137, Mississippi Code of 1972, Annotated, here quoted for convenient reference:

“There shall be left on each ballot one blank space under the title of each office to be voted for, and in the event of the death of any candidate whose name shall have been placed on the official ballot, the name of the candidate duly substituted in the place of such deceased candidate may be written in such blank space by the voter.”

Therefore, it is the opinion of this office that “ . . . a name may be written in on a General Election Ballot for an office where the only person whose name appears as a candidate for that office dies subsequent to the final date for the certification of political party nominees or qualification of independents by petition and prior to the date of the election but after the ballots have been printed ; . . . ” (Emphasis Supplied)

“2. Whether ballots containing the write-in names must be discarded as 'marked' or 'spoiled ballots' in their entirety.” It is the opinion of this office that ballots containing the written-in names of candidates by qualified electors and voters, which ballots are otherwise legal and valid, are required to be counted and must not be discarded as “marked” or “spoiled ballots”.

Very truly yours,

Bill Allain Attorney General