Mississippi Advisory Opinions October 02, 1991: AGO 000005428 (October 2, 1991)

AGO 000005428.

Dear Ms. Nichols:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

"The Democratic Executive Committee in Issaquena County met September 30, 1991. We decided that the two affidavit ballots in question should be opened and counted. Only one of the ballots had been marked for the supervisor, so this leaves us with a tie vote. The question now is how to break this tie. Let me remind you that there were only two candidates for supervisor in the first primary.

According to our phone conversation on September 30th, you told me that in case of a tie in the first primary, the correct procedure is a run-off election in the second primary. Mr. Clements, an Attorney for the Election Commission, argued that the tie would have to be broken by casting lots.

I am writing you to obtain a written opinion from the Attorney General's Office concerning the correct procedure for breaking the tie."

Mississippi Code Annotated Section 23-15-305 (1990) provides in part:

"The candidate who received the majority number of votes cast for the office which he seeks shall thereby become the nominee of his party for such office and no person shall be declared to be the nominee of his party unless and until he has received a majority of the votes cast for such office, except as hereinafter provided. If no candidate received such majority of the votes cast in the first primary, then the two (2) candidates who receive the highest number of votes cast for such office shall have their names submitted as such candidates to the second primary and the candidate who leads in such second primary shall be nominated for the office.

..." (emphasis ours)

The Mississippi Supreme Court has made it clear that when there is a tie in a second primary the nomination is to be decided by the drawing of lots as opposed to holding a "third primary". See Omar v. West 188 So. 917 (1939). However, as indicated in Omar and the above quoted statute it is our opinion that when no candidate receives a majority of the votes in the first primary the two (2) candidates receiving the highest number of votes shall have their names submitted as candidates in the second primary. This would, in our opinion, be applicable when there are only two (2) candidates in the first primary and they get an equal number of votes.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General PC:mfd