Mississippi Advisory Opinions November 14, 1991: AGO 000005463 (November 14, 1991)

AGO 000005463.

Dear Mr. Minor:

Attorney General Mike Moore has received your letters of request and has assigned them to me for research and reply. Your letters of request concerning a school bond election in Panola County are similar, and thus, are consolidated into one opinion. It is our understanding that Panola County utilizes the Optical Mark Reading Equipment Voting System OMR. The two (2) questions presented are summarized below with responses immediately following:

Question (1): Who has the authority to determine whether the bond election has passed by a 3/5's majority vote? Response to Question (1): In response to your inquiry, the school board has the duty to determine whether a majority has been reached. Mississippi Code Annotated Section 37-59-17 (Rev. 1990) states:

When the results of the election on the question of the issuance of such bonds shall have been canvassed by the election commissioners of such county or municipality, and certified by them to the school board of the school district, it shall be the duty of such school board to determine and adjudicate whether or not three-fifths (3/5) of the qualified electors who votes in such election voted in favor of the issuance of such bonds. Unless three-fifths (3/5) of the qualified electors who voted in such election shall have voted in favor of the issuance of such bonds, then such bonds shall not be issued. Should three-fifths (3/5) of the qualified electors who vote in such election vote in favor of the issuance of such bonds, then the school board of such district shall issue such bonds, either in whole or in part, within two (2) years from the date of such election, or within two (2) years after the final favorable termination of any litigation affecting the issuance of such bonds, as such school board shall deem best.

It is, therefore, the duty of the school board, and not the election commission, to determine whether or not a 3/5 majority vote has been attained. The commission only certifies the votes, determining the number of legal votes and how many votes were in favor and against the bond election.

Question (2): Are over and under votes on a ballot counted to determine whether a 3/5's majority of voters assented to a bond issue?

Response to Question (2): In response to your inquiry, only ballots which include a vote either in favor or against the bond issue should be counted in determining whether a 3/5's majority vote has occurred.

Mississippi Code Annotated Section 37-59-17 (Rev. 1990), which is quoted above, states that the school board shall examine the number of qualified electors that voted in such election, which is the bond election, to determine whether a 3/5's majority has been obtained.

Moreover, according to Mississippi Code Annotated Section 23-15- 503 (Rev. 1990), which is cited in your letter, the word "ballot" is not synonymous with the word "vote." A ballot is the means on which votes are recorded. A ballot may contain several elections which are to be voted on. Merely because a qualified elector votes on a ballot which contains a bond election as well as other elections does not mean that the voter participated in the bond election. If voters voted in other elections but did not vote in the bond election, their ballots should not be counted for the purpose of determining the total number of qualified electors who voted in the bond election.

To establish the general rule that all ballots cast in an election must be counted as a vote in each and every proposition or office which appears on the ballot would be to say that when two (2) candidates are seeking a particular office and a certain number of voters choose not to vote for either candidate that their ballots must still be counted as a vote in that election.

This could lead to a situation where the leading candidate would not have a required majority vote.

Furthermore, Mississippi Code Annotated Section 23-15-547 (Rev. 1990) states:

If the 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 voted for, his ballot so cast shall not be counted for that office. A ballot not provided in accordance with law shall not be deposited or counted.

This section prohibits ballots from being counted where it is impossible to ascertain the voter's choice, for any reason. Even though this section applies to ballots that pertain to elections of candidates for office, it is logical to assume that the legislature also intended this section to apply to elections on other issues, such as bond elections. Whether it be a spoiled ballot, a ballot in which the voter marked more than one place, or a ballot in which the voter did not make any mark as to that particular election, there should only be one test. The Court in Tedder v. Board of Supervisors of Bolivar County, 214 Miss. 717, 59 So. 2d 329, 334 (1952), referring to spoiled or marked ballots, stated that "[t]he test . . . is whether it is possible to reasonably determine from the ballot the voter's choice." There is no way to determine the voter's choice if the voter did not mark anything as to that election.

Where there are two or more distinct questions being voted upon, the voter is to vote separately for each. This is to make sure "that elections [are] conducted by such means and in such manner as to ascertain, so far as practicable, the true and untrammeled will of the electorate . . . ." In re Validation Bonds, City of Moss Point, 170 Miss. 886, 156 So. 516 (1934). Therefore, the elector's separate votes should not be integrated into one by counting only the ballot as a whole for the purpose of determining whether a majority has been reached. The votes which are recorded upon the ballot should only be included in determining whether a majority has been reached in the elections in which the voter actually voted.

Therefore, it is the opinion of this office that only ballots in which qualified voters have voted for or against the bond election shall be counted to determine whether a 3/5's majority has been reached.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter PC:mfd Special Assistant Attorney General