Mississippi Advisory Opinions October 16, 1995: AGO 000011328 (October 16, 1995)

AGO 000011328.

Dear Ms. Herrington:

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

"On August 29, 1995 Simpson County Sheriff Lloyd Jones won the Democratic nomination to be placed on the ballot for re-election as Sheriff of Simpson County for the November 7, 1995 General Election. Ballots for the election were prepared and delivered to the Magee Courier for printing on September 20, 1995 by the Simpson County Election Commissioners. Two weeks later on October 4, 1995 these ballots were in the process of being printed when Sheriff Lloyd Jones was murdered. Printing of the ballots was cancelled by the Circuit Clerk, Wiley Magee without knowledge or consent of the election commissioners. Pursuant to Section 23-15-317 the Simpson County Democratic Committee met on October 7, 1995 in a special meeting to select a replacement nomination for Sheriff of Simpson County, Mississippi, voting 16 to 4 in favor of having Mr. Doyle King's name placed on the ballot. The name of the candidate was not given to the election commissioners until Tuesday, October 10, 1995. This was done after the ballots were ordered to be printed, again without the knowledge or consent of the election commissioners. Ballots were delivered to the election commissioners on Monday, October 9, 1995. Then and only then is when the election commissioners knew actually who was appointed.

Concerned citizens of Simpson County have responded overwhelmingly in a negative manner to the fact that 20 citizens can decide the candidate, responding to the election commissioners and the Office of Attorney General and whomever they think can help.

In view of these facts and the overwhelming response from the citizens, the election commissioners are asking for an opinion from the Attorney General as to whether or not a write-in candidate can be placed on the ballots and if so, how should it be handled by the election commissioners.

Your prompt response will be deeply appreciated."

Mississippi Code Annotated, Section 23-15-317 (Revised 1990) provides, in part:

"If any person nominated for office in a primary election shall die, .... and such vacancy in nomination shall occur between the primary election and the ensuing general election, then the .... county .... executive committee with which the original nominee qualified as a candidate in the primary election shall nominate a nominee for such office. .... All nominations made pursuant to the provisions of this section shall have the same force and effect and shall entitle the nominees to all rights and privileges that would accrue to them as if they had been nominated in the regular primary election.

..."

Section 23-15-365 provides:

"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, .... 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."

Section 23-15-469, dealing specifically with the "punch- card" voting system, which we understand is utilized by Simpson County, provides in part:

".... A separate write-in ballot, which may be in the form of a paper ballot, card or envelope in which the voter places his ballot card after voting, shall be provided if required to permit voters to write in the title of the office and the name of a person on the printed ballot for whom he wishes to vote."

We note that Section 23-15-317 was enacted by the Legislature in 1984 while Section 23-15-365 remains virtually unchanged from the way it appeared in the 1892 Code (Section 3653).

Section 23-15-317 provides for the naming of a substitute nominee when a vacancy occurs between the primary election and the ensuing general election. It does not make the naming of a substitute nominee contingent upon the ballots not being printed at the time of the vacancy or at the time of naming said substitute nominee. Since Section 23-15-317 specifically gives substitute nominees "all rights and privileges that would accrue to them as if they had been nominated in the regular primary election" it is our opinion that the statute contemplates that the names of substitute nominees appear on the general election ballot.

Section 23-15-365 specifically provides for "write-in" votes when a candidate whose name appears on the ballot dies, etc.

This presents a conflict between the two statutes regarding the situation in Simpson County in that on the one hand the statutory substitution provisions bestow upon the substitute nominee all rights and privileges enjoyed by the original nominee, including the right to have his name appear on the general election ballot in lieu of the name of the original nominee, and, on the other hand, the "write-in" provisions authorizing write-in votes only when a candidate whose name appears on the ballot dies, etc. Pursuant to the rules of statutory construction, when statutes affecting a particular situation are in conflict they should be construed, if possible, in harmony with each other so as to give effect to each. Atwood Chevrolet-Olds., Inc. v. Aberdeen Municipal School District, 431 So.2d 926 (Miss. 1983).

We do not think it was the intent of the Mississippi Legislature, in enacting Section 23-15-317 (the substitution process), to nullify Section 23-15-365 (the write-in provision). In this situation "write-in" votes must be allowed in order to insure a full, fair, and free expression of the public will. Walker v. Smith, 56 So.2d 84 (Miss. 1952). Therefore, we must give effect to both statutes.

Based on the above, and in response to your specific question, it is our opinion that the voters in the Simpson County General Election for sheriff may, at their option, write in the name of a qualified individual whose name does not appear on the ballot and that such votes would be valid. There being no majority vote requirement in a general election for sheriff, the person receiving a plurality of the votes will be declared elected.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By: Phil Carter Special Assistant Attorney General PC:sm