The Honorable Morril Harriman State Senator 522 Main Van Buren, Arkansas 72956

Dear Senator Harriman:

This is in response to your request for an opinion on the following question:

When a municipality holds an election for the purpose of determining whether or not to levy a local 1¢ sales tax and the results of the election are an exact tie by those voting yes and those voting no, has the issue failed or must it be re-voted upon by the electorate at a run-off election?

It is my opinion that the proposition has failed.

There is no statute governing the procedure to undertake in the case of a tie vote on such measures. The statute requiring the election, A.C.A. § 26-75-208 (Cum. Supp. 1992), does not address the issue. Similarly, we have found no Arkansas cases which provide an answer in such instances. Although there are provisions regarding the procedure to select a winner in the case of a tie vote in elections for certain offices (see, e.g., A.C.A. §§ 7-5-703, 7-5-704 and 7-5-705), no such provision governs the issue with regard to elections to vote upon city widemeasures.

It has been generally stated, however, that ". . . where a proposition is submitted under a statute requiring a majority of the votes cast for its adoption, and the affirmative and negative of the proposition receive the same number of votes, the result is a rejection of the proposition. . . ." 29 C.J.S. Elections § 244 at 678. See also State ex rel. Brownwell,95 Ohio St. 101, 115 N.E. 1007 (1916) (where local option wet/dry vote resulted in tie, the measure was defeated and was an "election" so that the measure could not be resubmitted for two years); andBroadhurst v. Hawkins, 188 Ga. 316, 3 S.E.2d 905 (1939) (same). The cases cited above place emphasis on the fact that the relevant statutes required the measures to pass by a majority of the votes cast thereon, and a tie vote did not represent such a majority.

Although the statute requiring an election on the levy of a municipal sales tax (A.C.A. § 26-75-208), does not state that a majority vote is required for passage (it is simply silent on the question), it has been stated as a general matter that: ". . . it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or a plurality of the legal votes cast in the election" (29 C.J.S. Elections § 243 at 676), and "there can be no plurality where there are but two candidates, or but two ways of voting on a proposition." 29 C.J.S. Elections § 241 at 674. A majority vote is therefore required to pass the sales tax under A.C.A. § 26-75-208,¹ and a tie vote does not represent such a majority.

It is therefore my opinion, absent an election contest as provided for in A.C.A. § 26-75-209, that the measure in question has failed and no "runoff" is required.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh

¹ It is also arguable that such a measure is an ordinance submitted to the people by the city council under A.C.A. §14-55-301(b). Section 14-55-302 makes the provisions of Amendment 7, which requires a majority vote, applicable to such measures.