Your office has asked for an official opinion on whether O.C.G.A. § 21-2-325(b) regarding restrictions on ballot wording in counties using voting machines applies to ballot questions intended to implement the 1% sales and use tax for educational purposes passed in the 1996 general election. See Ga. Const. Art. VIII, Sec. VI, Para. IV (1996 Ga. Laws 1668).

Code Section 21-2-325(b) provides in pertinent part that "[e]ach question to be voted on shall appear on the ballot labels, in brief form, of not more than 75 words." The constitutional amendment, however, provides that:

The resolution calling for the imposition of the tax and the ballot question shall each describe:

(1) The specific capital outlay projects to be funded, or the specific debt to be retired, or both, if applicable;

(2) The maximum cost of such project or projects and, if applicable, the maximum amount of debt to be retired, which cost and amount of debt shall also be the maximum amount of net proceeds to be raised by the tax; and

(3) The maximum period of time, to be stated in calendar years or calendar quarters and not to exceed five years.

1996 Ga. Laws 1668, 1669-70. Your office has indicated that the specific language required by the amendment will often require using more than 75 words on the ballot, which might in turn raise the issue of a conflict between the requirements of the constitional amendment and the limitations contained in O.C.G.A. § 21-2-325(b).

As a preliminary matter, I note that O.C.G.A. § 21-2-325(b) and the 75-word limitation contained therein, which is found in Part 2 of Article 9 of Title 21, applies only to ballots used in conjunction with voting machines. Article 8 of Title 21, which deals with paper ballots, and Part 3 of Article 9 of Title 21 dealing with ballots used in conjunction with vote recorders, contain no such limitation. See O.C.G.A. §§ 21-2-285(f), 21-2-354.

The constitutional amendment at issue here specifies what information must be included on the ballot. The amendment does not place a particular word limitation on the ballot question; nor does it specify what kind of ballot mechanism is to be used in conducting the referendum. Accordingly, there would only be a conflict between the constitutional amendment and the 75-word limitation in O.C.G.A. § 21-2-325(b) if counties using voting machines had no other ballot alternative which would permit ballot questions in excess of 75 words. Under the terms of O.C.G.A. § 21-2-334, however,

[i]f a method . . . of voting on any question is prescribed by law, in which the use of voting machines is not possible or practicable, . . . or if, for any other reason, at any primary or election the use of voting machines wholly or in part is not practicable, the superintendent may arrange to have the voting for such . . . questions conducted by paper ballots.

If a ballot question cannot in fact be made to meet the 75-word limitation due to requirements mandated by the constitutional amendment, the use of the voting machine would certainly be "impossible or impracticable" and paper ballots which do not contain the limitation could be utilized.

For the reasons set forth above, it is my official opinion that paper ballots may be used as an alternative to voting machines where ballot questions contemplated by the constitutional amendment authorizing a 1% sales and use tax for educational

purposes cannot be made to adhere to the 75-word limitation contained in O.C.G.A. § 21-2-325(b).

Prepared by:

JEFF L. MILSTEEN
Deputy Attorney General