
    James A. WAYNE, Sr. v. Bernell GREEN et al.
    No. 80-C-2233.
    Supreme Court of Louisiana.
    Sept. 29, 1980.
   In re Bernell Green, applying for Certio-rari, or Writ of Review, to the Court of Appeal, First Circuit, Nos. 14,047, 14,042. Ascension Parish, 389 So.2d 104; 389 So.2d 102.

Writ denied.

DIXON, C. J., and LEMMON, J., would grant the writ.

BLANCHE, J., would grant the writ and assigns reasons.

BLANCHE, Justice

(dissenting from denial of writ).

I respectfully dissent from the denial of this writ and would have granted the same if for no other purpose than to give guidance in the very close question presented by this writ in an election case.

If “void” in R.S. 18:502 means “void”, it should mean that the votes cast for a candidate who withdrew from the race should not be counted for any purpose. By denying the writ, we approve of counting void votes to determine if one candidate has received a majority. This may be a proper result but it is a legislative function, and not a judicial one.

The facts show that one candidate received a majority vote over the only other candidate in the race and, according to R.S. 18:511(A), the candidate with the most votes should be the one elected.

LEMMON, Justice

(dissenting from denial of writ application).

It is arguable that votes cast for a candidate who has withdrawn, but whose name appears on the machine or ballot, are validly east and should be counted for purposes of calculating a majority. It is just as arguable, however, that such votes are void for all purposes, similar to votes cast by spoiled ballots.

The legislature did not envision this situation when R.S. 18:502 and 511 were enacted, and since legislative intent is not evident, we should grant the application to resolve the problem.

Legislative clarification, although too late for this case, should be undertaken. 
      
      . Under this view, if such a candidate received 40% of the votes, the second candidate received 31%, and the third candidate received 29%, then a candidate who is the choice of only a small minority of the electors would be elected. The result reached by the court of appeal would prevent such an occurrence.
     