Mississippi Advisory Opinions August 20, 2003: AGO 000015816 (August 20, 2003)

AGO 000015816.

Dear Mr.Tate:

Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and response. Your letter reads as follows:

I am the Circuit Clerk of Humphreys County, Mississippi, and, in that capacity, have been involved with the Democratic Primary with the County Democratic Executive Committee. Additionally, I have the responsibility of ordering the ballots for the second primary election. A situation has now developed that requires advice from your office.

The Democratic Primary was held on Tuesday, August 5, 2003. On Wednesday, August 6, 2003, the County Democratic Executive Committee met to certify the results. With regard to the race for the Office of Supervisor for District 2, the Committee made the following certification:

Melvin Norris 30 votes Frank Richards, Sr. 486 votes R.D. "Dickie" Stevens 527 votes Write-in 1 vote

These results were reported to the Secretary of State; however, the Executive Committee did not "announce" at that time that Mr. Stevens was the winner of the primary. On August 13, 2003, Attorney Willie Griffin, representing candidate Richards, requesting a recount of one of the ballot boxes. This letter is attached at Exhibit A. On August 14, 2003, I requested an opinion from your office regarding whether candidate Stevens had received a majority of the votes in the primary. Your office kindly gave me a prompt reply, stating that Mr. Stevens did have a majority. On August 15, 2003, relying on this opinion and a similar opinion from Secretary of State Eric Clark, the Humphreys County Democratic Executive Committee declared Mr. Stevens to be the winner of the August 5 Democratic Primary.

At that same meeting, the Committee decided to treat Mr. Griffin's August 13th letter as an election contest, for today's date, Wednesday, August 20, 2003, at 5:30 p.m. Subsequently, on August 19,2003, Mr. Griffin sent another letter to the Chair of the Executive Committee, stating that Mr. Richards had not filed an election contest in his letter of August 13th (noting that Mr. Stevens had not yet been declared the winner) but that he "will now file a formal petition" for such contest. This letter is attached as Exhibit B. To my knowledge, the petition has not yet been filed. When it is filed, of course, no hearing can be set for an additional five days.

I have now been advised that the Executive Committee is prepared to meet this evening, with the intention of conducting a recount of ballots. However, my responsibilities as Circuit Clerk require that I order the ballots for the second primary today. I request an Official Opinion regarding whether, in the absence of an election contest, the Executive committee is permitted to conduct a recount in an election in which the Committee has already certified the vote count to the Secretary of State.

* * * * *

Limited authority for a party executive committee to conduct an investigation into the results of an election after certification of the results is found in Mississippi Code Section 23-15-921. That section provides as follows:

Except as otherwise provided by Section 23-15-961, a person desiring to contest the election of another person returned as the nominee of the party to any county or county district office, or as the nominee of a legislative district composed of one (1) county or less, may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested; and it shall be the duty of the executive committee to assemble by call of the chairman or three (3) members of said committee, notice of which contest shall be served five (5) days before said meeting, and after notifying all parties concerned proceed to investigate the grounds upon which the election is contested and, by majority vote of members present, declare the true results of such primary.

This code section requires that a person who desires to contest the election of another person who has been returned as nominee of the party must first file a petition setting forth the grounds upon which the contest is based. As indicated in the letter from Mr. Richards' representative dated August 19, 2003, no contest has been filed with regard to this election as of that date. Absent such a contest, Section 23-15-921 provides no authority to conduct an investigation with regard to the election results, and we know of no other authority that would allow an investigation under these facts. Further, we agree with your conclusion that when (or if) a contest is filed, no hearing can be set for an additional five (5) days.

If our office may be of further assistance, please advise.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Heather P. Wagner

Assistant Attorney General