Mississippi Advisory Opinions October 24, 2003: AGO 000015898 (October 24, 2003)

AGO 000015898.

Dear Mr. McFatter:

Attorney General Mike Moore has received your request for an official opinion on behalf of the Town of Port Gibson and has assigned it to me for research and response. As your letter is quite lengthy, it is attached and incorporated by reference.

To summarize the facts as presented to us, the Town of Port Gibson operates under a Private Charter. The relevant portion of that charter, which is Section 2(c), provides as follows:

The Mayor and Aldermen shall be elected by the qualified electors of the town, at an election to be held on the first Tuesday after the first Monday in December, 1987, and every four years thereafter, a plurality of the vote cast at any election for Mayor and Aldermen shall elect. The candidates elected at such elections shall qualify at any time before the first Monday in January succeeding the same; and shall enter upon their official duties on the first Monday in January aforesaid, and hold their respective offices for four years.

The next regularly scheduled general election for municipal offices is December 2, 2003. Based upon the information you provided, there is also a primary election schedule, with the first primary being scheduled for November 11, 2003, and a run-off, if necessary, scheduled for November 2003.

On May 5, 2003, a citizen submitted a petition to the governing authorities pursuant to Miss. Code Ann. Section 21-17-11, which was signed by 20% of the qualified electors. The proposition sought to amend Section 2(c) of the municipal charter to strike the language regarding a plurality vote and require a candidate to received a majority of the vote in the general election, reading as follows:

If three or more candidates are on the ballot for any elective office in the general election and no candidate receives a majority (50% plus 1) of the votes cast in the election, a runoff election between the candidates with the two (2) highest tallies must be held.

Section 21-17-11 requires a municipality receiving such a petition signed by the requisite number of electors to set a special election on the question of whether the amend the municipal charter. The citizen who initially presented the petition filed a complaint against the Town to compel the setting of an election on this question. In resolution of that court proceeding, the parties entered into an Agreed Order, in which the Town agreed to hold the special election on the charter amendment issue at the same time as the regularly scheduled primary election, November 11, 2003.

* * * * *

You have presented several questions with regard to the upcoming proceedings, which we will address in the order presented.

1. Is the Town of Port Gibson required by law to use separate ballots, separate ballot boxes and/or separate ballot receipt books for the special election regarding the proposed amendment, or can the question be placed on the same ballot with the candidates for municipal office?

The Mississippi Supreme Court addressed a similar question in the case of Barnes v. Barnett, 129 So.2d 638 (Miss. 1961). In considering a challenge to the conduct of an election regarding an amendment to the state constitution, the Court found that it was appropriate to conduct such an election at the same time as party primary elections, provided that separate ballots and separate ballot boxes were to be used. Based upon the Court's holding in that case, it is the opinion of this office that the Town of Port Gibson must use separate ballots, separate ballot boxes and separate ballot receipt books. As we have opined previously, it is permissible for one set of poll workers to handle both the primary election and the special election on the charter amendment. MS AG Op., Moore (May 1, 1986).

2. If the proposed amendment is passed by the voters on November 11, 2003, and if the charter amendment is approved by the Governor prior to December 2, 2003, would the charter amendment apply to the Town's general election which will be held on December 2, 2003?

Section 21-17-11 requires that if the election results in favor of the proposed charter amendment, it is to be submitted to the Governor in accordance with Section 21-17-9 for approval. If the electors vote in favor of the proposed charter amendment and it is submitted to the Governor for review and approval pursuant to the procedures established in Section 21-17-9,and receives that approval prior to the December 2, 2003, general election, we find no reason that the amendment should not be applicable to the December 2, 2003, election. However, we stress that the amendment may only be enforced if it has also received "preclearance" from the U.S. Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965.

3. If the proposed charter amendment is approved by the voters and the Governor and applied to the December 2, 2003, election, and if a run-off election is required pursuant to the terms of the charter amendment, when should the run-off election be held?

This question must be reviewed with particular attention to the provision of the Town Charter requiring the newly elected officers to qualify for their offices no later than January 5, 2004, and enter upon their duties on January 5, 2003.

There is no language in either the current charter provisions or the proposed charter amendment that address the timing of a run-off from the general election. Reverting to provisions of general law, we were also unable to find direct guidance. Section 23-15-611, which is the general provision for determining the winner of elections for municipal offices, provides that if two or more candidates receiving the highest number of votes receive an equal number of votes, the winner is to be decided by lot. Section 23-15-857 discusses the timing of a run-off in an election to fill a vacancy in a municipal office, setting it one week after the election date. We suggest that the Town of Port Gibson may wish to utilize this one-week time frame should the proposed charter amendment be passed by the electorate and become applicable to the December 2, 2003, general election, but this is simply a suggestion, and any final determination should be made by the governing authorities.

We would caution that in order the establish any time frame for the run-off election mandated by the proposed charter amendment, additional measures must be taken by the governing authorities of the Town of Port Gibson. A charter amendment proposed by the governing authorities pursuant to Section 21-17-9 could properly address this issue, but the timing of this option may preclude its practicality. Another option would be an amendment to the Agreed Order to specifically sets a date for any required run-off if the proposed amendment is approved by the electors. Again, the establishment of a date for a run-off from the general election would required Justice Department review and preclearance prior to being enforceable.

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

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Heather P. Wagner

Assistant Attorney General