Mississippi Advisory Opinions May 06, 2005: AGO 000016587 (May 6, 2005)

AGO 000016587.

Dear Mr. Wiggins:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter is summarized below.

You explain in your letter that the Town of DeKalb (the "Town"), assisted by the East Central Planning and Development District (ECPDD), submitted to the United States Department of Justice (DOJ) a redistricting plan for the Town in late January of 2005. (On April 27, 2005, the city clerk advised me in a telephone conversation that the initial submission date was February 21, 2005). All candidates filed qualifying petitions to run as independent candidates. You also state that based on the suggestion of the ECPDD, all candidates for the five alderman positions (all elected by ward) were advised to file their petitions under the proposed ward lines which had been submitted to DOJ and which were not in effect. In late March, DOJ asked for additional information, thus triggering the possibility of an additional sixty days before preclearance. (In my April 27, 2005, phone conversation with the city clerk she advised me that the request date for additional information was April 6, 2005) On April 27, 2005, the city clerk also advised me in our telephone conversation that DOJ subsequently asked (On April 26, 2005) for further information which the town is in the process of providing. As of the date of your letter, DOJ has not precleared the proposed ward lines.

Of the eight candidates for alderman who filed qualifying petitions, three are incumbents running unopposed in their wards (Wards 1, 2, and 5), three are candidates for Ward 3 alderman, and two filed petitions for Ward 4 alderman. All but one of the eight candidates were certified by the election commission: one of the two candidates for Ward 4 alderman, who is also an incumbent, was disqualified by the election commission for failing to have the name of the candidate printed on the petition pages.

It is my further understanding from my April 27, 2005, phone conversation with the city clerk that the petitions filed by three of the four unopposed candidates are valid under both the current (old) ward lines and the proposed (new) ward lines.

You have asked the following six questions:

1. Are the 2005 elections in the Town of DeKalb to be governed by the existing ward lines or by the proposed ward lines, if approved by the Justice Department?

2. If the Town is required to follow the existing ward lines, then would the Town be required to "de-certify" the candidates who failed to produce petitions signed by the qualified electors of the respective wards as they now exist?

3. The plain language of Mississippi Code Annotated Section 23-15-361 governing the filing of petitions by 5:00 pm on the statutory deadline date appears to preclude the filing of any "supplemental petitions" as described in the McMullin and Ezell opinions. Are such petitions permitted after the expiration of the deadline, an issue which apparently did not exist in the context provided in the said prior opinions?

4. If "supplemental petitions" are proper, would they be limited to those candidates who failed to obtain signatures from the electors of the current ward lines, or could they likewise be obtained from candidates who failed to complete the petitions originally filed?

5. The aforesaid statute also states plainly that all municipal candidates filing by petition are to produce petitions signed by the "qualified electors" of the municipality, without any mention of ward, precinct, or other subdivison. Although common sense might presume that the electors are to be from the same ward as the proposed alderman candidate, the statute does not so state. Does Section 23-15-361, or other provision, specifically require the signers of an alderman candidate's petition to be a qualified elector from that particular ward?

6. In the event that the candidates are "de-certified" and "supplemental petitions" are not proper, would the new board of alderman in July, 2005, then have to declare vacancies and set a special election , or would the current alderman "hold over" until a special election could be held, and, if so, upon what basis could a hold over officer declare a vacancy in his or her position in which he or she is holding over?

In response to Question 1, the general answer is that the election must be held under the ward lines that are in effect on the date of the election. However, state law requires, inter alia, that absentee ballots be prepared and available weeks prior to the election date so that they may be received and voted by disabled voters, voters age 65 and older, voters temporarily residing outside the county (including military voters), as well as several other categories of voters. (See Miss. Code Ann. Sections 23-15-683 and 23-15-715 (1972), requiring the printing of absentee ballots, and their availability to be voted, 45 days prior to the date of the election.) State law also requires that accurate pollbooks be prepared and available for both election day voters and absentee voters, with voters assigned to proper wards so that they receive proper ballots. (See Miss. Code Ann. Section 23-15-153, requiring the revision of pollbooks by the election commission.) State law requires the printing of election day ballots in sufficient time for them to be used in the general election. (See Miss. Code Ann. Sections 23-15-361 and 23-15-353(1972)). These considerations, and others, require that DOJ preclearance be received in sufficient time prior to the election day so that absentee and election day ballots can be printed, so that voters can be assigned to the appropriate pollbooks in order that they receive valid absentee and election day ballots, and so that absentee voters are not disenfranchised due to delays and reduced availability of absentee ballots.

In response to Question 2, if at the time that absentee ballots are printed the new ward lines have not been precleared by DOJ, then only those candidates whose petitions are valid under the current (old) ward lines would be qualified to have their names printed on the ballots.

In response to Question 3, MS AG Op., McMullin (April 18, 2003) and MS AG Op., Ezell (January 16, 1991) are inapplicable in this instance because in the factual situations addressed in those opinions the candidates filed candidate petitions and qualifying papers which were valid under the ward lines which were in effect at the time the petitions were submitted, whereas in the situation you have described, the candidates filed petitions based on the proposed ward lines which have never been in effect. Therefore, unlike the McMullin and Ezell scenarios, the candidate petitions filed with the DeKalb city clerk which contained only a legally sufficient number of signatures of qualified electors to qualify under the proposed (not currently effective) ward lines were not valid at the time they were submitted, and cannot be supplemented by additional signatures so that they would now contain a legally sufficient number of signatures of qualified electors from the old, and currently still effective, ward lines.

Question 4, therefore, is now moot.

In response to Question 5, MS AG Op., Barbour (February 1, 1982), addressed Miss. Code Ann. Section 23-5-134 (1972), the statutory precursor to Miss. Code Ann. Section 23-15-361 (1972), which contains language identical to that which you make reference. Consistent with that opinion, we opine that Section 23-15-361 requires that signatures on municipal ward candidate petitions, to be valid, must be those of qualified electors of the ward for the office sought.

In response to Question 6, an incumbent alderman who served for the preceding term in an office for which no candidate has filed a valid qualifying petition for the upcoming term could "hold over" in accordance with Miss. Code Ann. Sections 21-15-1 and 25-1-7 (1972), until a special election to fill a vacancy is held as required by Miss. Code Ann. Section 23-15-857 (1972), assuming his bond remains in effect. See MS AG Op., Wood (July 31, 2001); and MS AG Op., Cooper (April 21, 1981). As we stated in the Cooper opinion, "Whether the present incumbent remains in office or relinquishes the office, there occurs a vacancy to be filled by election subsequent to the municipal election."

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Reese Partridge Special Assistant Attorney General