Mississippi Advisory Opinions November 22, 2006: No. 2006-00599 (November 22, 2006)

No. 2006-00599.

2006-00599

Dear Mr. White:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. Your letter states:

As City Attorney, I have been asked to get an opinion on the election. The facts are as follows: On Friday, October 6, 2006 at approximately 4:45 p.m. a gentleman came into City Hall and advised the Assistant City Clerk that he wanted to run for Selectman of Ward One. He walked over to the city map and pointed out where he lived. He was informed that he did not live in Ward One but lived in Ward Two. The Assistant City Clerk again informed him that he lived in Ward Two. He insisted that he fill out papers to run for Ward One Selectman.

This gentleman is a Republican and the Republican Committee allowed him to run as Selectman at Large and he was certified by the committee to run as Selectman at Large.

The McComb City Elections Commission is requesting an opinion as to what authority, if any, it has to either place his name on the ballot as a candidate at large or not allow his name to be placed on the ballot for the General Election on December 4, 2006.

We assume that there is nothing in the special charter of the City of McComb that is contrary to the provisions of the general state laws regarding this matter.

It is our understanding that the candidate in question did, in fact, file his statement of intent to run for Ward One Selectman. It is our further understanding that the McComb Republican Executive Committee, in reviewing that statement of intent, determined that said candidate was not eligible to run for Ward One Selectman but declared him eligible to run for Selectman at Large and placed his name on the primary election ballot for that position. He won that primary election.

Mississippi Code Annotated Section 23-15-961 (Revised 2001) sets forth the exclusive procedure for any person to contest the qualifications of another person's candidacy for nomination in a political party primary election. It provides that a petition setting forth the grounds for the challenge must be filed with the executive committee within ten (10) days after the qualifying deadline.

It is our understanding that either there was no such petition filed or that one was filed and then withdrawn. In any event, apparently no contest of qualifications was pursued under Section 23- 15-961.

Election commissions have the duty to determine the qualifications of persons certified to them as nominees of a political party as well as independent candidates. Powe v. Forrest County Election Commission, 163 So.2d 656 (Miss. 1964).

Mississippi Code Annotated Section 23-15-361 (5) specifies the procedure that a municipal election commission must follow in ruling on party nominees' qualifications. It provides in part:

The municipal commission shall determine whether each party candidate in the municipal general election is a qualified elector of the municipality, and of the ward if the office sought is a ward office and shall determine whether each candidate either meets all other qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to office.

The municipal election commission also shall determine whether any candidate has been convicted of any felony in a court of this state, or has been convicted on or after December 8, 1992, of any offense in another state which is a felony under the laws of this state, or has been convicted of any felony in a federal court on or after December 8, 1992. **** . If the municipal election commission finds that a candidate either (a) is not a qualified elector, (b) does not meet all qualifications to hold the office he seeks and fails to provide absolute proof, subject to no contingencies, that he will meet the qualifications on or before the date of the general or special election at which he could be elected, or (c) has been convicted of a felony as described above and not pardoned, then the name of the candidate shall not be placed upon the ballot.

Based on the above, we are of the opinion that a municipal election commission may only make determinations on the basic qualifications of a party nominee to hold the office for which he was nominated as provided for in Section 23-15-361. In response to your specific question we are of the opinion that if the nominee in question meets all the qualifications to hold the office for which he was certified as a candidate and for which he was subsequently nominated, a municipal election commission may not lawfully refuse to place his name on a general or special election ballot based on an irregularity in the process of qualifying as a candidate in a party primary.

Anyone aggrieved by a decision of the commission may seek relief from a court of competent jurisdiction.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter Special Assistant Attorney General