Mississippi Advisory Opinions September 12, 2007: No. 2007-00476 (September 12, 2007)

No. 2007-00476.

Dear Mr. Arbuthnott:

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

I am an Election Commissioner in Wilkinson County and I am requesting an Attorney General's opinion concerning a disputed election certification from the 1st Primary which was held on August 7, 2007.

On August 10, 2007, only three members of the Wilkinson County Democratic Executive Committee certified the election. State Law Code 23-15-599(2)(a)&(b) requires that a majority of the members sign the certification.

On September 6, 2007, seventeen members of the committee met for a legally called meeting following four candidates filing an election contest. Their certification papers were sent by FAX to the Secretary of State's Office on Friday, September 7, 2007 and mailed the following day. Those seventeen members certified different candidates for three county offices:

Sheriff - Jessie W. Stewart Circuit Clerk - Jeanette Lynn Tolliver-Delaney Supervisor 2nd District - Kirk Smith

Please provide an Attorney General's Opinion that the Election Commissioners of Wilkinson County can vote to decide on this matter.

Yes. The Wilkinson County Election Commissioners are authorized to decide the matter in question.

As noted in your letter Mississippi Code Annotated Section 23- 15-599 provides for the certification of a primary election by the appropriate party executive committee. Subparagraph (b) provides in part:

The statement provided for in paragraph (a) of this subsection shall contain a certification signed and dated by the majority of the members of the county executive committee ...

Mississippi Code Annotated Section 23-15-359 (Revised 2007) specifies whose names are to appear on a general or special election ballot. It provides, in part:

The ballot shall contain the names of all party nominees certified by the appropriate executive committee, and independent and special election candidates who have timely filed petitions containing the required signatures.

It is our understanding, as stated in your letter, that the Wilkinson County Democratic Party Executive Committee lawfully assembled by the call of three (3) or more of its members on September 6, 2007, proceeded to hear the contests of four candidates who previously filed petitions with said committee, declared the true results of the August 7 Democratic Primary and certified their party's nominees for the county and county district offices in question all in accordance with Section 23-15-921 (Revised 2007). We further note that Section 23-15-921 provides that such meeting may be called by either the chairman or three (3) members of the executive committee.

We have previously opined that county election commissions have the duty to determine the qualifications of persons certified to the commission as nominees of a political party as well as independent candidates. Powe v. Forrest County Election Commission, 163 So. 2d 656 (Miss. 1964); MS AG Op., Shannon (April 6, 1995).

Section 23-15-359 (8) provides in part:

The appropriate election commission shall determine whether each candidate is a qualified elector of the state, state district, county or county district they seek to serve, and whether each candidate meets all other qualification 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.

In response to your specific question, we are of the opinion that the Wilkinson County Election Commission is bound by Section 23- 15-921 to recognize the Democratic Party nominees for the offices in question certified by the Wilkinson County Democratic Executive Committee as they were determined at the September 6, 2007 meeting of said committee. Those nominees are subject to determinations by the election commission, consistent with the facts, that each such nominee meets the qualifications to hold the office he or she is seeking or will, subject to no contingencies, meet those qualifications on or before the date of the general election. We do not opine as to whether the committee's findings are appropriate for the alleged irregularities. It is the duty of the executive committee to make those judgments.

Any candidate aggrieved by the actions of the Wilkinson County Democratic Executive Committee may seek judicial review in the Wilkinson County Circuit Court pursuant to Section 23-15-927.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General