Mississippi Advisory Opinions March 23, 2009: No. 2009-00123 (March 23, 2009)

No. 2009-00123.

Dear Mr. Sorrell:

Attorney General Hood has received your request for an official opinion and it has been assigned to me for research and reply.

Questions Presented

If an independent candidate for alderman files a candidate petition with the wrong election date or which does not specify the ward in which he is running, may the names on the petition pages on which such deficiencies appear be counted towards the number of signatures required by law to qualify for office?

Response

Based on City of Clinton v. Smith 493 So.2d 331 (Miss. 1986) and prior opinions of this office, such signatures may not counted towards the number of signatures required by law.

Background

Your letter reads as follows:

I am writing to request an opinion as to whether an independent candidate seeking the office of alderman is qualified to run for office if he files an inaccurate and incomplete Qualifying Statement of Intent.

Specifically, the candidate in question listed an erroneous General Election date in his Qualifying Statement of Intent. He cited the General Election Date as being May 5, 2009; whereas the correct date is June 2, 2009. The Republican primary is scheduled for May 5, 2009. Being an independent candidate, he would not participate in the primary election. Further, on certain pages of the Qualifying Statement of Intent, the candidate failed to specify the ward in which he was running.

Applicable law

Miss. Code Ann. Section 23-15-361 (1972) reads in pertinent part as follows:

(1) The municipal general election ballot shall contain the names of all candidates who have been put in nomination by the municipal primary election of any political party. There shall be printed on the ballots the names of all persons so nominated, whether the nomination be otherwise known or not, upon the written request of one or more of the candidates so nominated, or of any qualified elector who will make oath that he was a participant in the primary election, and that the person whose name is presented by him was nominated by such primary election. The municipal election commissioner designated to have the ballots printed shall also have printed on the ballot in any municipal general election the name of any candidate who, not having been nominated by a political party, shall have been requested to be a candidate for any office by a petition filed with the clerk of the municipality no later than 5:00 p.m. on the same date by which candidates for nomination in the municipal primary elections are required to pay the fee provided for in Section 23-15-309, and signed by not less than the following number of qualified electors:

(a) For an office elected by the qualified electors of a municipality having a population of one thousand (1,000) or more, not less than fifty (50) qualified electors.

(b) For an office elected by the qualified electors of a municipality having a population of less than one thousand (1,000), not less than fifteen (15) qualified electors.

Analysis and Conclusion

We understand from telephone conversations with city officials that you are referring to deficiencies in the independent candidate's "Candidate Petition" rather than a qualifying statement intent.

In City of Clinton v. Smith 493 So.2d 331 (Miss. 1986), the Mississippi Supreme Court held that in order for signatures on petitions for ballot referenda to be counted, they "must appear upon a page which contains language expressing in an intelligible manner the desire of the signing party" to seek a referendum, with "language sufficient that one reading it before signing would not likely be misled as to the effect and import of his or her signature."

This office stated in MS AG Op., Wiggins (April 26, 2005):

In our opinion to Lucien L. Bourgeois, Esquire of April 8, 1992 we opined that the principles enumerated by the Mississippi State Supreme Court in Smith , are by analogy, applicable to petitions calling for an election on bond issues. We now opine that those same principles are applicable to petitions of political candidates for office and that said case is sufficient authority to support the language on the petition form in question.

Independent candidate petitions distributed by the Secretary of State's office contain the following language:

The opening paragraph of each page of signatures MUST include: (1) The name of the candidate, (2) office sought, and (3) date of the election.

In accord with the City of Clinton case and the Attorney General Opinions cited above, if signatures on an independent candidate's petition for alderman representing a ward appear on pages which lack the ward of the office sought or which misstate the date of the election, those signatures may not be counted towards the number of signatures required by Miss. Code Ann. Section 23-15-361 (1972).

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

Sincerely yours,

JIM HOOD, ATTORNEY GENERAL

By: Reese Partridge

Assistant Attorney General