Mississippi Advisory Opinions September 24, 2010: No. 2010-00530 (September 24, 2010)

Mississippi Attorney General Opinions

2010.

No. 2010-00530.

Dear Mr. Cadle:

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

Issue Presented

Your letter states:

As attorney for the Board of Supervisors, this letter is requesting your opinion on whether or not we might place the issue of the legalization of liquor at a runoff election. We anticipate that the promoters of a countywide liquor referendum will not have the necessary signatures available for the November 2nd election, but would have for the runoff some three weeks later. This runoff will be to determine the County Superintendent of Education, and as an economic matter, we would like to place the liquor referendum on that runoff ballot.

We understand that the election for Superintendent of Education is a special election to fill a vacancy.

Response

We are of the opinion that a local option liquor referendum may not be placed on an anticipated special election runoff election ballot.

Applicable Law and Discussion

Mississippi Code Annotated Section 23-15-375 (Revised 2007) provides in part:

Local issue elections may be held on the same date as any regular or general election. A local issue election held on the same date as the regular or general election shall be conducted in the same manner as the regular or general election using the same poll workers and the same equipment. A local issue may be placed on the regular or general election ballot pursuant to the provisions of Section 23-15-359, Mississippi Code of 1972. The provisions of this section and Section 23-15-359 with regard to local issue elections shall not be construed to affect any statutory requirements specifying the notice procedure and the necessary percentage of qualified electors voting in such an election which is needed for adoption of the local issue. .... . As used in this section "local issue elections: include elections regarding the issuance of bonds, local option elections , .... . (Emphasis added)

Section 23-15-359 governs what election commissions are to have printed on general election ballots. Section 23-15-359 (5) provides:

The commissioners may also have printed upon the ballot any local issue election matter that is authorized to be held on the same date as the regular or general election pursuant to Section 23-15-375; however, the ballot form of such local issue must be filed with the commissioners of election by the appropriate governing authority not less than sixty (60) days previous to the date of the election. (Emphasis added)

Mississippi Code Annotated Section 19-3-40 (the "home rule" statute) authorizes boards of supervisors to enter orders and pass ordinances "with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi ... ."

However, the Mississippi Legislature by the enactment of the above quoted statutes authorizing local issue elections to be placed on regular and general election ballots has preempted the field with regard to the placement of a local issue on ballots. Special elections are neither regular nor general. Therefore, we are of the opinion that a county election commission is precluded from placing a local option referendum on a special election ballot or any ensuing special election runoff ballot.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General