Mississippi Advisory Opinions June 06, 2011: No. 2011-00185 (June 6, 2011)

Mississippi Attorney General Opinions

2011.

No. 2011-00185.

Dear Mr. Turnage:

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

You state that according to the official 2010 census data, Bolivar County's total population is 34,185 and that in accordance with Mississippi Code Annotated Section 9-11-2 ( Revised 2002) is now only entitled to have two (2) justice court judges and constables. Bolivar County currently has three (3) justice court judges and three (3) constables.

Questions Presented

1. Since the March 1, 2011 qualifying deadline for constables and justice court judges has expired and candidates continue to expend resources based upon the existence of three (3) positions, can the BCBOS (Bolivar County Board of Supervisors) continue to legally fund or maintain three positions after December 31, 2011?

2. After the release of the official 2010 census data, is the BCBOS statutorily mandated to adopt and obtain Section 5 pre-clearance of a justice court judge redistricting plan with two districts, even though the March 1, 2011 qualifying deadline has already expired?

3. If the BCBOS adopts and pre-clears under Section 5 of the VRA a redistricting plan with two (2) districts, can the candidates who previously qualified be administratively placed into one (1) of the (2) districts based on their official residence?

4. What alternative choices are available to the BCBOS concerning the election of justice court judges and constables in Bolivar County at this late date?

Responses

In response to your first question, If, as a matter of fact, the BCBOS has acted reasonably and in good faith to adopt a two justice court district plan as required by Mississippi Code Annotated Section 9-11-2 (Revised 2002) to be utilized in the 2011 elections, but, because of time restraints, it is determined, consistent with the facts, that it is not possible to effectuate such plan, conducting the elections pursuant to the current three justice court districts would be legally permissible and those elected would be entitled to receive the compensation currently being paid to the incumbents. Whether the BCBOS has acted and is acting reasonably and in good faith must be initially determined by the BCBOS and ultimately by a court of competent jurisdiction.

In response to your second question, the BCBOS is legally required to adopt and obtain Section 5 pre-clearance of a justice court redistricting plan with two districts without undue delay upon the release of the 2010 Census data even though the March 1, 2011 qualifying deadline has expired.

In response to your third question, we have previously opined that candidates who have filed their statements of intent and paid the required filing fee to be a candidate in a party primary election and his district of residence is changed by the redistricting process, the statement of intent may be administratively amended by the appropriate party executive committee to reflect such change. We have further opined that with regard to independent candidates, the county election commission or the county registrar may make the necessary administrative change on a qualifying petition if a candidate's district of residence is changed by redistricting and that such candidate could file a supplemental petition if the result of redistricting is to place some of the signees of the petition in a district different from that of the candidate. MS AG Op., Ezell (January 16, 1991); MS AG Op., Breland (December 20, 1994); MS AG Op., McMullin (April 18, 2003).

In response to your fourth question, the preferred and legally required option is to adopt a two district justice court plan and submit it to the U.S. Department of Justice for pre-clearance pursuant to Section 5 of the Voting Rights Act as quickly as possible so that the number of justice court judges and constables elected will be in compliance with Section 9-11-2. If, as indicated above, the BCBOS has acted reasonably and made a good faith effort to adopt such a plan and it is not possible to do so in time to make the necessary preparations for the election, the elections would necessarily have to be conducted under the current three justice court district plan.

Applicable Law and Discussion

Section 9-11-2 provides in part:

(1) From and after January 1, 1984, there shall be a competent number of justice court judges in each county of the state. The number of justice court judges for each county shall be determined as follows:

(a) In counties with a population, according to the latest federal decennial census, of thirty-five thousand (35,000) and less, there shall be two (2) justice court judges.

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(2) The board of supervisors shall establish single member election districts in the county for the election of each of the justice court judges authorized and required to be elected for the county under the provisions of subsection (1) of this section, and one (1) justice court judge shall be elected for each district by the electors thereof. In any county authorized and required under the provisions of paragraph (1)(a) of this section to provide for the election of two (2) justice court judges for the county in which there are two (2) judicial districts, the smaller of such judicial districts, according to population based upon the latest federal decennial census, shall comprise or shall be wholly encompassed within one (1) of such election districts.

We note that Bolivar County has two (2) judicial districts and therefore subject to the specific provisions pertaining thereto.

The United States District Court, Southern District, Mississippi in Fairley v. Forrest County, 814 F. Supp. 1327 (S.D. Miss. 1993) considered the conduct of the 1991 supervisors elections in Forrest County under existing election districts that were adopted and pre-cleared based on the 1980 Census even though the 1990 Census data was received by the county on February 21, 1991.

While the facts of that case differ from the facts presented in your letter, it is analogous in that it deals with the redistricting process during a short time frame prior to statutorily scheduled elections.

The Court quoted the Sixth Court of Appeals case French v. Boner, 963 F.2d 890, 891 (6th Cir. 1992) in which that court said:

In any system of representative government, it is inevitable that some elections for four-year or longer terms will occur on the cusp of the decennial census. The terms inevitably will last well into the next decade; and, depending on shifts in population in the preceding decade, the representation may be unequal in the sense that the districts no longer meet a one-person, one-vote test under the new census.

...[M]athematical equality in representation is not required at all times during the census and election cycles. Values other than mathematical equality in preserving majority rule are also at stake. In order to maintain relative mathematically equality in a population constantly on the move, we would have to have short terms of office and annual census updates. Short terms would sacrifice the stability and experience in office that longer terms contribute. ...

The District Court then said:

Thus, the Sixth Circuit in French recognized that there was no constitutional duty to conduct special elections every time government officials are elected under a malapportioned plan where such is caused by a population shift occurring over a ten year period and the governing body does not have time to reapportion after new census data is available and before the next election occurs. (Emphasis added)

In Ramos v. Illinois, 781 F. Supp. 1353 (N.D. Ill.), aff'd 976 F.2d 335 (7th Cir. 1992), the Seventh Circuit likewise agreed with the Sixth Circuit's French decision. In Ramos, the Seventh Circuit recognized that there is no constitutional requirement that cities change their customary four-year terms of the officials "in order to avoid the delay that occurs once every twenty years in implementing the new census figures." Ramos, at 341. The Ramos Court held:

The four-year terms that Chicago aldermen serve merely indicate that every fifth election (i.e. census every ten years, elections every four) does not diminish the voting power of any protected minority; there is merely a four-year time lag that occurs every other decade between redistricting and elections.

The District Court then said:

Courts have consistently held that the extent of deviation and other equitable considerations should be taken into account. The deviation in this case was relatively minor. Although not necessary for a decision in this case, this Court feels that the deviation involved in this case was de minimis. Forrest County acted in good faith. Accordingly, this Court finds that the Forrest County Board of Supervisors acted in accord with the Constitution in redistricting according to one-man one-vote. This opinion takes into account the extent of the deviation and the fact that the Forrest County Board of Supervisors had to gather and assimilate demographic information. Digest this information, make political decisions and obtain Justice Department pre-clearance.

The courts have had to become involved in what should be a legislative function. Our obtrusion should be no more than the Constitution requires. The Constitution does not require anything that is impossible of performance. The performance of the Forrest County Board of Supervisors in this case was reasonable. The Constitution, under the facts of this case, requires no more. No special election, under the one-man one-vote principle, will be ordered. (Emphasis added)

Fairley at 1346.

Recently, on May 16, 2011, the U.S. District Court for the Southern District of Mississippi issued its Memorandum Opinion and Order of Dismissal in Hancock County Board of Supervisors v. Ruhr et al., Cause No. 1:10CV564 LG-RHW. In that case the Court said:

... . (E)ach county's board of supervisors must have adequate time to formulate a redistricting plan and obtain preclearance from the Department of Justice before its failure to do so results in a declaration that elections held using the existing plan are unconstitutional. Courts have generally accepted that some lag-time between release of census data and redistricting is both necessary and constitutionally acceptable, even when it results in elections based on malapportioned districts in the years that census data is released. .... .

Conclusion

The BCBOS is legally required to adopt a two (2) justice district court plan, submit it to the U.S. Department for pre-clearance under Section 5 of the Voting Rights Act, and have the 2011 Primary and General Elections conducted pursuant to that plan. If the BCBOS determines, consistent with the facts, that it has acted reasonably and in good faith and that it is not possible to effectuate such a plan, the elections must necessarily be conducted pursuant to the current three (3) justice court district plan. If it is determined, based on the above stated reasons, that the elections must be conducted pursuant to the current three (3) justice court district plan, the judges and constables elected in those elections would be entitled to receive the same compensation currently being paid to the incumbent judges and constables.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General