Mississippi Advisory Opinions July 27, 2012: No. 2012-00365 (July 27, 2012)

No. 2012-00365.

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

You cite and quote Mississippi Code Section 23-15-213 (Supp. 2011) which sets forth the qualification procedure for candidates for the office of county election commissioner and submit nine (9) questions relating to potential candidates for positions on the Hinds County Election Commission.

Question One: Does the Board of Supervisors have any discretion if a candidate for election commissioner does not file the required petitions with the Clerk of the Board of Supervisors prior to the deadline? Specifically, if the candidate files the required petition with the Chancery Clerk on Tuesday following the first Monday of June, do the Supervisors have discretion as to extending the qualifying deadline date as the Hinds County Board of Supervisors has been advised by the Board Attorney?

Response: No. In our recent opinion to Crystal Martin, Esquire, dated July 13, 2012 we said that the statutory deadline for filing the required petition with the Chancery Clerk prescribed in Section 23-15-213 requires strict compliance and that if a potential candidate fails to meet that responsibility, the Board of Supervisors is required to refuse to place the candidate's name on the ballot. We add that before a potential candidate is disqualified he or she must be given an opportunity to appear before the Board of Supervisors and state his or her case. Meeks v. Tallahatchie County, (Miss. 1987).

Question Two: If so, is there a deadline which must be met? For example, if a candidate were to file a proper petition in August or September of the year of the election, could the Supervisors use such discretion in allowing such a candidate's name placed on the ballot?

Response: No. See our response to question one.

Question Three: Can the Board of Supervisors reopen the qualifying process and establish a new deadline for potential candidates to qualify for the office of Election Commissioner or for individuals that attempted to qualify but failed to meet all of the requirements of Section 23-15-213 to correct their faulty petitions as a member of the Hinds County Board of Supervisors has proposed?

Response: No. See our response to question one.

Question Four: Is submitting the petitions to the Circuit Clerk for verification of the signatures, as required by Section 23-15-213 ... the same as "Filing" the petition with the Circuit Clerk's office? Specifically, is the certifying of the petitions without any stamp or notation as having been "filed" with the Circuit Clerk considered to be filed with the Circuit Clerk as stated by the Chancery Clerk? If so, is 'filing' with the Circuit Clerk substantial compliance with Section 23-15-213 and therefore within the discretion of the Supervisors as being in 'substantial compliance' with the statute as advised by the Board Attorney?

Response: In Martin we said that the Circuit Clerk's role in the qualifying procedure is a purely ministerial one. That is, the Circuit Clerk checks the signatures on the candidate's petition against the voter rolls and executes a certificate stating the number of signatures of qualified electors that appear on the petition. We further stated that there is nothing in the statute that indicates that it is permissible for a candidate for county election commissioner to file his or her petition with the Circuit Clerk. Whether "submitting" a petition with the Circuit Clerk is the same as "filing" is immaterial. "Submitting" or "filing" a petition with the Circuit Clerk prior to the deadline does not, in our opinion, constitute substantial compliance with the filing requirements of Section 2315-213. The petition must be filed with the clerk of the Board of Supervisors, i.e., the Chancery Clerk by the deadline.

Question Five: Is there any connection between the Board of Supervisor's authority as detailed in Section 23-15-211(4) and the requirements of the Board of Supervisors in Section 23-15-213, as has been proposed by the Chairman of the Hinds County Election Commission in advising the Hinds County Board of Supervisors?

Response: Section 23-15-211(4) requires each county election commissioner to file his or her certificate of training from the Secretary of State with the chancery clerk of their county and provides that if a commissioner fails to file the certificate by April 30 of each year, his or her office shall be vacated, absent exigent circumstances as determined by the appropriate board of supervisors. The provisions of Section 23-15-211(4) has no impact on or connection with the provisions of Section 23-15-213.

Question Six: Currently there are nine candidates for Election Commissioner in Hinds County who properly filed a petition with the required certificate with the Chancery Clerk. Two candidates did not submit their petitions to the Chancery Clerk until Tuesday, June 5, 2012. One candidate did not submit a petition with adequate signatures to the Chancery Clerk timely. Because of the three candidates whose petitions were not in compliance with Section 23-15-213 the Board of Supervisors have not taken a positive action on certifying the nine candidates whose filings are not in question while some members of the Board attempt to find a way to allow some or all of the other three candidates to be certified. Is there a deadline for action by a Board of Supervisors in certifying candidates for Election Commissioner?

Response: There is no specific statutory deadline by which a board of supervisors must act on certifying candidates for the office of county election commissioner. As a practical matter, the Board of Supervisors must approve the petitions of those candidates who have met the statutory filing requirements and determine that they meet all other requirements to be a candidate for and hold the office of county election commissioner in sufficient time to allow for the timely printing of the ballots.

Question Seven: Are supervisors considered to be "election officials" under Section 23-15-269?

Response: Yes.

Question Eight: What recourse is available to an aggrieved party who disagrees with the action of a Board of Supervisors relative to their certification or failure to certify a candidate for election commissioner?

Response: Anyone aggrieved by a judgement or decision of a board of supervisors may file an appeal in circuit court within ten (10) days from the date of adjournment of the session at which the judgement or decision was rendered. See Section 11-51-75.

Question Nine: Does either the Hinds County Election Commission or the State Election Commission, or both, have the statutory requirement as stated in Section 23-15-359(8).....to determine the qualifications of those candidates whose names are submitted by the Board of Supervisors to be placed on the ballot?

Response: No. Pursuant to Section 23-15-213, the Board of Supervisors has the exclusive authority to determine the qualifications of potential candidates for the office of county election commissioner subject to judicial review.

Section 23-15-213 provides in part:

Candidates for county election commissioner shall qualify by filing with the clerk of the board of supervisors of their respective counties a petition personally signed by not less than fifty (50) qualified electors of the supervisors district in which they reside, requesting that they be a candidate, by 5:00 p.m. not later than the first Monday in June of the year in which the election occurs and unless the petition is filed within the required time, their names shall not be placed upon the ballot. All candidates shall declare in writing their party affiliation, if any, to the board of supervisors, and such party affiliation shall be shown on the official ballot.

Section 23-15-211 imposes certain training requirements on county election commissioners. Paragraph four (4) provides:

Each participant shall receive a certificate from the Secretary of State indicating that the named participant has received the elections training seminar instruction and that each participant is fully qualified to conduct an election. Commissioners of election shall annually file the certificate with the chancery clerk. If any commissioner of election shall fail to file the certificate by April 30 of each year, his office shall be vacated, absent exigent circumstances as determined by the board of supervisors and consistent with the facts. The vacancy shall be declared by the board of supervisors and the vacancy shall be filled in the manner described by law. Prior to declaring the office vacant, the board of supervisors shall give the election commissioner notice and the opportunity for a hearing.

Section 23-15-269 provides:

Any election commissioner, or any other officer or person acting as such, or performing election duty, who shall willfully refuse or knowingly fail to perform any duty required of him by the election laws, or who shall violate any of the provisions thereof, shall be guilty of a misdemeanor, and, upon conviction, be punished by a fine of not less than Twenty-five Dollars ($25.00) nor more than One Hundred Dollars ($100.00), or be imprisoned in the county jail not less than ten (10) days nor more than ninety (90) days, or both.

Section 11-51-75 provides in part:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. If the judgment be reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered, and certify the same to the board of supervisors or municipal authorities.....

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General