Mississippi Advisory Opinions August 23, 2006: AGO 2006-00400 (August 23, 2006)

Advisory Opinion Text

Jeffrey J. Turnage Esquire

Attorney for City of Columbus

Post Office Box 1366

Columbus, Mississippi 39703-1366

Re: Mayoral Special Election

Dear Mr. Turnage:

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

We represent the City of Columbus, Mississippi. As I am sure you're aware, Mayor Jeffrey B. Rupp has decided to accept other employment and is vacating his office on August 25, 2006. This will leave approximately 3 years on his term of office. I am writing asking your office's opinions as to various issues that exist between the State Constitution, the State Code and our Municipal Charter and would greatly appreciate your guidance on how to proceed with the election. Of course, the time frame within which we get these questions answered is quite urgent and thus, we request that this be given the highest priority possible by your office.

You then present four (4) specific questions concerning the election which we will respond to in the order presented.

QUESTION 1: Section 10 of the City Charter provides that “No person shall be entitled to vote at any election who has not been duly registered for four (4) months before offering to vote...” On the other hand, Section 241 of the Mississippi Constitution states that a person must be a city resident for six months in order to be a qualified elector. Finally, Section 23-15-11 provides that “every inhabitant of this state... who is a citizen of the United States... eighteen years old and upwards, who has resided in this state for thirty days and for thirty days in the incorporated city or town in which he offers to vote, and who shall have been duly registered as an elector... shall be a qualified elector and shall be entitled to vote in any election. In Graham v. Waller , 343 F.Supp 1 (S.D. Miss. 1972) , the Court held the six month residency requirement set forth in Section 241 was void as violative of the Equal Protection Clause. However, the Court said a 30 day residency requirement satisfied every reasonable, compelling state interest for a bona fide residence in the municipality as a condition precedent to the right of a citizen to become an eligible qualified elector in such elections. We assume from the ruling in Graham, supra that our charter's four month residency requirement is also void as violative of equal protection. Section 8 of our City Charter says that “Any person who is a qualified voter of said city, shall be eligible to any office of profit or trust therein,...” We have found no other durational residency requirement in our Charter for running for the office of Mayor. Do you agree then, that if a person establishes his domicile in the City for thirty days before a regular or special election, then he would meet the durational residency requirements to qualify as a candidate for the office of Mayor? If so, I assume we would be bound to follow Mississippi Code Section 23-15-11 's thirty day residency requirement. Please tell us whether you agree that if a prospective candidate establishes his domicile in the city for thirty days before the election and registers to vote, he will be a qualified elector and would then be free to qualify to run for the office of Mayor.

RESPONSE: We are of the opinion that the ruling by the Court in Graham invalidates the four (4) month durational residency requirement in Section 10 of the Special Charter of the City of Columbus. Therefore, we agree that if a candidate establishes his residence within the corporate limits of the municipality at least thirty (30) days prior to the election and registers to vote and meets all other qualifications to be mayor, he could qualify to run for that office.

QUESTION 2: Section 23-15-857 of the Mississippi Code provides that a candidate for municipal office shall qualify by petition filed with the municipal clerk by 5:00 p.m. at least twenty (20) days before the date of the election and signed by the appropriate number of qualified electors. On the other hand, Section 23-15-11 states that a person who has resided in the City and State for thirty (30) days and registered to vote is a qualified elector. We assume the prospective candidate would not have had to be a qualified elector for thirty days before he filed his qualifying papers to run for office and that these deadlines may run concurrently. In other words, it appears to us that a candidate could establish his domicile within the City limits thirty days before the election and file qualifying papers ten days later and he could still run for office. Please confirm if your office believes this is correct.

RESPONSE: We are in agreement that a candidate is not required to be a qualified elector for thirty (30) days before he files qualifying papers. Therefore, a candidate could establish his residence within the corporate limits thirty (30) days before the election and then file his qualifying papers at least twenty (20) days prior to the municipal special election and be eligible to have his name placed on the ballot assuming, of course, that he meets all other qualifications to hold the office he seeks.

QUESTION 3: Section 18 of the City Charter provides that if the office of Mayor shall become vacant, the City shall “at once” cause an election to be held by the qualified voters of the city to fill such vacancy. Obviously there is no possible way the election can be held “at once.” Since there is nothing that specifies what “at once” means, we assume we would be bound to follow Section 23-15-857 in setting the date for the special election, subject, of course, to pre-clearance by the Department of Justice. This is the procedure the City has followed on past occasions when the City held special elections to fill the un-expired terms of office of councilmen who passed away while in office. Please confirm that we may lawfully follow the provisions of Section 23-15-857 that relate to the deadlines for setting the date for the special election, and any run-off that might be required.

RESPONSE: Since the City Charter does not contain a specific timetable for setting the date of the special election in question, we are of the opinion that the provisions of Section 23-15-857 which provide that the election be set not less than thirty (30) days nor more than forty-five (45) days from the date an order is adopted declaring a vacancy should be followed. That statute further provides that, if no candidate receives a majority vote the two (2) candidates receiving the highest number of votes shall have their names placed on the ballot for a run-off one (1) week thereafter.

QUESTION 4: Section 9 of the City Charter provides that “the person having the highest number of votes cast for mayor shall be elected mayor.” However, it is clear that the City has regularly ignored this section and has, since as early as 1961. Our research has proved that the City has had a run-off if no candidate received the majority of the votes. The run-off has been between the two candidates having the highest number of votes as set forth in Section 23-15-857 . In fact I have newspaper articles from 1961 and later discussing run-off elections for municipal office. I assume from this that the City is bound to follow the practices it has had in place since before the passage of the 1965 Voting Rights Act with regard to this issue and that it may not deviate from this practice without the advance approval and pre-clearance by the United States Department of Justice. Please confirm this as well.

RESPONSE: Section five (5) of the Voting Rights Act of 1965 (the Act) prohibits the enforcement in any jurisdiction covered by the Act of any voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect on the effective date of the Act unless such change has either: 1) been submitted to U.S. Attorney General and said Attorney General has interposed no objection to the change; or 2) a declaratory judgment is obtained from the U.S. District Court for the District of Columbia that the change will not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. Therefore, we are in agreement that the practices in place prior to the enactment of the Act must continue unless and until a proposed change is effectuated as described above.

Sincerely,

Jim Hood Attorney General.

Phil Carter Special Assistant Attorney General.