Mississippi Advisory Opinions April 26, 2007: AGO 2007-00185 (April 26, 2007)

Advisory Opinion Text

Honorable Earle S. Banks

Mississippi House of Representatives

District 67

New Capitol

P. O. Box 1018

Jackson, MS 39215-1018

Re: Withdrawal of Candidate

Dear Representative Banks:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter presents three questions:

Question one

By what procedure based on law and/or case law can a candidate have his name removed from a political party as a candidate for office?

Question two

If an individual qualifies as a candidate to run for state representative with a political party, then the qualifying deadline passes, then the individual is certified as a candidate, then the individual sends a letter to the political party withdrawing his candidacy but then the next day sends a subsequent letter requesting that his withdrawal letter be rescinded or disregarded, does this action or by any other action can his candidacy be reinstate[d] or revived?

Question three

If an individual qualifies as a candidate to run for state representative with a political party, then the qualifying deadline passes, then the individual has not been certified as a candidate, then the individual sends a letter to the political party withdrawing his candidacy but then the following day sends a subsequent letter requesting that his withdrawal letter be rescinded or disregarded, does this action or by any other action can his candidacy be reinstate[d] or revived?

Mississippi Code, Annotated Section 23-15-295 (1972) states:

When any person has qualified in the manner provided by law as a candidate for party nomination in any primary election, such person shall have the right to withdraw his name as a candidate by giving notice of his withdrawal in writing to the secretary of the proper executive committee at any time prior to the printing of the official ballots, and in the event of such withdrawal the name of such candidate shall not be printed on the ballot. When a candidate for party nomination for a state or district office who has qualified with the state executive committee withdraws as a candidate as is herein set forth after the sample of the official ballot has been approved and certified by the State Executive Committee the Secretary or Chairman of the State Executive Committee shall forthwith notify the county executive committee of each county affected or involved of the fact of such withdrawal and such notification shall authorize said county executive committees to omit the name of the withdrawn candidate from the ballot if such notification is received prior to the printing of the ballot. In the case of the withdrawal of any candidate, the fee paid by such candidate shall be retained by the state or county executive committee, as the case may be.

In response to your first question, a candidate for a party nomination in a primary election may withdraw by submitting a written notice of withdrawal to the secretary of the proper executive committee prior to the printing of the official ballot in accordance with Section 23-15-295 . If the candidate is a candidate for a state or state district office, such as House of Representatives or District Attorney, the written notice would be submitted to the secretary of the party's state executive committee. If the candidate is a candidate for a county or county district office, such as sheriff or board of supervisor, then the written notice would be submitted to the secretary of the party's county executive committee. Receipt of the withdrawal letter by the secretary of the executive committee effects the withdrawal. No action by the executive committee is necessary.

In response to your second question, a candidate for state representative is not duly withdrawn until his letter of withdrawal is received by the secretary of the state executive committee in accordance with Section 23-15-295 . Whether or not the letter of withdrawal was received by the secretary of the state executive committee is a question of fact which cannot be answered in an official opinion. ( Miss. Code Ann. 7-5-25 (1972)) . It is our opinion that where a party candidate sends a second letter asking that his letter of withdrawal be rescinded and his candidacy revived, whichever letter is received first by the secretary of the proper executive committee will be effective. Furthermore, where a party candidate has lawfully withdrawn as a candidate in accordance with Section 23-15-295 , and the candidate qualifying deadline has passed, an executive committee has no authority to reinstate or revive that candidacy.

With respect to your third question, it is our opinion that for a candidate to withdraw as a party candidate, it makes no difference whether the party executive committee has taken action to certify a candidate or not. Therefore, as in the second question, a letter of withdrawal from a candidate for state representative must be received by the secretary of the state executive committee. The question of whether or not the secretary of the executive committee has received the letter of withdrawal is a factual determination, which we cannot provide in an official opinion. In addition, it is our opinion that where a party candidate sends a second letter asking that his letter of withdrawal be rescinded and his candidacy revived, whichever letter is received first by the secretary of the proper executive committee will be effective. Moreover, where a party candidate has lawfully withdrawn as a candidate in accordance with Section 23-15-295 , and the candidate qualifying deadline has passed, an executive committee has no authority to reinstate or revive that candidacy.

Sincerely,

Jim Hood Attorney General

Margarette L. Meeks Special Assistant Attorney General.