Mississippi Advisory Opinions April 26, 2013: AGO 2013-00147 (April 26, 2013)

Advisory Opinion Text

TEXT: Ms. Juanita Head, Chairwoman

Okolona Municipal Democratic Executive Committee

521 S. Gatlin Street

Okolona, Mississippi 38860

AUTH: Phil Carter

RQNM: Juanita Head

SUBJ: Elections

SBCD: 70

Re: Municipal Democratic Primary

Dear Ms. Head:

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

Issue Presented

Your letter states:

One of the council members on the City Council of Okolona, a specially chartered municipality, is an election commissioner who did not resign prior to January 1 . The Municipal Democratic Executive Committee certified her as a qualified candidate for re-election in her district as a member of the City Council.

We, the Municipal Democratic Executive Committee, anticipate there will be a protest in this ward election. It is unknown how many votes she will get since she is staying in the election.

Could you please write an opinion for our benefit advising us as to how to handle this situation?

Preface

It is our understanding that there are multiple candidates seeking the democratic party nomination for the office in question.

Since the ballots have been printed, it is too late for the commissioner to officially withdraw as a candidate.

Response

Since the individual in question did not resign prior to January 1, she is not eligible to run for a municipal elective office and any votes cast for her will be illegal votes. Stringer v. Lucas, 608 So.2d 1351 (Miss. 1992). Therefore, any votes cast for her should not be considered in your committee’s determination as to the number of legal votes each of the eligible candidates received.

The commissioner in question may issue a written statement that she will not be able to serve and that statement may be posted at the appropriate polling place to inform the voters of the situation and the poll workers may alert voters to the statement.

Applicable Law and Analysis

Mississippi Code Annotated Section 23-15-217(1) (Revised 2007) provides:

A commissioner of election of any county may be a candidate for any other office at any election held or to be held during the four-year term for which he has been elected to the office of commissioner of election or with reference to which he has acted as such; provided that he has resigned from the office of election commissioner before January 1 of the year in which he desires to seek the office. However, a commissioner of election of any county may be a candidate in a special election to fill a vacancy in any other office, provided he resigns as election commissioner within ten (10) days after the issuance of the notice of a special election by the appropriate authorities.

In Stringer, the Court said:

(a) member of the Bolivar County Election Commission, is not eligible to run in the mayoral race. All votes cast for Stringer were illegal.

We note that the election involved in Stringer was conducted in1988. At the time of that election, Section 23-15-217 had specific language that addressed votes cast for a county election commissioner who attempted to run for a municipal office during her four-year term. The statute provided that “all votes cast for any such person at such election shall be illegal and shall not be counted, ...”

Section 23-15-217 was amended in 1991 to provide that a commissioner “may be a candidate for any other office at any election held or to be held during the four-year term for which he has been elected to the office of commissioner of election or with reference to which he has acted as such; provided that he has resigned from the office of election commissioner before January 1 of the year in which he desires to seek the office.” (Emphasis added)

While the applicable statutory provisions differ from what they were in 1988, we are of the opinion that a county election commissioner who did not resign prior to January 1, 2013 is not eligible to run for a municipal office in the calendar year 2013, except in a special election to fill a vacancy provided he resigns as election commissioner within ten (10) days after the issuance of the notice of a special election by the appropriate authorities, and that any votes cast for such ineligible candidate are illegal and cannot be counted in determining which candidate received a majority of legal votes, or if no candidate received a majority to the legal votes, which two candidates will participate in a runoff.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.