Mississippi Advisory Opinions October 28, 2013: AGO 2013-395 (October 28, 2013)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Eddie Hadskey

SUBJ:Elections

SBCD:67

TEXT:The Honorable Eddie Hadskey

Tate County Circuit Clerk

201 Ward Street

Senatobia, Mississippi 38668

Re: Majority Vote / Runoff for School Board Elections

Dear Mr. Hadskey:

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

Issue Presented

Your letter states:

I am requesting an official opinion on the following question. Does Section 37-5-9 of the Mississippi Code authorize or require a runoff election of a county board of education member if no candidate receives a majority of the votes cast in either a special or regular election for such office?

Response

No. Neither Section 37-5-9 nor any other statute authorizes or requires a runoff in a special or regular election of a member or members of a county board of education.

Applicable Law and Discussion

Section 37-5-1 provides:

(1) There is hereby established a county board of education in each county of the State of Mississippi. Said county board of education shall consist of five (5) members, one (1) of which, subject to the further provisions of this chapter and except as is otherwise provided in Section 37-5-1(2), shall be elected by the qualified electors of each board of education district of the county. Except as is otherwise provided in Section 37-5-3, each member so elected shall be a resident and qualified elector of the district from which he is elected.

(2) The county board of education shall apportion the county school district into five (5) single member board of education districts. The county board of education shall place upon its minutes the boundaries determined for the new five (5) board of education districts. The board of education of said county shall thereafter publish the same in some newspaper of general circulation within said county for at least three (3) consecutive weeks and after having given notice of publication and recording the same upon the minutes of the board of education of said county, said new district lines will thereafter be effective. The board of education of said county shall reapportion the board of education districts in accordance with the procedure described herein for the original apportionment of districts as soon as practicable after the results of the 2000 decennial census are published and as soon as practicable after every decennial census thereafter.

(3) In counties where the office of "administrative superintendent" as defined in Section 37-6-3, Mississippi Code of 1972, has been abolished, there shall be no county board of education.

We have been notified that the Tate County Board of Education has, in fact, apportioned the county school district into five (5) single member board of education districts. See attached letter and accompanying documents from the Tate County Board of Education.

Section 37-5-9 provides in part:

The name of any qualified elector who is a candidate for the county board of education shall be placed on the ballot used in the general elections by the county election commissioners, provided that the candidate files with the county election commissioners, not more than ninety (90) days and not less than sixty (60) days prior to the date of such general election, a petition of nomination signed by not less than fifty (50) qualified electors of the county residing within each supervisors district. Where there are less than one hundred (100) qualified electors in said supervisors district, it shall only be required that said petition of nomination be signed by at least twenty percent (20%) of the qualified electors of such supervisors district. The candidate in each supervisors district who receives the highest number of votes cast in the district shall be declared elected. (Emphasis added)

Section 37-5-19 as amended by House Bill 975, 2013 Reg. Session, concerns the filling of vacancies in county school boards and reads as follows:

Vacancies in the membership of the county board of education shall be filled by appointment, within sixty (60) days after the vacancy occurs, by the remaining members of the county board of education. Said appointee shall be selected from the qualified electors of the district in which the vacancy occurs, and shall serve until the first Monday of January next succeeding the next general election, at which general election a member shall be elected to fill the remainder of the unexpired term in the same manner and with the same qualifications applicable to the election of a member for the full term. If a school district is under conservatorship of the State Board of Education, and no members of the county board of education remain in office, vacancies in membership of the board of education shall be filled by the election of trustees in a special election called by the Governor for that purpose, and shall be conducted by the county election commission.

In the event the vacancy occurs more than five (5) months prior to the next general election and the remaining members of the county board of education are unable to agree upon an individual to be appointed, any two (2) of the remaining members may certify such disagreement to the county election commission. Upon the receipt of such a certificate by the county election commission, or any member thereof, the commission shall hold a special election to fill the vacancy, which said election, notice thereof and ballot shall be controlled by the laws concerning special elections to fill vacancies in county or county district offices. The person elected at such a special election shall serve for the remainder of the unexpired term.

The situation in Tate County is that the condition described in the second paragraph on Section 37-5-19 has not been met and that the county board of education has not certified "disagreement" as to "an individual to be appointed" on an interim basis to the vacant office. Accordingly, the first paragraph of Section 37-5-19 applies, and the new "member shall be elected to fill the remainder of the unexpired term in the same manner and with the same qualifications applicable to the election of a member for the full term." Therefore, the new member is elected by a plurality of the votes cast, as specified in Section 37-5-9, and not a majority of the votes cast. See MS AG Op., Berkley (November 16, 1992).

We note that the Mississippi Legislature attempted to amend Section 37-5-9 by passing a bill (House Bill 877, Chapter 470, Laws of 2009) which, if effectuated, would have established a majority vote / runoff requirement for election to a county board of education. At the time Chapter 470 was passed and signed by the Governor, Mississippi was subject to the preclearance requirements of Section 5 of the Voting Rights Act of 1965. Therefore, Chapter 470 could not become effective until it was reviewed and approved by the U.S Department of Justice.

By letter dated March 24, 2010 the U.S. Attorney General specifically objected to the proposed change from plurality to majority vote and the runoff requirement provided for in Chapter 470, Laws of 2009.

On June 25, 2013 the U.S. Supreme Court in Shelby County Alabama v. Holder, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) ruled that the coverage formula in Section 4(b) of the Voting Rights Act of 1965, which subjected Mississippi to the Section 5 preclearance requirement, was unconstitutional.

We are of the opinion that any objections to legislation by the U.S. Department of Justice pursuant to the preclearance requirements of Section 5 of the Voting Rights Act prior to the decision in Shelby County are valid and prevent such legislation from being effectuated.

Some have argued that in Shelby County the Court held that the coverage formula in Section 4(b) was unconstitutional as of the time that Congress last reauthorized the Voting Rights Act of 1965 and that therefore, any objection interposed by the U.S. Department of Justice from and after the 2006 reauthorization is of no effect.

This argument is clearly contrary to what the Court has said.

In Northwest Austin Municipal Utility District v. Holder, 557 U.S. 193 (2009) the Court had before it the 2006 reauthorization and refused to rule on its constitutionality. The Court said:

Congress reauthorized the Act in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25 years). The coverage formula remained the same, based on the use of voting-eligibility tests and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972. 42 U.S.C. § 1973b(b). We upheld each of these reauthorizations against constitutional challenges, finding that circumstances continued to justify the provisions. Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Lopez v. Monterey County , 525 U.S. 266, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999). Most recently, in 2006, Congress extended § 5 for yet another 25 years. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577. The 2006 Act retained 1972 as the last baseline year for triggering coverage under § 5. It is that latest extension that is now before us. (Emphasis added)

***

More than 40 years ago, this Court concluded that "exceptional conditions" prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. Katzenbach, 383 U.S., at 334, 86 S.Ct. 803. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements. (Emphasis added)

In explaining the difficulty of striking down an Act of Congress and describing it as "the gravest and most delicate duty that the Court is called on to perform, " the Court in Shelby County, referenced its decision in Northwest Austin, and said:

That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare Section 4(b) unconstitutional. The formula in that section can no longer b e used as a basis for subjecting jurisdictions to preclearance. (Emphasis added)

While the Court criticized the coverage formula that Congress reauthorized in 2006 it specifically declined to rule on the constitutionality of such reauthorization including Section 4(b), until its ruling in Shelby County.

Had the Court held that the coverage formula was unconstitutional when Congress reauthorized it in 2006, it would not have said it was declaring the coverage formula unconstitutional today, the date of the decision. It is clear from the above quoted language that, while the Court questioned the constitutionality of the 2006 reauthorizaton, it avoided declaring Section 4(b) unconstitutional until it made its decision in Shelby County on June 25, 2013. The language used by the Court is a clear indication that it did not view the decision as being retroactive. Therefore, since the U.S. Department of Justice interposed its specific objection to the majority vote/runoff requirement on March 24, 2010, such requirement never became effective.

This office is cognizant of the general rule that Supreme Court decisions are applied retroactively to cases that are still open on direct review. Harper v. Virginia Dep't. Of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). For example, recently a federal district court in Louisiana applied the ruling in Shelby County retroactively and dismissed claims brought under Section 5 of the Voting Rights Act that were based on actions that allegedly occurred before Congress's reauthorization in 2006. Hall v. State of Louisiana, et al, 2013 WL 5405656 (M.D. La. 2013).

Specific objections of the U.S. Attorney General to legislation passed by the Mississippi legislature, including the objection to Chapter 470, Laws of 2009, have commonly been viewed as the death knell of legislation due to the time and expense necessary to seek reconsideration or to commence a judicial action in support thereof. Such legislation was not officially codified or considered by the State of Mississippi to be "pending" or open for review. A retroactive application of Shelby County to give immediate effect to legislation objected to prior to Shelby County and commonly considered to be dead by all parties concerned would lead to needless confusion in the conduct of elections in Mississippi.

A prospective application, which is indicated by the Supreme Court by its own plain language quoted above, leaves existing election law in place and offers the Mississippi legislature the freedom to consider amendments in the future which comply with the remaining effective provisions of the Voting Rights Act without Mississippi being subject to any preclearance requirements.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General