Mississippi Advisory Opinions January 16, 2003: AGO 2003-0015 (January 16, 2003)

Advisory Opinion Text

Christopher D. Hemphill, Esquire

Attorney for Noxubee County Board of Supervisors

Post Office Drawer 1426

Columbus, Mississippi 39703

Re: Primary Elections (Party Loyalty)

Dear Mr. Hemphill:

Attorney General Mike Moore has received your request and assigned it to the undersigned for research and reply.

You attached a copy of an open letter published in your local newspaper wherein a Noxubee County party executive committee stated that it would not qualify party candidates if said committee determines that such candidates are disloyal to the party. You then present eight (8) questions which we will repeat and respond to in the order presented.

QUESTION 1: Is it legal for the Democratic Executive Committee and local Democratic Party to refuse to certify a candidate based upon alleged party disloyalty?

RESPONSE: We are aware of the U.S. Supreme Court ruling in California Democratic Party v. Jones, 120 S .Ct. 2402, 530 U.S. 567, 147 L.Ed.2d 502 (2000) addressing Proposition 198 which changed California's partisan primary from a closed primary to a blanket primary. Under the new system all persons entitled to vote, including those not affiliated with any political party, have the right to vote for any candidate regardless of the candidate's political affiliation. In that case the Court ruled such system violates political parties' First Amendment right of association and said:

California's blanket primary violates the principles set forth in these cases. Proposition 198 forces political parties to associate with-to have their nominees, and hence their positions, determined by-those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival. In this respect, it is qualitatively different from a closed primary. Under that system, even when it is made quite easy for a voter to change his party affiliation the day of the primary, and thus, in some sense, to “cross over,” at least he must formally become a member of the party ; and once he does so, he is limited to voting for candidates of that party. 120 S.Ct. at 2409 .

Mississippi's primary system is easily distinguished from California's. The basic and defining difference is that California has party registration where each voter must affiliate with a political party or be an independent. Mississippi does not have party registration. Having no party affiliation, candidates and voters in Mississippi are free to choose the primary in which they wish to participate each time primaries are conducted. Therefore, we are of the opinion that Jones is not applicable to the questions posed in your letter.

Mississippi Code Annotated Section 23-15-299 (7) (Revised 2001) sets forth the determinations that a party executive committee must make concerning the qualifications of candidates in a primary election. It provides:

Upon the receipt of the proper fee and all necessary information, the proper executive committee shall then determine whether each candidate is a qualified elector of the state, state district, county or county district which they seek to serve, and whether each candidate meets all other qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to office. The committee also shall determine whether any candidate has been convicted of any felony in a court of this state, or has been convicted on or after December 8, 1992, of any offense in another state which is a felony under the laws of this state, or has been convicted of any felony in a federal court on or after December 8, 1992. Excepted from the above are convictions of manslaughter and violations of the United States Internal Revenue Code or any violations of the tax laws of this state unless the offense also involved misuse or abuse of his office or money coming into his hands by virtue of his office. If the proper executive committee finds that a candidate either (a) is not a qualified elector, (b) does not meet all qualifications to hold the office he seeks and fails to provide absolute proof, subject to no contingencies, that he will meet the qualifications on or before the date of the general or special election at which he could be elected, or (c) has been convicted of a felony as described in this subsection, and not pardoned, then the name of such candidate shall not be placed on the ballot.

The above quoted statute is very specific in what a party executive committee is to consider in determining a candidate's qualifications. We see nothing that could be construed to authorize a county party executive committee to disqualify an individual based on perceived party disloyalty. Once it is determined by the proper executive committee, that a particular candidate meets the eligibility requirements of the above quoted statute, his or her name must be placed on the primary ballot. Any finding by said committee that a candidate is not loyal to the political party conducting the primary would not, in our opinion, authorize the committee to refuse to place that candidate's name on the primary ballot. We add that even if a committee could lawfully refuse to place a candidate's name on the ballot based on questions of party loyalty, such action would constitute a change in practice which would be subject to approval by the U.S. Department of Justice under the 1965 Voting Rights Act before such change could be instituted.

QUESTION 2: If not, but the local party refuses to certify a candidate, what avenue does a candidate have to challenge the refusal and what kind of time frame is he/she facing?

RESPONSE: If a party executive committee refuses to place a candidate's name on the primary ballot the candidate may file a complaint in circuit court asking that the committee be enjoined to place his or her name on the ballot. The time frame for obtaining such an injunction would be prior to the printing of the official ballots.

QUESTION 3: May a judge overturn findings of fact by the local party that a certain candidate is disloyal?

RESPONSE: If a party executive committee makes the factual determination that a particular candidate is disloyal to the party and refuses to place said candidate's name on the ballot, a circuit judge when properly presented with the issue may rule on the legality of basing the decision to disqualify the candidate on the ground of party loyalty.

QUESTION 4: If the local party refuses to qualify a candidate, who would hear the challenge, circuit, chancery or MS Supreme Court?

RESPONSE: The circuit court of the county wherein the executive committee sits. City of Grenada v. Harrelson, 725 So .2d 770 (Miss. 1998); Lippian v. Ros, 175 So .2d 138 (Miss. 1965); Hamilton v. Long, 180 So . 615 (Miss. 1938).

QUESTION 5: Can the judge issue an injunction forcing the candidate to be placed on the primary ballot? RESPONSE: Yes.

QUESTION 6: On the second issue, is it legal for a vote cast in the Democratic primary to be challenged simply because the poll worker or someone from the local Democratic Party alleges that the voter is really a Republican or Republican supporter?

RESPONSE: A person's right to vote may be challenged at the polls prior to the casting of the ballot. Section 23-15-571 lists the grounds upon which a person's right to vote may be challenged. Party disloyalty is not among those grounds. However Section 23-15-575 states that “no person shall be eligible to participate in any primary election unless he intends to support the nominations made in the primary in which he participates.” We have previously opined that, pursuant to Section 23-15-575, an independent candidate who has a party opponent could be challenged if he attempts to vote in that party's primary. MS AG Op. Blaker (September 7, 1999). Absent such an obvious factual situation, we are of the opinion that the stated intent of the voter would be controlling.

QUESTION 7: If a vote is challenged for this reason, what is that voter's recourse?

hRESPONSE: If a voter's right to vote is challenged at the poll it must be done in accordance with Section 23-15-579 which requires the pollworkers to make the determination that it “clearly appears” that the voter is disqualified. Again, the specific reasons for challenging an individual's right to vote is listed in Section 23-15-571 which does not include party disloyalty. While there is no specific statutory recourse for a qualified elector whose right to vote has been illegally denied, he or she may be able to maintain legal action against an election official who illegally denies that right. Also, a losing candidate may file an election contest and use as a ground for the contest the illegal denial of individuals' right to vote.

We also note that Section 97-13-19 makes it a crime for an election official to illegally deprive an individual of his or her suffrage. Said crime is punishable by imprisonment in the penitentiary for a term not exceeding two years.

QUESTION 8: Will that person's vote be counted?

RESPONSE: The vote of a person who is forced to cast a “challenged” or “rejected” ballot pursuant to Section 23-15-579 will not be counted in determining the initial outcome of the election. However, in an election contest the circuit court may order that such be counted if it determines that the challenges had no basis in fact or in law.

If you should have any further questions, please contact us at (601) 359-3753.

Sincerely,

Mike Moore Attorney General

Heather P. Wagner Assistant Attorney General Phil Carter Special Assistant Attorney General