Mississippi Advisory Opinions July 07, 2003: AGO 2003-0313 (July 07, 2003)

Advisory Opinion Text

The Honorable Earline Wright Hart

Circuit Clerk of Holmes County

Post Office Box 718

Lexington, Mississippi 39095

Re: County Superintendent of Education Election

Dear Mrs. Hart:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter states:

In the past, the entire county has voted in the Superintendent of Education's race. However, in light of recent court cases as it pertains to school districts with separate municipal school districts, I am requesting an Attorney General's opinion on the County Superintendent of Education's race.

The question has been asked that if a person lives within the city limits and votes in the municipal school district elections, are those same individuals allowed to vote in the County Superintendent's race?

We have previously opined that unless a county is one of the counties specifically described in Mississippi Code Annotated Section 37-5-71 (Revised 2001) wherein the qualified electors of a municipal separate school district are prohibited from voting on the county superintendent of education, said electors would be entitled to vote in such election. MS AG Op., Moore (May 6, 1991).

We are aware of two cases that address the question of whether qualified electors of a municipal separate school district are legally entitled to vote on the county superintendent of education. In Hosford v. Ray , 806 F. Supp. 1297 (S.D. Miss. 1992) the United States District Court said:

Settled case law teaches that electors residing in a municipal separate school district may cast their vote for a county office, such as a county superintendent of education, or for the county board of education, if the resident municipal electors have a substantial interest in the operation of the county school district. This lynchpin of a “substantial interest” is vital. Where no substantial interest exists, a practice of allowing municipal separate school district electors to vote for the county superintendent of education: (a) dilutes the vote of those residents who reside within the county, but outside the municipal separate school district; (b) creates an irrational situation, wholly irrelevant to the state's objective of electoral participation in the selection of elected offices; (c) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and (d) provides the state a compelling interest to exclude the residents of the municipal separate school district from voting for the educational system's administrators... ...

In short, there is simply no view of the instant facts which would endow residents of Canton with a substantial interest in the operation of the Madison County School District. Indeed, residents of Canton have “no more interest in the affairs of the county school board than the residents of the next county.” (citations) Accordingly, this court is persuaded under these circumstances to declare that the current application of Section 37-5-71 to Madison County, Mississippi, violates the Equal Protection Clause of the Fourteenth Amendment. The statute improperly dilutes the votes of those persons living within the county as these electors go about the process of electing their superintendent of education. The court grants declaratory judgment to plaintiffs and hereby enjoins voters residing in the Canton Municipal Separate School District from voting in subsequent elections for the Madison County Superintendent of Education.

The other case pertains to Montgomery County. In White v. Moore , 3:99 CV 138-A (N.D. Miss) a memorandum opinion was issued ruling that the qualified electors residing within the Winona Municipal Separate School District are not entitled to participate in the election of the Montgomery County Superintendent of Education.

Both of these cases hold the statute to be unconstitutional as applied to the facts of those two counties.

Nevertheless, we find no cases that would change the statutory provisions that dictate which qualified electors of Holmes County are legally entitled to vote on the county superintendent of education. In reviewing Section 37-5-71 we do not find that Holmes County is among the counties described therein making the qualified electors of municipal separate school districts ineligible to vote on their respective county superintendents of education. Therefore, we are of the opinion that the qualified electors of Holmes County who reside within the municipal separate school district are statutorily entitled to vote in the election of the county superintendent of education. You may wish to seek a definitive answer to this question by way of a declaratory judgment.

Sincerely,

Mike Moore Attorney General

Phil Carter Special Assistant Attorney General