Mississippi Advisory Opinions July 15, 2005: AGO 2005-0315 (July 15, 2005)

Advisory Opinion Text

The Honorable Benton L. Sanford

Chairman, Jackson County Election Commission

2926 South Pascagoula Street

Pascagoula MS 39567

Re: Unopposed candidates

Dear Mr. Sanford:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter reads as follows:

Please accept my request for an Attorney General's opinion relating to ballot production for unopposed candidates ( MS Code 23-15-359) .

This November we will have an election for School Board Members in two different school board districts. Quite often the candidates are unopposed. The question is “If one school board district has only one qualified candidate and the other has two or more qualified candidates, can we declare the unopposed candidate the winner or must we hold an election in both school board districts?”

We will also have a special election this November for Election Commissioner for Supervisor District 1 ( MS Code 23-15-837) . If we have only one qualified candidate for this office, can we declare this person the winner irrespective of what happens in the school board contests?

We understand that your question relates to the Jackson County School District, whose members are elected to staggered six year terms, and due to the year of adoption of board of education districts different from board of supervisor districts, their election is not held on the election cycle provided in Miss. Code Ann. Section 37-5-7 (1972) .

Miss. Code Ann. Section 23-15-359 (9) (1972) provides as follows:

(9) If after the deadline to qualify as a candidate for an office or after the time for holding any party primary for an office, there shall be only one (1) person who has duly qualified to be a candidate for the office in the general election, the name of such person shall be placed on the ballot; provided, however, that if there shall be not more than one (1) person duly qualified to be a candidate for each office on the general election ballot, the election for all offices on the ballot shall be dispensed with and the appropriate election commission shall declare each candidate elected without opposition if the candidate meets all the qualifications to hold the office as determined pursuant to a review by the commission in accordance with the provisions of subsection (8) of this section and if the candidate has filed all required campaign finance disclosure reports as required by Section 23-15-807.

Our opinion is that the election for both offices in the scenario you describe would constitute the “general election ballot” for Jackson County on the date of the general election. Therefore, if one office is unopposed but there is opposition in the other office, an election must be held for both offices and the election for the unopposed office may not be dispensed with in accordance with Section 23-15-359 (9) .

With regard to your second question, Miss. Code Ann. Section 23-15-839 (2) (1972) provides as follows:

(2) In any election ordered pursuant to this section where only one (1) person shall have qualified with the commissioners of election to be a candidate within the time provided by law, the commissioners of election shall certify to the board of supervisors that there is but one (1) candidate. Thereupon, the board of supervisors shall dispense with the election and shall appoint the candidate so certified to fill the unexpired term. The clerk of the board shall certify to the Secretary of State the candidate so appointed to serve in said office and that candidate shall be commissioned by the Governor. In the event that no person shall have qualified by 5:00 p.m. sixty (60) days prior to the date of the election, the commissioners of election shall certify that fact to the board of supervisors which shall dispense with the election and fill the vacancy by appointment. The clerk of the board of supervisors shall certify to the Secretary of State the fact of the appointment, and the person so appointed shall be commissioned by the Governor.

If in the special election for county election commissioner you have only one qualified candidate, then by following the provisions of Section 23-15-839(2) the election commission may dispense with the special election without regard to the general election for the two county school board member offices.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

Jim Hood Attorney General.

Reese Partridge Special Assistant Attorney General.