Mississippi Advisory Opinions September 05, 1997: AGO 97-0265 (September 05, 1997)

Advisory Opinion Text

Mr. Willie E. Norwood

Chairman

Election Commission

P.O. Box 680

106 West Green St.

Mound Bayou, MS 38762

Dear Mr. Norwood:

Attorney General Mike Moore has received your opinion request and has assigned it to me for research and reply. Your letter is attached for reference. You pose the following question:

[W]ould it be within the authority of the Municipal Election Commission to inquire into the qualifications of an Independent candidate as to residency or domicile in order to meet deadlines for the printing of the ballots?

Section 23-15-361, Miss. Code Ann . provides, in pertinent part:

The municipal election commissioner designated to have the ballots printed shall also have printed on the ballot in any municipal general election the name of any candidate who, not having been nominated by a political party, shall have been requested to be a candidate for any office by a petition filed with the clerk of the municipality no later than 5:00 p.m. on the same date by which candidates for nomination in the municipal primary elections are required to pay the fee provided for in Section 23-15-309, and signed by not less than the following number of qualified electors....

In Hinds County Election Commission v. Brinston , 671 So.2d 667 (Miss. 1996), attached, the Court found that, “[t]he county of domicile requires an actual residence be voluntarily established with a bona fide intention of remaining in that county for an indefinite period of time.” [Citations omitted]. As a result, if the Commission finds that the individual satisfies the residency requirements as a matter of fact, the Commission must then include the name upon the ballot as mandated by Mississippi Code Section 23-15-361 . The problem occurs, as stated in your letter, that ballots must be printed forty-five (45) days prior to the election, yet a candidate only has to be a resident thirty (30) days prior to the election.

The municipal election commission is authorized to inquire into the residency of a candidate prior to the printing of the ballots. If they find that a candidate is not a resident, then the burden shifts to that candidate to negate the finding of the election commission. See Hinds County Election Comm., supra .

If this office can be of any further assistance to you, please let us know.

Very truly yours,

Mike Moore, Attorney General.

Sandra M. Shelson Special Assistant Attorney General