Mississippi Advisory Opinions February 16, 1996: AGO 96-0047 (February 16, 1996)

Advisory Opinion Text

Hon. John Hedglin

Attorney, City of Madison

210 East Capitol Street

1290 Deposit Guaranty Plaza

Jackson, Mississippi 39201-2302

Dear Mr. Hedglin:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. In your letter you state that the Supreme Court of Mississippi upheld a 1991 annexation by the City of Madison. The annexation was precleared by the United State Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965. No redistricting plan to allocate the annexed territory into existing wards has been developed or submitted to the Justice Department. One of the aldermen from one of the existing wards has recently resigned. You specifically inquire:

1. Under state law, should a new ward plan be adopted before a special election is held to fill the vacant alderman's position?

2. Is the City required to obtain preclearance from the United States Department of Justice for a new districting ward plan prior to obtaining the date for a special election for the vacant position on the Board of Aldermen?

Section 23-15-857(2) of the Mississippi Code Annotated states in pertinent part:

(2) When it shall happen that there is any vacancy in an elective office in a city, town or village the unexpired term of which shall exceed six (6) months, the governing authority or remainder of the governing authority of said city, town or village shall make and enter on the minutes an order for said city, town or village to fill the vacancy and fix a date upon which such election shall be held. Such order shall be made and entered upon the minutes at the next regular meeting of the governing authority after such vacancy shall have occurred, or at a special meeting to be held not later than ten (10) days after such vacancy shall have occurred, Saturdays, Sundays and legal holidays excluded, whichever shall occur first. Such election shall be held on a date not less than thirty (30) days nor more than forty-five (45) days after the date upon which the order is adopted....

In response to your first question, it is the opinion of this office that a special election should be held to fill the vacancy pursuant to Section 23-15-857(2) . The City should follow provisions set forth to fill the vacancy within the prescribed period of time. In the meantime, the redistricting plan could be drawn and submitted for preclearance by the United States Department of Justice prior to the 1997 municipal general elections.

Regarding your second question, any redistricting plan must be precleared by the Justice Department prior to its implementation. However, as stated above, there is no requirement that this be done prior to setting the date for the special election as required by state law.

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

Very truly yours,

Mike Moore, Attorney General.

Sandra M. Shelson Special Assistant Attorney General.