Mississippi Advisory Opinions January 23, 1979: 19790123 (January 23, 1979)

Advisory Opinion Text

Honorable D. Rex Brown

Circuit Clerk of Jasper County

Post Office Box 293

Bay Springs, Mississippi 39422

Dear Mr. Brown:

Attorney General Summer has received your request for opinion and has referred it to the undersigned for research and reply.

Your question refers to participation in the Democratic Primary by one who has been nominated without opposition in the Republican Primary preceding the same General Election.

Specifically, you state:

‘A person qualifies to run for public office on the Republican ticket, and the time expires for qualifying and this person has no opponent; therefore his name does not have to be placed on the preimary ballot. The question is, can this person if he so desires vote in the Democratic Primary instead of the Republican Primary.’

Section 3107–05, which appears in the Appendix to the 1978 Cumulative Supplement to Vol. 6 of the Mississippi Code of 1972, Annotated is, in the opinion of this office, the statute applicable to the question you present.

This statute was sought to be repealed by Chapter 506 of the 1970 Regular Session of the Mississippi Legislature. However, Chapter 506 was submitted to the United States Attorney General for approval, as required by Section 5 of the Federal Voting Rights Act of 1966, but was disapproved. Therefore, it is the opinion of this office that Section 3107–05, supra, although indicated as Repealed in the Suplement, remains in full force and effect.

A reading of Section 3107–05, supra, reveals that an elector is barred from participating in a party primary when such elector ‘. . . does not intend to support the nomination to be made at such primary election of such political party . . .’ which, in the opinion of this office, would include voting for such party nominees in the ensuing general election.

For one who has been nominated by one party primary, although without opposition, as the candidate representing such party for election to office in the ensuing general election to be permitted to participate in the primary election of another party whose nominees for public office would also appear upon the ballot in the same general election, such would, in the opinion of this office, be inconsistent with the above and foregoing quoted statutory obligation to support the nomination of candidates in a primary election in which an elector participates.

It necessarily follows, therefore, that it is the opinion of this office that the answer to the question you present is in the negative and that a person or elector who has been nominated without opposition as a nominee or candidate of one party may not legally or validly vote in the primary election of another party whose nominees' names are also to appear on the ballot in the ensuing general election.

Very truly yours,

A. F. Summer, Attorney General

W. D. Coleman, Deputy Attorney General