Mississippi Advisory Opinions April 15, 1988: 19880415 (April 15, 1988)

Advisory Opinion Text

Honorable James W. Burgoon, Jr.

Attorney

Leflore County Board of Supervisors

Post Office Box 1468

Greenwood, Mississippi

Dear Mr. Burgeon:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. A copy of your letter is attached hereto and incorporated herein by reference. Specifically you ask whether a primary election must be held to fill the vacancy in an office of a Justice Court Judge.

Pursuant to Miss. Code Ann. § 23-15-841 (Supp. 1987), nominations for candidates to fill vacancies in county or county district office shall be made by primary. This section should, however, be treated as directory and not mandatory. See Walker v. Smith , 213 Miss. 255, 56 So.2d 84 (1952). Therefore, while it is permissible for the political parties to conduct primary elections to fill such vacancies, it is not essential to the process.

It should also be noted that such primaries have seldom, if ever, been held. Any county executive committee that attempts to utilize this statute to hold a primary election should consider the applicability of § 5 of the Voting Rights Act of 1965, as amended and extended. If a practice has been established in the county of not conducting such primaries, any effort to now conduct a primary would be subject to § 5. Hopefully you will find this responsive to your request. Should you have any questions or if we may be of further assistance, please do not hesitate to contact this office.

Sincerely,

Mike Moore Attorney General.

John H. Emfinger Special Assistant Attorney General.