Mississippi Advisory Opinions February 02, 1982: 19820202 (February 02, 1982)

Advisory Opinion Text

Honorable Harrell Granberry

City Clerk

Post Office Box 689

Yazoo City, Mississippi 39194

Dear Mr. Granberry:

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

You point out that the Municipal Primaries and the General Election for the City of Yazoo City, Mississippi, pursuant to the provisions of its private charter, are required to be held this year and that the deadline for qualifying as an independent candidate will be February 4, 1982, and for qualifying as a party candidate, February 5, 1982.

You then, on behalf of the Municipal Election Commission, request an opinion on the following question:

“ . . . . if a person qualifies to run as an Independent candidate by the February 4th deadline, may that same person disqualify himself the following day as an Independent candidate and qualify to run as a Party candidate?”

In the case of Ruhr v. Cowan, 146 Miss. 870, 112 So. 386 (1927), Louis S. Bourgeois was defeated in the Municipal Primary Election as the Democratic Nominee for the office of Mayor of the Town of Waveland in Hancock County, Mississippi. Therefore, Mr. Bourgeois name was not legally permitted to be certified by the Municipal Democratic Executive Party to appear on the ballot at the next, ensuing General Election in said Town for the office of Mayor. However, notwithstanding these facts, Mr. Bourgeois attempted to file a qualifying petition as an Independent Candidate for Mayor in said General Election, which was denied by the Municipal Election Commission.

This denial was upheld by the Mississippi Supreme Court, who stated in its opinion at Page 883 of the Mississippi Report, the following:

“ . . . there are two methods by which a person may be elected to office in this state. One is by nomination by the political party to which the candidate belongs . . . the other is by being nominated by . . . qualified electors of the municipality, . . . One of these methods must be pursued by any person desiring to become a candidate for office in a general election. Such person may resort to one of these methods, but he cannot resort to both of them. If he desires . . . to participate in the primaries, he must intend to support the nominee. If he does that, and is not satisfied with the result of the vote therein , he must pursue the method provided for a contest . . . and he must abide the result of the primary and such contest.

“Public policy, . . . is that a person who participates in a primary shall abide by the result thereof.” (Emphasis added)

The decision in Ruhr v. Cowan , Supra, was recently upheld in the case of Mississippi State Board of Election Commissioners v. Meredith , 301 So.2d 571 (1974) .

The Mississippi Supreme Court, in the Meredith Case, held that while a candidate may resort to one of the methods for the election to public office, either by qualifying and participating as a candidate in the primary election or by qualifying and participating as an Independent Candidate in the General Election, such person is required to resort to only one of said two methods. The Court further stated on Page 573 of the opinion:

“It would further alter the electorial process by permitting a defeated candidate in a preceding party primary to run in a general election. We do not glean from the . . . statute the legislative intent to authorize such action” (Emphasis added)

Mr. Meredith, in the cited case, had participated as a candidate for Congress in the Democratic Party Primary and was the leading candidate for such party nomination into the second Primary. He withdrew as a candidate and declined to participate in the second Primary. Thereafter, he attempted to qualify as an Independent Candidate for the same office in the ensuing General Election by filing his petition, signed by qualified electors, with the State Board of Election Commissioners, who denied said petition. The denial was affirmed, as above stated, by the Mississippi Supreme Court.

The underlined portions of the above quoted Mississippi Supreme Court decisions indicate the extent of participation in a Party Primary held by the Court to disqualify one from later participating as an Independent Candidate or, as stated in the Meredith Opinion, the extent of participation in one method for election to office prior to attempting to resort to the other method of election to the same office.

The cited opinions indicate that participation in either method, to the extent described in the facts upon which the opinions were based, would apply regardless of which method is utilized first.

The extent of utilization or resorting to one of the two methods becomes a question when the extent of such participation is less than defeat at the polls or withdrawal, as in Meredith , after the First Primary when the candidate is leading into the Second Primary.

Stated another way, participation to what degree or extent in one method disqualifies participation or resorting to the other method.

Your question draws an extremely fine line.

Precisely, under the facts you present, a candidate, on the last day to qualify, qualifies as an Independent Candidate by the filing of the required petition but on the following day withdraws as such Independent Candidate and qualifies as a Party Candidate for nomination in the Primary, since the deadline for such qualification is one day after the deadline for qualifying as an Independent Candidate.

Under the facts stated, it certainly could not be said that the mode or method for election resorted to in the first instance has been completed. The name of the person has not been printed on a ballot, much less than there having been any ballot whatsoever cast for such candidate.

At this writing, there being no Mississippi Supreme Court decision upon which to rely for guidance in determining a disqualifying extent of participation in one of the two methods in the elective process for candidates for public office other than having been defeated in the Primary, as in Ruhr , and having withdrawn as a candidate in the Second Primary, as in Meredith , it is the opinion of this office that withdrawal as an Independent on the day following one's qualification as such without more participation than this would not disqualify such person from qualifying the next day as a Party Candidate, even though occurring on the last day for qualifying as a candidate by either method. Such qualifying, withdrawal and qualifying or resorting to the other method occurs long before even the ballots are printed and the election held, so that it is difficult to perceive how such facts could constitute accomplished resorting to both methods within the holdings in Ruhr and Meredith .

Therefore, it necessarily follows that it is the opinion of this office that a person, otherwise qualified, who “ . . . qualifies to run as an Independent candidate by the February 4th deadline, . . . ” is not prohibited from withdrawing the following day as an Independent Candidate and qualifying to run as a Party Candidate prior to the deadline for qualifying as such Party Candidate

Very truly yours,

Bill Allain Attorney General.