Mississippi Advisory Opinions September 22, 1982: 19820922 (September 22, 1982)

Advisory Opinion Text

Honorable Allen L. Burrell

Attorney for City of Port Gibson

Post Office Box 366

Port Gibson, Mississippi 39150

Re: Elections — Municipal

Dear Mr. Burrell:

Attorney General Bill Allain has received your letter and has assigned it to me for research and reply.

Your letter states:

“We have been requested by the City of Port Gibson, a municipality created under private charter of the State of Mississippi, to write you in connection with the upcoming municipal elections here in Port Gibson.

“Our private charter has certain aspects which do not correspond with statutory law in Mississippi, and we would appreciate hearing from you as to which of these controls. Specifically the number of days within which a candidate for Mayor and Alderman has to qualify, and also the total number of days within which a person has to register to vote.

“The clerk also desired for you to interpret for her on the filing of petitions for individuals who wish to run, whether the day of the election would be counted as one of those days or whether it would be excluded.

“A prompt reply to this would be greatly appreciated since the deadline, either statutory or under private charter is fast approaching and we need to know how to proceed with this election.

We are informed that the election to which you refer will be one in the nature of a general election upon the occasion of the expiration of the regular charter-mandated term of the mayor and 3 of 6 aldermen.

In some instances, provisions of Chapter 11 of Title 21 of the Mississippi Code of 1972, Annotated (the “Code”), Municipal Elections, do not apply to private or special charter municipal elections when provisions of a charter conflict with the provisions of Chapter 11, as provided in Section 21-11-23 of this chapter.

However, your inquiry does not concern aspects of a municipal election which are governed by charter as distinguished from the general law of municipal elections.

The ballot in a municipal general election shall contain the names of (1) candidates who have been put in nomination by the primary election of any political party and (2) the names of candidates who qualify by petition to run as independents.

Section 3152 of Appendix A to the 1981 Cumulative Supplement to Volume 6 of the Code prescribes how municipal primary elections shall be held and provides, inter alia, that the names of all persons desiring to be a candidate for the nomination in the primary election shall be furnished to the Municipal Executive Committee of the party to which he belongs at least thirty (30) days prior to the first primary election. Section 3151 also provides in part:

“...Provided, however, that in municipalities operating under a special or private charter which fixes a time for holding elections other than the time fixed by Chapter 491, Laws of 1950, the first primary election shall be held exactly four weeks before the time for holding the general election, as fixed by the charter, and the second primary election, where necessary, shall be held one week after the first primary election, unless the charter of any such municipality provides otherwise, in which event, the provisions of the special or private charter shall prevail as to the time of holding such primary elections.”

Chapter 491, Laws of 1950, referred to is Section 21-11-5 of the Code.

The provisions of Section 3152 are applicable to Port Gibson except as noted in the above quoted text of that section.

In order to record the status of Section 3152, it is also noted that it was amended in the 1982 Legislative Session by two acts, Chapter No. 474 and Chapter No. 477, found at Pages 32 and 50, respectively, of Advance Sheet No. 11. Since submission of these acts under the Voting Rights Act of 1965, there has not been any response, and, consequently, such acts are not effective.

A person who desires to qualify as an independent candidate in a municipal general election will do so under the provisions of Section 23-5-134: By presenting a petition to the municipal election commission not less than sixty (60) days prior to the election, when petition is signed by the requisite number of qualified electors — not less than 50 for a municipality having a population of 1, 000 or more.

Chapter 477 of the General Laws of 1982, cited above, amended Section 23-5-134, but, as stated, such amendment is not yet effective.

To vote in the municipal first primary election or the municipal general election, a person must have been registered in both the county and municipality at least thirty (30) days before such election. Section 21-11-1 as modified by Graham v. Waller, 343 F.Supp. 1 (1972), and Ferguson v. Williams, 343 F.Supp. 654 (1972) .

In calculating the date for filing or presenting a petition, the day the petition is filed or presented is included and the day upon which the election is held is excluded.

For your information, there will be sent to you under separate cover a copy of Guide to Municipal Elections, Revised Edition 1981.

With kind regards, I am

Very truly yours

Bill Allain Attorney General