Mississippi Advisory Opinions September 13, 1983: 19830913 (September 13, 1983)

Advisory Opinion Text

Honorable W. M. McMullan

Newton County Election Commission

Post Office Box 314

Decatur, Mississippi 39327

Re: Elections - Qualifications of Candidates

Dear Mr. McMullan:

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

Your letter states:

“We would appreciate an early reply to the following questions:

“1. Can a candidate who ran in the Democratic Primary, and was defeated, qualify and run for the same office as an Independent in the following General Election?

“2. Can a candidate who ran in the Democratic Primary, and was defeated, qualify as an Independent and run for another office in the following General Election?

“Our County Election Commission is confronted with the two propositions listed and the candidates have presented petitions for requalifying.”

The Mississippi Supreme Court in Mississippi State Board of Election Commissioners v. James H. Meredith , 301 So.2d 571 (1974), addressed the question of whether one who participates in a party's first primary as a candidate may withdraw as a candidate prior to the second primary and have his name placed on the general election ballot as an independent candidate. The Court said:

“The public policy of Mississippi expressed in the primary election laws is that political parties select their candidates in party primaries as an integral part of the entire election process. The general policy is to have contending candidates within a party employ the primary campaign and primary election to settle their differences. The general election ballot is reserved for major struggles and is not for continuing intra-party feuds .

“For many years nomination in a democratic party primary has been tantamount to election in this state; however, we are slowly emerging as a two party state. In the general election to be held on November 5, 1974, Meredith seeks to oppose the incumbent Republican party nominee and the nominee of the Democratic party. The statute authorizes independent candidates to qualify, but, as such candidate should be truly independent. One may not adopt the label 'independent' after having participated as a candidate in a preceding party primary . The U.S. Supreme Court in Storer v. Brown , 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), held that there is a valid reason for prohibiting candidates, other than the party nominee, who appeared in party primaries from participating in general elections following such primaries. The Court stated:

“'Section 6830(d) (Supp. 1974) carries very similar credentials. It protects the direct primary process by refusing to recognize independent candidates who do not make early plans to leave a party and take the alternate course to the ballot. It works against independent candidacies prompted by short-range political goals, pique or personal quarrel. It is also a substantial barrier to a party fielding an “independent” candidate to capture and bleed off votes in the general election that might well go to another party. (415 U.S. at 735, 94 S.Ct. at 1281-1282, 39 L.Ed.2d at 726).' “We recognize that the California statute under consideration by the Supreme Court in Storer is different from our primary party statutes; however, the principle is the same.

“We reaffirm the holding in Ruhr that a candidate must resort to one of the methods authorized by Section 3260 as amended [now § 23-5-134], but he cannot resort to both. To hold otherwise would radically alter the election process in the State of Mississippi and permit an individual to run as an independent in the general election regardless of the extent or nature of his participation in the preceding primary so long as he was not nominated by a political party. It would further alter the electoral process by permitting a defeated candidate in a preceding party primary to run in a general election. We do not glean from the amendment to the statute the legislative intent to authorize such action. ” (Emphasis added)

In response to your specific questions, the Mississippi Supreme Court in the above quoted decision has specifically held that a person who participated as a candidate in a primary election may not participate as an independent candidate in the following general election. This ruling applies regardless of whether that person is attempting to run for the office he sought in the primary election or some other office.

Therefore, the answer to each of your questions is “no”.

Very truly yours,

Bill Allain Attorney General.