Mississippi Advisory Opinions June 05, 2015: AGO 2015-00158 (June 05, 2015)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Kimberly Turner

SUBJ: Elections - Qualification of Candidates

SBCD: 71

TEXT: Kimberly P. Turner, Esquire

Assistant Secretary of State, Elections Division

Post Office Box 136

Jackson, Mississippi 39205

Re: Presidential Preference Primary Petitions

Dear Ms. Turner:

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

Your letter states, in part:

Miss. Code Ann. Section 23-15-1093 provides the means by which a person seeking to have his or her name placed on the presidential preference primary election may do so by the filing of a petition(s) signed by a total of not less than five hundred (500) qualified electors of the state, or by petitions signed by not less than one hundred (100) qualified electors of each congressional district of the state.

The office of the Attorney General has previously opined "statutory provisions requiring board member appointments from congressional districts, and where the statute is otherwise silent, requires the residence of appointees be residents of congressional districts under 'the last five-district plan which was in effect'." See MS Op., Canon (January 16, 2003); MS AG Op., Neelley (May 20, 1998). More recently, the office of the Attorney General has likewise opined the geographic distribution requirement of Section 273 of the Mississippi Constitution "requires that not more than 20% of the total required number of initiative petition signatures must come from the last five-district congressional district plan which was in effect prior to the adoption of the current four-district plan." See MS Op., Hosemann (January 9, 2009).

Issue Presented

You ask whether a person seeking ballot access as a candidate in the presidential preference primary election pursuant to Mississippi Code Annotated Section 23-15-1093 may gain such access by filing of petitions signed by not less than one hundred (100) qualified electors of each of the "old" five congressional districts as the same existed prior to the adoption of the four current congressional districts.

Response

Section 23-15-1093 provides two separate and distinct methods to gain ballot access by petition. The first method is to file a petition or petitions signed by at least five hundred (500) qualified electors of the state. The second method is to file separate petitions for each congressional district containing the names of at least one hundred (100) qualified electors for each congressional district.

Based on the specific language of Section 23-15-1093, we are of the opinion that if a candidate submits a petition or petitions signed by 100 qualified electors of each of the "old" five congressional districts with an affirmation under the penalties of perjury that each signer is a qualified elector of the state, such petition would be sufficient for said candidate to gain access to the presidential preference primary ballot.

Should a potential candidate choose to utilize the second method of filing separate petitions for each congressional district, Section 23-15-1093 specifically provides that the signatures of one hundred (100) qualified electors of each congressional district is sufficient. Based on the plain language of Section 23-15-1093, since we now have only four (4) congressional districts, a potential candidate would only need a total of four hundred (400) signatures to satisfy the statutory requirement to gain ballot access.

Applicable Law and Analysis

Section 23-15-1093 provides:

Any person desiring to have his name placed on the presidential preference primary ballot shall file a petition or petitions in support of his candidacy with the state executive committee of the appropriate political party after January 1 of the year in which the presidential preference primary is to be held and before January 15 of that same year. To comply with this section, a candidate may file a petition or petitions signed by a total of not less than five hundred (500) qualified electors of the state, or petitions signed by not less than one hundred (100) qualified electors of each congressional district of the state, in which case there shall be a separate petition for each congressional district. The petitions shall be in such form as the State Executive Committee may prescribe; provided, that there shall be a space for the county of residence of each signer next to the space provided for his signature. No signature may be counted as valid unless the county of residence of the signer is provided. Each petition shall contain an affirmation under the penalties of perjury that each signer is a qualified elector in his congressional district or in the state, as appropriate. (Emphasis added)

When Section 23-15-1093 was last amended, the State of Mississippi had five (5) congressional districts. The Legislature has not revisited that statute since our congressional districts were reduced to four (4).

However, it is a well settled rule of statutory construction that "[w]here the language used by the legislature in a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation." Chandler v. City of Jackson Civil Service Com'n, 687 So.2d 142, 144 (Miss. 1997). It is also long established that "the meaning of an unambiguous statute" cannot be restricted or enlarged. Marx v. Broom, 632 So.2d 1315, 1318 (Miss. 1994).

As distinguished from the situations cited in your letter, a petitioner pursuant to Section 23-15-1093 is not subject to the provisions of Section 273 of the Mississippi Constitution nor is there a statutory requirement that a certain number or percentage of signatures be of voters from the "last five-district congressional district plan which was in effect prior to the adoption of the current four-district plan."

Also, since there is no congressional district five (5), a legitimate affirmation that each signer is a qualified elector of district five (5) as required by Section 23-15-1093 would not be possible.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General