Mississippi Advisory Opinions June 11, 1981: AGO 000004273 (June 11, 1981)

AGO 000004273.

Dear Mr. Sessums:

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

Your letter states:

"I am a member of the Morton Election Commission. On May 12th, 1981, the Democratic Party primary election was held in the municipality of Morton, Ms.

"My father was a candidate for the office of Chief of Police and was nominated by the Democratic Party. His name was placed on the June 2nd, 1981 general election ballot.

"My father's opponent, Mr. Clell Harrell filed a petition of contest on May 29th, 1981, challenging his nomination. Due to the fact that proper and timely notice was not given him, my father's name remained on the general election ballot and my father was duly elected by the people of Morton, Ms., on June 2, 1981.

"On Saturday, June 7th, the Morton Democratic Exe- cutive Committee met and decided that they should hold a special election for the office of Chief of Police. They informed my father of their decision immediately but gave no specific reasons for that decision.

"Please inform me in writing as soon as possible con- cerning the position we now 'find ourselves in. First, my father had requested the chairman of the Morton Elec- tion Commission to certify him as the duly elected Chief of Police of Morton, Ms. Should my father or should he not be certified as he was duly elected on June 2nd. No other name appeared on the general election ballot for this office.

"Secondly, would a special election called by the Morton Democratic Executive Committee, after the general election have any validity except where ordered by a court of competent jurisdiction?

"If you will forward a written opinion on these two questions to me as soon as possible, I will greatly appre- appreciate it. My father certainly does not want to be a candidate in an invalid special election and more especi- ally does not want the people of Morton to go through the expense of another election except as prescribed by law.

"Also, please send a copy of your opinion to Dr. Howard Clark, Chairman of the Morton Democratic Executive Committee and to Mrs. Elaine Sims, Secretary to the Morton Democratic Executive Committee. Dr. Clark and Mrs. Sims' addresses are Morton, Ms."

Initially, it must be stated that a response must be upon certain assumptions:

1. A response does not take into account any litigation that unknown to this office may have begun which would directly or indirectly affect the prospective actions of the Morton Municipal Election Commission ("the Commission"). Any such litigation may render valueless any advice given herein.

2. A response cannot' address nor comment on any action taken by the Morton Democratic Executive Committee nor any action to be taken by that Committee.

Incidentally, Dr. Clark wrote as Chairman of the Committee and a copy of the response of this office is enclosed for your information.

3. A municipal general election was held for elective offices of Morton on June 2, 1981, in accordance with applicable law.

Your first question is: "...Should my father or should he not be certified as he was duly elected on June 2nd." Response: Based upon the above assumptions, reference is made to Section 21-11-13 of the Mississippi Code of 1972, Annotated, which states, inter alia, the duties and responsibilities of municipal election commissioners in the conduct of a municipal general election:

"Section 21-11-13. Election commissioners; determining results of election.

The governing authorities shall appoint three ele- ction commissioners, one of whom shall be designated to have printed and distributed the 'official ballots', and all of whom shall perform all the duties in respect to the municipal election prescribed by law to be performed by the county election commissioners where not otherwise provided. Managers of elections shall, immediately upon the closing of the polls, count the ballots and ascertain the number of votes cast in each voting pre- cinct for each of the candidates and make a return thereof to the municipal election commissioners. On the day following the election, the election commissioners shall canvass the returns so received from all voting precincts and shall, within five days after such election, deliver to each person receiving the highest number of votes a certificate of election. If it shall appear that any two or more of the candidates receiving the highest number of votes shall have received an equal number of votes, the election shall be decided by lot, fairly and publicly drawn by the election commissioners with the aid of two or more qualified electors of the municipality. Within five days after any election, the commissioners of election shall certify to the secretary of state the name or names of the person or persons elected thereat, and such person or persons shall be issued commissions by the governor." (Emphasis Supplied)

Your second question is: "...Would a special election called by the Morton Democratic Executive Committee after a general election have any validity except where ordered by a court of competent jurisdiction?"

Response: For the reasons stated above, we are obliged to state that no response can be made except to say that, based upon the information presented, it appears that only a court of competent jurisdiction could resolve the matter.

The Morton Municipal Election Commissioners are officers of the municipality of Morton. It is suggested that you and the other commissioners consider consulting the municipal attorney for advice and guidance.

With kind regards, I am

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY:

S. E. Birdsong, Jr. Assistant Attorney General

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