Mississippi Advisory Opinions May 07, 1981: AGO 000004280 (May 7, 1981)

AGO 000004280.

Dear Mr. Smith-Vaniz:

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

Your letter states:

"Please be advised that this office represents the City of Canton, Mississippi, as well as the Municipal Election Commission thereof.

"On the second day of April, 1981, Clarence Pace, pursuant to Section 21-4-134 of the Mississippi Code of 1972, as amended, filed with the City Clerk of Canton, Mississippi his Petition to qualify as a candidate in the upcoming elections for the office of Alderman for Ward 3 of the aforementioned municipality. To support said Petition Mr. Pace filed, as required by the aforementioned statute, 50 signatures of persons who supposedly reside in said Ward. While validating the name of qualified voters on all Petitions filed with the City Clerk, the Municipal Election Commission discovered that 17 of the names appearing on the Petition filed by Mr. Pace were not qualified voters residing in Ward 3 of the City of Canton, Mississippi. Based upon these findings the Municipal Election Commission rejected the Petition of Mr. Pace for failing to comply with Section 21-4-134 as aforementioned and informed Mr. Pace by a letter dated the 20th day of April, 1981, of their findings and that based thereon he would not be certified as a candidate for the office of Alderman for Ward 3 in the upcoming elections.

"Mr. Pace requested a hearing on this matter before the Municipal Election Commission and pursuant thereto all members of the Election Commission, Mr. Pace and Counsel for the City met in the City Hall of Canton, Mississippi, on the 4th day of May, 1981. At said hearing Mr. Pace did not offer sufficient evidence to show that all persons who executed his 'Petition did in fact reside in Ward 3 of the City of Canton, Mississippi. Mr. Pace did however file with the City Clerk the sig- natures of 20 additional persons he alleged were duly qualified electors residing in said Ward. No decision was made by the Municipal Election Commission relative to the propriety of this procedure or whether or not Mr. Pace should be certified as a candidate pending a ruling on this point by your office.

"The legal proposition upon which your guidance is sought by the Municipal Election Commission of Canton, Mississippi, is whether or not a proposed candidate may amend his qualification petition for a Municipal Ward Election after the date for filing same has expired, when after said date certain signatures which appear thereon are found not to be qualified electors residing in said Ward, so as to attain additional signatures to attain the required number of signatures pursuant to Section 21-4-137 of the Mississippi Code of 1972, as amended.

"By this letter we request on behalf of the Muni- cipal Election Commission of Canton, Mississippi, that your office research this matter and render a written opinion thereon at your earliest convenience, in that said Election Commission must make a ruling on the questions stated hereinabove prior to the upcoming elections."

Reference is made to part of the text of Section 21-5-134 of the 1972 Code which governs the presentation of a petition by a person for the purpose of attempting qualification as an independent candidate in a municipal general election:

"Section 23-5-134. Ballots--contents--exceptions.

(1)The ballot shall contain the names of all candidates who have been put in nomination, not less than sixty (60) days previous to the date of the elec- tion, by the primary election of any political party.

... The commissioner shall also have printed on the ballot in any general or special election the name of any candidate who, not having been nominated by a poli- tical party, shall have been requested to be a candidate for any office by a petition filed with said commissioner, not less than sixty (60) days prior to the election, and signed by not less than the following number of qualified electors: ...

(e) For an office elected by the qualified electors of a county, a senatorial, or representative district, or a municipality having a population of one thousand (1,000) or more, not less than fifty (50) qualified electors. ...

(2) Unless the petition. required above shall be filed not less than sixty (60) days prior to the election, the name of the person requested to be a candidate, unless nominated by a political party, shall not be placed upon the ballot. The ballot shall contain the names of each candidate for each office, and such names shall be listed under the name of the political party such candidate represents as provided by law and as certified to the circuit clerk by the state executive committee of such political party. Provided further, however, that nothing in this section shall prohibit a person from qualifying as a nominee of a political party, or from requesting to be a candidate for the office by filing a petition, in the event of the death of a candidate for the office which makes it impossible to have an election contest. In the event such candidate qualifies as an independent as herein provided, he shall be listed on the ballot as an independent candidate. Section 21-5-134 is interpreted to mean that when a petition is filed with the municipal election commission under that Code section, the requisite number of qualified electors' names must be upon the petition on the cut-off filing date sixty (60) days prior to the general election, which in this instance was April 3, 1981, and no additional names may be added to supply a numerical deficiency subsequent to April 3, 1981.

With kind regards, I am

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY:

S. E. Birdsong, Jr. Assistant Attorney General

SEB, Jr./mg