Mississippi Advisory Opinions September 14, 1984: AGO 000010333 (September 14, 1984)

AGO 000010333.

As indicated in your letter the U. S. Attorney General submitted a letter of no objection in regard to Senate Bill No. 2752, Chapter 465, Laws of 1984, which amends certain statutes governing special elections. Said letter was dated August 14, 1984.

Therefore, as of that date, the time and manner of holding special elections in Mississippi are governed by the provisions of Chapter 465, Laws of 1984 which provides in part:

"SECTION 1. Section 23-5-203, Mississippi Code of 1972, is amended as follows:

23-5-203. Except as otherwise provided by law, the first Tuesday after the first Monday in November of each year shall be designated the regular special election day and on that day, an election shall be held to fill any vacancy in county, county district, and district attorney elective offices.

SECTION 2. Section 23-5-197, Mississippi Code of 1972, is amended as follows:

23-5-197. When a vacancy shall occur in any county or county district office, the same shall be filled by appointment by the board of supervisors of the county, by order entered upon its minutes where the vacancy occurs, or by appointment of the president of the board of supervisors, by and with the consent of the majority of the board of supervisors, if such vacancy occurs when said board is not in session, and the clerk of the board shall certify to the Secretary of State the fact of the appointment, and the person so appointed shall be commissioned by the Governor; and if the unexpired term be longer than six (6) months, such appointee shall serve until a successor is elected as hereinafter provided, unless the vacancy shall occur before ninety (90) days prior to the general election in a year in which an election would normally be held for that office as provided by law, in which case the person so appointed shall serve the unexpired portion of the term. Such vacancies shall be filled for the unexpired term by the qualified electors at the next regular special election day occurring more than ninety (90) days after the occurrence of the vacancy. The board of supervisors of the county shall, within ten (10) days after the happening of the vacancy, make an order, in writing, directed to the commissioners of election, commanding an election to be held on the next regular special election day to fill the vacancy. The election commissioners shall require each candidate to qualify at least sixty (60) days before the date of the election, and shall give a certificate of election to the person elected, and shall return to the Secretary of State a copy of the order of holding the election, showing the results thereof, certified by the clerk of the board of supervisors. The person elected shall be commissioned by the Governor."

We understand that qualified individuals have been duly appointed to temporarily fill the two vacancies in question.

It appears to this office that the Copiah County Board of Supervisors, acting in good faith, set the special elections in question pursuant to the special election laws of the State of Mississippi which were in effect prior to the above referred to approval of Chapter 465 by the U. S. Department of Justice.

Also, it is our understanding that the Copiah County Election Commission has not yet given notice of special elections for the two offices in question.

Under the previous special election laws, individuals were permitted to qualify up until at least ten (10) days before the date of a special election.

The newly approved law requires individuals to qualify as candidates for special elections at least sixty (60) days prior to the election. Therefore, the statutory deadline to qualify as a candidate in a special election to be held on Tuesday, November 6, 1984, was Friday, September 7, 1984.

Since the order calling for special elections for the two offices was entered on September 4, 1984, there would be only, at the most, four (4) days from the time said elections were called to qualify as a candidate for one (1) of the vacancies to be filled. As noted above, the Election Commissioners Notice of the special elections has not yet been given.

Considering the above circumstances, it appears that since the Copiah County Board of Supervisors acting in good faith set the elections under the old law, the requirements of the newly approved law governing special elections cannot be fulfilled insofar as holding special elections on Tuesday, November 6, 1984 is concerned.

Therefore, it appears that the Copiah County Board of Supervisors should set aside its order setting the special elections for Tuesday, November 6, 1984, and order said elections to be held on the special election day of 1985, that is, the first Tuesday after the first Monday in November, 1985.

This necessarily means that the two appointees would continue to serve until the results of those elections are determined and the newly elected officers lawfully assume their duties.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY Phillip C. Carter Special Assistant Attorney General

PCC:mfd