Mississippi Advisory Opinions October 22, 1991: AGO 000005420 (October 22, 1991)

AGO 000005420.

Dear Mr. Lewis:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

"On behalf of the Lafayette County Democratic Executive Committee I wish to submit the following questions for your consideration and written opinions:

1. Facts: The Lafayette County Democratic Executive Committee has received sworn affidavits from two qualified voters, stating that they were deprived of the opportunity to vote in their county superintendent's race. Although the affidavits do not specify in what manner the voters were prevented from participating in the election, the committee has received anecdotal information that some voters were handed the wrong ballot and did not vote in that particular race, although entitled to do so. The election was extremely close with a two vote difference. The losing candidate has indicated that he is not going to contest the election. Please note that I am unaware of any allegation of deliberate wrongdoing in connection with the election.

Question: Does the Lafayette County Democratic Executive Committee have authority to investigate the claims of voters, as opposed to losing candidates, who claim that the election was not conducted properly?

Question: Does the Lafayette County Democratic Executive Committee have authority to call a new election in the County Superintendent of Education race in the event that investigation indicates substantial or material failure of the election process, albeit unintentional? If not, does the committee have authority to provide any remedy for disenfranchisement of a voter in a particular race under these circumstances?"

In response to your first question, it is the opinion of this office that while any person may provide information to the committee for its consideration prior to certification of the election, only a candidate has standing to pursue an election contest before the committee subsequent to certification pursuant to Mississippi Code Annotated Section 23-15-921 (Rev. 1990). See Omar v. West, 186 Miss. 136, 188 So. 917 (1939) and Jones v. Election Commissioners of Hancock County, 187 Miss. 36, 193 So. 3 (1940). In response to your second question, the authority of an executive committee to call a new election is provided for in Section 23-15-593 which provides in part:

"When the ballot box is opened and examined by the county executive committee in the case of a primary election, .... and it is found that there have been failures in material particulars to comply with the requirements of Section 23-15-591 and Section 23-15-895 to such an extent that it is impossible to arrive at the will of the voters at such precinct, the entire box may be thrown out unless it be made to appear with reasonable certainty that the irregularities were not deliberately permitted or engaged in by the managers at that box, or by one (1) of them responsible for the wrong or wrongs, for the purpose of electing or defeating a ceratin candidate or candidates by manipulating the election or the returns thereof at that box in such manner as to have it thrown out; in which latter case the county executive committee, .... shall conduct such hearing and make such determination in respect to said box as may appear lawfully just, subject to judicial review of said matter as elsewhere provided by this chapter. Or the executive committee, .... may order another election to be held at that box appointing new managers to hold the same. (emphasis ours)

Section 23-15-597 requires the executive committees to canvass the returns and certify the results of the election. It is the opinion of this office that the authority of an executive committee to call for a new election is limited to the time prior to the certification of the election. Once the election has been certified, a candidate has a period of twenty (20) days within which to file an election contest pursuant to section 23-15-921. The executive committee is required by that statute to notify all parties concerned, proceed to investigate the grounds upon which the election is contested, and by majority vote of members present, declare the true results of such primary. (emphasis ours)

Based on the above, it is the opinion of this office that once an executive has certified the results of a primary election, the call for a new election must necessarily come from a court of competent jurisdiction hearing an election contest filed pursuant to section 23-15-927.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General PC:mfd