Mississippi Advisory Opinions March 05, 1993: AGO 000006617 (March 5, 1993)

AGO 000006617.

Dear Mr. Hewes:

Attorney General Mike Moore has received your letter requesting an opinion of this office and has assigned it to me for research and reply.

Your letter presents for opinion several questions concerning the effect on the 1993 Gulfport municipal elections of an anticipated decision of the Supreme Court of Mississippi in a pending annexation case involving Gulfport, Mississippi. Also, your letter poses several related questions concerning the effect that statutorily mandated redistricting will have on such elections.

Your letter states as follows:

The City of Gulfport has been governed since 1985 by the Mayor-Council form of government with five wards and a total of five Council members (one from each ward). On December 26, 1991 the Special Chancellor in Chancery Cause No. 91,736, First Judicial District of Harrison County entered Judgment extending and enlarging the boundaries of the City of Gulfport. The effect of the Judgment would be to substantially enlarge the geographical area and the population of the City of Gulfport. One party, a citizen's group in the annexed area, appealed the Judgment to the Mississippi Supreme Court, and Briefs have been filed, and the Judgment is presently pending final decision by the Supreme Court of Mississippi. If the annexation Judgment is substantially affirmed, it is the governing authority's belief that a fair division of wards to include the proposed annexed area shall be best implemented by establishment of two additional wards of the annexed area with one council member for each additional ward, thereby creating a total of seven wards and seven councilmen for the City of Gulfport, and the governing authority has reason to believe that such re-districting plan shall be approved by the U.S. Justice Department.

The City of Gulfport is presently preparing a Re- districting Ordinance as required by law for the existing City and its five wards pursuant to the 1990 census in the event annexation does not come about in the near future. However, due to the pending 1993 municipal election for mayor and council members, and in order to be prepared to the extent possible for enlargement of the City boundaries if a decision affirming or partially affirming the annexation Judgment is rendered prior to the municipal election, I do hereby request an Opinion to assist me in advising the governing authority concerning these contingent events as they may occur in view of the ambiguities of the election and re-apportionment statutes.

Your letter then poses six (6) questions in connection with the above factual situation. Your individual questions are followed by our specific responses.

1. There are less than six months remaining before the first primary scheduled for May 4, 1993 pursuant to Section 23-15-171 MCA, and after December 8, 1992, there shall be less than six months remaining before the general election scheduled for June 8, 1993 according to Section 21-8-7 and Section 23-15-173 MCA.

In the event a decision comes down effecting annexation for the City of Gulfport, shall the subsequent adoption of an ordinance to create two additional wards from within the annexed area subject to Justice Department approval be of no effect for council and mayoral voting purposes until the next regularly scheduled election for municipal council members to be held in 1997? (See Section 21-8-7, MCA).

Response to Question 1:

The answer to your first question is yes. Since the annexation would be effective less than six (6) months prior to the first primary of the 1993 general municipal election, the provisions of MISS. CODE ANN., Section 21-8-7(4)(d) (Revised 1990) are controlling. Under this code section where the annexation occurs within such a time frame, the redistricting required by Section 21-8-7(4)(c)(i) would not become effective for election purposes until the 1997 municipal election. It is the opinion of this office that Section 21-8-7(4)(d) requires that in such situations the governing authorities merely assign the annexed areas to the adjacent ward or wards for the purposes of the upcoming municipal elections. Please understand, however, that care must be used in the application of this statute to insure conformity to United States constitutional requirements that may arise as a consequence of the particular facts surrounding the Gulfport annexation.

2. If a Mississippi Supreme Court Decision is issued effecting annexation prior to the first party primary to be held on May 4, 1993, and an ordinance is adopted by the City Council in accordance with Section 21-8-7- (4)(d), MCA, "assigning the annexed territory to adjacent wards so as to maintain as nearly as possible substantial equality of population between wards" shall the registered County voters of the enlarged area have any voting rights during the primary or general municipal election to vote for either members of the council or Mayor or both, or shall the voting citizens in the newly elected area be prevented from voting until the next regularly scheduled election for municipal council members (1997) by virtue of the following provision: ". . . any subsequent redistricting of the municipality by ordinance as required by this chapter shall not serve as the basis for representation until the next regularly scheduled election for municipal councilmen."?

Response to Question 2:

The answer to your second question is found in MISS. CODE ANN., Section 23-15-39(8). Under this section all newly annexed county electors who have resided in the annexed area for at least thirty (30) days from the effective date of the annexation are automatically added to the municipal registration books as registered voters of the municipality. The phrase "any subsequent redistricting of the municipality by ordinance as required by this chapter shall not serve as the basis for representation until the next regularly scheduled election for municipal councilmen" found within Section 23-8-7(4)(d) pertains to the subsequent redistricting required by Section 23-8- 7(4)(c)(i) and not to the assignment of the annexed area and the voters of the annexed area to the adjacent wards.

3. If the City of Gulfport is enlarged by Supreme Court Decision prior to the primary or general election and the City Council assigns the annexed territory to adjacent wards prior to the primary or general municipal election but less than thirty days prior to the primary election and the registered county voters in the annexed area are determined not to be prevented from voting under Section 21-8-7, MCA (Paragraph 2 above) are these new resident voters prohibited from voting by the requirements of residency and/or registration under the Voter Registration Sections (see Section 23-15-11, Section 23-15-13, Section 23-15-14, MCA)?

Response to Question 3:

The answer to your third inquiry is yes. Under the general registration statute, i.e., MISS. CODE ANN. Section 23-15-11 (Revised 1990), and the voter "registration" statute pertaining to newly annexed county elections, i.e., MISS. CODE ANN. Section 23-15-39(8), newly annexed county electors must reside in the municipality for thirty (30) days to be eligible to vote in municipal elections. As stated in our response to Question 2, Section 23-15-39(8) provides that all newly annexed county electors who have resided in the annexed area for at least thirty (30) days from the effective date of the annexation are automatically added to the municipal registration books as registered voters of the municipality. Although MISS. CODE ANN. Section 21-1-33 (Revised 1990) provides that the effective date of an annexation ordinance is ten (10) days from the final determination of the appeal from the chancery court decree approving the ordinance, as set forth in our response to Question 5, under federal law annexations are not effective for election or voting purposes until federal preclearance is obtained under Section 5 of the Voting Rights Act of 1965.

4. If voters in a newly annexed area do not qualify for the primary election, for any of the reasons set forth above (paragraphs 2 and 3), shall they be likewise automatically disqualified from voting in the subsequent 1993 municipal primary elections or the general municipal elections?

Response to Question 4:

The answer to question No. 4 is yes, as to the subsequent primary election, and no, as to the general election. This office has consistently held that the first and second primaries constitute one election; therefore, if an elector is ineligible to vote in the first primary he or she cannot subsequently vote in the second primary. However, this holding does not apply to an elector's eligibility to vote in the subsequent general election. If the annexation becomes effective on a date more than thirty (30) days prior to the general election, then newly annexed county electors who live within the city thirty days are eligible to vote in the general election.

5. If a final Supreme Court Decision effecting annexation occurs prior to the primary or general municipal election, but without sufficient time to secure U.S. Justice Department approval to the assignment of territory to wards under Section 21-8-7 (4)(d), what shall be the effect, on the City of Gulfport municipal election process?

Response to Question 5:

As indicated by our response to Question 3, federal preclearance under Section 5 of the Voting Rights Act of the enlargement of the municipal boundaries and the assignment of the annexed area to the adjacent wards are required before newly annexed electors can participate in municipal elections. See: City of Pleasant Grove v. United States, 479 U.S. 462 (1987), footnotes 8 and 10. For the purpose of the municipal primary election, preclearance would have to be obtained on or before April 4, 1993. If, however, federal preclearance is obtained after April 4, 1993 and before May 9, 1993 (thirty (30) days prior to the June 8, 1993 General Election), then the newly annexed county electors would be eligible to participate in the June 8, 1993 General Election as municipal voters, and also as independent candidates, provided that independent candidates' petitions were filed on or before the candidate qualification deadline, i.e., 12:00 noon Saturday, April 3, 1993.

6. Aside from any question concerning the upcoming municipal election, and inasmuch as the Statutes do not appear to the undersigned to specify a procedure for increasing the number of wards and adding a council member for each new ward to increase the number of council members from five to seven under the Mayor- Council form of government according to Gulfport's Annexation Plan, can the ultimate re-districting to add two additional wards to include the newly annexed area be accomplished by the usual procedures of public hearing on the Ordinance, followed by adoption of ordinance, and approval by the U.S. Justice Department in conformity with the 1990 census?

Response to Question 6:

It is the opinion of this office that the usual procedures for notices and public hearings may be followed in connection with the proposed adoption of any ordinance increasing the council from 5 to 7 members with the attendant increase in the number of wards. We would point out that 28 C.F.R., Section 51.28(f) provides that, if a proposed change under Section 5 of the Voting Rights Act is potentially controversial, that covered jurisdictions should include in their submissions to the Attorney General of the United States the information outlined in 28 C.F.R., Section 51.28(f), in addition to the information called for by 28 C.F.R. Section 51.27 through Section 51.28 which pertain to all submissions of Section 5 changes, including annexations and redistricting. Copies of these federal regulations are enclosed for your review and use.

Sincerely,

Giles W. Bryant Special Assistant Attorney General

GWB:ph Enclosure