Mississippi Advisory Opinions September 17, 1999: AGO 000013402 (September 17, 1999)

AGO 000013402.

Dear Mr. Blaker:

Attorney General Mike Moore has received your recent letter of August 12, 1999, on behalf of the Marshall County Board of Supervisors and your fax of September 13, 1999, and has asked me to respond. In your letter, which was clarified by your faxed transmission, you ask three questions which are reproduced below with our responses.

1. Can a candidate qualify and run in a party primary election, and at the same time file a petition to qualify and to run for the same office as an independent candidate in the following general election?

In Mississippi Board of Election Commissioners v. Meredith, 301 So. 2d 571 (Miss. 1974) the Mississippi Supreme Court addressed the question of whether one who participates in a party's first primary as a candidate may withdraw as a candidate prior to the second primary and have his name placed on the general election ballot as an independent candidate. The Court held that to qualify as an independent candidate one should be truly independent and that a person who participates in a party primary as a candidate may not thereafter withdraw and have his name placed on the ballot as an independent candidate. After that decision was issued, Miss. Code Ann. Section 23-15-299 was amended and now sets a common qualifying deadline for candidates who are party nominees and candidates who are independent of March 1 of the year in which the primary election is held or the date of the qualifying deadline provided by statute, whichever is earlier. We reaffirm our prior opinions to W. M. McMullan, September 13, 1983, and Rush Clements, August 17, 1979, which state that a person who participated as a candidate in a primary election may not participate as an independent candidate in the following general election. Therefore, we are of the opinion that a candidate may not qualify and run in a party primary election and at the same time file a petition to qualify and run for the same office as an independent candidate in the following general election.

2. Can a candidate qualify and run in a party primary election, and at the same time file a petition to qualify and run for a different office as an independent candidate in the following general election?

For the same reasons as stated above, we are of the opinion that a person may not qualify and run in a party primary election and at the same time file a petition to qualify and run for a different office as an independent candidate in the following general election.

3. Can an individual who has qualified as an independent candidate vote in a primary election?

Miss. Code Ann. Section 23-15-575 states:

No person shall be eligible to participate in any primary election unless he intends to support the nominations made in the primary in which he participates.

An independent candidate who has a party opponent could be challenged if he attempts to vote in that party's primary on the basis that he did not have the intent to support that party's nominees in the general election. See also MS AG Op., Conerly (May 26, 1993)(stating that independent candidate who voted in Democratic primary was subject to challenge which could have resulted in his ballot being rejected). If we may be of any further assistance, please let us know.

Very truly yours,

MIKE MOORE

ATTORNEY GENERAL

By: Alice Wise

Special Assistant Attorney General