Mississippi Advisory Opinions June 29, 2001: AGO 000014502 (June 29, 2001)

AGO 000014502.

Dear Ms. Randle:

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

I am the town clerk for the Town of Cruger. We held a municipal election for the Town of Cruger, June 5th, 2001.

A young man, DeJohn Hampton, qualified to run for alderman for the Town of Cruger. His name was placed on the ballot and he received 74 votes. In checking with the circuit clerk, we were unable to locate DeJohn Hampton's name on the municipal or county voter roll. He is not a registered voter. However, he received enough popular votes to become an alderman.

QUESTIONS:

Since DeJohn Hampton is not registered, will he still be sworn in on July 3rd?

Can DeJohn Hampton be sworn in as alderman, if he is not registered?

Will the town have to hold another election?

Can the next highest vote getter be sworn in?

We preface our response to your questions by stating that it is our understanding that the results of the election in question have not yet been officially certified.

In response to your first two questions, it is well settled that one who fails to register is not eligible to hold a municipal office. See Mississippi Constitution of 1890, Article 12, Section 250 (1890); Andrews v. State, 69 Miss. 740, 13 So. 853 (1892). Therefore, if the individual in question is, as a matter of fact, not a registered voter he could not lawfully be sworn in as an alderman.

In response to your third and fourth questions, the general rule on whether a new election must be conducted in the situation you described is set forth at 29 C.J.S. Elections Section 243, at 676-77 (1965) and was cited by the Mississippi Supreme Court in Stringer v. Lucas, 608 So.2d 1351 (Miss. 1992). It provides:

Votes cast for a ... disqualified, or ineligible person, although ineffective to elect such person to office, are not to be treated as void or thrown away but are to be counted in determining the result of the election as regards the other candidates. Accordingly, the general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case the electors have failed to make a choice and the election is a nullity.

Based on the above, we are of the opinion that there will be a vacancy on the Cruger Board of Aldermen upon commencement of the new term on July 2, 2001. The vacancy must then be declared and filled in accordance with Mississippi Code Annotated, Section 23-15-857 (Supp. 2000).

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General