Mississippi Advisory Opinions November 07, 2002: AGO 000015333 (November 7, 2002)

AGO 000015333.

Dear Senator Chaney:

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

In the judicial election for County Judge in Warren County November 5, 2002 none of the five candidates received fifty percent plus one of the votes cast, to win the election. If no candidate receives a majority of the votes cast, Section 23-15-981 of the Mississippi Code provides for the two candidates receiving the highest number of votes to have a runoff.

An official opinion is requested for the following question. If the number one or two candidate and vote receiver in a county judicial general election withdraws from the runoff, does the next candidate, if there is a next candidate, receiving the most votes in the general election move up to run in the runoff?

In response to your inquiry Mississippi Code Annotated, Section 23-15-981 provides:

If two (2) or more candidates qualify for judicial office, the names of those candidates shall be placed on the general election ballot. If any candidate for such an office receives a majority of the votes cast for such office in the general election, he shall be declared elected. If no candidate for such office receives a majority of the votes cast for such office in the general election, the names of the two (2) candidates receiving the highest number of votes for such office shall be placed on the ballot for a second election to be held two (2) weeks later in accordance with appropriate procedures followed in other elections involving runoff candidates. (Emphasis added)

Section 23-15-305 is the statute that sets forth certain runoff provisions for primary elections. It provides in part:

If the candidate who received the second highest number of votes cast for such office for any reason declines to enter the second primary, then in that event the candidate who received the third highest shall have his name submitted to the second primary, together with the candidate who received the highest number of votes cast for such office.

If the candidate who received the third highest number of votes cast for such office for any reason declines to enter the second primary, then in that event the candidate who received the fourth highest shall have his name submitted to the second primary, together with the candidate who received the highest number of votes cast for such office.

Section 23-15-981 requires that runoffs for judicial offices be held in accordance with appropriate procedures followed in "other" elections involving runoff candidates. Section 23-15-305 sets forth the appropriate runoff procedures for primary elections and are the statutory provisions most analogous to runoffs for judicial office. Therefore, we are of the opinion that if the candidate with the most votes or the candidate with the next most votes declines to enter the runoff, the candidate with the next highest votes would be entitled to have his name placed on the runoff ballot.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General