Mississippi Advisory Opinions June 01, 2007: No. 2007-00287 (June 1, 2007)

No. 2007-00287.

Dear Mr. Dulaney:

Attorney General Hood has received your request for an official opinion and it has been assigned to us for research and reply. Your letter states:

Please be advised that we represent the Board of Supervisors of Tunica County, Mississippi. In connection therewith, Tunica County has received a petition submitted pursuant to Section 37-5-63 of the Mississippi Code of 1972, as amended. A copy of one page of the petition is attached. As you can see, the Board of Supervisors has been requested to call a special election, the outcome of which would determine whether the voters of Tunica County would continue to elect a Superintendent or whether the position would become appointed.. In connection with this, I have a number of questions and would request your official opinion with regard thereto.

(1) I understand that Section 37-5-63 of the Mississippi Code of 1972, as amended, might have never been pre- cleared by the United States Department of Justice under the Voting Rights Act. If this is the case, then is the law of any effect?

(2) Assuming the law is of effect and is applicable, will the Board of Supervisors have to hold the special election with sixty (60) day of receipt of the Petition? The law states the Board of Supervisors has to "call" the special election. Does this mean within (60) days of receipt of the petition we have to actually have the election or simply call the election which would then be held at a later time?

(3) The law states in part as follows:

"Said election shall be held, as far as is practical, in the same manner as other elections are held in such county..."

Based upon this, does the special election have to be held on the regular special election date which we understand would be Tuesday, November 6, 2007 (subject to the proper notices as called for by Section 37-5-63 being given)?

(4) If an election is called and held with the outcome being that the position would become an appointed position, would Tunica County have to seek and obtain pre-clearance either before or after hold the election in order for the result to become iffective if the election results in the office of Superintendent no longer being elected?

As discussed in MS AG Op., Seal (April 23, 2004) and MS AG Op., Bougeois (November 9, 1995), the provisions now codified as Section 37-5-63 that provide for special elections to determine whether to change from elected county superintendents of education to appointed superintendents were contained in Chapter 406, Laws of 1966, Chapters 384 and 398, Laws of 1968 and Chapter 372, Laws of 1970, none of which have been approved by the U.S. Department of Justice.

Accordingly, those provisions are not in effect and are not enforceable.

Your remaining questions are therefore moot.

Sincerely yours,

JIM HOOD, ATTORNEY GENERAL

By: Reese Partridge

Assistant Attorney General