Mississippi Advisory Opinions July 13, 2012: No. 2012-00355 (July 13, 2012)

No. 2012-00355.

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

You state that two potential candidates for the office of Hinds County Election Commissioner submitted their petitions to the Circuit Clerk prior to the June 4, 2012 5:00 p.m. deadline, but did not submit their petitions to the Chancery Clerk until June 5, 2012 which was after the statutory deadline. You cite two cases in which circuit courts in Simpson and Washington Counties addressed similar situations and permitted the names of the candidates in question to be placed on the ballot. You then present three (3) questions.

Our opinion is based on our understanding that the Hinds County Board of Supervisors has not yet ruled on the qualifications of the candidates in question.

Question One: Is the Board of Supervisors required to formally vote on the sufficiency of the petitions for potential candidates for election commissioner to ultimately determine which candidates will appear on the ballot in the November election?

Response: Yes. See Mcintosh v. Sanders, (2002)

Question Two: If the Board is required to vote on the sufficiency of the petitions, may the Board consider a "substantial compliance" as opposed to a "strict compliance" of the requirements of Miss. Code Ann. Section 23-15-213 to permit the two potential candidates to be placed on the ballot consistent with the court opinions enclosed herewith?

Response: While the Board may consider whether there has been substantial compliance with certain provisions of the qualifying procedure set forth in Section 2315-213, the deadline for filing the required petition with the Chancery Clerk requires strict compliance.

Question Three: May a member of the Board of Supervisors whose spouse is a candidate for the office of election commissioner be permitted to vote on the sufficiency of the petitions for his spouse and for his spouse's potential opponent?

Response: We defer to the Mississippi State Ethics Commission on whether such participation would be in violation of the Conflict of Interest Laws.

With regard to Question One, the Mississippi Supreme Court in McIntosh said that "the board of supervisors takes on the role of the board of election commissioners when the election commissioners themselves run for election." Section 23-15-213 specifically states in part:

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.....The board shall determine the sufficiency of the petition, and if the petition contains the required number of signatures and is filed within the time required, the president of the board shall verify that the candidate is a resident of the supervisors district in which he seeks election and that the candidate is otherwise qualified as provided by law, and shall certify that the candidate is qualified to the chairman or secretary of the county election commission and the names of the candidates shall be placed upon the ballot for the ensuing election.....

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With regard to Question Two, Section 23-15-213 specifically states in part:

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Candidates for county election commissioner shall qualify by filing with the clerk of the board of supervisors of their respective counties a petition personally signed by not less than fifty (50) qualified electors of the supervisors district in which they reside, requesting that they be a candidate, by 5:00 p.m. not later than the first Monday in June of the year in which the election occurs and unless the petition is filed within the required time, their names shall not be placed upon the ballot .....

The petition shall have attached thereto a certificate of the registrar showing the number of qualified elector on each petition, which shall be furnished by the registrar on request..... (Emphasis added)

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It is the responsibility of the candidate to see that the petition is filed with the Chancery Clerk prior to the statutory deadline. If the candidate fails to meet that responsibility, the statute specifically requires the Board of Supervisors to refuse to place the candidate's name on the ballot.

The Circuit Clerk's role in the qualifying procedure is a purely ministerial one. That is, the Circuit Clerk checks the signatures on the candidate's petition and executes a certificate stating the number of signatures of qualified electors that appear on the petition. There is nothing in the statute that indicates that it is permissible for a candidate for county election commissioner to file his or her petition with the Circuit Clerk.

We emphasize that it is the candidate's responsibility to know where his or her petition is required to be filed and to insure that the petition is filed with the proper official and is filed with that official prior to the statutory deadline.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General