Mississippi Advisory Opinions August 10, 2012: No. 2012-00389 (August 10, 2012)

No. 2012-00389.

Dear Ms. Chiles:

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

You cite and quote Mississippi Code Annotated Section 23-15-213 (Supp. 2011) and reference our opinion to Crystal Martin, dated July 13, 2012 wherein we said that the Circuit Clerk's (County Registrar's) role in the qualification process is purely a ministerial one and that the filing of the required petition with the Chancery Clerk prior to the qualifying deadline requires strict compliance. You ask if the Registrar's certificate of the number of signatures of qualified electors that appear on the petition, required by Section 23-15-213, but dated after the qualifying deadline, affects the timeliness of the filing of the petition and/or prohibit the placement of the candidate's name on the ballot.

The Registrar's certificate that is dated and submitted to the Board of Supervisors after the qualifying deadline does not, in our opinion, affect the timeliness of the filing of a petition that was filed with the Chancery Clerk prior to the statutory deadline, or prohibit the placement of a candidate's name on the ballot.

Section 23-15-213 provides 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. All candidates shall declare in writing their party affiliation, if any, to the board of supervisors, and such party affiliation shall be shown on the official ballot.

The petition shall have attached thereto a certificate of the registrar showing the number of qualified electors on each petition, which shall be furnished by the registrar on request. 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.

As noted, in Martin we said that 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. We further stated that 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.

The requirement for filing a potential candidate's petition with the Chancery Clerk by the statutory deadline requires strict compliance. However, we are of the opinion that the filing of the petition containing the requisite signatures with the Chancery Clerk, even though the Circuit Clerk's certificate is not attached, does constitute substantial compliance with the statutory filing requirements.

As a general proposition concerning statutes dealing with elections, the Mississippi Supreme Court has long held that if a statute does not expressly declare that a particular act is essential to the election's validity or that omission of the particular act will render the election void, the statute is considered directory rather than mandatory, so long as the irregular act is not intended to affect the integrity of the election. Thompson v. Jones, (Miss. 2008); Rogers v. Holder, , (Miss. 1997); Walker v. Smith , (Miss. 1952); Tedder v. Board of Supervisors of Bolivar County, (Miss. 1952); State ex rel. Rice v. Dillon (Miss. 1944); State ex rel. Sowell v. Greer, (1930); Also, see MS AG Op., Perkins (December 18, 2009).

For example, in Tedder the Court said:

.... . It is true that Code Sec. 3239 requires the election commissioners to meet and revise the registration and poll books five days before an election, and that the Bolivar County Commissioners met only three days before the bond election. But there was no showing that appellants were prejudiced by that two-day delay, and in the absence of such a showing, although the provisions of the statute should be complied with, they are directory and not mandatory, .... .

The mandatory provision of the filing procedure set forth in Section 23-15-213 is the filing of the petition with the Clerk of the Board of Supervisors, i.e., the Chancery Clerk. It expressly requires that "unless the petition is filed within the required time, their names shall not be placed upon the ballot."

The paragraph following that mandatory requirement directs that the "petition shall have attached thereto a certificate of the Registrar showing the number of qualified electors on each petition, which shall be furnished by the registrar on request." This particular act is the subject of your inquiry. In contrast to the first paragraph there is no language that says that the candidate's name shall not be placed on the ballot upon the failure to comply with the particular act of attaching the certificate to the petition. Therefore, we are of the opinion that the particular act of having the certificate attached to the petition that is filed with the Chancery Clerk is directory and not mandatory. To say otherwise would allow a circuit clerk to deliberately delay the execution of the certificate until after the qualifying deadline thereby preventing a potential candidate's name from appearing on the ballot.

As a practical matter, we note that the obvious purpose of the certificate of the Circuit Clerk is to provide the Board of Supervisors with information to assist the Board in making its judicial determination, after the qualifying deadline, of the sufficiency of each candidate's petition as it pertains to the number of legitimate signatures. Indeed, the statute does not prescribe when the certificate must be attached to the petition, whether before or after the petition is filed with the Chancery Clerk. There is no practical reason to require that the certificate be filed by the qualifying deadline. While it is incumbent on the Circuit Clerk to execute the required certificate in time for a candidate to attach it to his or her petition prior to the filing deadline, there will be situations where a candidate will wait until just prior to the deadline to file his or her petition making it impossible or impractical for the Clerk to complete the examination of the signatures and execute the certificate. It is ultimately a question for the Board of Supervisors to determine whether a petition, filed prior to the deadline with the Chancery Clerk, contains the requisite number of signatures of qualified electors.

Our opinion to Honorable Fred C. DeLong dated November 3, 1987 is hereby withdrawn. Our opinion to Mrs. Sue Sautermeister dated August 9, 1989 is hereby modified to conform to this opinion.

Sincerely,

JIM HOOD, ATTORNEY GENERAL By:

Phil Carter

Special Assistant Attorney General