Mississippi Advisory Opinions September 21, 2012: No. 2012-00442 (September 21, 2012)

Mississippi Attorney General Opinions

2012.

No. 2012-00442.

Dear Mr. Clark:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Questions Presented

Your letter states in part:

On May 18, 2012, a potential candidate for the office of Holmes County Election Commissioner appeared in the Holmes County Chancery Clerk's office and presented his Qualifying Petition and Certificate of the Registrar showing the number of qualified electors on his petition. The Chancery Clerk acknowledges that the potential candidate was the very first candidate for Election Commissioner to present his qualification paperwork in his office. The Chancery Clerk (a newly elected clerk) inspected the Qualifying Petition and Certificate of the Registrar. The Chancery Clerk stamped the Certificate of the Registrar "Filed" for May 18, 2012 and retained it; however, the Qualifying Petition was returned to the potential candidate. [The deadline was June 4.] On June 5, 2012, the Chancery Clerk realized that he failed to keep the potential candidate's Qualifying Petition as he should have done and as he has done for all remaining candidates. Therefore, the Chancery Clerk called the potential candidate whose petition he failed to keep to obtain the petition. The petition was provided by the potential candidate and was in the Chancery Clerk's office before 12:00 pm on June 5, 2012.

The question has been raised as to whether the potential candidate's name should be included on the November 6, 2012 ballot since his qualifying petition was not retained by the Chancery Clerk until after the qualifying deadline.

The Chancery Clerk acknowledges that the potential candidate presented the Qualifying Petition and Registrar's Certificate on May 18, 2012; however it was the Clerk's admitted failure which resulted in only the Registrar's Certificate being retained and not the Qualifying Petition.

1. Based on the facts set forth above, the Holmes County Board of Supervisors requests an opinion from the Attorney General regarding the sufficiency of the steps taken by the potential candidate in attempting to qualify prior to the deadline?

2. Based on the facts set forth above, does the strict compliance deadline requirement for Section 23-15-213 require that the board of supervisors not include the potential candidate's name on the ballot ?

Brief Response

Based on the facts presented, it appears the candidate is in compliance with Mississippi Code Section 23-15-213 in that he filed his qualifying petition with the chancery clerk prior to the qualifying deadline. It is the duty of the Holmes County Board of Supervisors to make such a factual determination.

Analysis and Conclusion

Regarding the process for qualifying to run for election commissioner, Miss. Code Ann. Section 23-15-213 states in part:

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 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. (Emphasis added.)

We have previously opined that the requirement for filing a potential candidate's petition with the chancery clerk by the statutory deadline requires strict compliance. MS AG Op., Chiles (August 10, 2012).

You present a factual scenario involving an irregularity in the candidate qualifying process. With regard to cases involving ballot irregularities, the Mississippi Supreme Court has stated "Although the general rule is that mere technical irregularities will not render a ballot invalid, the rule only applies in cases in which there is no evidence of fraud or intentional wrongdoing. Wilbourn v. Hobson, (Miss. 1992); Campbell v. Whittington, (Miss. 1999). The Court has further noted that "mere technical irregularities will not vitiate the validity of an election where there is no evidence of fraud or intentional wrongdoing." Hobson at 1192.

In an opinion to the Honorable Percy L. Reese and the Honorable Russell Smart, we were presented with facts similar to this request. Specifically, a candidate for county school board submitted a qualifying petition to the clerk prior to the commencement of the filing period. Being unaware of the deadline, the clerk accepted the petition. We opined that the decision as to whether or not the name of the individual in question should be placed on the ballot must be made by the election commission consistent with the facts. We further recognized that the commission should give the candidate the "benefit of the doubt" since the ultimate decision of who holds the office will be made by the voters. MS AG Op., Reese and Smart (September 19, 1986).

In this instance, you represent that the candidate filed qualifying documents with the chancery clerk on May 18, 2012. The documents submitted included the candidate's qualifying petition and a certification from the circuit clerk (registrar) documenting the number of qualified electors who signed the petition. The chancery clerk stamped the certification "filed" and, we presume, mistakenly returned the petition to the candidate. The facts, including the chancery clerk's own statement, indicate the candidate complied with filing his petition on or before the June 4, 2012 deadline. The facts you present do not to make any allegation of intentional wrongdoing or fraud by the parties involved. Thus, it appears the candidate's name should be placed on the ballot if he is otherwise qualified under the law. However, we note that the appropriate body to make this determination is the Holmes County Board of Supervisors - the body charged with determining the sufficiency of the petition pursuant to Miss. Code Ann. Section 23-15213.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Elizabeth S. Bolin

Special Assistant Attorney General