Mississippi Advisory Opinions May 18, 2007: AGO 2007-00246 (May 18, 2007)

Advisory Opinion Text

Willie C. Allen, Esq.

Director of Elections Administration

Mississippi Secretary of State's Office

P. O. Box 136

Jackson, MS 39205-0136

Re: Unopposed Candidates in Primary Election

Dear Mr. Allen:

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:

While preparing for the 2007 Primary Election, the Mississippi Secretary of State's Office has been responding to several calls concerning the status of unopposed candidates in the primary election.

On March 5, 1991, the Attorney General's Office issued a formal opinion to Honorable Joe W. Martin, Jr. opining that an unopposed candidate is by law the party nominee and that their names should not appear on the primary ballot. This opinion was based on Miss. Code Ann. Section 23-15-299 , which reads in part as follows:

Where there is but one (1) candidate, the proper executive committee when the time has expired within which the names of candidates shall be furnished shall declare such candidate the nominee.

However, the above cited provision was amended in 2000 by Senate Bill 2810 and currently reads as follows:

Where there is but one (1) candidate for each office contested at the primary election, the proper executive committee when the time has expired within which the names of candidates shall be furnished shall declare such candidates the nominees.

Miss. Code Section 23-15-299(7) .

Based on the statutory changes, our office requests an official opinion regarding the following questions:

1. If only one (1) office is opposed in the primary election, can the candidates in the remaining unopposed offices be declared the nominees by party officials?

2. If all offices are not unopposed, must candidates who are unopposed receive a vote in order to be declared the party nominee?

We begin by noting that the language of Section 23-15-299 does not provide that the names of unopposed candidates must appear on the primary ballot when one or more races are contested. Nor does the language of the statute provide any consequences should an executive committee fail to print the name of unopposed candidates on a ballot which contains contested races.

Furthermore, the Mississippi Supreme Court has held:

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 [citations omitted].

See MS AG Op., Austin (January 24, 1997), quoting Rogers v. Holder , 636 So. 2d 645, 647-648 (Miss. 1994) .

An executive committee is clearly authorized to place the names of candidates in both contested and uncontested races on the primary ballot in accordance with Section 23-15-299 . It is our opinion, however, that should the executive committee fail to print the names of those unopposed candidates on the primary election ballot when one or more races on the ballot are contested, the executive committee would nevertheless be obligated to certify such unopposed primary election candidates as nominees. Subsequently, the appropriate election commission would be obligated to place such names on the general election ballot in accordance with Miss. Code Ann. Section 23-15-359 , provided, of course, such candidates meet all constitutional and statutory requirements to hold the offices they seek.

In response to question (2), we find no language in state law specifically requiring that an unopposed primary election candidate receive a vote in order to be declared the nominee of the party.

Sincerely,

Jim Hood Attorney General.

Reese Partridge Assistant Attorney General.