Mississippi Advisory Opinions December 17, 2007: AGO 2007-00664 (December 17, 2007)

Advisory Opinion Text

The Honorable Thomas U. Reynolds Chairman

Apportionment and Elections Committee

Mississippi House of Representatives

P. O. Box 1018

Jackson MS 39215-1018

Re: Special election for U. S. Senator

Dear Chairman Reynolds :

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

Issue Presented

Your letter reads as follows:

On Monday, November 26, 2007, United States Senator Trent Lott announced that he would resign from his senate seat by the end of the year. Later, the Governor announced that he would appoint someone to fill the vacancy once it occurred and would call a special election during the November 2008 Congressional election.

My office has received many questions concerning the appropriate time for a special election. I am requesting your opinion on the following question:

If a vacancy occurs in the office of a United States Senator on or before midnight December 31, 2007, when does the special election take place?

Response

If the effective date of the resignation is after the 2007 General Election, but on or before midnight December 31, 2007, the Governor must, within 10 days of receiving notice of the vacancy, issue his proclamation setting the election within 90 days from when the proclamation is issued. A plain reading of the applicable statute makes its meaning clear.

Background

On Monday, November 26, 2007, Senator Trent Lott announced publically he would be retiring “before the end of the year.” As of the date of this Official Opinion, Senator Lott has not announced the specific effective date of his resignation from the Senate.

Applicable Law and Historical Precedent

Prior to 1913, Senators were chosen by the state legislatures. The Seventeenth Amendment to the Constitution of the United States was ratified on May 31,1913, to require that Senators be popularly elected. It reads as follows:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The current statutory language addressing vacancies in the office of U.S. Senator, as it reads in the 1930, 1942 and 1972 Codes, is Miss. Code Ann. Section 23-15-855 (1972) :

(1) If a vacancy shall occur in the office of United States Senator from Mississippi by death, resignation or otherwise, the Governor shall, within ten (10) days after receiving official notice of such vacancy, issue his proclamation for an election to be held in the state to elect a Senator to fill such unexpired term as may remain, provided the unexpired term is more than twelve (12) months and the election shall be held within ninety (90) days from the time the proclamation is issued and the returns of such election shall be certified to the Governor in the manner set out above for regular elections, unless the vacancy shall occur in a year that there shall be held a general state or congressional election, in which event the Governor's proclamation shall designate the general election day as the time for electing a Senator, and the vacancy shall be filled by appointment as hereinafter provided. (2) In case of a vacancy in the office of United States Senator, the Governor may appoint a Senator to fill such vacancy temporarily, and if the United States Senate be in session at the time the vacancy occurs the Governor shall appoint a Senator within ten (10) days after receiving official notice thereof, and the Senator so appointed shall serve until his successor is elected and commissioned as provided for in subsection (1) of this section, provided that such unexpired term as he may be appointed to fill shall be for a longer time than one (1) year, but if for a shorter time than one (1) year he shall serve for the full time of the unexpired term and no special election shall be called by the Governor but his successor shall be elected at the regular election.

Analysis and Discussion

The operative provision is Section 23-15-855 (1) , which consists of one sentence containing two clauses. The first clause of this provision sets out the general rule: when a vacancy occurs, the Governor has 10 days to call a special election which is then to be held within 90 days. This is the “90 day rule.” The second clause of this provision begins with the word “unless…” and sets forth the exception to the general rule: if the vacancy occurs “in a year that there shall be held a general or congressional election,” (emphasis added) then the Governor shall designate the general election day as the time for electing the Senator. This is the “November exception.” Obviously, a vacancy occurring after the general election has already been held has not occurred in a “year that there shall be held a general or congressional election”, since the words “shall” and “shall be” are being used to express a future condition. See Merriam Webster's Collegiate Dictionary, p. 1076 (Tenth Edition, 1993), (“shall” is “used to express what is inevitable or seems likely to happen in the future” and is “used to express simple futurity.”); See also, Jones v. Stockgrowers's National Bank , 67 Pac. 177, 17 Colo. App 79 (1901) , (“The word “shall” in its common and ordinary usage, unless accompanied by qualifying words which show a contrary intent, always refers to the future.”); Cassan v. Fern , 109 A. 2d 482, 33 N. J. Super. 97 (1954) (“The words Shall and Shall be are prospective in meaning and cannot embrace events which have already occurred,”); and, Kneip v. Herseth , 214 N.W. 2d 93, 87 S.D. 642 (1974) (term “shall be” in law “not embracing events which have already occurred”).

Since a vacancy created by Senator Lott's retirement on or before midnight December 31, 2007 will not have occurred in a year in which “there shall be” a general or congressional election, the exception does not apply. The general rule must be followed.

The language in 23-15-855 goes further in confirming this conclusion. It states that if the vacancy occurs in a year that there shall be a general election, then the Governor “shall designate the general election day” as the special election day. This clearly refers to the general election day of the year in which the vacancy occurred. Obviously, applying the “November exception” to a vacancy occurring after election day has passed is temporally impossible and results in a patent absurdity.

Finally, we remain convinced that any construction of Section 23-15-855 that serves to postpone a lawful election which is not clearly and fully supported by the law is repugnant to our representative democracy and the fundamental principles of republican government. Wesberry v. Sanders , 376 U.S. 1, 17, 84 S.Ct. 526 (1964) (“[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live”).

Conclusion

Miss. Code Ann. Section 23-15-855 (1972) is unambiguous. If the effective date of the resignation is after the 2007 General Election, but before January 1, 2008, the Governor must, within 10 days of receiving notice of the vacancy, issue his proclamation setting the election within 90 days from when the proclamation is issued.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely yours,

Jim Hood Attorney General

Reese Partridge Assistant Attorney General

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Notes:

The last two vacancies in Mississippi for the office of U.S. Senator occurred upon the death of Senator Pat Harrison on June 22, 1941, and upon the death of Senator Theodore Bilbo on August 21, 1947. Senator Harrison's death occured in 1941, a year in which neither a general or congressional election was scheduled. The special election in this case was properly set by the Governor to be held on September 23, 1941, in conformance with the ‘90 Day Rule.

Senator Bilbo's death occured in the year of the 1947 Mississippi gubernatorial election. Since the vacancy occurred in a general election year, and prior to the date of the general election, the special election was held on the same day as the November 4, 1947, General Election. This is an illustration of the ‘November Exception.‘ 2007 WL 5559798 (Miss.A.G.)

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