Mississippi Advisory Opinions August 27, 2004: AGO 2004-0443 (August 27, 2004)

Advisory Opinion Text

Chuck Bearman

Chief of Staff

Office of the Secretary of State

401 Mississippi Street

Heber Ladner Building

Jackson, Mississippi 39201-1012

Re: Enforceability of Miss. Code Ann. Section 23-15-951

Dear Mr. Bearman:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. You have requested an official opinion with regard to the enforceability of certain provisions of Section 23-15-951, which provides the framework for a person to contest certain elections and prescribes the manner in which such a contest is to be handled by the courts. Your letter states, in part:

Our office has been advised that the version of Section 23-15-951, as it currently appears in the Code, which was enacted by the Legislature in 2000 as House Bill 1537, may contain language which has not been pre-cleared by the United States Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965. Specifically, it is our understanding that the provisions of Section 23-15-951 which permits an election contest to be heard by a local judge was not submitted for the Justice Department's review. If this is correct, then this office is concerned that this provision is unenforceable.

In an effort to resolve this question, and to ensure that all election contests which take place in the State of Mississippi are handled in accordance with the provisions of law which have been reviewed and approved by the United States Department of Justice, we pose the following questions:

1. Have all the provisions of Miss. Code Ann. Section 23-15-951, as contained in the current version of the Code, been pre-cleared by the United States Department of Justice?

2. If the answer to the above question is “No,” then what provision of the law would apply to the conduct of election contests?

Section 23-15-951 provides direction for conducting contests of all elections other than primary elections. To address your specific questions regarding the enforceability of the provisions of this Section as they relate to the manner in which such contests are handled by the judicial system, we must look at its recent amendment history.

In 1998, Section 23-15-951 read, in entirety, as follows:

Except as otherwise provided by Section 23-15-961, a person desiring to contest the election of another person returned as elected to any office within any county, may, within twenty (20) days after the election, file a petition in the office of the clerk of the circuit court of the county, setting forth the grounds upon which the election is contested; and the clerk shall thereupon issue a summons to the party whose election is contested, returnable to the next term of the court, which summons shall be served as in other cases; and the court shall, at the first term, cause an issue to be made up and tried by a jury, and the verdict of the jury shall find the person having the greatest number of legal votes at the election. If the jury shall find against the person returned elected, the clerk shall issue a certificate thereof; and the person in whose favor the jury shall find shall be commissioned by the Governor, and shall qualify and enter upon the duties of his office. Each party shall be allowed ten (10) peremptory challenges, and new trials shall be granted and costs awarded as in other cases. In case the election of district attorney or other state district election be contested, the petition may be filed in any county of the district or in any county of an adjoining district within twenty (20) days after the election, and like proceedings shall be had thereon as in the case of county officers, and the person found to be entitled to the office shall qualify as required by law and enter upon the duties of his office.

This language was enacted by S.B. 2796 (1988), approved by the U.S. Department of Justice on December 9, 1988. Election contests were to be conducted by the local circuit court judge.

Section 23-15-951 was next amended by House Bill 1609 (1998) (Chapter 301, Laws of 1999). House Bill 1609 read, in full, as follows:

Except as otherwise provided by Section 23-15-961, a person desiring to contest the election of another person returned as elected to any office within any county, may, within twenty (20) days after the election, file a petition in the office of the clerk of the circuit court of the county, setting forth the grounds upon which the election is contested; upon filing of the petition, the circuit clerk shall immediately, by registered letter or by telegraph or by telephone, or personally, notify the Chief Justice of the Supreme Court or in his absence, or disability, some other judge of the Supreme Court, who shall forthwith designate and notify a circuit judge or chancellor of a district other than that which embraces the district, subdistrict, county or any of the counties, involved in the contest or complaint, to proceed to the county in which the contest or complaint has been filed to hear and determine the contest or complaint. Before any election the Supreme Court shall compile a list of judges throughout the state to hear such disputes. It shall be the official duty of the circuit judge or chancellor to proceed to the discharge of the designated duty at the earliest possible date to be fixed by the judge or chancellor and of which the contestant and contestee shall have reasonable notice. The contestant and contestee are to be served in a reasonable manner as the judge or chancellor may direct, in response to which notice the contestee shall promptly file his answer, and also his cross-complaint if he has a cross complaint . The court shall * * * cause an issue to be made up and tried by a jury, and the verdict of the jury shall find the person having the greatest number of legal votes at the election. If the jury shall find against the person returned elected, the clerk shall issue a certificate thereof; and the person in whose favor the jury shall find shall be commissioned by the Governor, and shall qualify and enter upon the duties of his office. Each party shall be allowed ten (10) peremptory challenges, and new trials shall be granted and costs awarded as in other cases. In case the election of district attorney or other state district election be contested, the petition may be filed in any county of the district or in any county of an adjoining district within twenty (20) days after the election, and like proceedings shall be had thereon as in the case of county officers, and the person found to be entitled to the office shall qualify as required by law and enter upon the duties of his office.

The above changes were reviewed by the U.S. Department of Justice and received approval on January 15, 1999. The changes enacted were to specifically provide for appointment of a circuit court judge or chancellor from outside the district where the contest arose.

In 2000, Section 23-15-951 was again amended. House Bill 1537 (2000), as approved by the Governor, provided as follows:

Except as otherwise provided by Section 23-15-955 or 23-15-961, a person desiring to contest the election of another person returned as elected to any office within any county, may, within twenty (20) days after the election, file a petition in the office of the clerk of the circuit court of the county, setting forth the grounds upon which the election is contested; and the clerk shall thereupon issue a summons to the party whose election is contested, returnable to the next term of the court, which summons shall be served as in other cases; and the court shall, at the first term, cause an issue to be made up and tried by a jury, and the verdict of the jury shall find the person having the greatest number of legal votes at the election. If the jury shall find against the person returned elected, the clerk shall issue a certificate thereof; and the person in whose favor the jury shall find shall be commissioned by the Governor, and shall qualify and enter upon the duties of his office. Each party shall be allowed ten (10) peremptory challenges, and new trials shall be granted and costs awarded as in other cases. In case the election of district attorney or other state district election be contested, the petition may be filed in any county of the district or in any county of an adjoining district within twenty (20) days after the election, and like proceedings shall be had thereon as in the case of county officers, and the person found to be entitled to the office shall qualify as required by law and enter upon the duties of his office.

A person desiring to contest the election of another person returned as elected to any seat in the Mississippi Legislature shall comply with the provisions of Section 23-15-955. A person desiring to contest the qualifications of a candidate for nomination in a political party primary election shall comply with the provisions of Section 23-15-961 .

House Bill 1537 as it appears above was submitted to the U.S. Department of Justice for administrative review and received preclearance on August 7, 2000. The purpose of the amendments, as indicated by the title of the bill, was to clarify the manner in which contests of elections for legislative seats were to be handled. The title of H.B. 1537 (2000) read as follows:

AN ACT TO AMEND SECTIONS 23-15-951 AND 23-15-955, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE MISSISSIPPI STATE LEGISLATURE SHALL HAVE EXCLUSIVE JURISDICTION OVER AN ELECTION CONTEST REGARDING THE SEAT OF ANY MEMBER OF THE LEGISLATURE; TO AMEND SECTION 23-15-957, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE HOUSE OF REPRESENTATIVES OR THE SENATE, OR ANY COMMITTEE THEREOF, TO ISSUE SUBPOENAS CONCERNING SUCH ELECTION CONTESTS; TO AMEND SECTION 23-15-911, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE PRESETN LAW ON EXAMINATION OF BALLOT BOXES BY CANDIDATES APPLIES IN THE CASE OF ANE ELECTION CONTEST REGARDING THE SEAT OF A MEMBER OF THE STATE LEGISLATURE; AND FOR RELATED PURPOSES.

The issue which has been presented to this office for scrutiny is that H.B. 1537, as adopted during the 2000 Session, did not contain the language enacted by the Legislature by Chapter 301(1999) directing the appointment of a judge from outside the district to hear election contests. The language was not present in the version of the bill initially introduced. This language should have been included, as it had been adopted by the Legislature, had never been repealed, and had been “precleared” on January 15, 1999 by the U.S. Department of Justice as the law with regard to the conduct of election contests in the State of Mississippi. In short, there is simply no indication that a change back to the pre-1999 method of handling election contests (by requiring a judge from within the district to hear those cases) was intended by the Legislature, or was in fact adopted.

Section 5 of the Voting Rights Act of 1965 requires that all changes to laws or practices affecting voting or elections be “precleared” before becoming enforceable. Removal of the requirement that a judge from outside the district be appointed to hear election contests is a change is election laws which would require review and approval by the Justice Department prior to becoming effective. In its submission of H.B. 1537(2000) to the U.S. Department of Justice, the State of Mississippi did not ask for a review of a change in the mechanism of conducing election contests, and in fact, the correspondence from the U.S. Department of Justice indicates that they reviewed and approved the language in H.B. 1537 “which relates to election contests over seats in the state legislature,” which is the only change indicated by the title of the act or by the bill itself.

Based on the foregoing, it is the opinion of this office that the clearly designated amendments to Section 23-15-951 (as marked by underscoring in H.B. 1537 [2000]), addressing contesting elections to legislative seats, have been precleared and are enforceable. However, the return to the practice of allowing a local judge hear election contests without the benefit of the appointment of a judge from outside the district has not been precleared, and thus, that portion of Section 23-15-951 is unenforceable. Until such time as the Justice Department has reviewed and approved that change, the proper procedure to be utilized in the case of an election contest, other than a contest of a primary election or a contest of a seat for the Legislature, is that which was enacted by Chapter 301 (1999), which provides that the Supreme Court shall appoint a judge from outside the district to hear the matter.

If our office may be of further assistance, please advise.

Sincerely,

Jim Hood Attorney General.

Heather P. Wagner Assistant Attorney General.